While delivering judgment on the legality of the essential services workers strike, the court said that: "While section 42(1)(b)(iii) as read with section 9(1)(b) and section 43 of the TDA forbid and criminalise the strike by essential services employees, section 45 specifically authorises such strikes if certain conditions are met, and section 45 decriminalises participation in essential services strikes called in terms of section 45". The court president Justice Ian Kirby said the first duty of a court faced with apparently conflicting provisions is to seek an interpretation which renders both effective and achieves the objective of the legislature.
"There may also be other possibilities of reconciling the sections - for example section 42(1)(b)(iii) forbids strikes and lock-outs, but not other lesser forms of industrial action, as defined in section 2 of the TDA, whereas section 45 authorises 'industrial action' and does not refer to strikes. Alternatively, it might be argued that an accelerated arbitration is to be undertaken within 21 days before industrial action is taken.
