Case CCT 48/18
[2026] ZACC 12
Hearing Date: 27 May 2025
Judgement Date: 08 April 2026
Post Judgment Media Summary
The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.
On 08 April 2026, the Constitutional Court handed down a unanimous judgment in proceedings concerning the determination of profits derived from a contract for the payment of social grants, which had previously been declared unlawful and the appropriate just and equitable remedy following that declaration of invalidity.
This matter formed part of the long-running litigation arising from the unlawful award of a tender for the countrywide payment of social grants. The litigation originated more than a decade ago in AllPay Consolidated Investment Holdings (Pty) Ltd v CEO of SASSA (AllPay I), where the Constitutional Court declared the award of the tender by the South African Social Security Agency (SASSA) to Cash Paymaster Services (Pty) Limited (CPS) constitutionally invalid. Subsequent litigation followed. In AllPay II, the resulting contract was also declared invalid, but the declaration was suspended to ensure the continued payment of social grants. That suspension was later extended in further judgments of this Court, including in Black Sash I and in subsequent proceedings in 2018. During these periods, CPS continued to render services. The Court ordered that CPS’s income, expenses and profits be audited and certified, while leaving open the question whether any profits should be repaid.
The present proceedings arose from an application by Freedom Under Law NPC seeking to compel CPS to furnish information required by National Treasury to determine whether, and in what amount, CPS had made a profit from the unlawful contract. The application also sought consequential relief relating to information held by Lesaka Technologies (Pty) Limited, and an order requiring Treasury to determine CPS’s profit.
Before the matter was heard, CPS was placed in liquidation at the instance of SASSA.
This development became central to the proceedings, as it bore directly on the practical utility of determining CPS’s profits and the nature of any relief that might follow. The Court noted that CPS’s liquidation gave rise to a concursus creditorum, with the effect that the rights of creditors were fixed and had to be pursued within the insolvency process. This had implications for the structuring of relief, including that set-off between claims arising before and after liquidation was generally not permissible.
In earlier proceedings, this Court had directed that a process be followed to enable Treasury to determine CPS’s profit, including independent verification by RAiN Chartered Accountants. Disputes arose regarding the adequacy, relevance and availability of information required for that exercise. A proposal to appoint a referee under section 38 of the Superior Courts Act to resolve these disputes was initially pursued but later abandoned due to practical and administrative difficulties. The matter was then re-enrolled for hearing.
In advance of the hearing, the Chief Justice directed CPS’s liquidator to provide a report on the status of the liquidation, including CPS’s assets and liabilities, prospects of recovery and the status of the liquidation enquiry. The liquidator reported that CPS’s uncontroversial assets amounted to approximately R50 million, while its liabilities substantially exceeded that amount. Significant claims had been proved by SASSA, and further substantial claims had been submitted by the South African Revenue Service. The report indicated that concurrent creditors might receive only a limited dividend, or none at all. Following receipt of the report, the Court issued directions requiring the parties to address the implications of the liquidation and whether it would be in the interests of justice to bring the matter to finality. The Court raised the possibility of determining CPS’s profit on the basis of the audited “certified profit” reflected in reports prepared by KPMG and Mazars, subject to necessary adjustments.
The Court first considered whether it was competent, in proceedings that had initially concerned the provision of information, to determine the ultimate issue of CPS’s profit and whether repayment should be ordered. As none of the parties objected, the Court held that it was empowered to determine this issue, relying on its wide remedial powers under section 172(1)(b) of the Constitution.
The Court noted that the declaration of invalidity in AllPay I had been based on failures by SASSA in the procurement process, rather than wrongdoing by CPS. However, subsequent orders of this Court had made clear that CPS had no entitlement to benefit from an unlawful contract without public scrutiny, and that it was required to account for its gains.
