THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case no: 6/2020

In the matter between:
NATIONAL UNION OF METAL WORKERS
OF SOUTH AFRICA

FIRST APPELLANT

THE FURTHER DEFENDANTS AS SET OUT
IN PLAINTIFFS’ COMBINED SUMMONS
AND THE ANNEXURES THERETO
SECOND
TO
ONE
HUNDRED
AND
SIXTY
THIRD
APPELLANT
and
DUNLOP MIXING AND TECHNICAL
SERVICES (PTY) LTD

FIRST RESPONDENT
DUNLOP BELTING
PRODUCTS (PTY) LTD

SECOND RESPONDENT
DUNLOP INDUSTRIAL HOSE (PTY) LTD         THIRD RESPONDENT

Neutral citation: National Union of Metal Workers of South Africa and
Others v Dunlop Mixing and Technical Services (Pty) Ltd
and Others (Case no 6/2020) [2020] ZASCA 161 (7
December 2020)
Coram:
WALLIS, MOLEMELA, SCHIPPERS, DLODLO JJA and
GOOSEN AJA
Heard:
13 November 2020
Delivered: This judgment was handed down electronically by circulation to
the parties’ legal representatives by email. It has been published on the
Supreme Court of Appeal website and released to SAFLII. The date and time
for hand-down is deemed to be 09h45 on 7 December 2020.

Summary:  Interpretation of statutes –– whether s 11 of the Regulation of
Gatherings Act 205 of 1963 applies to a picket authorised by a registered trade
union pursuant to s 69 of the Labour Relations Act 66 of 1995 (LRA) ––picket
under the LRA is not a gathering - Regulations of Gatherings Act inapplicable
– appeal upheld.

ORDER

On appeal from:  KwaZulu-Natal Division of the High Court,
Pietermaritzburg (Van Zyl J, sitting as court of first instance).

1.
The appeal is upheld with costs, including the costs consequent upon
the employment of two counsel.
2.
The order of the high court is set aside and replaced with the following
order:
‘1. An authorised picket in terms of s 69(1) of the Labour Relations Act 66 of
1965 is not a gathering to which s 11 of the Regulation of Gatherings Act 205
of 1993 is applicable.
2. The plaintiffs are ordered to pay the costs of the preparation and argument
of the special case, such costs to include those consequent upon the
employment of two counsel.'

JUDGMENT

Goosen AJA (Wallis, Molemela, Schippers and Dlodlo JJA concurring)
[1] Is a picket, organised by a trade union in furtherance of a protected
strike, a ‘gathering’ to which the provisions of the Regulation of Gatherings
Act, 205 of 1993 (the Gatherings Act) apply? That is the central question in
this appeal. The Kwazulu-Natal Division of the High Court, Pietermaritzburg,
Van Zyl J, held in the affirmative.

[2] The question came before the high court in the following
circumstances. The first appellant is a registered trade union. Its members are
employed by the respondents at their plants in Howick, KwaZulu-Natal. On
4 July 2012 the first appellant referred a labour dispute to the Commission for
Conciliation Mediation and Arbitration (the CCMA). The dispute remained
unresolved and the CCMA duly issued a certificate of outcome to that effect.
The first appellant accordingly gave notice of the intention of its members to
embark upon strike action.

[3] In furtherance of the strike action, the first appellant authorised the
holding of a picket outside the premises of the respondents at Induna Mill
Road, Howick. On 22 August 2012, the picket allegedly became a violent
demonstration in which damage to property resulted. That day, the Labour
Court issued an order, at the instance of the respondents, restraining the
appellants from engaging in unlawful acts. The order included a ‘perimeter
order’ prohibiting the holding of a picket within 50 metres of the access road
to the respondents’ premises. Between 22 August and 27 September 2012,
various acts of violence are alleged to have occurred, resulting in damage to
property owned by the respondents and its employees.

[4] On 23 May 2013, the respondents issued summons against the
appellants for damage to property and the costs of security services. The
claims allegedly constituted ‘riot damage’ as contemplated in s 11 of the
Gatherings Act. The appellants’ defence, in sum, was this. The picket was one
in furtherance of a protected strike, authorised in terms of s 69 of the Labour
Relations Act, 66 of 1995 (the LRA). The Gatherings Act does not apply and

the claims, if any, are to be adjudicated by the Labour Court. In any event,
s 67(2) of the LRA confers upon the appellants immunity from civil claims of
the sort instituted.

[5] The parties agreed that the following legal questions be separately
adjudicated by the high court upon agreed facts, namely whether:
a) The picket convened by the first appellant constituted a gathering to
which the provisions of the Gatherings Act are applicable at all, and,
if so
b) Whether the appellants are entitled to claim immunity from the
civils claims in terms of the LRA?

