DA leader on the implications of the ConCourts' SATAWU judgment
This week's Constitutional Court ruling that upheld people's rights to claim compensation for damages caused during a march by the South African Transport and Allied Workers' Union (SATAWU) in 2006, has important implications for all future protest marches. SATAWU's riotous march, through the Centre of Cape Town during May 2006, resulted in extensive damage to property, including motor vehicles and of stall-holders and flower sellers. An estimated 39 protestors were arrested on the day, including COSATU's Western Cape secretary Tony Ehrenreich and SATAWU's provincial leader Evaan Abrahaamse. Most of them were released on bail of a R1000 and the charges were eventually dropped. However, no-one was held financially accountable for the damage caused.
As the then Mayor, I requested the City's legal teams to institute damages claims on behalf of citizens who had suffered losses during the march. This was opposed by COSATU. After six long years the Constitutional Court last week upheld the judgments of both the Cape High Court and the Supreme Court of Appeal that SATAWU can indeed be held liable for the damage caused during their march.
The significance of this ruling becomes evident if one looks at the large number of marches that have resulted in violence, vandalism and looting in recent years. For example:
- A protest by SATAWU workers in Johannesburg in February 2011 where freight workers smashed the windows of 10 trucks and pulled drivers out of their vehicles and forced them to join the march. Petrol bombs were also thrown by protestors at a truck during the protest action;
- A National Union of Metalworkers of South Africa (NUMSA) strike in July 2011, where workers vandalised factory properties and intimidated and assaulted factory workers who were not striking;
- A South African Municipal Worker's Union (SAMWU) strike in August 2011 that resulted in widespread damage to public property including protestors smashing shop and car windows, looting and destroying R92 000 worth of plastic bins in Cape Town and also vandalising municipal property in Durban;
- Protests near Impala Platinum's Rustenberg mine in February where thousands of mineworkers including NUMSA members burnt tyres, torched a police office nearby and stoned police and private vehicles;
- In March this year, SATAWU members protesting against the Passenger Rail Agency of South Africa (Prasa) allegedly torched six trains in Johannesburg;
- In May protesting Communication Workers' Union (CWU) members employed by the South African Post Office attacked a Post Office van in central Johannesburg, pelting it with stones;
- And the 2006 security guard strike in Cape Town that resulted in an estimated R1.5 million damages to municipal and private property and which served as the focus of the five year precedent setting case that lead to Wednesday's Constitutional Court judgment.
We must celebrate and defend our constitutional right to march, protest and demonstrate peacefully. We fought hard to win these rights. However this right is not an excuse for the culture of lawlessness that seems to have become the norm during protests over the past five years.
While some arrests have been made during violent protest marches, financial redress has been non-existent. When state property is damaged, ratepayers carry the burden of the municipality replacing or repairing infrastructure. An even higher burden falls to the small businesses and citizens who lose income as a result of vandalism and looting. A protest march rampaging through a business community can destroy many livelihoods.
Up to now, trade unions have argued that they cannot be held liable for these damages because this violence is sometimes caused by criminal elements and opportunists taking advantage of the protest action and not by union members. SATAWU argued before the courts that they had deployed 500 marshals, and called for a peaceful protest, claiming it had done everything possible to prevent violence. The courts set the bar higher and held SATAWU to account.
This paves the way for eight people, including a street vendor, a flower seller and people whose cars had been vandalised during the protest, to claim damages from SATAWU for their vandalised property and lost income. Even though the amounts involved are not particularly large, it was worth fighting for the principle underpinning the civil claim that must still follow. We succeeded in upholding the Regulation of Gatherings Act which deems organisations liable for damage caused during a legal gathering organised by them if the violence was reasonably foreseeable.
While this judgment is ground breaking, it is important to note that it is only the first leg of the battle. The claimants now have to prove that the damage caused during the security guard strike in 2006 was "reasonably foreseeable" in order to get the money they have claimed from SATAWU.
The ruling also serves as a vindication of the DA's Private Members Bill introduced in Parliament two years ago which aimed to hold unions liable for damage to property during strikes, marches or pickets.
Perhaps the judgment will also ensure that trade union leaders think twice before making statements that defend and encourage violence during protests - this has been common in the past. Just last month, when the DA planned a peaceful march to hand over a petition at COSATU house in Johannesburg, NUMSA's Irvin Jim called on union members to "defend" their headquarters against "the enemy" in what he described as "open political warfare". This type of rhetoric paved the way for the violence from COSATU members that followed, including the use of "weapons" such as rocks and a taser gun. Taking up the war-talk, Patrick Craven, COSATU spokesman, praised the union for causing the DA's "ignominious retreat".
These actions by union leaders have paved the way for the DA to lay criminal charges against COSATU's leadership for intimidation, inciting violence and holding an illegal gathering in response to the DA's youth wage subsidy march.
There are many other examples: During the COSATU-led protest action against e-tolling and labour brokering in March, Zwelinzima Vavi urged thousands of marchers in the Johannesburg CBD to "strangle" the city. "We have come here to fire the first warning shot, and in our chamber there are still a lot of bullets." That type of rhetoric surely makes violence "foreseeable".
Time will tell whether trade union leaders will take note of this week's judgment and exercise their right to strike and protest with the restraint the Constitution requires. The highest court in the land has instructed them to do so. We will continue to hold them accountable.
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