DEPARTMENT OF MERCANTILE LAW

ABR 410 2021 EXAMINATION

Examiners: Prof BPS van Eck and Dr K Newaj

Internal Moderator: Ms Yolande Springveldt
External Examiner: Prof E Manamela (UNISA)

50 Marks 2021-07-12 Duration 8 hours

Instructions

1. The Exam consists of one set of facts and two questions totalling 50 marks. The answer sheet
must consist of a Part A and Part B. The Exam opens between 09:00 and 17:00 (8 hours) on
12 July 2021. You must submit your answer via ClickUp before 17:00. ENSURE THAT YOU
SUBMIT YOUR EXAM AND PLAGIARISM DECALRATIONS UNDER THE CORRECT
SEPARATE LINKS. NO LATE SUBMISSIONS WILL BE ACCEPTED. If you have any
technical problems regarding the exam - send an email to abr410.2021@gmail.com
immediately.
2. During a sit-down examination on campus you would have been granted 3 hours to complete
the exam. In this instance the examiners suggest that you should utilise your time as follows:
1 hour to read and understand the set of facts; 3 hours to write out your answer by hand; 3
hours to type your answer; and 1 hour to do your referencing and editing. Should you
experience any problems with power failures you will have to send your written document to
your lecturer immediately via phone.
3. Add your student number, initials and surname on the first page of your Exam Answer Sheet.
4. Your answers may not exceed 10 pages, or 3 500 words. The word count applies to the text
only and does not include the footnotes and bibliography. The 10 page limitation includes your
footnotes, but excludes your bibliography. Add your word count at the end of your answers,
but before the bibliography.

5. The Rubric follows at the end of this document. You will be assessed on substance and form.
• Provide a coherent structure with 4 or 5 subheadings for your answers. Commence with an
Introduction. Formulate a central question, as well as sub-questions (if relevant). Set out the
relevant legal principles. Include your own critical analysis and suggestions under appropriate
headings and end off with a Conclusion. It is not necessary to include the relevant facts in
your answer.
• The text must be typed in Arial, 12 font and 1,5 spacing. Footnotes must be typed in Arial,
10 font, and single spacing.
 • The full names of cases must be placed in bold and in italics in the text. Only the case
reference (and not the name of the case) should be included in the footnote.
• Use the same referencing style as your LLB dissertation, or the style of Law@work (2019).
• Only the names of the authors of books and articles should be included in the text and the
title, year and page numbers of books and articles should be included in the footnotes.
• Only refer to prescribed legislation, cases and reading material. This is not a research
assignment, and you will not be awarded marks for materials that were not prescribed.
• Do not copy and paste quotes from your reading material. Write in your own words.
• Add a bibliography (in 12 font) at the end of your answer. Do not add a table of contents.

6. The markers will award an impression mark taking account of:

• The identification of, and reliance on, appropriate legal opinions, principles and case law;
• Critical analysis and correct application of the law to the facts and questions posed;
• Sound and accurate style, referencing and language usage; and
• A coherent structure referred to above.

7. After you have completed your exam, you must complete your personal particulars in the
document with the title “Plagiarism Declaration 12 July 2021”. Submit this document Via the
appropriate link within 1 hour after the completion of your exam on or before 18:00 on 21 July
2021.

8. This is an individual assessment. You are prohibited from communicating verbally or by means
of WhatsApp or any other means with fellow students or any other person regarding the content
and answers of the exam. You must familiarise yourself with the UNIVERSITY OF
PRETORIA’s rules pertaining to plagiarism. Plagiarism will result in zero marks, disciplinary
action, and/or possible expulsion from the University.
9. A failure to follow these instructions and the format guidelines for each question will result in a
deduction of marks as penalty.
________________________________________________________________________

Facts

Jane was born in Durban, grew up in Pretoria and works as a senior administrator at the
Brick Company (the Employer) in Johannesburg. Jane earns R305 000 per month; works
07:00 till 17:00 from Monday to Saturday. Zorba is a single father, belongs to the Methodist
church and was appointed as senior financial manager in 2020. He earns R190 000 per
month and also works from 07:00 till 17:00 on Monday to Saturday.

The Employer is experiencing financial pressures due to the sluggish economy.

Nonetheless, the workers’ trade unions are continuously piling pressure on the Employer to
increase their salaries. The Employer has also recently secured a contract to build a
renewable energy plant and the possibility exists of appointing 10 more employees in the
months to come.
The Employer has 150 workers working at two factories. The Employer’s factory in
Johannesburg employs 100 workers and the rest of the workers render services at their
premises in Pretoria.

