Blue Mountain Productions CC and Another v Minister of Police (19714/2014) [2020] ZAWCHC 104; [2020] 4 All SA 401 (WCC) (7 September 2020)

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[2020] ZAWCHC 104
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Blue Mountain Productions CC and Another v Minister of Police (19714/2014) [2020] ZAWCHC 104; [2020] 4 All SA 401 (WCC) (7 September 2020)

IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
Number: 19714 / 2014
In
the matter between:
BLUE
MOUNTAIN PRODUCTS
CC                                                                         First

Plaintiff
A
F HANEKOM SAAGMEULE
CC                                                                       Second

Plaintiff
and
MINISTER
OF
POLICE                                                                                                   Defendant
Coram:
Wille, J
Dates
of Argument: 3
rd
and 4
th
of August 2020
Date
of Judgment: 7th of September 2020
JUDGMENT
WILLE,
J
:
INTRODUCTION
[1]
These
are action proceedings instituted against the Minister of Police
cited herein as the
office
bearer
ostensibly vicariously liable for the alleged unlawful conduct of
certain members of the South African Police Services.
[1]
[2]
There
are two plaintiffs, both are close corporations, one trading under
the name and style of Blue Mountain Products CC
[2]
and, the other
trading as A F Hanekom Saagmeule CC.
[3]
The issues of
quantum and merit have been separated out and this matter deals only
with the merits of the plaintiffs’ claims
against the police.
THE
PLAINTIFFS’ CAUSE OF ACTION
[3]
In
summary, it is alleged that during November 2012, certain protest
action turned violent in the
Witzenberg
Valley’
area.
These protesters damaged, looted, torched and destroyed both the
movable and immovable property owned by BMF and HSF. Further,
that
the police instructed the members and employees of BMF and HSF to
evacuate their properties as the police were unable to ensure
their
personal safety, possessions and their properties. The main protest
action relevant to this action occurred in Waboom Avenue
[4]
,
in the industrial area of the town of Prince Alfred’s
Hamlet.
[5]
[4]
The
plaintiffs plead that a legal duty bears down on the police in view,
inter alia, of the provisions of section 205(3) of our
Constitution,
which provides as follows;
‘
The
objects of the police service are to prevent, combat and investigate
crime, to maintain public order, to protect and secure
the
inhabitants of the Republic and their property, and to uphold and
enforce the law’
[5]
Further,
it is alleged that in terms of the South African Police Service
Act
[6]
, one of the obligations
that fall upon the police is to maintain law and order and to prevent
crime. As the agents of the state,
the police are responsible for the
discharge of a constitutional duty to protect the public against,
inter alia, the invasion of
their constitutional rights by people
involved with criminal activity. It is further pleaded that the
police owed a duty of care
to be present, alternatively, ought to
have been present at all times, so as to prevent damage occurring to
the plaintiffs’
properties.
[7]
[6]
Finally,
the police as employees of the minister, unlawfully and negligently
failed to protect the constitutional rights of the
members and
employees of BMF and HSF in, inter alia, the following respects; that
no
measures were timeously introduced to barricade certain areas so as
to prevent and limit the threats to the plaintiffs’
members and
employees and damage to their properties; that an inadequate number
of police were deployed to protect the plaintiffs’
properties
and monitor the protestors so as to prevent damage during these
violent protests, and that the police failed to take
all steps
necessary to protect the plaintiffs’ properties
THE
DEFENDANT’S PLEA
[7]
The
defendant in turn, on the pleadings, denies that in the circumstances
of this case the police owed to the plaintiffs a legal
duty of care.
It is further denied that the police acted unlawfully or negligently.
Further, alternatively, in the event that it
is held that the police
indeed acted negligently, then in that event, it is pleaded that the
police were not ‘causally’
negligent.
[8]
Furthermore,
it is pleaded by the defendant that in the event that the police were
negligent (which is denied), then in that event,
the damage or losses
to the plaintiffs was caused partly due to the negligence of the
police and partly due to the fault of the
plaintiffs in, inter alia,
the following respects; that the plaintiffs failed to implement
adequate steps to protect their own
properties; that they failed to
take adequate steps to prevent fires and damage to their own
properties; that they failed to alert
the fire brigade services
timeously so as to prevent the damage to their properties, and they
failed to take any or adequate steps
to remove the movable items from
their immovable properties, before these properties were damaged and
destroyed.
[9]
Finally,
it is pleaded that public and legal policy considerations militate
against the minister from being held liable for the
damages suffered
by the plaintiffs as a result of the alleged conduct or omissions by
the police. Put in another way, the police
did not act unlawfully.
THE
PLAINTIFFS’ CASE
Mr
Hanekom
[10]
Mr
Hanekom owns fifty percent of the members interest in and to the
first plaintiff. The remaining members interest is owned by
a family
trust. He averred that he was duly authorized to represent the first
plaintiff in these proceedings.
[11]
T
he
business of the first plaintiff commenced in 1999. It’s
business consisted mainly of the processing of fresh fruit, dried

