The Constitutional Court has dealt a significant procedural blow to wholesale retailer Massmart, ruling that the Labour Court lacks the jurisdiction to adjudicate a R9.4 million compensation claim arising from alleged misconduct during a protected strike — a decision that reshapes the legal landscape for employers seeking damages when lawful industrial action turns violent.
The top court handed down a majority judgment on Wednesday written by Justice Steven Majiedt, ruling in favour of the South African Commercial Catering and Allied Workers Union (Saccawu) and finding that section 68(1)(b) of the Labour Relations Act does not empower the Labour Court to award compensation where the underlying strike was protected. The effect of the judgment is that Massmart must now pursue its claim before the High Court, where the merits of the damages claim can be properly ventilated. The Constitutional Court’s ruling addressed only the jurisdiction question and made no finding on whether Massmart is entitled to any compensation.
The dispute stems from a nationwide indefinite protected strike called by Saccawu in November 2021, over wages and unilateral changes to working conditions. The strike, which involves the union’s approximately 20,000 members at the retail group, at times turned violent near Massmart stores.
Massmart alleged that picketers blocked store entrances and damaged property, causing losses of more than R9.38 million. The company pursued the claim under section 68(1)(b) of the Labour Relations Act, which provides for just and equitable compensation for losses attributable to a strike or conduct in furtherance of a strike. The central legal question was whether that provision applied only to unprotected strikes or also extended to protected ones.
Saccawu argued throughout the litigation that section 68(1)(b) only applied to unprotected strikes, and that where a strike is protected, an employer’s only recourse is a common law delictual claim in the civil courts. The union lost that argument at both the Labour Court in 2022 and at the Labour Appeal Court in 2024, with both courts finding that the provision was broad enough to cover unlawful conduct committed in the course of a protected strike. The Constitutional Court has now reversed those findings, settling a legal question that had produced conflicting judgments over more than two decades, with the original line of authority traced to a 2001 Labour Appeal Court ruling in Stuttafords Department Stores Ltd v SACTWU.
Justice Majiedt’s majority judgment drew a clear distinction between a strike’s protected status and the conduct that occurs during it. The court found that if the legislature had intended to grant the Labour Court jurisdiction over delictual claims arising from protected strikes, it would have done so expressly in section 67 of the Act. The judgment confirmed that an employer is not without remedy — conduct that constitutes a criminal offence during a protected strike remains actionable in the ordinary civil courts under section 67(8) of the Labour Relations Act — but that forum is the High Court, not the Labour Court.
According to Fasken, the legal analysis firm, the case had divided specialist labour law opinion precisely because of the Labour Court’s longstanding position as the preferred forum for resolving workplace disputes, given its experience and expertise in that area. The Labour Appeal Court had argued that limiting employers to common law delictual proceedings in the High Court would undermine the Labour Court’s role as a specialist tribunal and produce anomalous results. The Constitutional Court rejected that reasoning, finding that the statutory text did not support it.
Saccawu’s deputy general secretary, Jerry Mmoneri, said the ruling reaffirmed the constitutional right of workers to withdraw their labour within the bounds of the law, and that no financial claim could erode that entitlement. Massmart, which operates more than 300 stores across formats including Makro, Builders Warehouse and Game, has not indicated whether it will proceed with the claim in the High Court.
The ruling carries consequences beyond this single dispute. As noted by ENS Africa, employers will now need to pursue damages claims arising from protected strike violence through the civil courts rather than the specialist labour tribunal, adding cost and complexity to any such litigation. Labour law practitioners have advised employers to ensure that picketing rules are drafted with sufficient precision — specifying which provisions of the Labour Relations Act or other legislation would be breached by violent or obstructive conduct — in order to establish the criminal element required for a delictual claim in the High Court to succeed.