If the workers go out on strike, the strike must also comply with the requirements of the law. To this end, the Gatherings Act 205 of 1993 and the regulations promulgated thereunder will apply. The purpose of the Gatherings Act is to regulate the holding of public gatherings and demonstrations at specified places.
Section 11 of the Act creates a statutory liability on the organisers of a gathering or demonstrations in the event of any damage arising from the strike. Section 11(1) of the Act reads as follow:
"(1) If any riot or damage occurs as a result of;
(a) a gathering, every organisation on behalf or under the auspices of which that gathering was held, or if not so held, the convener,
(b) a demonstration, every person participating in such demonstration,
Shall … be jointly and severally liable for that riot damage as a wrongdoer… together with any other person who unlawfully caused or contributed to such riot damage and any other organisation…"
The essence of this section is to ensure that trade unions take measures to avoid any form of damage to property likely to be caused by its members during a strike.
The courts have had occasion to consider the application of the provisions of section 11(1) of the Gatherings Act against trade unions where members embarked on a legal strike.
In a recent judgment, the Supreme Court of Appeal dealt with the liability of the trade union resulting from a riot during a protected strike when members of the union allegedly vandalised properties belonging to members of the public. The court accepted the principle that assemblies, pickets, marches and demonstration are essential instruments of dialogue in society. However, it held that the struggle for workers' rights should take place within prescribed legal limits and with due regard to the rights of others.
Prior to the Supreme Court of Appeal Judgment, the Labour Court previously imposed a fine on a trade union for failing to prevent its members from harassing, assaulting and or intimidating non striking employees. The lessons to be learned from these cases are that trade unions may be held liable for damages caused by the unlawful actions of its members during a protected strike.