fruit and nuts. These products were sold as ‘fruit sweets’
once sugar had been added to them and they had been processed.
About
(23) tons of product was sold every month. During this time, he
resided in PAH
[8]
, about a
kilometre from the BMF. He now lives in Hopefield near Saldanha on a
small farm and has attempted to rebuild his business
but has lost at
least half of his previous market share.
[12]
In
November 2012,
he
was in charge of the business of the first plaintiff. He employed
(31) permanent staff members and did not employ any seasonal
farm
workers. The obligatory minimum wage at that time was R 69,00 per
day, but despite this, he paid his workers R 180,00 per
day. He never
suffered any labour disputes or any wage issues with his workers.
Most of his workers resided in PAH and in the nearby
Ceres and Bella
Vista areas. After his factory was destroyed, he was unable to
re-employ his workers and regretfully most of his
workers were
retrenched, with the appropriate retrenchment package.
[13]
He had
a high security fence around his property with an alarm system which
monitored both the inside and the outside of his factory.
This alarm
system could be triggered and activated so as to prevent damage from
being caused to his property. He also had (4) guard
dogs that he has
since buried as same were badly injured during the protest action.
[14]
A
plan
[9]
of
the area, prepared by a land surveyor was handed in and marked as an
exhibit. The plan clearly indicates the location of the
first and
second plaintiffs’ factories and also the nearby factories and
the nearby housing development.
[10]
[15]
The
area of land upon which the BMF was situated was approximately eight
hectares in extent. The factory premises comprised about
(1000)
square meters. Phase four and five of the housing development had
also since been developed in close proximity. Significantly,
there is
still vacant land situated behind the property of the second
plaintiff and there is also vacant land behind the BMF. A
satellite
map was also introduced into evidence which exhibited an aerial view
of the various factories, roads and the housing
developments in this
area. The local police station was about one and a half kilometres
away from the BMF and the entire local
industrial area consisted of
about (2,34) square kilometres.
[16]
During
August 2012, Mr Hanekom first became aware about the possibility of
protest action at the instance of farm workers in the
‘
De
Doorns’
area. He recalls that indeed, during September, parts of the national
highway were barricaded and protests flared up at the beginning
of
November 2012. He formed the view that these protests related solely
to farm workers and not to factory workers. Protests
also
erupted in the nearby
Tandfontein
area.
[11]
This,
also during the early part of November 2012.
[17]
On
the 12
th
of
November
2012, a number of protests occurred in the Ceres area. Mr Hanekom did
not foresee that these protests would involve any
of his factory
employees. On Monday
[12]
, his
factory operated normally and all his employees were at work and he
did not foresee a threat of any harm. On the morning of
the 13
th
November 2012, he dropped his children off early in the morning at a
friend’s home as he had to attend a meeting in Cape
Town.
[18]
He
left for Cape Town at about 6h30 in the morning and whilst on route,
and just before 07h00, he received a call from one of his
employees.
It was reported to him that a number of protestors had gathered in
WBA and his employees had locked themselves inside
the factory as
they were fearful. He abandoned his trip to Cape Town and returned to
his factory in PAH.
[19]
Upon
his arrival, at the intersection of WBA and Voortrekker Road
[13]
,
and in the vicinity of the production entrance of Du Toit
Sawmills
[14]
, he encountered a
number of police vehicles and members of the police. He communicated
with Warrant Officer Oosthuizen and advised
him that his
administrative staff and employees were in attendance at his factory.
He was advised that it would be prudent, in
the circumstances, for
all his employees to vacate the factory. Further, he was advised to
liaise with Major Truter in this connection.
He requested permission
from Major Truter to visit his employees at his factory. Major Truter
advised him that he could not prevent
him from going, but that at the
same time, he could not guarantee his safety under these particular
circumstances.
[20]
He
went to his home and collected his (9mm) firearm and proceeded to his
factory.
[15]
He
stopped near the front gate of his factory and met up with the
security personnel, employed by the second plaintiff. A large
crowd
of protestors had gathered and demanded to know as to the whereabouts
of his employees. He attempted to open the gate to
his premises and
was thereupon pelted with stones, threatened and abused by the
protestors.
[21]
During
this time,
the
police started to shoot at the protestors with rubber bullets in the
nearby vicinity. According to him, this caused the protestors
to
become more agitated and approximately (40) of the protestors,
subsequently mounted a charge towards the gate of the first
plaintiff’s premises. Further, they hurled stones and uttered
threats. In response, he drew his firearm, causing the protestors
to
retreat momentarily. This, in turn, enabled the gate to be opened for
him to enter upon his premises. The windshield of his
vehicle was
damaged in the process by the protestors.
[22]
He
found his employees scared and huddled together in his premises. He
advised them that according to the police, it was not safe
for them
to remain and that they would have to vacate the premises. He
instructed them to remove their uniforms so that they would
not in
any manner be targeted by the protestors. He managed to evacuate his
employees from his factory. Two police vehicles effectively
sealed
off the entrance to his factory so as to allow the evacuation to
take
place safely. After
his
staff were evacuated, he went to report the matter to the police in
PAH and thereafter requested his ex-wife to collect his
children and
take them back with her to Cape Town.
[23]
The
records from the police station, inter alia, record that Major Truter
logged a report on the same day to the effect that Ceres
Valley
Fruit
[16]
, had been burnt down
by the protestors. He returned to WBA and  requested Warrant
Officer Jones
[17]
, to place
some police vehicles on his premises, presumably in an effort to
prevent any further damage to his factory and the content
thereof. He
was advised that the police were doing all in their power in an
attempt to control and stabilize the protest action.
[24]
Despite
his specific request for assistance, according to him, no police
vehicles were stationed on his premises. This, despite
the fact that
police vehicles were indeed placed on the premises of DTS, and a
‘
Nyala’
police vehicle on the premises of CVF.
[25]
On the
following day
[18]
, his staff
did not attend upon his factory as he had advised them to stay away
until the situation had stabilized. At about 10h00
he observed smoke
coming from the industrial area of PAH and he drove to the area. He
noticed a few people at DTS and noticed that
the gate to these
premises was open. He entered these premises and was met by the
manager and the foreman of DTS. He observed two
members of POPS
patrolling the fence between BM and DTS. He enquired from the POPS
members as to why they were patrolling outside
the fence and not on
his factory premises. He requested the two POPS members to proceed
onto his premises. They replied that they
had been specifically
deployed and were under orders to patrol the fence between the two
abovementioned properties.
[26]
He
requested permission from the manager of DTS to cut the fence so that
he could go onto his property. Despite this, the members
of POPS
attempted to stop him from entering his premises. He was permitted to
retrieve his badly injured dogs, which he immediately
took for
treatment.
[27]
Later
during the day and at about 18h00 he returned to his factory. There
were no protesters in sight at this time. CVF had been
burned down
completely. Two police vehicles were present on his premises and he
asked if they could please remain on his premises.
These police
members replied that they were unable to do so, as they were not
private security guards. At this time, the entrance
gates to his
premises had been destroyed, the doors to his factory premises were
open and a portion of his administrative offices
had been burnt down.
As a result, he sought advice from his neighbour
[19]
,
who advised him that the police were not employed as private security
guards and that he was ultimately responsible for the protection
of
his own private property.
[28]
During
that evening
[20]
, he again
observed smoke coming from the industrial area of PAH and proceeded
to his factory. He noticed that one of the production
stores at his
factory was burning. The fire-brigade was present and they were
spraying water onto piles of wood, situated on the
premises of DTS.
Neither the police, nor the fire-brigade entered upon his premises,
this despite the fact that no protestors were
present at that time.
[29]
He
approached the fire-brigade who advised him that regrettably they
would not be able to assist as their vehicles were at risk
of being
damaged by the protestors. He left and arranged for the removal some
of the movables from his premises on the following
day. At about
10h00, some members of POPS arrived and requested him to leave his
premises as a group of protestors had mobilized
and were agitated. At
that stage, a major portion of his factory was still intact. He was
escorted from the area by POPS and he
noticed that group of about
(50) protestors in the vicinity.
[30]
These
protestors seemed hostile, but not violent. Mr Hanekom addressed them
directly and asked them please to stop the looting and
burning of his
factory. One of the protestors was smoking cannabis in full view of
the police who took no action. He left his premises
with some of
goods that he had managed to salvage.
[31]
Later
on during the day he was advised that the protest action had been
suspended for at least two weeks as an agreement had been
brokered.
He formed the view the protest action was at an end.
On
the following morning
[21]
, he
together with an insurance broker and a loss adjuster
went
to his premises. Whilst on the premises, they were approached by the
police who advised them to leave as protestors were in
the area. The
police advised him to employ private security personnel to secure his
premises as they did not have the sufficient
manpower to protect his
premises. He attempted to arrange such private security, but was
advised that this was not possible as
the private security companies
that he contacted did not want to endanger their employees.
[32]
Later
that very afternoon, Mr Hanekom proceeded to the local police station
and preferred a charge of arson against the protestors.
In the early
hours of the morning on the 17
th
of November 2012, he received a call from the police to the effect
that his factory had, once again, been torched. He proceeded
to his
factory and noticed that it was burning. The fire brigade was present
and attempted to douse the flames, but could not save
his factory.
[33]
A
number of photographs were taken of the scene and entered into the
record as exhibits. Further, certain video footage was entered
into
the record and marked as an exhibit. Finally, he expressed an opinion
to the effect that the police, ‘
could
and should have’
taken steps to protect his property as the police must have known
that the factories in the area would be targeted by the protestors.

