4 October 2021 by , and Employment Law

Gordon Road Spar v The Economic Freedom Fighters & Others

The imposition of the Economic Freedom Fighters (EFF) and its Labour Desk substructure has become a common occurrence in the South African workplace over the past few years. The first judgment in which the Labour Court took a strong stance against the EFF was in October 2018 in Calgan Lounge v EFF and Others (J2648/18), a matter in which CDH represented Calgan Lounge. We reported on the judgment in our 12 November 2018 Employment Alert.

Undeterred, the EFF and the EFF Labour Desk continue to interfere in workplace affairs. What is an employer to do when faced with such interference? It has become a recent trend that the EFF is quick to argue that the interference is not sanctioned by it and that whoever acted did not do so with the authority of the EFF, or that they were not EFF members despite EFF regalia being on open display. This is an attempt to overcome Calgan Lounge.

In June 2021 the Labour Court in Gordon Road Spar v The Economic Freedom Fighters and Others (J605/21) interdicted the EFF from interfering with the employer’s business and instigating violence at the workplace.

The facts in brief

The dispute arose after the demotion of an employee on 15 April 2021. Aggrieved by the decision, some employees who were members of the EFF sought assistance from the party. On 12 May 2021 the EFF addressed a letter to the employer addressing various demands relating to working conditions and proposed a date to meet. The EFF arrived at the company’s premises on 16 May 2021. Members of the EFF, including its branch secretary Mr Sono, arrived at the store and, together with some employees, demanded that cashiers leave their workstations and customers exit the store, and then barricaded the entrance to the shop. In an attempt to prevent the situation from becoming more volatile, Spar did not take any steps at this stage. On 28 May 2021 EFF members again protested at the store. Under pressure, the employer agreed to meet with the EFF on 30 May 2021. It appears from the judgment that the employer had not secured legal advice at the time. After getting legal counsel, the employer correctly proceeded to cancel the meeting and a letter was addressed to the EFF advising that if it attended at the store again, the employer would seek an urgent interdict. In the face of the cancellation, a protest again erupted and continued until 1 June 2021. This led the employer to approach the Labour Court to interdict the EFF from interfering with its business. The EFF was led by its branch secretary, Mr Sono. 

The position of the court

In court the EFF denied having given Mr Sono and the employees the authority to speak in its name and act on its behalf. It argued that the protest and actions at the store were not mandated by the EFF. It held that the party had nothing to do with the actions and should not be liable for the unlawful conduct. It also argued that the wearing of EFF regalia did not mean that the protestors were members of the party because its regalia could be purchased anywhere. It further argued that it had no knowledge of what had happened because it was not present during the protest action and it could not be held liable for members who had acted on their own.

The court was unimpressed with the EFF’s argument. Correctly so, in our view. 

Drawing on Calgan Lounge and other applicable legal principles, the court found that the facts clearly demonstrated that the unlawful conduct was at the behest of Sono, who was acting on behalf of the EFF. The EFF’s purported lack of knowledge of the protest action did not support the claim that Sono and its members created the impression that they were engaged in protest action on the EFF’s behalf. The court also took into consideration that the EFF did not deny that Sono was a branch secretary and that it placed no evidence before the court that those who supported him were not EFF members. The employer reasonably believed that Sono and the protesters were acting on behalf of the EFF. The court gave little weight to the EFF’s argument that it can only warn its members against unlawful conduct but cannot enforce lawful behaviour. Where the unlawful conduct is perpetrated in the name of the party, without authorisation, the EFF is empowered by its constitution to enforce its provisions and act against members such as Sono and the protestors who participated in the unlawful protest action. The EFF did not hold either its members or Sono accountable in accordance with its constitution. The EFF therefore could not contend that it exists separately from its members and could not be held liable when they acted on their own. Accordingly, it was found that there was no substance to the argument that the EFF could not be held liable for the conduct of its members who ostensibly acted on their own behalf.

Conclusion

Following Calgan Lounge this is the next important judgment of the Labour Court in dealing with unlawful interference by the EFF in workplace issues. 

As the court said in Calgan Lounge:

 “As an employer, the applicant is entitled to expect its employees to comply with these objectives of the LRA [Labour Relations Act 66 of 1995] when seeking to resolve any disputes they may have with the applicant as employer. And for the EFF simply to negate all of this based on some misguided view of what the Constitution allows it to do, is simply unacceptable, and cannot be permitted”.

The dispute at Gordon Road Spar related to an ordinary demotion dispute that could easily have been referred to the Commission for Conciliation, Mediation and Arbitration for resolution. The anarchy faced by the employer was unnecessary and the judgment in Gordon Road Spar now opens the door to civil damages being sought against the EFF for conduct of this form. This is the next frontier following the two well considered judgments of the Labour Court referenced in this article.

At this time there is already a civil claim by a SuperSpar against the EFF for damages of R500,000 after the EFF allegedly staged an illegal protest in November 2020 outside a Musina-based store. This was not in the employment context. There is also the matter in the Johannesburg High Court (21/23502) of Afrisix (Pty) Ltd v EFF in which the court granted an interim interdict in June 2021 against the EFF for conduct similar to that see in in Gordon Road Spar. There are no judgments in these matters at this time.

Business is not without protection from dystopian conduct and the law sets up a sufficient perimeter for protection. When faced with unlawful conduct by the EFF, any other political party, or community leaders or protestors, the protection of the courts should be sought with haste. Businesses should know that our legal system was not designed to condone intimidation, unruly conduct, or a disrespect for the law and that there is clear protection against lawlessness.  

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