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.