[6] The hearing on the separated issues took place before Van Zyl J on
19 August 2015. Judgment was delivered on 13 September 2019.  The high
court answered the first question in the affirmative. It made no order in
relation to the second question, holding that it was a matter to be determined
by the trial court in due course. Leave to appeal to this court was granted on
18 December 2019.

The provisions of the LRA
[7] Chapter IV of the LRA regulates and gives effect to the right to strike
guaranteed by s 23(2) of the Constitution. It provides in ss 64 to 66 for the
types of disputes in respect of which strike action may be called; the
procedures to be followed; and for secondary strike action. Section 67, in its
relevant part, provides that:

‘(1) In this Chapter, “protected strike” means a strike that complies with the provisions of
this Chapter and “protected lock-out” means a lock-out that complies with the provisions
of this Chapter.
(2) A person does not commit a delict or a breach of contract by taking part in –
(a) a protected strike or a protected lock-out; or
(b) any conduct in contemplation or in furtherance of a protected strike or a protected
lock-out.
(3) to (5) …
(6) Civil legal proceedings may not be instituted against any person for –
(a) participating in a protected strike or protected lock-out; or
(b) any conduct in contemplation or in furtherance of a protected strike or protected
lock-out.
(7) …
(8) The provision of subsections (2) and (6) do not apply to any act in contemplation or in
furtherance of a strike or a lock-out, if that act is an offence.’

[8] Section 68, in its relevant part, provides further that:
‘(1) In the case of any strike or lock-out, or any conduct in contemplation or in furtherance
of a strike or lock-out, that does not comply with the provisions of this Chapter, the Labour
Court has exclusive jurisdiction –
(a) To grant an interdict or order to restrain –
(i) any person from participating in a strike or any conduct in contemplation or in
furtherance of a strike; or
(ii) any person from participating in a lock-out or any conduct in contemplation or in
furtherance of a lock-out;
(b) to order the payment of just and equitable compensation for any loss attributable to the
strike or lock-out, or conduct, having regard to –
(i) whether –
(aa) attempts were made to comply with the provisions of this Chapter and the extent of
those attempts;
(bb) the strike or lock-out or conduct was premeditated;

(cc) the strike or lock-out or conduct was in response to unjustified conduct by another
party to the dispute; and
(dd) there was compliance with an order granted in terms of paragraph (a);
(ii) the interests of orderly collective bargaining;
(iii) the duration of the strike or lock-out or conduct; and
(iv) the financial position of the employer, trade union or employees respectively.

[9] Section 69 deals with picketing. The section underwent significant
amendment in 2014 and 2019 in relation to the establishment of picketing
rules by agreement between parties to a labour dispute or by the CCMA where
no such agreement can be achieved.1 It is not necessary to deal with these
provisions, which were inapplicable when the events in issue here occurred.
In its relevant part, the section provides as follows.
‘(1) A registered trade union may authorise a picket by its members and supporters for the
purposes of peacefully demonstrating –
(a) in support of any protected strike; or
(b) in opposition to any lock-out.
(2) Despite any law regulating the right of assembly, a picket authorised in terms of
subsection (1) may be held –
(a) in any place to which the public has access but outside the premises of an employer; or
(b) with the permission of the employer, inside the employer’s premises.’

The provisions of the Gatherings Act
[10] Section 17 of the Constitution guarantees to everyone ‘the right,
peacefully and unarmed, to assemble, demonstrate, to picket and to present

1 See the Labour Relations Amendment Acts 6 of 2014 and 8 of 2018. The latter introduced a number of
provisions regarding the powers of the CCMA to determine picketing rules. Most significant, it introduced
subsection (6A) which provides that the commissioner conciliating a dispute must determine picketing rules
at the same time as issuing a certificate as contemplated by s 64 (1) (a), ie the certificate that would entitle a
trade union to embark upon strike action.

petitions’. The Gatherings Act2 gives expression to this constitutionally
guaranteed right. It does so by providing a procedure for the convening of
gatherings and demonstrations; the giving of notice of a gathering; requiring
consultations and negotiations to ensure that the conduct of a gathering
proceeds peaceably and that the rights of all parties are protected; and by
providing for liability in certain circumstances.

[11] For present purposes, it is necessary to highlight certain defined terms
which occur in the Gatherings Act.

