SA is unfazed by whatever conclusion the International Court of Justice (ICJ) may reach on the right to strike, as the right is already guaranteed by the constitution, department of employment & labour spokesperson Teboho Thejane said.
The ICJ held public hearings last Monday to Wednesday at the request of 20 countries and five international organisations for an opinion on whether the right to strike is protected in terms of convention 87 of the International Labour Organisation (ILO).
“This is a court case. Nothing happens until the court makes its ruling. For SA, the decision doesn’t matter because the right to strike is guaranteed by the constitution,” Thejane said in a response to Business Day.
In its oral presentation, the SA delegation made the case that the right to strike was protected under the convention, specifically under article 3, which broadly protects the organisational autonomy of workers’ and employers’ bodies and bars state interference.
A favourable advisory opinion would rebuke states and employer groups that have sought to exclude strike rights from the convention. It would also entrench SA’s post-apartheid labour model in international law and limit domestic efforts to criminalise industrial action.
While the convention does not expressly refer to “strike”, it guarantees that workers may freely form and join trade unions to further and defend their interests, while respecting the law of any country. It guarantees that workers and employers can establish and join organisations of their choosing. It defines “organisation” as any body of workers or employers formed to further and defend their interests.
“Each member of the ILO for which this convention is in force undertakes to take all necessary and appropriate measures to ensure workers and employers may freely exercise the right to organise,” the convention reads.
Employment & labour minister Nomakhosazana Meth has said the “right to strike is not only a cornerstone of our own constitutional democracy, as enshrined in section 23 of our constitution, but it is also a vital component of freedom of association globally”.
She said SA was a consistent and vocal supporter of referring the matter to the ICJ for a definitive legal resolution.
“Our post-apartheid labour laws were deliberately crafted to align with the very ILO jurisprudence now under review. A favourable advisory opinion from the ICJ will affirm the foundations of SA’s progressive and equitable labour relations framework and provide crucial legal certainty for the entire ILO community,” Meth said.
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