Cape Town to sue union for strike damage
IMMEDIATELY after the Constitutional Court ruled yesterday that unions could be held liable for damages incurred during a march or strike they organised, Cape Town mayor Patricia de Lille said the city would sue the South African Municipal Workers Union (Samwu) for damage caused during marches last year.
“I have instructed the city’s lawyers to gather evidence, which we already have quite a lot of, and to begin instituting charges,” Ms de Lille told the Cape Town Press Club yesterday. The city had planned to take action against Samwu over its prolonged industrial action last year, when union members scattered litter and set municipal rubbish bins alight.
The Constitutional Court ruled yesterday that protest organisers were obliged at all times to take reasonable steps to prevent conduct that could cause damage to property. The effect of this is that all such damaging conduct must have been unforeseeable for the organisers to escape liability.
The court dismissed an application by the South African Transport and Allied Workers Union against a Supreme Court of Appeal judgment. The case was about whether the Regulation of Gatherings Act — by imposing liability for riot damage arising out of a gathering and then creating a defence to that liability — imposed an unconstitutional limitation on the exercise of the right to freedom of assembly.
An organisation would escape liability only if the act or omission that caused the damage was not reasonably foreseeable.
The union’s major contention was that any reasonable organiser who took reasonable steps to guard against an act or omission materialising could never prove it was not reasonably foreseeable.
The union did not challenge the constitutional validity of a section providing that organisers of gatherings should be held liable for any damage resulting from them. What It challenged was the ambit of that liability. In a majority judgment, Chief Justice Mogoeng Mogoeng said organisations were required to be alive to the pos- sibility of damage and to cater for it from the planning stage until the end of the protest action.
“While we respect the right of any organisation to organise legal strike action and to assemble, these rights must be balanced against the rights of ordinary citizens, who should not be unduly prejudiced by the exercise of this right,” Ms de Lille said.
Johan Botes, director of the employment practice at law firm Cliffe Dekker Hofmeyr, said the judgment offered welcome relief to the victims of the thuggish behaviour that had blighted certain strikes in the recent past.
“It sends a clear message to organisers to ensure that their meetings are not hijacked by criminal elements set on using the right to freedom of assembly to loot, pillage or cause mayhem.”
The Democratic Alliance said the Congress of South African Trade Unions (Cosatu) and its affiliates had been allowed to engage in violent and chaotic strikes without any repercussions for too long.
Cosatu said that the court’s decision spelt disaster for SA and would have a harrowing effect on workers’ right to protest.
Cape Chamber of Commerce and Industry president Michael Bagraim said the judgment should ensure that future marches and protests were disciplined and peaceful.
Business Unity SA said organisers should be obliged at all times to take reasonable steps to avoid violent and disruptive conduct that could cause harm to private property and persons.
Eversheds SA’s head of employment law, Imraan Mahomed, said unions would now have to organise marches with stricter measures in place should they wish to avoid forking out payment to property owners.
“Now our courts are saying that the right to protest must be balanced against the rights of others,” Mr Mahomed said.