The total destruction of his factory took place over an extended
period of (4) days and in his view, the police ‘sacrificed’

his factory, together with some other factories at the expense of
protecting and saving other factories. He was of the view that

certain factory owners were given preferential treatment by the
police.
[34]
Initially,
the cross-examination of Mr Hanekom focused on certain technical
issues surrounding the validity of the resolution signed
on behalf of
the first plaintiff, purporting to authorize him to pursue this
action against the defendant. This ‘defence’
was not
vigorously pursued and eventually wisely abandoned by the defendant.
It was established that his factory could not be restored
for the use
of food production as some asbestos cladding had been burnt when his
factory was destroyed. Approximately a year after
his business was
destroyed, he received an insurance payment of about (8) million rand
for the loss of his factory and its contents.
He was eventually able
to obtain premises in Hopefield
[22]
in order to rebuild
his business. He re-established his business at the beginning of
2014.
[35]
He was
driven to concede; that the local police station was a very small
station; that it had to service an extremely vast area;
that many
areas were affected by the protestors; that the protest action was a
well-orchestrated campaign led by certain trade
unions; that the
protestors were transported to different locations in order to
protest and that unprecedented and extra-ordinary
circumstances
prevailed.
[36]
It was
common cause that mass destruction occurred in the underlying area
and that many people feared for their lives and properties.
Two
police stations were attacked and burnt down in the area. There were
approximately (192) farms under the control of the local
police and
many seasonal workers were in the area, with up to (25000) people
working on the farms during this seasonal period.
The area under the
control of the local police was about (3,554) square meters in
extent, a lot of which consisted of very mountainous
terrain.
[37]
There
were two satellite police stations in the area and the PAH police
station was very small and was left to monitor a very large
area. The
police suffered from severe resource issues during this time. They
were obliged to manage a very large area and had to
monitor an
unprecedented and well organized protest action. The police were
obligated to prioritize issues of ‘
life
and limb’
as compared to issues of protecting private property. Woman and
children had to be evacuated at very short notice under treacherous

conditions. There were (97) reported insurance claims and the amount
claimed on insurance, exceeded (120) million rand in damages.
[38]
A map
was entered into evidence and marked as an exhibit which clearly
illustrated the vast area that was subject to the control
by the
police in PAH. There were many incidents of arson in the immediate
vicinity as the protestors were engaged with protest
action that was
well-orchestrated. Further, many protests broke out simultaneously in
the vicinity of a satellite police station,
called ‘
Op
die Berg’
.
Further, the official police occurrence logbooks recorded that a
member of the police was injured while performing routine patrols
and
crime prevention in the vicinity of the first plaintiff’s
factory, during this time. Critical municipal services were

centralized in the nearby town of Ceres. The fire brigade’s
capacity was stretched to limit as there existed a very high
fire
risk at this time.
[39]
Significantly,
he conceded that his factory and the factory belonging to the second
plaintiff was very easily accessible to the
protestors because of
their geographical location in relation to the nearby various phased
township developments and also from
the property owned by DTS, which
was significantly larger than the property occupied by his factory.
Phase four and five of the
housing developments were a very short
distance away and at this time, consisted mostly of informal
occupiers.
[40]
A
theory was advanced to the effect that the plaintiffs’
properties should have enjoyed the same protection afforded to the