[12] A ‘demonstration’ includes any ‘demonstration by one or more persons,
but not more than 15 persons, for or against any person, cause, action or failure
to take action’. A ‘gathering’ means,
‘any assembly, concourse or procession of more than 15 persons in or on any public road
… or any public place or premises wholly or partly open to the air –
(a) at which the principles, policy, actions or failure to act of any government, political
party or political organization, whether or not that party or organization is registered in
terms of any applicable law, are discussed, attacked, criticized, promoted or propagated; or
(b) held to form pressure groups, to hand over petitions to any person, or to mobilize or
demonstrate support for or opposition to the views, principles, policy, actions or omissions
of any person or body of persons or institution, including any government, administration
or governmental institution.’

[13] Chapter 1 deals with procedures for the convening of gatherings. The
procedure involves the interaction of three key persons. Firstly, an
organisation or a group of persons wishing to convene a gathering is required

2 The Gatherings Act was assented to on 14 January 1994 at a time when the Interim Constitution (Act 104
of 1993) made provision for the right of assembly. It came into operation on 15 November 1996, after the
adoption of the Constitution 1996.

to appoint a ‘convener’ and a deputy whose responsibility it is to give notice
of the gathering and to represent the organisation of group in its interaction
with public officials. Secondly, the local authority, in whose area a gathering
is to be held, is required to appoint a ‘responsible officer’ and a deputy whose
task it is to exercise the powers and discharge the duties of a responsible
officer as defined by the Gatherings Act. Thirdly, the Commissioner of the
South African Police is required to appoint and designate an ‘authorised
member’ of the South African Police, whose task it is to represent the police
in the course of any consultations or negotiations relating to the holding of a
gathering or its conduct.

[14] Section 3 provides that the convener of a gathering shall give written
notice of the intended gathering. Such notice is to be given to the responsible
officer of the local authority concerned not later than seven days prior to the
holding of the gathering.

[15] Subsection (3) sets out the requirements for the giving of proper notice
of a gathering. It requires that:
'The notice referred to in subsection (1) shall contain at least the following information:
(a) The name, address and telephone and facsimile numbers, if any, of the convener and
his deputy;
(b) the name of the organization or branch on whose behalf the gathering is convened or,
if it is not so convened, a statement that it is convened by the convener;
(c) the purpose of the gathering;
(d) the time, duration and date of the gathering;
(e) the place where the gathering is to be held;
(f) the anticipated number of participants;

(g) the proposed number and, where possible, the names of the marshals who will be
appointed by the convener, and how the marshals will be distinguished from the other
participants in the gathering;
(h) in the case of a gathering in the form of a procession –

(i) the exact and complete route of the procession;

(ii) the time when and the place at which participants in the procession are to
assemble, and the time when and the place from which the procession is to commence;

(iii) the time when and the place where the procession is to end and the participants
are to disperse;

(iv) the manner in which the participants will be transported to the place of
assembly and from the point of dispersal;

(v) the number and types of vehicles, if any, which are to form part of the
procession;
(i) if notice is given later than seven days before the date on which the gathering is to be
held, the reason why it was not given timeously;
(j) if a petition or other document is to be handed over to any person, the place where and
the person to whom it is to be handed over.'

[16] The rest of the chapter deals with consultations and negotiations
between the parties involved; the imposition of conditions to which the
gathering may be subject; judicial proceedings relating to such conditions, and
the prohibition of gatherings in certain circumstances.

[17] Chapter 4, which is relevant to the present matter, deals with civil and
criminal liability which may arise from the convening of a gathering. Section
11 provides that:
‘(1) If any riot damage occurs as a result of-
(a) a gathering, every organization on behalf of or under the auspices of which that
gathering was held, or, if not so held, the convener;
(b) a demonstration, every person participating in such demonstration,

shall, subject to subsection (2), be jointly and severally liable for that riot damage as a joint
wrongdoer contemplated in Chapter II of the Apportionment of Damages Act, 1956
(Act No. 34 of 1956), together with any other person who unlawfully caused or contributed
to such riot damage and any other organization or person who is liable therefor in terms of
this subsection.
(2) It shall be a defence to a claim against a person or organization contemplated in
subsection (1) if such person or organization proves –
(a) that he or it did not permit or connive at the act or omission which caused the damage
in question; and
(b) that the act or omission in question did not fall within the scope of the objectives of the
gathering or demonstration in question and was not reasonably foreseeable; and
(c) that he or it took all reasonable steps within his or its power to prevent the act or
omission in question: Provided that proof that he or it forbade any act of the kind in
question shall not by itself be regarded as sufficient proof that he or it took all reasonable
steps to prevent the act in question.
(3) For the purposes of –
(a) recourse against, or contribution by, any person who, or organization which,
intentionally and unlawfully caused or contributed to the cause of any riot damage; or
(b) contribution by any person who, or organization which, is jointly liable for any riot
damage by virtue of the provisions of subsection (1),
any person or organization held liable for such damage by virtue of the provisions of
subsection (1) shall, notwithstanding the said provisions, be deemed to have been liable
therefor in delict.
(4) The provisions of this section shall not affect in any way the right, under the common
law or any other law, of a person or body to recover the full amount of damages arising
from the negligence, intentional act or omission, or delict of whatever nature committed
by or at the behest of any other person.

