PROTECTION: A police car escorts a bus outside Lonmin’s Saffy shaft in Rustenburg on Thursday. The platinum producer said it was considering going to court to stop a 16-week mining strike. Picture: REUTERS/SIPHIWE SIBEKO
Lonmin’s Saffy shaft in Rustenburg. Picture: REUTERS

AN AMENDMENT to the Labour Relations Act that would have given platinum employers the possibility to interdict the ongoing strike in the event of violence was removed from the bill at the 11th hour by a parliamentary committee in February.

The removal means employers have no legal grounds to interdict the strike, even if it turns violent.

On Thursday Lonmin’s executive vice-president for human resources Abey Kgotle said in an interview that Lonmin was considering legal options to end the strike on the grounds that violence was preventing employees’ return to work.

Legal and industrial relations experts are unanimous that no such basis exists in law. However, had the proposed amendment been carried through the parliamentary process in February, the Labour Court would have had the power to suspend a strike in appropriate circumstances. This would have included in a situation where an agreement on picketing rules had been broken.

"There is no room in terms of the Labour Relations Act to interdict the strike or have its protection lifted on the basis of violence," said University of Cape Town law professor Halton Cheadle. "Without a provision that would enable it, it would be very difficult," he said.

To interdict the violence itself or ask for an order to compel the union to stop any violence from occurring would make no difference to the legality of the strike itself, he said.

Bowman Gilfillan director and labour law specialist Chris Todd said this avenue had frequently been contemplated by employers in the context of violent strikes, but never seriously pursued as the chances of success were so small.

Mr Todd, who represented Business Unity South Africa in the National Economic Development and Labour Council negotiations on amendments to the bill, in 2012, said it was for this reason an amendment to the act had been proposed.

"During those talks business did put a section into the amendments which said that in the event of unlawful conduct the Labour Court would have the power to interdict the strike itself. It would have given Lonmin, for example, the grounds to bring such an application," he said.

The amendment in question survived almost the entire parliamentary process and was accepted by the first deliberation of the national assembly, but in the National Council of Provinces the Select Committee on Labour and Public Enterprises removed it out of concern that "it interferes with the constitutional right of workers to strike".

The Labour Relations Amendment Act was one of the last pieces of legislation to be passed by the last Parliament. It has not yet been signed into law, but already the African National Congress (ANC) is being forced to rethink its choices on the bill.

Apart from excising the limitation of picketing, the ANC majority — in committee stages — also removed a provision which would have made balloting before a strike compulsory. In the platinum strike, as in most strikes in South Africa, a decision to strike and whether to continue or end a strike is taken by a show of hands in a mass meeting.

On Thursday, there were no violent incidents at Rustenburg mines, said Brigadier Thulani Ngubane, the police’s North West communications co-ordinator. On Wednesday, two cars on mine property were burned. Four people died in violence from Sunday to Tuesday. It was not known if all were strike related, but one involved a mineworker who was hacked to death on his way to work. Police are maintaining a high presence and escorting nonstrikers to and from work. The National Union of Metalworkers of South Africa on Thursday said it is considering a solidarity strike with platinum workers.

With Natasha Marrian