property of DTS. In his view, the entire industrial area should have
been protected by the police, whilst at the same time, he
did accept
that there were only about (15) police vehicles at the disposal of
the police, during this time. He agreed with the
suggestion that the
protest action was very well organized and the protesters were
transported to different locations and that
it was very difficult to
monitor and manage the protestors.
[41]
In
addition, he
agreed
that prior to the meeting with the loss adjustor of his insurance
company, he was unable to make alternative arrangements
to place
private security on his premises to protect his property. This,
despite a threat issued out to him by the protestors.
[23]
Despite his main
complaint,  that the police did not permanently place a vehicle
on his premises to protect his property, he
conceded that no private
security company, or indeed the fire brigade, was prepared to access
the area without police protection,
as the situation was volatile.
[42]
After
his factory had been destroyed, his insurance company insisted that
private security guards be placed on his property and
despite this,
the looting of his factory continued. Finally, in response to a
question that I posed to him, he agreed that the
primary focus of the
police was to prevent harm to ‘
life
and limb’
and their secondary function was the protection of property.
Mrs
Hanekom
[43]
Mrs
Hanekom is not related to Mr Hanekom who testified on behalf of the
first plaintiff. Mrs Hanekom is a member of the second plaintiff

close corporation. Her husband owns a (60) percent members interest
in and to the second plaintiff and she holds the remaining
(40)
percent interest. The second plaintiff traded under the name and
style of A F Hanekom Saagmeule CC and had since changed its
name to
AFH Services CC.
[24]
Mrs Hanekom was the
financial manager of the business and was also in charge of the
marketing for the business.
[44]
Its
business was that of the ‘mining’ of pine wood. Pine
trees were bought from plantations, these were cut down and
pallets
and crates were made for use in the fruit industry. The sawmill
business could no longer continue as the electrical footprint,

together with all the machines were destroyed and it was not viable
to purchase new machinery, as these machines were not readily

available in South Africa. New machinery could be sourced from abroad
but would have to be re-engineered at great financial cost.
They also
did not feel safe as they felt that they did not belong in the area,
after their factory had been destroyed. The second
plaintiff employed
(90) permanent workers and about (60) seasonal workers.
[45]
Some
of their employees lived in Porterville and they had purchased a
small pick-up vehicle for them so that they could be transported
to
work on a daily basis. Others, lived in Nduli and in Bella Vista.
[25]
Their factory was
situated adjacent to phase three of the housing development
consisting mostly of small houses. Behind their factory
was located,
phases four and five of this housing development.
[46]
She
did not foreshadow any difficulties in connection with the protestors
during this time as none of their employees were farm
workers.
Further, the second plaintiff’s property was secured by a high
fence, security dogs and a camera system covering
both the
administration offices and the entrance to the factory. The system
consisted of eight security cameras strategically placed.
Further,
there was an alarm system in the administration offices connected to
a security company based in Ceres. Security lights
were also
installed at various locations.
[47]
A
security officer lived on the premises with his family. He
regrettably passed away shortly before the trial. Water pipes were

installed along the perimeter fences which were connected to the
water pipes from the municipality to be utilized in the case of
a
fire.
[48]
Sometime
prior to the protest action she received communication from her
insurance broker to confirm with her that her SASRIA insurance
was in
place. This communication was initiated in view of the anticipated
protest action by the farm workers. She lived in Ceres
and travelled
to work every day.
[49]
Whilst
on route to work
[26]
, she
noticed a number of police vehicles, including a ‘
Nyala
’
at the police station in Ceres. This prompted her to call the police
in Ceres but they were not able to give her any specific
information
about the protests. On the following morning, she received a call
from her security officer who advised her that there
were protestors
in the area. Nevertheless, she was advised that it was calm outside
her factory and that it was safe to come to
work.
[50]
She
notified her employees that were on route and requested them to meet
her at the intersection of VRH and WBA, in order that the
situation
could be assessed. They all arrived at the intersection at about
06h30 and she noticed a number of police vehicles and
about (8)
police members stationed outside the premises of DTS. The protesters
seemed peaceful and calm. She spoke to her employee
who resided on
the premises and he confirmed that the situation was peaceful and her
employees indicated that they wished to proceed
to work.
[51]
The
police advised against this course of action and explained to her,
that in their view, they were at risk. Their employees left,
but both
she and her husband elected to proceed to their premises. Upon
arrival, the protestors being aware of their presence,
immediately
became agitated and demanded that they vacate the area and not open
the factory. Some of the protesters aggressively
advanced towards
them and they accordingly left their premises.
Later
that
afternoon,
they again made enquiries from the police and were advised that the
situation was calm and accordingly they left for
a meeting in Cape
Town.
[52]
Whilst
on route back from Cape Town, she was advised that the protestors had
set alight to the premises of CVF and that some of
the wooden logs at
the back of their factory, had also been torched. She notified the
fire brigade services in Ceres, who in turn
advised that they were on
the scene. Upon her arrival, she observed two vehicles from the fire
brigade services inside the premises
of DTS. She requested the police
and the fire brigade services to extinguish the fire at the back of
her premises. They declined
to assist as the access roads were
littered with stones and burning tyres.
[53]
Later
that evening, the fire at her premises seem to have subsided and she
again called her resident employee. He advised that the
fire had
indeed subsided although some of their wooden product was still
smouldering. During this time, she observed a police helicopter

flying in the area.
[54]
During
the course of that night, she received a message to the effect that
the second plaintiff’s factory was burning once
more, but that
the fire brigade was in attendance. The fire brigade had assisted in
dousing the fire at the back of their premises.
She advised that she
would be attending on the factory to collect her dogs and other
belongings. In addition, her husband went
into the premises and
salvaged a truck and a tractor during this time.
[55]
On
the 14 November 2012
,
she received information to the effect that the situation at her
premises was calm and that if she wanted to salvage further items

from their factory, that it would be an opportune time to do so. She
arrived at the intersection of WBA and VTR at about 6h30 and