[18] The term ‘riot damage’ is defined to mean ‘any loss suffered as a result
of any injury to or the death of any person, or any damage to or destruction of

any property, caused directly or indirectly by, and immediately before, during
or after, the holding of gathering’.

The findings of the high court
[19] The high court found that the provisions of the LRA and the Gatherings
Act are reconcilable and are not in conflict. It found that the participants in a
protected strike and duly authorised picket would enjoy the protection
afforded by s 67(2) for so long as they did not commit any act amounting to
an offence.  In the event that they did, then they would become liable to
prosecution and to payment of delictual damages. In the event of a delictual
claim, they would be entitled to raise the defences provided by s 11(2) of the
Gatherings Act.

[20] In coming to this conclusion, the high court relied upon the judgment
in South African Transport and Allied Workers Union v Garvas and Others
[2012] ZACC 13; 2013 (1) SA 74 (CC) (SATAWU (CC)) at para 56 where the
majority held that:
‘Section 11 (1) holds organisers of a gathering liable for riot damage subject to section
11(2), which provides a limited defence to a claim of this kind. The effect of these specific
provisions, in the context of the Act as a whole, is to render holders of a gathering organised
with peaceful intent liable for riot damage on a wider basis than is provided for under the
law of delict. This is all the more so given the extremely wide definition of riot damage in
the Act.’

[21] The high court found that the Constitutional Court did not consider that
the provisions of s 11(1) of the Gatherings Act were irreconcilable with the
provisions of the LRA.

[22] The high court’s reliance upon SATAWU (CC) was misplaced. That
matter is entirely distinguishable on the facts. In that matter, the trade union
had, in the context of a protracted strike in the transport industry, convened a
march in terms of the Gatherings Act. Notice of the intended procession had
been given in terms of s 3 of the Gatherings Act; the route had been
determined; marshals were appointed; and the trade union as convener had
participated in discussions with the responsible authority in the local authority
and the authorised member in the Police Service.

[23] On the day of the procession extensive damage was caused to several
small and other businesses, allegedly by participants in the procession. Some
of the persons affected thereby instituted action against the conveners of the
march in terms of s 11 of the Gatherings Act. SATAWU pleaded, inter alia,
that the words ‘was not reasonably foreseeable’ in s 11(2)(b) of the Gatherings
Act limited the right to freedom of assembly and rendered the section
constitutionally invalid.  This issue was determined against SATAWU by the
high court. The Supreme Court of Appeal in South African Transport and
Allied Workers Union v Garvas and Others [2011] ZASCA 152; 2011 (6) SA
382 (SCA), dismissed the appeal. In the Constitutional Court the issue which
fell to be decided was whether s 11(2) of the Gatherings Act unjustifiably
limited the right of assembly guaranteed by the Constitution. The
Constitutional Court was not concerned with the interplay between the
Gatherings Act and the LRA, nor was it required to address the question
whether there was a conflict between the two Acts. It was not dealing with the
question whether a claim arising from riot damage lay against the organisers
of a picket in the context of a protected strike.

[24] The high court’s finding that the provisions of the LRA and the
Gatherings Act are not in conflict was not premised upon an analysis and
interpretation of the provisions of the respective Acts. Its reasoning proceeded
on the basis that the ‘immunity’ provided by ss 67(2) and 67(6) must be read
with s 67(8). This latter subsection provides that the ‘immunity’ does not
apply in the event the conduct complained of, amounts to an offence. In such
event the conduct would fall outside of the ambit of what is permitted by s 69
of the LRA. On this basis, it was found that liability would arise under s 11 of
the Gatherings Act.

[25] The high court did not deal with s 68 of the LRA. Subsection (1)(b) of
that section, as recorded above, provides that the Labour Court has exclusive
jurisdiction to order the payment of just and equitable compensation for any
loss attributable to conduct which does not comply with the provisions of the
LRA.

The contentions of the parties
[26] Counsel for the appellants argued that the high court had not only
misconstrued the effect of the arguments advanced before it regarding the
protection afforded by s 67(2) of the LRA, it had erred in finding that the
provisions of the LRA and the Gatherings Act were not in conflict.

