Articles

What is a strike?

Clasa Incorporate Winter 2009
By Mike Leinberger

In the recent Supreme Court of Appeal (SCA) judgment of Sasria Limited v Slabbert Burger Transport (Pty) Ltd, 2008 (5) SA 270 (SCA), the SCA had to interpret the word "strike" in a so-called coupon policy issued by Sasria to the respondent. In terms of this policy, the appellant undertook to indemnify the respondent "against loss of or damage to (the truck) directly related to or caused by … any riot, strike or public disorder, or any act or activity which is calculated or directed to bring about a riot, strike or public disorder".


The facts giving rise to this case were that:


• On 1 March 2005 the members of the South African Transport and Allied Worker's Union embarked on a lawful strike. Approximately half of the drivers employed by the respondent went on strike and those that did not go on strike continued to work as drivers in the employ of the respondent.


• During the strike, drivers who were not participating in the strike were assaulted and threatened, trucks were damaged and set on fire, and cargo being transported on the trucks was looted.


• On 2 March 2005 a driver employed by the respondent, who was not participating in the strike, parked his truck at a truck stop.


• Three unidentified men, two of whom were wearing dark blue overalls similar to those worn by the respondent's drivers purchased petrol and a box of matches from a shop and set the truck on fire. The fire destroyed the truck.


The issue to be decided was whether the damage to the truck was caused by a peril in the Sasria policy.


The court a quo (that first heard the case and against which judgment is being appealed) inferred from the statement of agreed facts that the purchase of the petrol and box of matches must have led to the fire which destroyed the truck, which was being driven by an employee of the respondent in defiance of the strike and, that given the manner in which the two men were dressed, they must have also been employees of the respondent.  The SCA found that the inference drawn by the judge in the court a quo was by far the most probable and rejected all of the alternative submissions by Sasria's counsel.


The next question was whether the destruction of the truck was directly related to or caused by any riot, strike or public disorder, or any act or activity which was calculated or directed to bring about a riot, strike or public disorder. The argument by Sasria's counsel was that the words "riot, strike or public disorder" should be interpreted with reference to the eiusdem generis (of the same kind or nature) or noscitur a sociis (the meaning of a word may be established from accompanying or surrounding words) principles. The argument was that the word "strike" had to have an element of violence about it, similar to situations of "riot" or "public disorder".


The court, in interpreting the words, applied the golden rule of interpretation, namely to apply the ordinary grammatical meaning to the word in question. The court looked at the meaning of the word "strike" as defined in the Oxford English Dictionary and held that "strike" should bear its ordinary, dictionary meaning (a concerted cessation of work on the part of a body of workers for the purpose of obtaining some concession from the employer or employers) and, on this basis, held that the destruction of the truck was an act directly related to a strike and that it was caused by a peril listed in the Sasria policy.


Counsel for Sasria, in attempting to argue that a strike in this context should have a violent connotation, found himself with the difficulty that the formulation itself rendered the word "strike" redundant. The court held that if the ordinary dictionary meaning of the word was not compatible with the context in which the word appeared, and that the meaning of the word was intended to be modified, then the contra proferentem rule of interpretation would apply against the insurer, which rule provides that an ambiguous term in a contract will be construed against the interests of the party who imposed it.


In the result, the SCA dismissed the appeal and upheld the order of the court a quo to the effect that Sasria was liable to indemnify the respondent for the value of the truck.