Constitutional Court of South Africa, NUMSA v. Bader Bop, 13 December 2002, Case No. CCT 14/02

South Africa
Right to strike , Freedom of association , Collective bargaining
Role of International Law:
Use of international law as a guide for interpreting domestic law
Type of instruments used:

Ratified treaties;1 Work of international supervisory bodies2

Means of action of minority trade unions/ Importance of ILO Conventions and the proceedings of the ILO supervisory bodies in the interpretation of national law/ Use of international law as a guide for interpreting domestic law

A minority trade union wanted to call a strike in order to exercise the right to have a works steward. South African legislation provided that trade unions which were sufficiently representative could seek to assert their right to organize through mediation, arbitration or strike, but the law was silent as to the means of action of minority trade unions. The company had brought an action to have the strike banned. According to the Appeal Court’s interpretation of the Labour Code, a minority union did not have the right to call a strike. The union brought the matter before the Constitutional Court.

Before considering the merits of the case the Constitutional Court defined the rules of law applicable to the dispute, and thereby found that South African trade union law was intended to fulfil South Africa’s obligations as a member State of the International Labour Organization and that national legislation should therefore be interpreted in compliance with the State’s obligations under public international law. The Court considered in this instance that ILO Conventions No. 87 on Freedom of Association and Protection of the Right to Organise and No. 98 on the Right to Organise and Collective Bargaining were to be taken into account.3

After referring to the relevant articles of these two Conventions, the Constitutional Court explained the functions of the ILO Committee on Freedom of Association and the ILO Committee of Experts on the Application of Conventions and Recommendations. The High Court found that:

“Its decisions [of the ILO Committee on Freedom of Association] are therefore an authoritative development of the principles of freedom of association contained in the ILO Conventions. The jurisprudence of these committees too will be an important resource in developing the labour rights contained in our Constitution.”

The Court then examined the “jurisprudence” of the two supervisory bodies pertaining to strikes and the means of action available to trade unions and pointed out that:

“These principles culled from the case law of the two ILO committees are directly relevant to the interpretation both of the relevant provisions of the Act and of the Constitution.”

In the Court’s opinion, allowing minority unions means of action was more in conformity with the “jurisprudence" of the two ILO supervisory bodies. Furthermore, it found that this interpretation had the advantage that it did not restrict the rights protected by the Constitution.

The Court therefore held that the Labour Court’s interpretation of the Labour Code was plausible but did not take sufficient account of the guidelines of international law:

“However, it (the tribunal) fails to take into account sufficiently the considerations that arise from the discussion of the ILO Conventions outlined above and, in particular, does not avoid the limitation of constitutional rights. The question we must answer, therefore, is whether the Act is capable of an interpretation that does avoid limiting constitutional rights.”

The Constitutional Court consequently sought an interpretation of the law which limited infringements of constitutional rights and concluded that minority unions could seek to recover rights through collective bargaining. The Court held that:

“A better reading is to see section 204 as an express confirmation of the internationally recognized rights of minority unions to seek to gain access to the workplace, the recognition of their shop-stewards as well as other organizational facilities through the techniques of collective bargaining.”

It was thus held that where employers and unions had the right to negotiate on an issue it was natural to assume that unions also had the right to strike on the same issue.

The Constitutional Court thus recognized that minority unions could seek to recover certain rights through collective bargaining and that, if the negotiations failed, they had the right to strike. The Court reversed the decision of the Appeal Court.

1 ILO Convention on Freedom of Association and Protection of the Right to Organise, 1948 (No. 87); ILO Convention  on the Right to Organise and Collective Bargaining, 1949 (No. 98).

2 ILO Committee of Experts on the Application of Conventions and Recommendations; ILO Committee on Freedom of Association.

3 The Constitutional Court also mentioned ILO Convention on Workers’ Representatives, 1971 (No. 135), and ILO Convention on Collective Bargaining, 1981, (No. 154) but did not rely on them.

4 Section 20 of the Labour Act which forms part of Chapter III, Part A, on collective bargaining: “Nothing in this Part precludes the conclusion of a collective agreement that regulates organizational rights.”

Full text of the decision