requested permission from the police to accompany her to her factory.
The police refused on the basis that, in their view, it was
not safe.
[56]
She
went to her factory
[27]
and removed some of
her financial documents and salvaged a fork-lift and some other
machinery. She was subsequently advised that
protesters had arrived
at the back of her factory and that it was unsafe and that she should
leave. Whilst in the process of leaving
she was approached by a
number of angry protesters who threatened to burn down their factory
.
She never reported this incident to the police.
[57]
At
about 8h30 on the 14 November 2012, she received a call from her
security officer who advised that the protesters had set alight
to
certain wooden logs at her premises and were also looting wood from
the premises. She drove to the police in PAH and asked them
for their
assistance. At about 9h00 she received a call reporting that the
protesters were burning wood and certain machinery on
the side of the
factory. Her security officer had been chased away from the premises.
She proceeded to the police at the intersection
of WBA and VTR and
reported the matter to them and also to the fire brigade. According
to her, they did nothing further to assist
her.
[58]
At
about 10h30, she noticed dark smoke emanating from the vicinity of
her factory and was advised that the construction premises
next door
to her premises, had been set alight. She testified that according to
the camera footage at her disposal, a
Nyala
police vehicle was in the vicinity at the time, but they merely drove
past her burning factory. Further, according to her, the
police were
in the vicinity, but did not attempt to stop the protesters from
looting her premises. Within the space of about (1)
hour, her factory
was torched and looted despite a police presence in the area.
[59]
Despite
her repeated requests for police assistance and intervention, they
did nothing to prevent the arson and the looting of her
premises. She
wanted the police to enter her factory, via a different side
entrance, in order to stop the looting and arson. It
was only after
most of her factory had been destroyed and the roof had collapsed,
when the fire brigade eventually arrived on the
scene.
[60]
Much
of the cross-examination was focused on the ‘
summary
of losses’
schedule as annexed to the second plaintiff’s particulars of
claim. She was unable to explain how the losses were calculated
with
reference to a number of these claims. In her defence, she advanced
that she had provided to her attorneys and to her insurance
company
certain schedules and she was not the author of the ‘summary of
losses’ schedule. She conceded that this summary
did not show a
true reflection of the losses sustained. Further, she conceded that
the land upon which the second plaintiff’s
buildings were
constructed, was registered in her husband’s name and not in
the name of the second plaintiff.
[61]
She
agreed that her factory was readily accessible and that this was an
extremely volatile and difficult time for the police. Many
roads and
farms were damaged and a police station was attacked and torched by
protesters. It was put to her that there were (194)
farms in the
immediate area and that the police had to protect and control an area
which was no less than (3055) square meters
in extent.
[62]
She
voiced some concern about the fact that the property of DTS was
protected at the expense of other property owners. It was suggested

to her that the police took a ‘
strategically
security based decision’
to place themselves at the intersection of WBA and VTR in order to
prevent the protestors from entering into the town of PAH. The

strategy of the police being to push the protestors back down WBA,
when they advanced towards the town of PAH.
[63]
She
conceded that this was the worst protest action seen in the history
of the Western Cape and had a devastating effect on the
farming
community. She agreed that the police had to prioritize their
responses to the protest action and that the protection of
‘
life
and limb’
was more important than the protection of private property. It was
suggested to her that no less than (29) towns were affected
by the
protest action and that at least (97) claims were lodged with SASRIA,
with insurance claims amounting to a staggering (120)
million rand.
[64]
During
August 2012, the protestors caused severe damage to an area known as
‘
De
Doorns
’
and the national highway was damaged. She testified that she did not
foreshadow any problems at her factory because she
did not employ any
farm workers and the wages that she paid, were in excess of the
prescribed wages. She further stated that she
did not believe the
protestors when they threatened that they would burn down her
factory.
[65]
She
conceded that she took no steps by way of additional security
measures to protect her business after the threat was issued to
burn
down her factory. She believed that she was badly let down by the
local fire brigade. She was unable to name the police officials
or
the members of the fire brigade with whom she communicated in an
attempt to prevent the damage to her factory. She conceded
that the
police may have prioritized their efforts elsewhere when she
requested their assistance. It was suggested to her that
she should
have taken additional reasonable measures to protect her property and
she did not disagree with this suggestion.
[66]
Finally,
she stated that she and her family had since left the area because
they felt that ‘
they
did not belong
’
and they felt unsafe. She received a number of threatening anonymous
telephone calls and feels she was ‘
driven
out’
of the area. She was angry at the community and at the police.
Professor
Snyman
[67]
She is
a professor of law at the University of South Africa. She gave
evidence solely in connection with an ‘
academic
view’
on the duty of the police to act in accordance with their
constitutional mandate. In her considered view, the non-performance
of the police to, inter alia, protect damage to private property, may
lead to a position of anarchy.
Colonel
Bezuidenhout
[68]
Now
retired from the police, he was called as an expert witness. He was a
member of the police for some (36) years and has specific
expertise
in the area of crowd management. He obtained a diploma in police
administration at a relatively young age and has a wealth
of
experience, specifically in crowd management. He received extensive
training both locally and abroad.
[69]
He was
taken through the various pieces of legislation in South Africa that
find application when it comes to ‘
public
order policing
’
as well as crowd management. He testified that over the years and
particularly in the last (14) years, the role of public
order
policing has dramatically changed. The priority now in our country is
that of ‘
crime
prevention
’
and crowd management and control has now been relegated to a
secondary function within the police.
[70]
In his
view, the ‘
information
gathering process’
during this period, was insufficient on his reading of the
documentation discovered. Further, his main criticism was that the
role players in control did not maintain a ‘
hands
on’
presence
during the protest action. Further, no operational plan was
established and implemented and there was no evidence of proper

pre-planning. He conceded that a number of localities had to be
monitored simultaneously, but at the very least, according to him,
a
proper briefing should have been undertaken at the inception of the
operation, so as to curb the protest action.
[71]
The
defensive measures that were put into place were also insufficient.
No reserve unit was in place. The occurrence book entries
do not
reflect that the JOC
[28]
was fully
operational. The vehicle operational diaries and occurrence diaries
were not accurately kept and some of the entries were
superficial in
nature. A formal de-briefing process should have taken place firstly
in PAH, thereafter at cluster level, and finally
at provincial level.
The discovered records reveal no evidence of this process ever having
properly occurred.
[72]
He
testified about the two different models for ‘
public
order policing’
that
were applicable in South Africa, namely the ‘
French
Model’
and the ‘
Belgium
Model’
.
The former adopted a ‘
close
contact
’
approach towards crowd control, whilst the latter model adopted a
‘
fighting
distance
’
approach. The situation at PAH during this time, should have been
categorized as a level (3) situation. Insufficient members
of POPS
and VISPOL
[29]
were deployed by the
police. Reference was made to various police documents
[30]
,
completed at the time. These documents exhibit the posting and
location of each member of the police and indicate exactly what