The Employer is considering the issue of the conclusion of a closed shop agreement with
Trade Union A and their Human Resources Division has been doing some research on this
aspect. The Employer’s premises have one promotion structure and it has one IT system.

Primrose was recently appointed as the senior operations manager of both of the Employer’s
premises. She has a particular dislike of trade unions and she is not keen to have more than
one active trade union at their operations.

Three trade unions have recruited members under the Employer’s workforce. Trade Union
A has 80 members across all factories, Trade Union B has 40 members at the Pretoria
factory and two members at the Johannesburg factory and Trade Union C has 5 members
the Johannesburg factory. Trade Union A has access to the workplace and the right to
deduct trade union dues. The other trade unions have none of these rights.

Trade Union B does not have a provision in their constitution regarding the conducting of a
secret ballot before engaging in a strike. However, this does not detract them in their efforts
to improve their members’ working conditions and they have threatened strike action on a
number of previous occasions.

Jane is Trade Union A’s shop steward at the Johannesburg factory. Zorba, on the other
hand, belongs to Trade Union B and wishes to acquire the “right for the election of a trade
union representative” and to receive relevant information for Trade Union B at the Pretoria
factory. However, Zorba has no knowledge regarding whether they qualify for, and how to
gain any of the trade union rights at their workplace.

Trade Union A has been negotiating for higher wages with the Employer for two months.
Jane has become more-and-more aggressive in her behaviour of late. She destroyed the
Employer’s name boards at the entrance of the Johannesburg factory. Primrose is dismayed
about this and she orders their Human Resources Division to “fire Jane on the spot” to teach
Trade Union A, a lesson. Jane is uncertain regarding the applicable principles about her
alleged unfair dismissal. She wants to instruct a senior advocate to represent her all the way
during all of the processes to be followed in the resolution of her dispute.

Trade Union A is highly upset about Jane’s dismissal and they call out a strike. They demand
that Jane must be reinstated. They followed the letter of the law and referred a labour dispute
to the CCMA. A certificate of non-resolution has been issued and Trade Union A gives 48
hours’ written notice about the strike.

The members of Trade Union B join Trade Union A’s strike. The members of Trade Union
B overturn Primrose’s company vehicle and set it alight. Primrose is furious as Trade Union
B has not submitted any referral of a dispute to the CCMA and they have committed serious
acts of misconduct. She is aware of the constitutional right to strike, but she intends to
dismiss Trade Union B’s members who engaged in the strike. However, she insists that she
will not be consulting with Trade Union B before dismissing the workers as Trade Union B
has not been allocated organisational rights. There is a measure of uncertainty amongst the
parties whether this is a permissible strike in terms of the Labour Relations Act.

Answer the following questions by submitting your answer sheet in the form of a professional
legal document as explained in the instructions. Your answer must be completed in one
document, but under two subheadings. Each student must add one bibliography at the end
of the answer sheet that refers to the sources referred to under both parts.

Part A
Primrose approaches you for advice. Advise her about Trade Union B’s right to strike, the
consequences that may flow from the strike and the Employer’s right to dismiss Trade Union
B’s members for engaging in the strike. (26)

Part B
Advise Jane about her unfair dismissal case, including her right to legal representation.
However, she does not request any advice on the issue of the onus of proof. (17)

Language and editing

Seven marks will be awarded towards excellent language, editing and formatting. (7)

Total 50 marks

___________________

Rubric Part A (same applies to Part B)

Rubric

Marking structure:
Mark

Identification of the applicable legal principles,

1. Content Part A 21/30
legislation, cases and opinions of authors.
Part B 14/20
 The interpretation and application of the legal
principles to the topic.
2. Insight and
Part A 5/30
Application Insight into the topic and understanding of the
Part B 3/20
field surrounding the topic.

Conclusions and recommendations.

3. Structure and 4 (paper as a

Logical structure and good language.
Language whole)

Technical presentation and consistent

4. Bibliography and 3 (paper as a
referencing /
Referencing whole)

A – 30
TOTAL B – 20

Reminder: an impression mark will be awarded considering substance and form. However, it
was expected of each student to address the following substantive issues.

PART A

Trade Union B’s right to strike:

Introduction:
• The ILO does not have an express right to strike, but it is implied in its conventions.
• Every worker has a constitutional right to strike (s 23).
• However, in terms of the limitations clause this right may be limited to the extent that it is
acceptable in an open and democratic society (s 36). (max 1)

The right to strike in terms of the LRA:

S 64(1) of the LRA provides every worker the right to strike subject to a number of limitations.

