In South African Commercial Catering and Allied Workers Union v Massmart Holdings Ltd and Others (CCT 145/24) [2026] ZACC 11 the Constitutional Court held that the Labour Court lacks the requisite jurisdiction in terms of the Labour Relations Act (“LRA”) to determine a claim for just and equitable compensation arising from conduct occurring during a protected strike.
The upshot of the decision is that claims for damages arising from criminal conduct during a protected strike must be litigated in the High Court under the law of delict.
The Judgment is problematic for a number of reasons. There appears to be little legislative purpose in having the High Court determine strike related damages in circumstances where the clear policy choice of the LRA is to have labour disputes determined by a specialist Labour Court. This was the thrust of the minority Judgment penned by Dambuza AJ – who stood alone in dissent.
The matter centres around the wording of section 68(1)(b) of the LRA. That section provides, inter alia, as follows:
“68 Strike or lock-out not in compliance with this Act
(1) In the case of any strike or lock-out, or any conduct in contemplation or in furtherance of a strike or lock-out, that does not comply with the provisions of this Chapter, the Labour Court has exclusive jurisdiction:-
…
(b) to order the payment of just and equitable compensation for any loss attributable to the strike or lock-out, or conduct…“
In relation to the “provisions of this chapter” referred to above, these include aspects such as whether a Union and its members have complied with picketing rules (agreed or imposed by the CCMA) as well as section 67 of the LRA which deals with strikes in compliance with the LRA (i.e. protected strikes).
Section 67(8) of the LRA, related to protected strikes, in turn provides that the indemnity against delictual claims against a Union will not apply to acts in contemplation or furtherance of a strike where those acts constitute a criminal offence.
Section 69(11) of the LRA provides a bespoke dispute resolution mechanism in relation to the breach of picketing rules during protected strikes. The matter can be referred to the CCMA for conciliation and, if unsuccessful, to the Labour Court for adjudication. In the meantime, the Labour Court retains the right to interdict any picket pending such CCMA referral and subsequent Labour Court adjudication. Section 158 of the LRA moreover empowers the Labour Court to make awards of compensation and damages as contemplated under the LRA.
In respect of the strike faced by Massmart, suffice it to say that – whilst protected – it involved a clear breach of the CCMA imposed picketing rules. The striking employees, apparently in the absence of any control being exerted by the Union’s appointed marshals, picketed outside of designated picketing areas, picketed in the stores, damaged property, threatened non-striking workers and ultimately caused the forced closure of several stores. All told, Massmart suffered financial losses in excess of R9 Million.
It goes without saying that the above conduct constituted a criminal offence as referred to in section 67(8). That being the case, the Union was not indemnified from a claim for damages under delict.
The key question, raised by way of an exception, was whether the Labour Court had jurisdiction to order just and equitable compensation (being the LRA parlance for damages) in terms of section 68(1) of the LRA in the context of a protected strike.
Before turning the reasoning adopted by the majority, it is worth noting that: –
- The explanatory memorandum to the draft Labour Relations Bill, being the precursor to the LRA, is strongly indicative of the intention of the legislature to allow the Labour Court to determine just and equitable compensation for strikes involving criminal offences. There does not appear to be an intention to delineate between protected and unprotected strikes in that regard.
- The term just and equitable compensation, rather than damages, is utilised because the amount claimable is not only determined with reference to the actual loss suffered. Critically, it is limited by other factors including (i) whether attempts were made to comply with the provisions of the LRA, (ii) the interests of orderly collective bargaining, (iii) the financial position of the employer and the Union and (iv) the duration of the strike. This is beneficial to Unions who may argue for the reduction in the quantum of damages claimable, even when they are at fault and caused the loss.
- Given that an alleged breach of picketing rules in a protected strike can be referred first to the CCMA and thereafter determined by adjudication in terms of section 69(11) of the LRA, it is implicit that the Labour Court must be able to award just and equitable compensation for breach of picketing Rules during a protected strike. Otherwise, what meaningful relief could the Labour Court grant when there is a breach of picketing rules as part of a protected strike?
The majority of the Court however fixated on the heading of section 68 of the LRA which applies only to unprotected strikes. On that basis, it says, a claim for just and equitable compensation (i.e. limited damages in the parlance of the LRA) can only be determined by the Labour Court in the context of an unprotected strike.
The result of the decision is that claims for damages arising from criminal conduct during a protected strike must be litigated in the High Court with reference to the law of delict, not the LRA.
The reasoning of the majority is, with respect, superficial and gives rise to impractical and un-business-like results. Amongst other things, it needlessly implicates the jurisdiction of the High Court over matters best dealt with by the specialist Labour Court and it renders the powers of the Labour Court in terms of section 158 of the LRA to order compensation for breach of picketing rules potentially unavailable.
Worryingly for Unions, it is also contrary to their interests because the factors limiting just and equitable compensation will not be applicable to a claim for damages arising from criminal conduct during a protected strike. Such claims will instead be litigated in the High Court and be determined with reference to ordinary delictual principles – sans the limitations applicable to such damages under the LRA.
Any attempt to argue for a limitation of those damages would be met with response that the limitation only applies to unprotected strikes, because the limitations are contained under that heading, and therefore are not applicable on the strength of the reasoning of the majority. What will be left is for Unions to attempt to rely on any available limitation under the Apportionment of Damages Act (if any).
The practical effect of the majority’s interpretation is that employers may be required to pursue claims arising from strike-related misconduct in multiple fora, thereby undermining the Labour Court’s role as a specialised forum for the resolution of labour disputes. For Unions, especially smaller Unions, large and unlimited damages claims may spell financial disaster and insolvency.
This is one case where the majority appear to have substantially missed the mark.
