Contempt of court proceedings in the Labour Court

05 Dec 2016

On 18 November 2016, the Labour Court delivered judgment in the matter of Robertson Winery (Pty) Ltd v CSAAWU (case no. C555/16). The events surrounding the strike at Robertson Winery have attracted significant media attention and have placed the spotlight on working conditions and working hours at South African wineries. At the outset of the judgment, the Court however emphasised that it will address the only issue before it – the  question of whether CSAAWU and some of its office bearers were in contempt of a Court Order.

CSAAWU called a protected strike after a wage dispute with Robertson Winery. Shortly after the strike commenced, Robertson Winery obtained an interdict restraining the union, its members and its office bearers from engaging in unlawful conduct in furtherance of the protected strike. The union and its members were interdicted from intimidating, harassing, threatening or in any other way interfering with employees of the winery, damaging or threatening the damage of property, utilising weapons in carrying out industrial action, inciting, instigating or promoting any unlawful conduct in furtherance of the strike and obstructing entrances to the winery’s premises.

Robertson Winery alleged that CSAAWU and some of its office bearers were in contempt of Court because they did not adhere to the Order, in that CSAAWU posted photographs on its Facebook page of its striking members wielding weapons, that the striking employees were singing threatening songs amounting to hate speech, and that replacement labour was being intimidated and threatened.

The Court found that CSAAWU and some of its office bearers were in contempt of court in respect of some of the allegations of contempt of Court and issued a suspended fine of R50 000 against CSAAWU.

The breaches of the Order were not acts of violence or damage to property, as experienced before in strike situations. The Court was however still willing to impose a fine on CSAAWU and stated that the breach of a court order is always serious as it undermines the rule of law and the very nature of the constitutional rights to strike and to picket peacefully and unarmed. This is indicative that the Labour Court views breaches of its Orders seriously, even in instances where the breach does not amount to violence or damage to property.

The burden of proof in contempt of Court applications is beyond a reasonable doubt. In such circumstances, employers will have to present sufficient evidence to the Court to meet this onus of proof. Employers who intend to enforce Labour Court Orders should consider the following measures to assist them in enforcing court orders by way of contempt proceedings:

• The Order interdicting the union and its members should be drafted broadly so that a wide range of conduct falls within its ambit.
• The Order should place a positive obligation on the union to ensure its members comply with the order.
• When strikes commence, employers must ensure that there is proper surveillance of its premises so that individuals who are in breach of the Court Order may be identified.
• A strike diary must be kept, detailing all incidents occurring during the course of the strike and which individuals were involved.
• Insofar as possible, the activity of the union and its members on social media should be monitored, and records should be kept of each incriminating social media post as it is accessed.
• Where intimidation of non-striking employees is alleged, the versions of these employees must be provided. Their identities may be excluded from the application to the Labour Court, but must ultimately be disclosed to the Court.

This article was first published by ENSafrica on 29 November 2016

See also: Contempt of court…on Facebook and WhatsApp?

(This article is provided for informational purposes only and not for the purpose of providing legal advice. For more information on the topic, please contact the author/s or the relevant provider.)