The Court considered the jurisprudence of the Supreme Court of Appeal, including the judgments in Venus Rays Trade, Phomella and Mafoko, concerning whether an innocent contractor may retain profits under an invalid contract. While accepting that an innocent contractor may in some circumstances retain benefits, the Court held that the present case was distinguishable. CPS had performed a public function of constitutional importance and had been held to be an organ of state for purposes of the contract. The continuation of the contract had been ordered to ensure the uninterrupted payment of social grants, not to preserve CPS’s private rights. In that context, the Court held that any benefit derived from the unlawful contract had to be subject to public scrutiny, and that it was just and equitable to consider repayment of profit.
The Court further distinguished this matter from cases such as State Information Technology Agency SOC Ltd v Gijima Holdings (Pty) Ltd and Buffalo City Metropolitan Municipality v Asla Construction (Pty) Ltd, where relief had been crafted to protect the accrued rights of innocent contractors and to prevent organs of state from benefiting from their own delay. By contrast, this case concerned the supervised implementation of an unlawful contract in the public interest, where accountability for public funds was central.
Turning to the factual position, the Court noted that audited reports prepared by KPMG and Mazars reflected a combined certified profit of approximately R252 million. A further verification exercise conducted by RAiN raised concerns regarding the accuracy of that figure and identified areas requiring further investigation. Disputes remained regarding the underlying information and methodology, and Treasury indicated that it was unable to determine a final profit without additional information.
In light of these disputes, and given CPS’s liquidation, the Court considered whether to adopt the certified profit as a baseline. The Court held that this was a sensible and practical approach, as a full factual enquiry would be lengthy, complex and of doubtful utility in circumstances where CPS was insolvent.
The Court then considered the necessary adjustments to the certified profit. It first addressed a High Court judgment delivered by Tsoka J, in terms of which CPS had been ordered to repay approximately R316 million to SASSA, together with interest. The Court found that this amount had not been taken into account in the certified profit and held that the certified profit had to be reduced by the capital amount together with interest. This adjustment was necessary to avoid double recovery.
Secondly, the Court considered retrenchment costs and found that the provision had not been incurred and had to be reversed, resulting in an upward adjustment. Thirdly, the Court considered Broad-Based Black Economic Empowerment expenditure. It accepted the concessions made by CPS’s liquidator and held that the certified profit had to be increased by amounts that were unsupported or improperly allocated. Fourthly, the Court considered SASSA’s claim for payment of services not rendered and held that this amount had to be deducted from the certified profit.
The Court declined to determine whether additional profits had been derived by Lesaka through intra-group transactions or whether there had been impermissible profit shifting, as this would have required a detailed factual enquiry not warranted in these proceedings.
The Court also considered pending litigation in which CPS sought an upward price adjustment from SASSA. It held that, if CPS succeeded, the additional amount would increase CPS’s profit, but CPS would not be required to repay that additional amount as profit to SASSA.
Having regard to all relevant adjustments, the Court concluded that the appropriate adjusted certified profit was R81 286 177.
As to costs, the Court held that the conduct of the parties did not warrant a costs order in favour of any party and ordered that each party bear its own costs.
The Court granted the following order:
- 1. CPS was ordered to refund the adjusted certified profit of R81 286 177 to SASSA, in respect of which SASSA was granted leave to prove a concurrent claim.
- 2. It was declared that, if CPS succeeded in its pending action against SASSA for an upward price adjustment, CPS would not be required to refund any increased price as additional profit.
- 3. Each party was to bear its own costs.
The Full judgment here
Case CCT 101/24
[2026] ZACC 13
Hearing Date: 08 May 2025
Judgement Date: 08 April 2026
Post Judgment Media Summary
The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.
On Wednesday 8 April 2026, the Constitutional Court handed down judgment in an application for leave to appeal against a judgment and order of the Supreme Court of Appeal, which found that the conduct of a trial Judge created a reasonable apprehension of bias, and that the trial Judge’s judgment on the merits on a dispute whether a distribution agreement, which dispute is explained below, (the initial dispute) was a nullity, and ordered Systems Applications Consultants (Pty) Ltd (SAC) to pay the legal costs of SAP SE (SAP) for the entire 74-day trial.
