There has been concern that the current violent unprotected strike action at Eskom has attributed to stage 6 loadshedding, which begs the question of how accountable trade unions may be in these circumstances.

It is important to understand at the outset that Eskom is a designated essential service and certain of its sites are considered national key points. What this means is that Eskom is offered protection from strike action. In addition persons tampering with or damaging essential infrastructure can be criminally prosecuted and held accountable for damages suffered. 

The legal position is that trade unions cannot strike in respect of wage disputes that are subject to arbitration.

In addition, an employer can claim compensation from trade unions and their members in terms of the Labour Relations Act 66 of 1995. Third parties can also institute a claim for damages against the trade unions and their members acting unlawfully.

The violence that accompanied the unprotected strike also required the urgent intervention and protection of the South African Police Service (SAPS) and the military. Sadly, this was lacking, as has been the experience of many employers in South Africa who unsuccessfully call for the assistance of SAPS during violent action by employees in a strike situation. This means that SAPS can be cited as a co-defendant in an action for damages.

In terms of the National Keypoint Act 102 of 1980  it is considered an offence to hinder, obstruct or thwart any owner in taking any steps required in relation to the efficient security of any national key point. This is punishable by a fine and/or imprisonment.

In terms of the Criminal Matters Amendment Act 18 of 2015, any person who unlawfully and intentionally tampers with, damages or destroys essential infrastructure (or colludes with or assists in this) can face conviction and a period of imprisonment not exceeding 30 years. In the case of a corporate body such as a trade union, they can face a fine of up to R100 million.

Despite the abovementioned remedies, it is often the case that trade unions do not take the requisite responsibility and properly perform their function – which is ultimately to guide their members and protect their rights and interests.

In the case of Tsogo Sun Casinos (Pty) Ltd t/a Montecasino v Future of South Africa Workers’ Union & others [2012] JOL 28755 (LC), employees embarked upon a strike which ultimately became violent. Van Niekerk J granted a costs order against the trade union stating that an order for costs would have a “salutary effect” and show that “responsibility for the collective requires individual action”.

If the trade unions continue to act with impunity in cases where employees are not permitted to strike or when strikes are unprotected, this can ultimately undermine workers’ freedom to strike at all, which as we know is an integral part of the right to bargain collectively.

It is apt to conclude with the words of Van Niekerk J in Tsogo Sun where he stated in relation to lawful, protected strike action that : “When the tyranny of the mob displaces the peaceful exercise of economic pressure as the means to the end of the resolution of a labour dispute, one must question whether a strike continues to serve its purpose….”. The exercise of economic pressure in circumstances where the strike is unprotected demonstrates the extent to which employees are exposed given the unlawfulness of their conduct and the deleterious impact on the economy as a whole.

This debate will continue.