[27] It was submitted that the appellants were not arguing for a blanket
immunity from claims such as those pursued by the respondents. On the
contrary, such claims would be cognisable in proceedings before the Labour
Court on the basis of s 68(1)(b) which provides for an award of just and
equitable compensation. It was argued that the LRA made provision for a

specialised regime to cater for the exercise of the right to strike and to engage
in conduct in furtherance of such right. This includes the right to picket as a
particular expression of the right of assembly. The LRA, so it was submitted,
regulated the exercise of this right and provided remedies for the unlawful
exercise of such right. The Gatherings Act, on the other hand, constitutes
general legislation which has as its purpose the regulation of the right of
assembly outside of the ambit of the exercise of that right in the context of
strike action permitted by the LRA. Neither the definition of ‘gathering’ nor
the procedural requirements for the convening of a gathering find any
application in the context of a picket. In the circumstances s 11 does not apply
in the event that a picket authorised in terms of the LRA gives rise to injury
or damage to property.

[28] The respondents argued that the LRA, properly construed, does not deal
comprehensively with circumstances such as those in the present case.
Liability under s 11 of the Gatherings Act does not depend upon non-
compliance with the procedural and other requirements for the convening of
a gathering. Section 11 is a separate statutory provision which establishes
liability upon the convener or organiser of a gathering in circumstances where
riot damage ensues. The definition of a ‘gathering’ is sufficiently broad to
encompass a picket authorised in terms of the LRA. It was submitted that the
remedy provided by s 68(1)(b) is limited and does not encompass the ordinary
delictual remedies available to an aggrieved party. On this basis it was
submitted that s 11 provides an ‘additional’ or ‘separate’ remedy to those
provided by the LRA.

The interpretation of the statutory provisions
[29] The essential purpose of the LRA is to give expression to the right of
all employees to fair labour practices; to regulate the employment relationship
in a manner that balances the rights and interests of the parties thereto; and to
provide a purpose-built framework for bargaining, negotiation and dispute
resolution.

[30] It is apposite to highlight what this court has held in relation to the
purpose of the LRA in Motor Industry Staff Association v Macun NO and
Others [2015] ZASCA 190; 2016 (5) SA 76 (SCA) at paras 18 – 20:
‘The LRA was enacted, inter alia, to “change the law governing labour relations”, to “give
effect to section 23 of the Constitution”, and to “promote and facilitate collective
bargaining at the work place and sectorial level”. As noted by Ngcobo J at paragraph 123
of Chirwa …, section 157(2) of the LRA, which deals with where the Labour Court and
the High Court have concurrent jurisdiction, has to be construed in the light of the primary
objectives of the LRA. The Constitutional Court has put it beyond doubt that the primary
objective of that Act was to establish a comprehensive legislative framework regulating
labour relations. An allied objective, expressly stated in the preamble to the LRA, was to
“establish the Labour Court and Labour Appeal Court as superior courts, with exclusive
jurisdiction to decide matters arising from the [LRA]”. …

In Chirwa, Ngcobo J indicated that in the light of what is set out above, section 157(2) has
to be narrowly construed and that it should be confined to issues where a party relies
directly on the provisions of the Bill of Rights.

The Constitutional Court, in Gcaba, considered the tensions that might arise in relation to
the interpretation of section 157 of the LRA and related provisions. Van der Westhuizen J
noted the principle that “legislation must not be interpreted to exclude or unduly limit
remedies for the enforcement of Constitutional rights” (para 55). Alongside that, however,

is the consideration that “the Constitution recognises the need for specificity and
specialisation in a modern and complex society under the rule of law” (para 56). The
following paragraph in Gcaba is significant:

“. . . Therefore, a wide range of rights and the respective areas of law in which they apply are explicitly
recognised in the Constitution. Different kinds of relationships between citizens and the State and citizens
amongst each other are dealt with in different provisions. The legislature is sometimes specifically mandated
to create detailed legislation for a particular area, like equality, just administrative action (PAJA) and labour
relations (LRA). Once a set of carefully crafted rules and structures has been created for the effective and
speedy resolution of disputes and protection of rights in a particular area of law, it is preferable to use that
particular system. This was emphasised in Chirwa by both Skweyiya J and Ngcobo J. If litigants are at liberty
to relegate the finely tuned dispute-resolution structures created by the LRA, a dual system of law could
fester in cases of dismissal of employees.” (Footnotes omitted.)

The approach to be followed, in summary, is as follows: The LRA is Legislation envisaged
by the Constitution. In construing the provisions of the LRA, the two objectives referred
to above must be kept in mind. Section 157(2) of the LRA was enacted to extend the
jurisdiction of the Labour Court to disputes concerning the alleged violation of any right
entrenched in the Bill of Rights which arise from employment and labour relations, rather
than to restrict or extend the jurisdiction of the high court. The Labour Court and Labour
Appeal Court were designed as specialist courts that would be steeped in workplace issues
and be best able to deal with complaints relating to labour practices and collective
bargaining. Put differently, the Labour and Labour Appeal Courts are best placed to deal
with matters arising out of the LRA.’

