From Garvas to Massmart: The evolving journey of civil liability for strike damages in South Africa

For more than a decade, South African labour law has lived with an unresolved tension: how to balance the constitutional right to strike with the very real economic and social harm caused when strikes turn violent.

The question has never been whether employees may strike. That debate was settled long ago. The harder question has been this:

When collective action causes foreseeable and preventable damage, who bears the civil consequences—and in which court?

To understand where we are today, it helps to trace the journey that began with SATAWU v Garvas and has now reached a new moment of clarity following the Constitutional Court’s recent Massmart decision.

Garvis: legitimising civil liability, not punishing protest

The Garvas judgment was a constitutional watershed—not because it restricted the right to strike, but because it normalised the idea of civil liability flowing from collective action that causes harm.

The Constitutional Court accepted that holding unions liable for riot damage under the Regulation of Gatherings Act could have a chilling effect on protest. But it held that this limitation was reasonable and justifiable in a constitutional democracy.

Crucially, Garvas reframed liability as a question of risk management, not punishment. Organisers are not liable because they strike—but because they fail to take reasonable steps to prevent foreseeable harm.

That framing quietly changed the landscape. From that point on, the law no longer treated strike‑related damage as an unfortunate by‑product of industrial action. It became a legally cognisable harm, capable of attracting civil consequences.

The years after Garvis: uncertainty and fragmentation

Despite the constitutional green light, employers struggled to translate Garvas into effective remedies.

Two paths emerged—neither entirely satisfactory:

• Common‑law delictual claims in the High Court, with all the evidentiary and cost hurdles that delict entails; and

• Statutory compensation claims in the Labour Court under section 68(1)(b) of the Labour Relations Act.

What followed was more than a decade of jurisdictional uncertainty. Could compensation be awarded where the strike itself was protected? Was the Labour Court the right forum for what increasingly looked like ordinary civil claims?

Different courts answered these questions differently. Employers were encouraged in principle, but frustrated in practice.

A quiet but important shift: conduct over status

Over time, one idea began to crystallise in the case law:

A strike may be protected—but violence, intimidation and property damage never are.

This distinction matters. It separates the lawfulness of the strike from the lawfulness of conduct during the strike. It also aligns closely with Garvas, which focused not on the right to protest, but on the foreseeability and preventability of harm.

Still, the procedural confusion remained—until now.

The Massmart decision: clarity, not retreat

In March 2026, the Constitutional Court finally settled a long‑running debate in SACCAWU v Massmart Holdings Ltd.

The Court held that section 68(1)(b) of the LRA does not empower the Labour Court to award compensation for losses arising from conduct during a protected strike.

At first glance, this looked like a win for unions. But that would be a misreading of the judgment.

What the Court actually did was close one door and open another:

• Employers cannot pursue strike‑damage compensation for protected strikes in the Labour Court;

• But they are expressly directed to the High Court, where common‑law delictual claims remain fully available.

This was not a retreat from Garvas. It was a refinement of its consequences.

Civil liability for strike‑related damage survives—clearly and unequivocally—but it must be pursued on proper delictual principles and in the correct forum.

Where this leaves employers and unions

The current position is more demanding—but also more coherent.

For employers:

• Damages claims are no longer procedurally ambiguous;

• Success will depend on evidence: foreseeability, reasonable preventive steps, organisational control, and causation.

For unions:

• Formal compliance and disclaimers are no longer enough;

• The focus is now squarely on what was actually done to prevent harm.

The law has moved away from symbolic debates about the right to strike and toward a harder, more practical question:

Was the harm foreseeable—and could it reasonably have been prevented?

Final thought

From Garvas to Massmart, South African courts have stopped asking whether strike violence can attract civil liability.

They are now asking where, how, and on what evidence that liability must be proven.

That is not an erosion of the right to strike. It is a sign of a maturing constitutional order—one that insists that rights and responsibility travel together.

Stay informed, stay compliant and stay ahead of workplace change by joining the Mid-Year Labour Law Update 2026 (#MLLU2026), presented by Jonathan Goldberg and the expert GBS team. This practical and highly relevant labour law event will unpack the most important Labour Court, Labour Appeal Court, Constitutional Court and CCMA decisions from the first half of 2026, together with key statutory developments, NEDLAC proposals and emerging workplace risks. With live sessions in five cities, online attendance options, 100+ updated case summaries, 6 CPD points and valuable take-home resources, MLLU2026 is designed to help employers, HR, ER, IR and legal professionals prepare confidently for the second half of the year. With more than 610 delegates attending #MLLU2025, the Mid-Year Labour Law Update has established itself as one of the biggest and most relevant labour law updates in South Africa. Register now to secure your place.

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This article is for informational purposes only and does not constitute legal advice. For specific legal guidance on protected disclosures, employment practices, or compliance obligations, consult a qualified labour law practitioner.

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