Lonmin on thin ice with ‘dysfunctional’ bid

Although Lonmin may be holding on to a court application to have the persistent platinum strike declared dysfunctional, the prospects of success are very slim. But there may be tactical and strategic reasons for bringing “a losing case”, said John Brand, consultant and alternative dispute resolution specialist at Bowman Gilfillan.

“Even if we assume that there are good substantive grounds for it, urgent relief is the only thing that will be of use at the moment,” said Brand, noting this urgent relief would present two challenges.

“Firstly, the employers have delayed so long already it would be difficult to argue that it’s urgent. Secondly, there are bound to be serious disputes as to the factual underpinning of such an application – is it dysfunctional, isn’t it? – which would require the matter to be referred for later oral evidence.”

A professor of law at the University of Cape Town, Halton Cheadle, said the right to strike can only be limited if it is justifiable, and that the courts look to international law and the International Labour Organisation’s committee on freedom of association for guidance about what is justifiable.

“A dysfunctional strike is not considered a justifiable ground for interdicting a strike in international law and any attempt by a court to do that would raise very serious constitutional questions,” said Cheadle. “It’s not up to a court to limit a right; the Constitution says only a law can do so.”

Bringing a case like this could be tactical, he said. “Under apartheid we often brought cases we knew could not be won. Courts create a kind of a dramatic moment that the press reports as drama. That provides a platform for highlighting issues and winning public support for their positions.”

Brand agreed: “They may want to expose Amcu [the Association of Mineworkers and Construction Union] and put it on defence, and embarrass them and sway public opinion. [They would be] using the courts as a place where they put adverse facts in the limelight.”

An industry analyst, who did not want to be named, said it is highly doubtful that the court application provides much power to Lonmin, considering the company was the first to give in to the strikers’ demand to have the wage settlement period reduced to three years from five.

PW Botha wagged his finger and banned us in 1988 but we stood firm. We built a reputation for fearless journalism, then, and now. Through these last 35 years, the Mail & Guardian has always been on the right side of history.

These days, we are on the trail of the merry band of corporates and politicians robbing South Africa of its own potential.

To help us ensure another 35 future years of fiercely independent journalism, please subscribe.

Advertisting

In East Africa, the locusts are coming back for more

In February the devastating locust swarms were the biggest seen in East Africa for 70 years. Now they’re even bigger

Western Cape Judge Mushtak Parker faces second misconduct complaint

The Cape Bar Council says his conduct is ‘unbecoming the holding of judicial office’

‘My biggest fear was getting the virus and dying in...

South African Wuhan evacuee speaks about his nine-week ordeal

Border walls don’t stop viruses, but a blanket amnesty might

Why South Africa should consider amnesty for undocumented migrants in the time of the coronavirus outbreak.

Press Releases

The online value of executive education in a Covid-19 world

Executive education courses further develop the skills of leaders in the workplace

Sisa Ntshona urges everyone to stay home, and consider travelling later

Sisa Ntshona has urged everyone to limit their movements in line with government’s request

SAB Zenzele’s special AGM postponed until further notice

An arrangement has been announced for shareholders and retailers to receive a 77.5% cash payout

20th Edition of the National Teaching Awards

Teachers are seldom recognised but they are indispensable to the country's education system

Awards affirm the vital work that teachers do

Government is committed to empowering South Africa’s teachers with skills, knowledge and techniques for a changing world

SAB Zenzele special AGM rescheduled to March 25 2020

New voting arrangements are being made to safeguard the health of shareholders

Dimension Data launches Saturday School in PE

The Gauteng Saturday School has produced a number of success stories