Can picketing strikers be stopped from making too much noise in a shopping mall? This is the issue that the High Court in Durban was called on to decide in the recent case of Growthpoint Properties Ltd v SACCAWU and others. In deciding the case the court had to find a balance between the rights of owners and occupiers to their property, to the environment and to trade, on the one hand, and the right of strikers to freedom of expression, to bargain collectively, to picket, protest and demonstrate peacefully on the other hand.

The union members were picketing in the basement parking lot at La Lucia Shopping Mall in Durban in terms of a picketing agreement between SACCAWU and Dis-Chem (one of the tenants at the Mall which was owned by Growthpoint). Growthpoint sought an interdict against SACAAWU on the basis that the noise made by the picketers, amplified in the basement parking lot, was creating a nuisance. The noise levels had been measured by an expert as exceeding the legal limit set by regulation for noise-induced hearing loss.

The court confirmed that all strikes and pickets have the potential to cause inconvenience and some nuisance to third parties not involved in the labour dispute. It also said it should be cautious to interfere with the exercise of the right to picket. It was satisfied it could hear the case because Growthpoint had based its case on the common law of nuisance and its constitutional rights to property, issues that fall under the High Court’s jurisdiction.

The right to picket is not unlimited

The court held that the right to picket was not unlimited and absolute. In this case tolerance levels were exceeded when Growthpoint and its tenants could not conduct business. The noise made by the picketers was persistent, intolerable and unacceptably high. Tenants and customers were prejudiced and businesses not party to the dispute lost revenue as customers went elsewhere. The noise also created an unhealthy environment. Growthpoint and its tenants were impeded from using their properties. Of importance was the court’s view that SACCAWU and its members could have exercised their rights without so interfering with the business of Growthpoint and its tenants, by lowering their noise level. They were not precluded from demonstrating, picketing, carrying placards or from singing and chanting softly.

The union was thus ordered to cease committing a nuisance at La Lucia Mall by shouting, chanting loudly, ululating or using any instrument or object which made a loud noise.