In 2008 SAC instituted proceedings against SAP in the High Court of South Africa, Gauteng Division, Johannesburg (High Court). The matter concerned a contractual dispute involving the existence or otherwise of a software distribution agreement between SAC and a subsidiary of SAP, SAP Systems Integration (SAPSI), and a claim for damages against SAP. SAC alleged that SAP had unlawfully interfered with and frustrated the performance of the alleged contract between SAC and SAPSI.
Here are the key facts relating to the alleged conclusion of the distribution agreement. On or about 6 August 2004 SAC’s director, Mr Peter Tattersall, signed two copies of the distribution agreement at a meeting with SAPSI. SAPSI did not countersign. Despite the lack of signature by SAPSI, SAC adopted the stance that the distribution agreement had been concluded. SAP disputed this. It did so by referring to four emails by means of which SAC sought a countersigned copy of the distribution agreement. According to SAP, these emails demonstrated that Mr Tattersall was aware that if SAPSI did not sign the distribution agreement, there would be no binding agreement between SAC and SAPSI.
On 12 October 2020 the hearing of the merits of the initial dispute commenced. The hearing was conducted over the Zoom virtual conference platform pursuant to the High Court’s practice during the COVID-19 pandemic. On 7 November 2020, the 20th day of the hearing, SAP’s counsel cross-examined Mr Linkies, a key witness for SAC, about a specific email, dated 21 September 2004 (SAPSI email). The SAPSI email had been circulated internally by Mr Linkies to his colleagues, urgently requesting internal approval of the distribution agreement. In the email Mr Linkies said that Mr Tattersall of SAC was breathing down his neck regarding the signing of the distribution agreement by SAPSI.
This email turned out to be a key point of dispute. At the hearing SAP’s counsel sought clarity through cross-examining Mr Linkies on the question of Mr Tattersall having breathed down his neck. This line of questioning persisted for a while. The trial Judge intervened and directed SAP’s counsel to desist from the line of questioning, saying, “May we proceed please and then you can argue that point. The question has been answered repeatedly.” Thereafter, an exchange ensued between SAP’s counsel and the trial Judge. SAP’s counsel attempted to justify his line of questioning. The trial Judge questioned its necessity in the light of the questions that had already been asked and answered. SAP’s counsel did not relent. Eventually, the trial Judge said, “When you’re finished, you’ll let me know. I’m taking a break.” The trial Judge proceeded to leave the virtual courtroom without first adjourning the proceedings, leaving the parties in silence.
Around two-and-a-half minutes later, the trial Judge returned, after which SAP’s counsel raised concerns with him about his conduct. The trial Judge explained, “You keep repeating one question after the other and you want a different answer.” The exchange culminated in the trial Judge asking SAP’s counsel whether he wanted the trial Judge to recuse himself. The trial Judge adjourned to afford SAP’s counsel an opportunity to take instructions on whether to file a recusal application.
On 9 November 2020 SAP filed an application for the recusal of the trial Judge. SAC opposed it. On 13 November 2020 the trial Judge dismissed the recusal application, and remarked that SAP failed to take into account additional facts and context which had led him to leaving the hearing, mainly that he needed to go to the bathroom. The initial dispute proceeded before the trial Judge and judgment was delivered on 7 December 2021. The trial Judge found against SAP, and declared SAP liable for such damages as SAC could prove. On 28 December 2021 SAP applied to the trial Judge for leave to appeal to the Supreme Court of Appeal against the recusal and the merits judgment. The trial Judge dismissed both applications for leave to appeal.
The Supreme Court of Appeal granted leave to appeal on 13 July 2022 in respect of both High Court judgments. Both appeals were argued before it. The Supreme Court of Appeal held that the trial Judge’s conduct created a reasonable apprehension of bias. It then held that the trial Judge’s judgment on the merits was a nullity. The merits judgment was vitiated by the fact that the trial Judge continued to preside over the trial in circumstances where he ought to have recused himself. Thus the Supreme Court of Appeal set aside the order on the merits without considering the merits of the appeal.
