28 June 2021 by , and Employment Law Alert

14 Day limitation to the right to strike – Is striking a crime? The impact of Adjusted Alert Level 4 on the right to picket or strike

The announcement made by President Cyril Ramaphosa moving South Africa to Adjusted Alert Level 4 has placed stringent limitations to the right to gather - this extends to the right to strike or picket in terms of the Labour Relations Act 66 of 1995 (LRA).

In terms of the Disaster Management Act: Regulations, gazette on 27 June 2021 (Regulations), all gatherings are prohibited except in the following circumstances listed under Regulation 21:

  • funerals;
  • gathering for the purposes of buying or obtaining goods and services; and
  • gatherings in the workplace.
  • Gatherings in the workplace are only allowed if they are for work purposes subject to health protocols and social distancing measures.

Can employees embark on a strike or a picket during Adjusted Alert Level 4?

The President has placed a 14-day limitation to the right to strike. It appears that until 11 July 2021, employees are prohibited from gathering for the purposes of convening a strike or picket in terms of the LRA. This is because a strike or a picket does not fall within the closed list of exceptions above.

Regulation 18 was amended to include the sub-regulation 18(9) which provides that;

any person who incites, instigates, commands or procures any other person to commit any offence in terms of these regulations commits an offence and is, on conviction liable to a fine, or imprisonment for a period not exceeding six months or both such fine and imprisonment.

In addition to the limitation on the strike to strike, the latest regulations suggest that anyone who participates in a strike or picket may face criminal action.

Is this an option for employers over the next 14 days?

If employees gather for the purposes of a strike or picket, they will be in breach of the Regulations and may be liable for a fine or imprisonment for a period not exceeding six months or both.

In terms of the Regulations, law enforcement officers are required to order persons gathered in contravention of the Regulations to disperse immediately. If they refuse, the law enforcement officer may take appropriate action which includes laying a criminal charge against the convener of the gathering.

Conclusion

Strike action during Adjusted Alert Level 4 is prohibited. Embarking on a strike or a picket before 11 July 2021, would constitute a breach of the Regulation and may lead to criminal charges against employees and/or the union.

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