[31] Insofar as the interpretation of the provisions of the LRA and the
Gatherings Act are concerned, two things flow from these dicta. The first
concerns the, by now well-established, approach to the interpretative exercise
set out in Natal Joint Municipal Pension Fund v Endumeni Municipality
2012 (4) SA 593 (SCA), which requires that the purpose of the provisions and
the context in which they occur guide a holistic interpretation which gives

effect to the operation of the legislation concerned. The second aspect requires
that where the legislature provides specialised provisions to deal with a
particular area of legal relations, they are to be applied in preference to general
provisions which cover the same or similar relations (see Sidumo v
Rustenburg Platinum Mines Ltd [2007] ZACC 22; 2008 (2) SA 24 (CC) at
para 103).

[32] As an adjunct to this latter aspect is the principle, endorsed by this court
in Minister of Justice and Constitutional Development and Others v Southern
African Litigation Centre (Helen Suzman Foundation and Others as Amici
Curiae) [2016] ZASCA 17; 2016 (3) SA 317 (SCA) at para 102, that later
legislative enactments which manifestly intend to regulate the whole subject
matter are to be applied within their own sphere of operation to the exclusion
of the earlier provisions. In this instance the LRA constitutes the later
enactment.

[33] Turning first to the interpretative exercise. A ‘picket’ is not defined by
the LRA. In its ordinary meaning, however, a ‘picket’ consists of a group of
people who congregate or march outside a shop or factory to protest about
something or to prevent other persons from entering. The term ‘picket’ is used,
more often than not, in the context of strike action to indicate a ‘barrier’
brought about by the strike action. Its purpose is to further the objects of the
strike action by encouraging those employees who have not joined the strike
action to do so by withdrawing their labour. A ‘picket-line’ serves to
discourage non-striking workers, suppliers and customers from entering the
work premises. Picketing has been associated with trade union organisation
and worker strikes since the earliest days of industrialisation. By its nature, a

picket serves to broaden the impact that the withdrawal of labour of striking
workers has upon the employer. It does so by seeking to disrupt operations
which would otherwise continue despite the strike.

[34] A picket is, accordingly, conduct to which employees may legitimately
resort in order to further the objects of strike action. It is for this reason that
the LRA seeks to regulate the exercise of the right to picket and to ensure that
the interests of both parties to the dispute are balanced in the exercise of that
right. This is now achieved by those provisions of s 69 which require the
establishment of picketing rules.

[35] In order to lawfully engage in a picket, the picket must be authorised
by a registered trade union in support of a protected strike. Its purpose must
be peaceful and it must occur ‘outside the premises of the employer’ or, with
permission, inside the premises of the employer. As long as its purpose is
peaceful and it is conducted peacefully in support of or in furtherance of a
protected strike, the trade union and the participants in the picket fall within
the ambit of the provisions of the LRA and enjoy the protection afforded by
ss 67(2) and (6) thereof.

[36] Such protection is, however, lost in the event that any act, constituting
an offence, is committed in furtherance of a strike. Conduct which does not
comply with the provisions of the Chapter regulating strike action, renders the
party responsible for such conduct liable, in terms of s 68(1), to remedies
which the Labour Court may impose.

[37] Having regard to the purpose of these provisions, read within their
context, this must mean that conduct committed during the course of an
otherwise lawfully convened picket which constitutes an offence, renders the
person or persons or organisation responsible for such conduct liable to such
orders as may be made pursuant to s 68 of the LRA.

[38] Counsel for the respondents conceded that the general provisions of the
Gatherings Act do not, and cannot, apply to a picket authorised in terms of the
LRA. Thus it was accepted that the notice provision in s 3 of the Gatherings
Act can find no application to a picket; nor do the provisions which stipulate
particular roles and responsibilities for ‘responsible authorities’ appointed by
a local authority in whose area a picket is held. It is also not conceivable that
a picket can be prohibited in terms of s 5 of the Gatherings Act in the light of
the clear and unambiguous provisions of s 68(1)(a) of the LRA.

[39] Counsel argued however, that the use of the phrase ‘despite any law
regulating the right of assembly’ in s 69(2) of the LRA excludes only the
procedural requirements which otherwise apply to a gathering convened in
terms of the Gatherings Act. The phrase, it was submitted, suggests that a
picket is nevertheless to be regarded as a gathering within the broad definition
of that term in the Gatherings Act. Counsel submitted that liability, in terms
of s 11 of the Gatherings Act, is not contingent upon non-compliance with any
of the provisions of that Act. It arises upon the occurrence of riot damage as
a result of a gathering. Thus, it was argued, s 11 provides a remedy whether
or not the gathering is one convened in terms of the Gatherings Act.