equipment has been issued to each member. According to Colonel
Bezuidenhout, both insufficient personnel and equipment were deployed

during these protests.
[73]
One of
the main criticisms levelled by him was directed towards the alleged
lack of intelligence gathering. Further, the information
that was
gathered was not properly analysed so that it could be utilized in
the pre-planning phase. In this context, the concept
of ‘
situational
appropriateness
’
becomes critical, especially when any protest action is spontaneous
or unplanned. Further, depending on the intelligence
gathered a
gradual proportional response may be required to a gradual escalation
of the protest action.
[74]
Colonel
Bezuidenhout referred to the police ‘
Code
of Conduct’
,
as well as to the ‘
Conduct
and Morals’
code of the police, with specific reference to the keeping of ‘
pocket
books’
by members of police. In his view the record keeping was not properly
adhered to in the circumstances of this protest. Reference
was also
made to a number of ‘
contingency
plans’
drawn up during this period, in order to manage the unrest in the PAH
area. Colonel Bezuidenhout was of the view that these contingency

plans were not properly drawn up and were as he put it, amounted to a
‘
cut
and paste
’
effort in the circumstances.
[75]
More
defensive measures should have been put into place and additional
POP’s members should have been sent to PAH. He was
critical of
the fact that he was unable to establish that a sector commander was
engaged at PAH, with the result that there was
no liaison with the
community and also no media liaison officer. Most importantly, he
could not find any evidence of a ‘
commanding
officer
’
on the ground.
[76]
It is
so that an electronic occurrence diary was kept by the Ceres cluster,
which showed that during the period from the 13
th
to the 14
th
of November 2012, more than (12000) people participated in these
protest actions.
[77]
According
to the information obtained from the various occurrence books, in his
view, Major Truter
[31]
, should
have been in PAH and not in the ‘
Tandfontein
’
area. He expressed the view, that this area received preferential
treatment because it was controlled by DTG.
[32]
This was the same
group that owned DTS in PAH where the police were stationed during
the protest action.
[78]
A
number of video clips were shown to the court of footage taken by
police on the 13
th
of November 2012 of the protest action in PAH. According to Colonel
Bezuidenhout, this material exhibited, inter alia, the following:
[78.1] No police member seemed
to be in command of the situation in PAH.
[78.2] Initially, only one
member from POPS was deployed to the scene.
[78.3] No leadership seemed
apparent and the position taken up in WBA by the police was
incorrect.
[78.4] The police adopted the
‘Belgium Method’ of crowd control and in his view, the
‘French Method’ of
close contact with the protestors
should have been adopted instead.
[78.5] Warrant Officer Jones
was the only member of POPS on the scene and he should have called
for the use of water cannons together
with ‘six coiled’
barbed wire to prevent the protestors from causing damage to the
plaintiffs’ properties.
[78.6] The dam located nearby
should have been used as a natural barrier and also the deep ravine,
that separated the housing projects
in the immediate vicinity.
[78.7] Finally, he levelled
criticism at the fact that a number of police attended a meeting with
the local community in the area,
whilst in his view, some of these
police should have remained at the scene in PAH.
[79]
In his
view, the police did not do enough to protect the plaintiffs’
premises as they left a skeleton police deployment at
PAH. According
to him this re-deployment of the police amounted to a tactical error.
During this time, the DTG required assistance
in connection with the
transportation of workers and this assistance was provided without
hesitation. The result was, that the
remaining threat at PAH was
mis-interpreted by the police on the ground.
[80]
Further,
the available records show that during this time, no less than (824)
rubber bullets were fired, (5) stun grenades were
launched and (1)
tear-gas cannister was discharged. After this, the police stationed
at PAH seemed to have run low on ammunition
and equipment due to
inadequate planning.
[81]
The
conclusions by Colonel Bezuidenhout are, inter alia, the following:
[81.1] No de-briefing reports
were made available so it is difficult for him to express a
definitive view, but nevertheless, he
opines that there was no proper
operational plan and the JOC was not in place to give proper
instructions.
[81.2] The police resources
were not managed properly and efficiently and the JOC and the CJOC
should have been more involved in
this process.
[81.3] The intelligence
gathering and the dissemination of the information available was not
up to the required standard and this,
in turn, had a detrimental
effect on the risk assessment of the situation on the ground at PAH.
[81.4] Too few POPS and VISPEL
members of the police were deployed and the ‘execution’
by the members of the ground,
was insufficient for the threat faced
at the time. There was a lack of decisive intervention by the police
and the leadership was
poor.
[81.5] The ‘French
Model’ of crowd control should have been adopted and the police
should have taken control of WBA
‘lower down’ at the
first intersection.
[81.6] The plaintiffs
specifically requested the police to assist and these requests fell
on deaf ears. They should have protected
the plaintiffs’
property.
[82]
Colonel
Bezuidenhout was asked to comment on the amendments effected by the
plaintiffs to their particulars of claim. In his view,
when the
unrest started in ‘
De
Doorns
’
a JOC was required to assess the threat. This, fell to be escalated
to provincial level for planning and action.
[83]
In
summary, the effort by the police was not good enough in the
circumstances. A number of POPS members were available, but were
not
deployed. Also, the members that were deployed, were not sufficient.
[84]
During
cross-examination, a more detailed map of the area effected by the
protest action during this time was entered into evidence.
[33]
Colonel Bezuidenhout
conceded that his role was to give evidence in favour of the
plaintiffs in accordance with his brief.
[85]
The
last time that he was actively involved in ‘
crowd
control policing
’
was more than a decade ago, other than in a supervisory role during
the Soccer World Cup tournament.
He
was driven to concede that, despite his vast experience in crowd
control, he had never experienced the ‘
scale
and
extent’
of the protest action as it played out in the Western Cape during
November 2012. He agreed that the protest action was wide-spread
and
occurred over at least (4) clusters.
[34]
[86]
He
conceded that the police had to cover a vast area and their primary
focus was on the farm workers, essentially about wage disputes.
Wide
scale destruction occurred over a large area, mostly consisting of
farm properties and vineyards. Many farm workers were intimidated

