Marikana: A watershed moment for the NUM and Amcu. Picture: THE TIMES
Marikana: A watershed moment for the NUM and Amcu. Picture: THE TIMES

SA’s labour court has prevented a secondary strike across the country’s gold, platinum and vanadium industries, ruling that such an action would be unprotected.

The Association of Mineworkers and Construction Union (Amcu) said it would appeal against the judgment.

Amcu had called for the seven-day secondary or sympathy strikes across a range of companies to support its 14,000 striking members at Sibanye-Stillwater’s three gold mines, who downed tools on November 21 in demand of higher wages.

Sibanye has steadfastly said it will not entertain any increase in wages for Amcu because it has already signed a wage deal with three other unions. There is a process under way to determine whether Amcu holds a narrow majority of workers at Kloof, Driefontein and Beatrix, or if the other three unions have since become the majority.

The four-month strike has been marked by the death of nine people and the burning of more than 60 houses in the Carletonville area in strike-related violence and intimidation.

Amcu argued in court that because Sibanye and the other companies at which it wanted to declare the secondary strike are all part of the Minerals Council SA (the former Chamber of Mines), the companies could bring pressure on Sibanye to resolve the gold strike. Once Amcu issued the secondary strike notices, those companies immediately approached the labour court to declare the strike action unprotected.

Sibanye has been able to weather the strike because it has half its workforce reporting for work and is producing enough gold to keep the mines operational, an important consideration for judge Connie Prinsloo when weighing the merits of the case.

On Friday Prinsloo found that while the gold strike at Sibanye was protected, and that Amcu had given the other companies sufficient warning, all of which ticked the boxes in the Labour Relations Act laying out the conditions for a secondary strike, the union failed to meet the third provision.

The third provision states that workers may embark on a secondary strike provided “the nature and extent is reasonable in relation to the possible direct or indirect effect that the secondary strike may have on the business of the primary employer”.

Prinsloo found Amcu’s secondary strike would be neither reasonable nor proportional and declared such a strike unprotected. “A secondary strike of the magnitude envisaged by Amcu will have a major impact on the economy of the country. This factor certainly outweighs the negligible effect the secondary strike may have on Sibanye and therefore renders it unreasonable.” 

Using AngloGold Ashanti as an example, Prinsloo noted that the company had said in court it would lose R20.4m a day in such a strike at its last remaining underground mine in SA where Amcu has a 67% representation of workers, effectively bringing the marginal mine to a standstill.

“The effect of the secondary strike will be devastating,” Prinsloo said, noting AngloGold had made clear in its arguments it had no commercial relationship or interaction with Sibanye.

“Since the primary strike is going into its fourth month, it is unlikely that a secondary strike of seven days will have any impact on the primary strike at this stage,” she said. “As Sibanye and AngloGold are competitive gold producers, a secondary strike resulting in AngloGold being unable to produce would rather give Sibanye a competitive advantage.” 

Companies also argued in court about their fears of violence associated with the strike. This was not a “completely unfounded” view, Prinsloo said, based on past interdict applications made by mining companies at the labour court and the past conduct of Amcu members.

“It is, indeed, a sad reality that there has been a track record of violence and intimidation where industrial action has taken place, and Amcu is in no position to dispute the allegations made by the applicants in respect of their own past experiences, and in respect of the horrendous violence displayed during the ongoing Sibanye strike,” she said.

“The conduct of Amcu’s members certainly tainted its reputation as a trade union that supports peaceful industrial action.” 

The judge questioned whether Amcu’s leadership is “able to control its members to behave according to acceptable standards ... and whether Amcu is serious in building a reputation as a trade union that supports and conducts peaceful industrial action”.