Before this Court, SAC argued that on the correct facts and as properly contextualised, the trial Judge could not have reasonably been suspected of bias. SAC further contended that the Supreme Court of Appeal made material errors of law and fact. SAC also submitted that, if this Court declares the 74-day proceedings before the trial Judge a nullity, that will result in a severe limitation of its section 34 rights. That, because the SAC lacks the funds to relitigate the merits afresh before the High Court. As a result, an order declaring the proceedings to be a nullity in their entirety is disproportionate. An appropriate remedy would be one that preserves the 74 days of evidence led before the trial Judge.
In the main, SAP argued that this matter turns on three issues. First, it argued that it was not in the interests of justice to grant leave to appeal in respect of the recusal application as there were no reasonable prospects of success. It also submitted that it was not open to SAC, at this stage of the proceedings, to present fresh evidence on its lack of funds to relitigate the merits and argue that it has been deprived of its right of access to court protected under section 34 right of the Constitution. Further, it contended that, where a reasonable apprehension of bias exists, the appropriate remedy is to set aside the proceedings in their entirety.
In a unanimous judgment penned by Madlanga ADCJ (Dambuza AJ, Goosen AJ, Kollapen J, Majiedt J, Opperman AJ, Rogers J, Theron J and Tshiqi J concurring), this Court held that its jurisdiction is engaged on the recusal issue. This Court has repeatedly held that recusal applications are a constitutional matter. Moreover, this Court held that, given the importance of the issues raised, the existence of reasonable prospects of success, and the implications of the outcome for the parties, it is in the interests of justice to have granted leave to appeal.
This Court addressed two preliminary points. The first being whether the trial Judge, in fact, made a ruling. The answer to this question bears relevance to the trial Judge’s reaction to SAP’s counsel’s continued cross-examination after the ruling, if there was one. The second point being whether, in establishing the existence of bias, this Court was confined to look only at the case made out in the founding affidavits in the recusal application, or whether this Court could have also considered factors and circumstances that could be gleaned outside of such affidavits, such as the conduct of the trial Judge during the remainder of the trial, as well as the reasons proffered by the trial Judge in a subsequent judgment on the recusal question.
On the first point, while the trial Judge may not have used language explicitly indicating that he was making a ruling, his language unequivocally directed SAP’s counsel to move on to a different line of questioning. This was a ruling. On the second point, different issues were considered to determine whether bias was shown to exist. After considering this Court’s jurisprudence on this issue, the conclusion reached was that this Court must consider all relevant evidence, including affidavits in the application for recusal, evidence in the entire record of proceedings, and the overall conduct of the presiding officer.
On the merits of whether there was a reasonable apprehension of bias in this matter, the trial Judge’s conduct of leaving the hearing and saying that cross-examination should continue in his absence without first adjourning the proceedings was most regrettable and clearly irregular. However, not all instances of irregular judicial conduct evince bias. Something more is required. That “something more” is that an informed, objective and reasonable litigant would conclude that the Judge was failing to bring an impartial mind to bear on the adjudication of the matter.
Whilst the conduct of the trial Judge was unacceptable, it did not amount to bias when properly considered. First, at no point did the trial Judge’s actions suggest that he disregarded SAP’s line of questioning, minimised the issue that SAP’s counsel was attempting to establish or made a factual finding, whether preliminary or definitive, on that issue. Even if the trial Judge had intimated some type of inclination, which he did not, this would ordinarily not be a sufficient basis to ground bias. Therefore, a reasonable, informed and objective litigant would not have concluded that there was a reasonable perception of bias. The significance of the interrupted line of cross-examination was overblown by SAP and the Supreme Court of Appeal.