Substantive limitations:
• Existence of a collective agreement that prohibits a strike;
• Essential services;
• If dispute of right can be referred to dispute resolution. (max 2)

Procedural Limitations:
• Refer to mediation (CCMA / Barg Council)
• Certificate or 30 days
• 48 hours written notice (max 2)

Minority Union’s right to strike:

• SATAWU v Equity Aviation: a majority trade union referred a dispute for conciliation and the
employer argued the minority union that went on strike was unprotected.
 • Held: it was a protected strike. S 64(1) gives every worker the right to strike and the wage
dispute was conciliated. (2)

Strike ballots:
• LRA amended to require that every trade union must include in its constitution a provision
requiring a strike ballot.
• National Union of Metalworkers of South Africa v Mahle Behr: the LAC confirmed that this
does not impact on determining whether it is a protected or unprotected strike (2)

Consequences of Protected strikes:

• No delict or criminal offence
• No Work no Pay
• Immune against dismissal
• May dismiss on grounds of Misconduct and Operational Requirements (2)

Requirements for fair dismissal of striking employees:

* Modise v Steve’s Spar Blackheath * Must be some form of audi alteram partem (2)

Item 6 of the Code of Good Practice Dismissal (1)

• Unprotected strike is misconduct, but must consider if it is fair

Substantive requirements
• Seriousness of contravention; Attempts made to comply with the Act; Was it in response to
unjustified conduct by the employer? (2)

Procedural requirements
• Contact trade union asap
• Issue fair ultimatum; sufficient time; unambiguous what is expected and sanction (3)

Roberts Brothers Construction Pty Ltd v NUM

• Held no requirement to contact and consult the minority trade union if no organisational rights
awarded to it (2)

Conclusions:

• Trade union A’s strike was unprotected as the substantive limitation applied that the dispute
about Jane’s dismissal could be referred for mediation and arbitration. (1)
• Trade Union B has the right to engage in a protected strike on the back of a majority trade
union referring the dispute to conciliation. However, A’s strike unprotected. (1)
• Trade Union B’s not holding a strike ballot did not impact on the status of the strike (1)
• The employer could apply for an interdict against the unprotected strike and claim
compensation; and (1)
• has the right to dismiss the unprotected striking workers if it follows the correct procedures. (1)
[5]

[26
PART B - RE: Jane

Introduction
Strongly influenced by ILO; Every dismissal must be substantively and procedurally fair. (max 1)

Unfair Dismissal
• Three valid reasons for dismissal: misconduct, incapacity and operational requirements . (1)

Substantive Fairness:
 Item 7 of the Code of Good Practice sets the following tests for substantive fairness:
• Did the employee contravene a rule?
• Is it a valid rule?
• Was the employee aware of the rule:
• Has the rule been consistently applied to all workers?
• Is dismissal the appropriate sanction (or should the worker have been warned)? (2)
Procedural Fairness:
Avril Elizabeth Home for the Mentally Handicapped v CCMA relaxed the principles. Item 4 of the
Code of Good Practice - something less formal than a court-like procedure. (1)

At least:
• investigation into the factual circumstances;
• formulation of allegations of misconduct against the employee;
• notice of those allegations to the employee, and
• an opportunity for the employee to state a case in response to the allegations. (2)

Adjudication and remedy:

• This dispute should be referred to the CCMA/Barg Council in 30 days, if unresolved CCMA/Barg
Council for Arbitration (1)
• Remedy: can claim max 12 months or reinstatement. (1)

Representation

• Rule 25 of the CCMA Rules regulate the right to legal representation. (1)
• During conciliation – no legal representative. Fellow employee or trade union representative (1)
• During arbitration, an employee may be represented by a fellow employee, trade union
representative or a legal representative. (1)
• However, there is a limitation to the rule. Legal representatives may not represent during arbitration
in cases of Misconduct or Incapacity. (1)
• Commission for Conciliation, Mediation and Arbitration & others v Law Society of the
Northern Provinces (incorporated as the Law Society of the Transvaal) SCA held it is not
unconstitutional to limit the rule against legal representation. (1)

Conclusion
• Jane’s dismissal - substantively fair. Serious breach of fair rule. (1)
• Procedurally unfair – no hearing (1)
• No right to legal representative during arbitration (1)

[17]

_____________________

3. Structure and 4 (paper as a

Logical structure and good language.
Language whole)

Technical presentation and consistent

4. Bibliography and 3 (paper as a
referencing /
Referencing whole)