NEDBANK APPEAL ON REPLACEMENT LABOUR GOES AHEAD

MBABANE – Nedbank employees may have reached a settlement with their employer and returned to work but the court went ahead and heard the former’s appeal.

Yesterday, the Industrial Court of Appeal heard the appeal, which was filed by the bank after Judge Nkosinathi Nkonyane issued an order restraining Nedbank from engaging replacement labour while the employees’ strike ongoing.

SUFIAW which represented the employees, took the bank to court arguing that the engagement of temporary staff during their recently concluded strike undermined its purpose.

Advocate Paul Kennedy, who had been instructed by Robinson Bertram, yesterday informed the appeal court that the Industrial Court committed an error in its use of international law to interpret the right to strike under the Constitution.
He said the court misinterpreted and misapplied the principles of international law.

The appeal was heard by Judge John Magagula, who was flanked by Judge Cyril Maphanga and Judge Doris Tshabalala.
Kennedy said the court seemed to rely on the ILO’s principles concerning the right to strike, which state that the replacement of strikers is justified in the event of a strike in essential services and during national crisis.

The advocate submitted that in the absence of domestic law dealing with the infringement of the right to strike, the court should have had regard to relevant South African case law which he said would have been of significant value.

The advocate made an example that the South African Constitutional Court which he said held that its courts can derive assistance from public international law and foreign case law but are in no way bound to follow it.

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