Second, Judges are required to manage a trial actively, direct the trial process, point out when evidence is irrelevant and refuse to listen to it, and – if cross-examination of witnesses exceeds reasonable bounds – curtail it. Through his ruling, the trial Judge clearly wanted to move the proceedings on, with SAP’s counsel not being barred from arguing the point he was cross-examining on at a later stage. Of importance, SAP’s counsel had cross-examined to a point of tedium on the issue.
Third, a Judge has a duty to preside over, and remain an active participant in, a hearing and not to it – even if only for two minutes and thirty seconds – unless an adjournment has been called. While a reasonable, informed and objective litigant would realise the impropriety of the trial Judge’s conduct, properly contextualising the conduct, the litigant would conclude that the trial Judge was merely irritated and frustrated and likely needed to “cool off”. This did not translate to a reasonable apprehension of bias. Rather, this was a manifestation of absolute frustration with what was plainly annoying conduct by SAP’s counsel.
Based on the above, the appeal on the recusal question succeeded. The appeal on the merits, which was not decided by the Supreme Court of Appeal, was remitted for decision by that Court.
The Full judgment here
Case CCT 145/24
[2026] ZACC 11
Hearing Date: 06 May 2025
Judgement Date: 25 March 2026
Post Judgment Media Summary
The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.
On 25 March 2026, the Constitutional Court handed down judgment in an application for leave to appeal against part of the judgment and order of the Labour Appeal Court, which found that the Labour Court had jurisdiction to award just and equitable remedies under section 68(1)(b) of the Labour Relations Act 66 of 1995 (LRA) for conduct in furtherance of a protected strike.
The appeal was brought by the South African Commercial Catering and Allied Workers Union (SACCAWU). On 26 May, 2021, SACCAWU staged a strike outside several stores operated by Massmart Holdings Ltd and its subsidiaries (together, Massmart). Picketing rules for the strike were set by the Commissioner for Conciliation, Mediation and Arbitration (Commissioner) prior to the strike and stated that pickets would be held in designated areas near the affected stores, would be conducted in a peaceful, lawful manner and would abide by relevant Covid-19 regulations and workplace plans in place at the time. Picketers were not to be armed, make defamatory statements or intimidate customers or staff of Massmart. SACCAWU was to appoint strike marshals to ensure compliance by its members.
Massmart alleged that SACCAWU failed to ensure compliance with the picketing rules by its members and to appoint sufficient marshals. Specifically, Massmart alleged that picketing took place outside of designated areas and in breach of Covid-19 regulations, picketers blocked store entrances and picketed inside malls, intimidated staff and customers, damaged property and made untrue statements on the radio concerning the disputes underlying the strike, resulting in stores being closed and losses of over R9 million. Despite notifying SACCAWU of the picketers conduct, Massmart alleges that SACCAWU failed to prevent the breaches of the picketing rules.
Massmart sought compensation for the losses incurred during the strike under section 68(1)(b) of the LRA before the Labour Court in May, 2022. SACCAWU opposed Massmart’s claim on several grounds, most notably that section 68 of the LRA does not apply in the context of a protected strike and that the Labour Court thus does not have jurisdiction to award compensation under section 68(1)(b). Rather, SACCAWU argued that legal remedies relating to protected strikes are governed by section 67 of the LRA, which only allows an aggrieved party to seek delictual remedies for offences before the High Court.
The Labour Court ruled in favour of Massmart, holding that section 68(1)(b) of the LRA can be applied to any conduct that constitutes an offence, even if it is undertaken in furtherance of a protected strike. The Labour Court relied on the Supreme Court of Appeal’s ruling in Dunlop Mixing, which interpreted section 68(1)(b) in this manner.
SACCAWU appealed the judgment to the Labour Appeal Court, arguing that the Supreme Court of Appeal’s judgment in Dunlop Mixing was distinguishable from this matter, and that the Labour Appeal Court’s ruling in Stuttafords, which held that section 68(1)(b) did not apply to protected strikes, should be followed. The Labour Appeal Court found that, as Stuttafords had been decided before the LRA was amended in 2002, extending section 68(1)(b) to cover “conduct in furtherance of a strike or lock-out,” its interpretation of section 68(1)(b) was no longer applicable. It therefore upheld the Labour Court’s decision, leading SACCAWU to appeal to the Constitutional Court.