during this time.
[87]
Colonel
Bezuidenhout had never before encountered such large scale
destruction taking place in so many areas simultaneously and,
what
occurred was on an unprecedented scale. To make matters worse, these
protest actions were spontaneous in nature. It was an
abnormal
situation, inter alia, because of the vastness of the situation, the
lack of available manpower, the lack of intelligence
and the general
lack of resources. Further, the level of violence and destruction in
urban areas was far more serious and generally
softer in rural areas.
He agreed that this was a huge challenge for the police in the
circumstances.
[88]
He
agreed that the protesters did not send out any notices in terms of
the applicable legislation and that the police were not able
to
prepare adequately for these protests and were somewhat taken by
‘
surprise’
.
The police did not have the luxury of preparing properly in terms of
the appropriate legislation. Despite this, in his view, there
should
have been a deployment of more police resources to the area and basic
operational and contingency plans were not implemented.
In his
opinion, the intelligence gathering was particularly insufficient. He
conceded that the police were under resourced in the
Western Cape.
[89]
Colonel
Bezuidenhout
was
of the view that every single decision made by the police was
incorrect and not one strategic decision was taken correctly.
He did
however concede, that this was on the basis of a perusal of the
documents placed before him in isolation, without speaking
to any
members of the police ‘
on
the ground
’
at the time. He conceded that had he indeed spoken to certain members
of the police, his opinion may have been different.
[90]
A
further concession was made to the effect that there may indeed have
been intelligence gathering by the police, but because this
was not
recorded in the documents he perused, he made the assumption that
there was no intelligence gathering by the police. He
agreed that if
certain actions were not recorded, it did not necessarily mean that
these actions by the police never took place.
[91]
In my
view, he unnecessarily criticised the fact that the alleged kingpin
‘
Mr
Petersen
’
was not arrested on charges of public violence and interrogated. He
opined that the formation of the PJOC
[35]
,
was a positive step and that it was appropriately manned by very
senior members of the police. According to him, there was no
proper
operational plan. He originally testified that the contingency plan
consisted only of a record of all the people involved
with their
contact numbers, together with a list of the resources available.
Later, when pressed on this score, he testified that
this contingency
plan also set out the threats and potential threats linked to the
protest action.
[92]
He was
confronted with a copy of the ‘
operational
plan
’
during cross examination, but opined that this document was not an
operational plan as it was not signed by the CJOC. This

qualification, he never made before and seemed to be in conflict with
his expert summary. He agreed that no prior notices were
given in
connection with this protest action in that these protests were all
spontaneous events.
[93]
Further,
he agreed that the services of the fire brigade was very limited and
stretched during this period as a number of towns
were totally
dependent on the nearby town of Ceres for these essential services.
Further, and most significantly, the structures
that were set alight
during this time seemed to have been at the hands of the occupants of
the phased developments who lived in
close proximity to the
industrial area of PAH.
[94]
Finally,
it was drawn to his attention that air support was requested by the
police during this time and that no less than (15)
towns had to be
serviced and managed by the air support that was provided to the
police. In addition, high ranking police officials
with vast
experience were dispatched to the area, during this time.
[95]
Colonel
Bezuidenhout conceded that he was not personally aware of the
planning and intelligence undertaken by the police and that
he had
based all his opinions on the documents placed before him, taking
into account, inter alia, his training and experience.
In his view,
if an event was not adequately documented then that event, did not
occur. It was suggested to him that he was mistaken
in his view that
the police gave preference to protecting the properties belonging to
a specific group in the area. It was suggested
to him that this
opinion as based solely on the fact that because a certain group
suffered less damage than another group, that
this did not
necessarily mean that the police showed a preference in their
policing of the area.
[96]
It was
further pointed out to him that the DTG spent approximately (3.4)
million rand on their own private security during this
time and
despite this, they in any event suffered damages in the region of
(25) million rand. Significantly, in the areas, where
many members of
the police were indeed operational, the DTG suffered damages to the
sum of about (4.8) million rand.
[97]
This
notwithstanding, he maintained, that in his view, the situation on
the ground regarding the protesters should have been regulated
and
governed in accordance with the Gathering’s Act
[36]
.
He was challenged on this aspect, in that, inter alia, he was
referred to an official police policy document
[37]
,
from which it became apparent that there was a definite ‘
shift’
with regard to the training methods, manuals and procedures in
connection with crowd control by the police.
[98]
In
line with this shift, the police adopted an ‘
appropriate
response
policy
’
which emphasized the use of less restraint to crowd control. In
summary, the response by the police allowed for more discretion
to be
exercised, taking into account the various policy directives and the
appropriate legislation. It was conceded that the function
of crowd
control required a large amount of individual discretion to be
exercised as every situation is different. The police were
often
obliged to make judgment calls and there were definite specific rules
to be applied to a situational approach. Further, the
focus of the
protest action by the farm workers was directed towards farmers in
connection with demands for an increase in their
minimum wages and
the protests were not focused towards factories and industrial
concerns.
Premier
Zille
[99]
She
was the premier of the Western Cape during this time. She enjoyed an
oversight role and she went to ‘
De
Doorns’
on the 8
th
of November 2012 in order to attempt to negotiate with the
protestors. She addressed a large crowd of people at a local sports

