FXI Law Clinic Cases

The FXI has contributed to the body of knowledge on freedom of expression in South Africa through cases undertaken by the FXI Law Clinic. The FXI Law Clinic has intervened in over 200 freedom of expression related matters since its inception. 

Brief history of the FXI Law Clinic

The Media Defence Trust was established in 1989 in response to the wave of state action against the media, such as the closure of newspapers and detention of journalists. In its six years of establishment the Media Defence Trust was the sole supporter and defender of independent media and journalists. The Media Defence Trust was incorporated into the FXI in 1994, at the request of its administrators, and became the Defence Fund of the FXI. The Defence Fund was re-launched as the Freedom of Expression Defence Fund in 1997 to reflect the broadening of its role to include all cases involving freedom of expression and access to information. The Freedom of Expression Institute Law Clinic was established in 2005 and is accredited by the Law Society of South Africa.

SATAWU and Moloto
Following an unresolved wage dispute, SATAWU (the recognized majority union) notified Equity Aviation Services (Pty) Ltd. that it intended to lead a strike. Sixty-three employees who were not SATAWU members also participated in the strike. In November 2004, Equity Aviation dismissed the non-union workers for their unauthorized absence during the strike. These employees argued that their dismissal was "automatically unfair" because it was based on their participation in a lawful strike. The case accordingly came to turn on how much notice an employer should receive prior to a strike in accordance with the procedural requirements of a lawful strike outlined in section 64(1)(b) of the Labor Relations Act 66 of 1995. Should every individual striker have to provide notice or was SATAWU's notice sufficient?

The majority of the court held that the notice provided by SATAWU sufficed since such an interpretation of s64(1)(b) best accorded with section 23 of the Constitution, protecting the right to strike without express constitutional limitation. Legislative limitations-for example, as delineated in s64-should be construed as narrowly as possible so as not to contravene the s23 right to strike. The majority opinion thus adopted a pro-employee stance, recognizing that the right to strike is designed to restore the power imbalanced between employee and employer.

The dissenting opinion interpreted the section as requiring each individual employee to notify employers of their intent to strike. Judge Maya supported her position by pointing to the need for strikes to be as orderly as possible to minimize disruption of the workplace and society as a whole.

The sharp division of the Constitutional Court demonstrated a significant ideological split on the power that should be accorded to unions and employees in the workplace.
Open/View PDF (SATAWU-v-Moloto.pdf)
September 21 2012 By Bongani Phiri sawatu, moloto