Before this Court, SACCAWU argued that the provisions of section 67 establish the framework for addressing legal claims relating to protected strikes and lock-outs, while section 68 does the same for unprotected strikes and lock-outs. It contended that section 67 establishes broad protections for workers and employers participating in protected strikes or lock-outs, which are lost only in relation to offences committed during the protected strike or lock-out. In such cases, delictual remedies are available through the High Court, but compensation under the LRA through the Labour Court is not. Massmart maintained that protections under section 67 are lost when offences are committed, enabling just and equitable compensation to be sought by an aggrieved party under section 68(1)(b).
The first judgment
The first judgment (the minority), penned by Dambuza AJ, accepts that the matter engages this Court’s jurisdiction, but ultimately would have dismissed the appeal on the merits. The first judgment found that the purpose of the LRA was, amongst other things, to provide a framework to promote orderly bargaining between employers and employees and effective resolution to labour disputes. To this end, the Labour Court and Labour Appeal Court are established as specialised courts to determine labour disputes. The jurisdiction afforded to these courts must be interpreted generously to allow them to effectively adjudicate a wide variety of labour disputes. The first judgment further holds that the interpretation and application of section 68(1)(b) do not fall within the Labour Court’s concurrent jurisdiction with the High Court.
The first judgment went on to examine the text, context and purpose of section 68(1)(b) of the LRA. It noted that section 67 affords legal protections for strikes or lock-outs which comply with the LRA, with narrow exceptions for conduct which constitutes an offence. Section 68 affords the Labour Court exclusive jurisdiction over any strike or lock-out, or any conduct in contemplation or furtherance of a strike or lock-out that does not comply with the LRA. Like the Labour Appeal Court, the first judgment emphasised the addition of “conduct in contemplation or furtherance of a strike or lock-out” in the 2002 amendment. This, according to the first judgment, was intended to expand the scope of compensation under section 68(1)(b) of the LRA to include non-compliant conduct during both protected and unprotected strikes and lock-outs, and to afford the Labour Court exclusive jurisdiction over determining a just and equitable remedy in such claims.
The first judgment reinforced this interpretation with reference to section 69 of the LRA, which regulates picketing specifically. The first judgment drew attention to section 69(12), which affords the Labour Court jurisdiction to grant relief in disputes related to picketing in addition to relief granted under section 68(1)(b). As picketing is a regulated activity which can only lawfully occur in relation to a protected strike, the first judgment holds that the reference to section 68(1)(b) in section 69(12) demonstrates that section 68(1)(b) must apply to unlawful conduct during protected strikes that transgresses picketing rules, as well as unprotected strikes and lock-outs generally.
On this basis, the first judgment held that the Labour Court has jurisdiction to adjudicate claims arising from conduct that breaches Chapter IV of the LRA that occurs during a protected strike or lock-out, and that Massmart could properly seek just and equitable compensation under section 68(1)(b) from SACCAWU before the Labour Court. The first judgment would have dismissed the appeal on the merits.
The second judgment
The second judgment (the majority) penned by Majiedt J, with Madlanga ADCJ, Goosen AJ, Mhlantla J, Opperman AJ, Rogers J, Theron J and Tshiqi J concurring, agrees that this case engages this Court’s jurisdiction and that leave to appeal ought to be granted, but uphold the appeal, holding that the Labour Appeal Court’s order and underlying reasoning (and that of the Labour Court) were wrong.
The second judgment disagrees with the first judgment's approach to statutory interpretation, holding that the headings of sections 67 and 68 of the LRA were decisive, as both the headings and texts of these sections make clear that section 67 deals with strikes that are compliant with the LRA (protected strikes), while section 68 deals with strikes that are not (unprotected strikes).
