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[1]       The Labour Court interdicted the intended secondary strikes at 10 mining companies in support of a primary strike at Sibanye Gold Limited t/a Sibanye Stillwater (Sibanye).[2]  That primary strike has long been resolved, and consequently, the dispute is no longer live.  However, this application for leave to appeal poses a discrete question of law: does section 66(2)(c) of the Labour Relations Act[3] (LRA) import the principle of proportionality when assessing the substantive lawfulness of secondary strikes?  It is to address this question, that I pen this judgment notwithstanding the absence of a live dispute.

Parties

[2]              The first applicant is the Association of Mineworkers and Construction Union (AMCU).  It brings this application together with its members, the second to eleventh applicants, who are employees of the first to tenth respondents.  The first to eleventh applicants will be referred to as either “AMCU” or “the applicants” and together they represent all AMCU members at various companies who intended to participate in the secondary strikes.

[3]              The first to tenth respondents are Anglo Gold Ashanti Limited t/a Anglo Gold Ashanti; Lonmin Platinum Comprising Western Platinum Limited and Eastern Platinum Limited t/a Lonmin; Rustenburg Platinum Mines Limited t/a Rustenburg Platinum Mines; Harmony Gold Mining Company Limited t/a Harmony Gold; Village Main Reef (Pty) Limited; Tau Lekoa (Pty) Limited and Kopanong (Pty) Limited t/a Village Main Reef; Northam Platinum Limited t/a Northam Platinum; Marula Platinum (Pty) Limited; Impala Platinum Limited t/a Impala Platinum; Glencore Operations SA (Pty) Limited and Bushveld Vametco Alloys (Pty) Limited.  They are mining companies operating in the Republic of South Africa.  Collectively, they will be referred to as “the respondents” or “the secondary employers” as the context requires.  Only the second, third, fourth, sixth, seventh, eighth and tenth respondents participated in this appeal.