[40] In developing the argument counsel submitted that the remedy provided
by s 68(1)(b) of the LRA, is a statutory one which is limited in its scope. It is
therefore to be construed as a remedy provided in addition to the ordinary
remedies available in delict or other statutory remedies for conduct giving rise
to damage.

[41] The essential difficulty with this proposition is that it requires a finding
that a picket, as a particular type of gathering or demonstration, while not
otherwise regulated by the provisions of the Gatherings Act, nevertheless falls
within the ambit of s 11 for purposes of liability for ‘riot damage’. This would
require that s 11 be abstracted from the Gatherings Act and construed as a
wholly separate statutorily sanctioned cause of action available to a party
suffering damage consequent upon a picket authorised in terms of the LRA.
To hold thus would require that this court ignores both the detailed regulation
of gatherings in terms of the Gatherings Act and the comprehensive regulation
of conduct in furtherance of strike action by the LRA. It would also require
that later legislative enactments specifically designed to deal with pickets and
picketing within the context of a labour dispute do not supersede earlier
legislative provisions enacted for a wholly different and more general
purpose.

[42] There is, in my view, no basis for such a strained interpretation of the
respective Acts. Whilst a picket linguistically may fall within the ambit of
what constitutes a gathering, it remains a particular form of organised
expression which is central to the exercise of the right to strike. The LRA
recognises this by making detailed provision for the exercise of that right. It
does so by providing for the establishment of picketing rules and for a

mechanism by which disputes relating to such rules may be resolved. It deals
with picketing within the context of protected strikes and lock-outs and
specifically provides for the consequences of conduct which does not comply
with the LRA.

[43] The inclusion of the phrase ‘despite any law regulating the right of
assembly’ is one introduced ex abundanti cautela to signify what the section
already makes plain, namely, that the convening of a picket is regulated by
the provisions of the LRA. Its inclusion does not suggest that a picket is, for
purposes other than the organising thereof, to be regarded as a gathering to
which the Gatherings Act applies. If that had been the intention, no doubt the
section would have stated as much.

[44] The Gatherings Act is general legislation which gives effect to the
constitutional right of assembly. It establishes a set of procedures which have
as their purpose the balancing of the rights of parties affected by the exercise
of the right of assembly. It provides protection for those parties and, in
circumstances where riot damage occurs, provides a remedy as well as a set
of defences. As was noted by the Constitutional Court in SATAWU (CC) at
para 38:
‘Gatherings, by their very nature, do not always lend themselves to easy management. They
call for extraordinary measures to curb potential harm. The approach adopted by
Parliament appears to be that, except in the limited circumstances defined, organisations
must live with the consequences of their actions, with the result that harm triggered by their
decision to organise a gathering would be placed at their doorsteps. This appears to be the
broad objective sought to be achieved by Parliament through section 11. The common-law
position was well known when section 11 was enacted. The limitations of a delictual claim
for gatherings-related damage in meeting the policy objective gave rise to the need to enact

section 11 to make adequate provision for dealing with the gatherings-related challenges
of our times.’

[45] It is equally true that the legislature was aware of the existence of the
provisions of the Gatherings Act when it enacted the LRA and made specific
provision for the convening of pickets and for recourse in the event that a
picket or conduct in furtherance of strike action gives rise to loss.

[46] The LRA deals comprehensively with the subject matter of picketing
as a form of demonstration in the context of strike action. Accordingly, s 11
of the Gatherings Act does not apply to claims for loss attributable to conduct
committed during the course of a picket authorised in terms of the LRA. It
follows that the question reserved for determination by the high court ought
to have been answered in the negative. In the light of this it is unnecessary to
consider the second question relating to the availability of the defences
provided by s 67 of the LRA.

[47] Regrettably, it is necessary to deal with the fact that Van Zyl J took four
years to deliver his judgment in this matter. The judgment provides no
explanation for this extraordinary delay. We were informed by counsel that
whereas the underlying labour dispute had long since been resolved, the
consequences, in the form of the civil litigation, are self-evidently not. The
prejudice caused by a delay of four years in determining an antecedent legal
issue in the action, is manifest. How it can have taken the judge four years to
decide this issue and to deliver his judgment defies understanding. If there
was a reasonable explanation or excuse it ought to have been set out in the

judgment. It is, after all, on the basis of the judgments delivered by judges that
they are held accountable for the administration of justice under their auspices.