Section 67, which only deals with protected strikes, provides that a protected strike, or conduct in support of a protected strike, is not a delict. Section 67(8) qualifies this by stating that section 67(2) does not apply to conduct in support of a protected strike where the conduct is an offence. Section 67 does not confer any jurisdiction on the Labour Court to award compensation in respect of criminal conduct (or delictual conduct) in support of a protected strike. Section 68, on the other hand, deals exclusively with unprotected strikes. On a plain reading of the introductory part of section 68(1) that precedes the powers of the Labour Court (including the power to grant compensation), the first judgment held that the phrase “that does not comply with the provisions of this Chapter” refers to the “strike or lock-out” contemplated in each of the preceding two phrases. It mirrors the preceding section 67(2) and (6).
The second judgment holds that section 68(1) only applies to those cases where an employer is seeking relief pursuant to the employees’ participation in an unprotected strike, or the employees’ participation in conduct in support of an unprotected strike, not to protected strikes. Section 68(1) does not relate to the question whether conduct in support of the strike is unlawful in itself. On the other hand, if conduct – even if not otherwise delictual – is in support of an unprotected strike, the employer may seek relief from the Labour Court. That Court will then have exclusive jurisdiction in such instances.
The second judgment held that the correct interpretation of section 68(1)(b) was the one advanced by SACCAWU, which accords with the plain words of the section, read in context with the rest of that Chapter of the LRA and the statute as a whole. If the phrase “does not comply with the provisions of this Chapter” in section 68(1) is interpreted as referring to conduct (even where the strike is protected), it would not be possible for compensation to be claimed in respect of lawful conduct in support of an unprotected strike, since lawful conduct would not be in contravention of the Chapter.
The second judgment held that if the Legislature had intended to grant jurisdiction to the Labour Court in respect of delictual conduct in support of a protected strike, section 67 would have been the place to do it, yet that has not occurred. This does not take away the employer’s right to claim damages in delict for such conduct if it is criminal (section 67(8)), but an employer needs to claim such damages in the ordinary courts and not in the Labour Court.
Regarding the divergent approaches and outcomes in Stuttafords and Dunlop Mixing, the second judgment held that the fact that Stuttafords was decided prior to the 2002 amendment of section 68(1)(b) does not in any way detract from the force of the reasoning in that case. Its more expansive approach rightly recognises that conduct, when connected to the strike’s aims, may still fall within the protective scope of the LRA, affirming the principle that not every act of unlawfulness should automatically strip workers of their statutory protection. That approach aligns more closely with the purpose and structure of the LRA, which seeks to balance the rights of workers to engage in collective action with the need for lawful conduct. Both the Labour Appeal Court and the first judgment were wrong when they sought to distinguish Stuttafords on this narrow basis.
On the other hand, the second judgment holds that Dunlop Mixing cannot be applied here, as it was distinguishable on both the facts and the law. In Dunlop Mixing, the Supreme Court of Appeal considered whether a picket in support of a protected strike qualifies as a “gathering” under the Regulation of Gatherings Act. It held that while picketing may fit the general definition of a gathering, it is a specific form of expression governed by section 69 of the LRA, which takes precedence as the more specialised law. The second judgment held that the Supreme Court of Appeal’s remarks in Dunlop Mixing regarding sections 67, 68 and 69 of the LRA were obiter dicta. The Labour Court and the Labour Appeal Court wrongly rejected the broad, worker-centred reasoning advanced in Stuttafords. Although the Labour Appeal Court stopped short of explicitly equating all unlawful conduct with unprotected action, its deference to Dunlop Mixing still signalled a preference for a narrower application of the LRA.
Regarding section 69, the second judgment held that it was wrong of the first judgment to invoke section 69(12) as an aid to interpreting section 68(2), explaining that an unlawful picket conducted in support of a protected strike does not fall within the scope of section 68, but it may give rise to relief under section 69(12). In these circumstances, section 69(12) provided no answer to the central issue in this case.
The Full judgment here