SA National Defence Union v Minister of Defence (1999) (read the judgment)

The High Court had declared unconstitutional a provision of the Defence Act of 1957 that prohibited members of the Defence Force from becoming members of a trade union or engaging in any "protest action".

The Constitutional Court decided that prohibiting participation in acts of public protest violated the right to freedom of expression of defence force members - an unjustifiable limitation and one that was consequently unconstitutional.

On the question of trade union membership, the applicant had argued that prohibiting membership infringed the right of "every worker" "to form and join a trade union".

The Court interpreted the term "every worker" to include members of the armed forces, even though their relationship with the defence force was unusual. Here a generous interpretation of the right was appropriate.

Permitting members to join a trade union would not necessarily undermine strict discipline. But in appropriate circumstances, the right may need to be limited.

Numsa and Others v Bader Bop (Pty) Ltd and Another (2002)(read the judgment)

Members of Numsa, a minority union in Bader Bop's factory, had sought to strike to force Bader to grant it rights under section 14 of the Labour Relations Act. This section gave a union representing more than half the workers in a workplace the right to have their shop stewards recognised by their employers.

As Numsa represented only 26 percent of the workforce, the question was whether its members were entitled to strike.

The Labour Court held that they were and refused to grant Bader an interdict prohibiting the strike. But the Labour Appeal Court granted the interdict.

In their appeal to the Constitutional Court, Numsa and the employees relied on section 23 of the Constitution - particularly, the right to strike protected by section 23(2)(c) - and argued that the provisions of the Act, interpreted in the light of the Constitution, afforded them the right to strike in the circumstances.

If not, they argued, the provisions were unconstitutional.

Two issues arose: first, in what circumstances should the Constitutional Court entertain an appeal from the Labour Appeal Court? Second, if an appeal were allowed, had the Labour Appeal Court's interpretation of the relevant provisions been correct?

The Constitutional Court granted the leave to appeal and upheld the appeal itself. The Court tackled various sections in the Act and set aside the Labour Appeal Court's order.