POLICE TO PAY UP
The state will be saddled with a damages bill for SAPS’s ‘deplorable’ inaction during a violent strike at the Umbhaba fruit farm in Mpumalanga in 2007
Police inaction during the July 2021 looting and arson in KwaZulu-Natal and Gauteng shocked South Africa. But their hands-off approach is a more widespread problem, particularly during violent strikes.
Last week the Supreme Court of Appeal handed down judgment in what could be a landmark case: a claim by Umbhaba Estates, a large fruit and nut producer in Mpumalanga, against the police for inaction during a July 2007 strike that was violent from its inception.
Several factors make this case different from others involving serious strike violence. In this instance, management contacted the police before the strike started, to warn of what was coming and ask for help. It also kept impeccable records of the calls made to the police during the strike, asking for help, and of the responses received. Management further videoed key moments, showing strikers engaged in intimidation, assault, vandalism, theft and looting, sometimes in the presence of the police.
And, instead of involving the courts only during the course of the strike, the company’s management brought a subsequent damages claim against the minister of safety & security, and both the national and the provincial commissioners of the police.
The high court found the police had wrongfully and negligently failed to act during the strike, and are liable for the damages the company can prove. Though the police challenged that finding, the appeal court has now unanimously upheld the high court’s decision.
The strike seems to have had its roots in unhappiness sparked when Umbhaba bought the farm and introduced a change in employment conditions, requiring employees to work on Saturdays. This had not been the case previously, and many objected.
The strike was violent from the start, but on the first day some police responded to management’s plea and, with their arrival at the farm, the strikers “calmed down”. After the police left, however, what the appeal court referred to as “acts of criminality” continued throughout the day.
The next day, even though the police knew the strike was continuing, there was no police presence and the violence continued. At one stage “the striking mob threatened to kill the workers inside the farm premises”.
When management pleaded with the police to maintain a presence, as the violence escalated when they weren’t there, the police said it “wasn’t their responsibility to get involved in labour disputes”.
In its attempts to stop the violence, management asked the labour court for help on three occasions, but the orders of the court were simply ignored, among them that strikers had to stay at least 500m from the farm entrance.
Police inaction ‘deplorable’
The position of the police, faced by the claim against them, is that they “took adequate steps” to prevent the violence. They did not dispute that they had a legal duty to maintain public order, nor did they claim that inadequate resources prevented them from doing more.
This meant their actual responses, carefully recorded by Umbhaba, could be scrutinised by the court to see whether they were in fact “adequate”. The court’s conclusion was that they were not. Despite a second labour court order, for example, the police were still reluctant to arrest those, identified as instigators, who weren’t complying with the order.
Nor was this a case where labour unrest was widespread in the area: it was confined to the Umbhaba farm, said the court. But the police were “indifferent, as they either ignored pleas for help” or left soon after arriving, despite having a “constitutional duty to intervene”, even before the labour court gave its orders. The appeal court said it was “deplorable” that the police continued to drag their feet even after three court orders, and added that police action fell “far short” of that expected from reasonable police officers.
A hefty damages bill surely lies ahead. And the court’s stinging rebukes for the police failure to carry out their constitutional duties will be strong precedent for future litigation.