[48] The absence of any explanation by the judge concerned suggests that
there is none. A four-year delay in the delivery of a judgment constitutes an
unconscionable dereliction of duty on the part of the judge. It is a matter which
ought to enjoy the consideration of the Judge President of the Division
concerned.

The order

[49] In the result I make the following order:

1. The appeal is upheld with costs, including the costs consequent upon the
employment of two counsel.
2. The order of the high court is set aside and replaced with the following
order:

‘1. An authorised picket in terms of s 69(1) of the Labour Relations Act
66 of 1965 is not a gathering to which s 11 of the Regulation of
Gatherings Act 205 of 1993 is applicable.
2. The plaintiffs are ordered to pay the costs of the preparation and
argument of the special case, such costs to include those consequent upon
the employment of two counsel.'

________________________
G. GOOSEN
ACTING JUDGE OF APPEAL

Appearances

For appellants:
M. Pillemer SC & P. Schumann
Instructed by:
Brett Purdon Attorneys, Durban.
Phatshoane Henney Attorneys, Bloemfontein.

For respondents: C. Watt-Pringle SC & A. Cook
Instructed by:
Farrell & Associates, Durban.
Rossouws, Bloemfontein.

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT
OF APPEAL

FROM:
The Registrar, Supreme Court of Appeal
DATE:
7 December 2020
STATUS:
Immediate

Please note that the media summary is intended for the benefit of the media and does not
form part of the judgment of the Supreme Court of Appeal.

NUMSA and Others v Dunlop Mixing and Technical Services (Pty) Ltd and Others
(6/2020) [2020] ZASCA 161 (7 December 2020)

The Supreme Court of Appeal (the SCA) today upheld an appeal against an order by the
KwaZulu-Natal Division of the High Court, Van Zyl J, that section 11 of the Regulation of
Gatherings Act, 205 of 1993 (the Gatherings Act) applies to a picket authorised in terms
of the Labour Relations Act, 66 of 1995 (the LRA).

During August 2012 members of the National Union of Metal Workers of South Africa
(NUMSA) who were employed by Dunlop Technical Services (Pty) Ltd and its associated
companies (Dunlop) embarked upon a protected strike. On 22 August 2012 a picket
authorised by NUMSA at the Dunlop plants at Howick, KwaZulu-Natal became violent,
resulting in damage to property.  The picket was authorised in terms of s 69 (1) of the LRA.

On 23 May 2013 Dunlop instituted a claim for damages against NUMSA and its members
involved in the strike action. The claim was founded on s 11 of the Gatherings Act which
provides for liability of a convener of a gathering in circumstances where riot damage
results from such gathering. NUMSA defended the action and pleaded that s 11 of the
Gatherings Act does not apply to a picket which is authorised in furtherance of a protected
strike. It asserted that the LRA is specialist legislation which serves to regulate labour
disputes; that the picket was regulated by the provisions of the LRA and that the Labour
Court enjoys exclusive jurisdiction to deal with conduct which is not in accordance with
the provisions of the LRA. NUMSA further asserted that the LRA provides immunity from
civil claims which arise from conduct in furtherance of a protected strike.

The parties agreed that this aspect be separately adjudicated by the high court. Van Zyl J,
who heard the matter on 19 August 2015, delivered his judgment on 13 September 2019,
ruling that s11 of the Gatherings Act applies to a picket authorised in terms of the LRA.

The SCA found that a picket is not a gathering for the purposes of s 11 of the Gatherings
Act. It found that the LRA makes comprehensive provision for conduct in furtherance of a
strike, including the holding of a picket. A picket is a long established form of conduct to
further the objects of strike action. The Gatherings Act consists of general legislation which
gives effect to the constitutionally protected right of assembly. None of the procedural or
other substantive provisions of the Gatherings Act have any application to a picket
authorised in terms of s 69 of the LRA. The SCA found that precedence must be given to
specialist and later legislation which seeks to regulate legal relations within its own sphere
of operation. Since the LRA also provides for liability in the event that conduct does not
comply with the LRA, legal principle requires that the provisions of the LRA apply to the
exclusion of the Gatherings Act.

The SCA therefor set aside the high court’s order and substituted it for an order that s 11
of the Gatherings Act does not apply.

The SCA noted that the judgment in the high court was delivered 4 years after the matter
was argued. It noted that the judge had provided no explanation for such an extraordinary
delay in his judgment. The absence of such explanation, which ought to have been
provided, indicated that no reasonable explanation could be provided. In the circumstances
it found that the delay constituted an unconscionable dereliction of duty on the part of the
judge. It suggested that the Judge President of the Division ought to act upon the matter.