"Here the conduct of the first respondent shows quite clearly that initially she was not aware that the strike by essential services employees was unlawful. "It shows that when the strike rules were agreed and the announcements were made she was unaware of her right to interdict the strike, and could accordingly not waive this."As soon as she became aware of the right, she acted upon it.The defence of waiver, in any form, cannot avail the appellants," said Court of Appeal Judge President Ian Kirby.Justice Kirby was delivering a judgment in a case between public service unions and government on the legality of the 2011 strike by essential services employees. Justice Kirby said Bakwena played her part, as she thought, by providing a list of categories of workers required to be on duty.
He said it was for the union to ensure that the essential services were performed. "This was so because it is the union which orchestrated the strike on behalf of its members. It was the union who called them out on strike, it was the union who was to ensure they complied with the strike rules, and it was the union which was to ensure their return when the strike was over. "Essential services were to be continued at all stations, albeit on a reduced basis, subject to the right overall of 70 percent of the essential services employees (as was then believed) to participate in the strike. No doubt in agreeing this term the parties believed it to be both lawful and achievable." He said various clinics were closed due to all their nurses and staff staying away, with potential danger to public health, which was a clear and material breach of the collective agreement. This entitled the Industrial Court to interdict the strike in so far as it referred to essential services employees (but not the whole strike) and that is what happened, although the wrong subsection was referred to.
