Contempt of court…on Facebook and WhatsApp?

Robertson Winery approached the Labour Court on an urgent basis to interdict and restrain the striking employees from engaging in unlawful conduct in furtherance of the strike. The urgent application was opposed and the parties agreed on the terms of a final court order which was granted on 25 August 2016. They agreed on picketing rules which provided inter alia that the strikers conduct themselves in a peaceful and lawful manner and that they would not possess any weapons. 

Four days after the agreement was made an order of court, the union updated its Facebook account with photographs of its members carrying sticks, sjamboks and golf clubs. Furthermore, the strikers chanted a song with the words ‘dubula Reinette’, which directly translates to ‘shoot Reinette”. Reinette is the Human Resources manager for Robertson Winery. Robertson Winery raised this with the union and reminded them that the conduct was in contravention of the picketing rules and agreed terms of the court order. However, the union maintained that there was nothing wrong with the song, but that the strikers would nevertheless to stop singing it.  

On 8 October 2016, Robertson approached the Labour Court and sought to hold the union in contempt of the court order issued on 25 August 2016. Robertson Winery alleged that the court order was not complied with in three respects, 

(a) replacement labourers were prevented from going to work; 

(b) by chanting the song ‘shoot Reinette’; and 

(c) by uploading photographs on Facebook of strikers carrying dangerous weapons. 

The union opposed the application and alleged that these photographs were taken before the initial court order was granted. In support of its application, Robertson Winery relied on the photographs uploaded to the union’s Facebook account and affidavits and WhatsApp messages from the replacement employees who were threatened and intimidated to not tender their services.

Judge Steenkamp restated the principles applicable in contempt of court proceedings and held that in this case, the court order was not in dispute as the parties agreed to the terms. The court then had to determine whether there was non-compliance by the union with the court order and once this was established, whether the non-compliance was wilful and in bad faith. 

In dealing with the allegations of intimidating replacement employees, the Labour Court highlighted that the purpose of picketing is to peacefully encourage non-striking employees to support the protected strike and that in doing so they must conduct themselves peacefully, unarmed and in a lawful manner. The union was specifically restrained from inciting, instigating or promoting any unlawful conduct by its members. The Labour Court considered the affidavits and WhatsApp messages of the replacement employees which contained allegations that were met with bare denials by the union. In considering the evidence, the Labour Court found that the union’s denials were on the whole, so far-fetched or clearly untenable that the Labour Court could reject them on the papers. The Labour Court also found that the song ‘shoot Reinette’ was a variation of a well-known struggle song which has been held to constitute hate speech and that an incitement to kill does not enjoy constitutional protection. It also held that even though the striking employees had stopped singing the song, the misconduct took place on a date after the court order was issued. 

In relation to the carrying of dangerous weapons, the Labour Court found that Roberson Winery had proven that the uploading of photos of employees carrying dangerous weapons on Facebook constituted a breach of the court order and picketing rules. Furthermore, the union did not show that it was not wilful or in bad faith, nor did it take any efforts to remove the photographs on Facebook. Whilst the Labour Court found that the misconduct did not progress into significant violence, contempt of court is always serious and undermines the rule of law.

In mitigation of the punishment, Judge Steenkamp held that although the strike was protected, the union breached certain aspects of the court order and therefore to leave it unpunished would countenance a culture of impunity and undermine the rule of law. The Labour Court issued a 12 month suspended fine of R50,000 against the union. Certain individual members of the union were also found to be in contempt of court but no penalties were imposed on them. No order was made as to costs of the application as the Labour Court was of the view that this would negatively affect
a relationship which was already in a fragile state.    

This case serves as a reminder to unions and employees that they are not absolved from liability and cloaked with unlimited protection when on a protected strike. It is also useful to note the ability of employers to use evidence from social media in order to protect its rights against unlawful conduct by unions and employees.