field. She expressed the view that the issues by the farm workers had
regrettably become ‘
politicised’
and
it was clear that she was not welcome and she left due to fears for
her safety.  On the 14
th
of November 2012, she sent an urgent letter to the State President in
which she indicated that, according to her, the police needed
urgent
support and reinforcements to control and manage the protests in the
Western Cape. Co-incidentally, the protest action was
suspended on
the afternoon of the 14
th
of November 2012 as an agreement had been reached with the protesting
workers in that they would return to work on the following
day, being
the 15
th
of November 2012.
Mr
Mathee
[100]
He is
an insurance broker in Ceres and the owner of ‘
RSA
Brokers’
and
he has been an insurance broker for at least, the last (29) years.
The first and second plaintiffs are his clients. On the 7
th
of November 2012, he received a call from an ‘
Agricultural
Organization’
in the area to the effect that he should consider securing his
clients’ with additional
SASRIA
insurance, in view of the impending protest action in the area. Upon
enquiry, he established that the first plaintiff had the necessary

insurance in place. He subsequently arranged for additional insurance
for the second plaintiff.
[101]
He
testified that he went to the premises of the second plaintiff on the
13
th
of November 2012, and thereafter to the premises of the first
plaintiff on the 16
th
of November 2012. At the second plaintiff’s premises, he
observed that the premises were still smouldering and in his view,

the second plaintiff’s building had been torched from the
inside. He proceeded to the premises of the first plaintiff on
the
16
th
of November 2012. Shortly, after his arrival, he was requested to
leave the premises by the police as protestors were still in
the
area. He was requested to provide details of all the insurance claims
submitted by the plaintiffs and undertook to provide
the relevant
information, as requested, to the defendant’s legal
representatives. This information was seemingly more relevant
to the
issue of quantum which had been separated out, by agreement.
THE
DEFENDANT’S WITNESSES
Mr
Visser
[102]
Mr
Visser testified that he previously worked for the fire department
and during this time, he was based in Ceres. He was in charge
of an
extremely vast area and PAH fell within his jurisdiction. PAH did not
have its own fire station and the closest fire station
was situated
in Ceres. Their operation worked through the medium of a ‘
call
centre’
and priority was given according to this system. When these incidents
occurred, it was unfortunately at the height of the fire
season and
the resources at their disposal were limited. The situation at PAH
was a volatile and explosive situation and they to
be escorted by the
police in view of the many protests in the area.
[103]
He
testified that it was about (10) km from Ceres to PAH and that this
trip would ordinarily take approximately (10) to (15) minutes,

depending on traffic volumes. He confirmed the existence of a trench
across WBA and that it was difficult if not impossible to
traverse
this trench with a vehicle. During this time, his personal service
vehicle was damaged by the protestors and had it not
been for his
‘
smash
and grab protection’
on the vehicle, he could have been severely injured by the
protestors. He confirmed that with the aid of the police he attended

upon the premises of BMF and HSF. It was however extremely difficult
to access these premises and their resources were stretched
at the
time. Further, according to him the violence and destruction at the
hands of the protestors was unprecedented.
Mr
Groenewald
[104]
He
testified that he had been in the employ of the fire department, as
an officer, since 1985 and was initially stationed in Stellenbosch.

During November 2012, he was employed as an operational officer with
the fire department in Ceres. He recalls that he did attend
upon the
premises of BMF
[38]
, at a time
when these premises were burning. They approached the premises by
utilising a gravel road at the back of the premises.
They did
extinguish part of the fire burning at the time, but had to leave as
the protestors posed a threat and they left the area
due to safety
concerns. He further recalls that on another occasion, he went back
to the premises of BMF so as to extinguish some
further fires. On
this occasion, they entered the area via WBA. They also extinguished
a fire burning at the premises of DTS.
Mr
Lamoer
[105]
He was
the former Provincial Commissioner of the police in the Western Cape.
He retired in November 2015. He held daily meetings
with all the
stakeholders and delegated a great deal of the ‘
operational
responsibility’
in this matter to Major General Jacobs, who was the ‘
Deputy
Provincial Commissioner of Operations
’
during this time.
[106]
Members
of POPS were deployed to a number of different areas and he in turn,
with the help of senior management, on a regular basis,
assessed
reports received from his operational members and the intelligence
community. Personally, he had never been involved in
managing a farm
workers protest and this prompted him to meet with the community
leaders in the area. The command centre, consisted
of a ‘
War
Room
’
situated in Cape Town. All the information received was collated and
assessed and their decisions, in turn, were then relayed
to the
various role players and enforcement agencies, including the
intelligence community.
[107]
The
area that needed to be monitored was vast and consisted of no less
than approximately (300) farms. In addition, the police resources

were stretched as the protests were spontaneous and not planned. He
relied heavily on in formation received from ‘
Crime
Intelligence’
and
the police operations were to a large extent, of necessity, re-active
by nature.
[108]
In
addition, he held discussions with Mr Opperman
[39]
and also with Mr
Peterson, who represented some of the farm worker union
organizations. He pertinently communicated to Mr Opperman,
to advise
the farmers in the area to increase their security in order to
protect their property.
[109]
He
explained that the deployment of the military forces in circumstances
such as these, was extremely expensive and the final decision
in this
connection vested in the State President. According to him, there was
no need to deploy any military forces because, according
to the
intelligence reports received, the situation had been contained.
Further, and in any event, this would take a long period
of time,
with the usual financial and logistical complications attached to the
deployment of the military forces. Further, according
to him, Premier
Zille had no experience as an operational commander and she was not
in a position to make any decisions as to whether
or not, further
resources and the military forces, should be deployed.
[110]
He
agreed that
the
police had a duty to act within our constitutional framework and that
the preservation life was always more important than the
preservation
of property. He further explained that in his view, the ‘
Operational
Commander’
on the scene, had an overriding discretion to make operational
decisions, particularly in the circumstances of unplanned protest

action. Such authority, would include decisions on how to deploy
resources on an urgent basis depending on the threat assessment.

Furthermore, the protest action initially had nothing to do with
factory owners and in his view the destruction of the various

factories in PAH was as a result of pure criminality by the
perpetrators.
Mr
Annandale
[111]
Colonel
Annandale testified that he is a Major General in the police. He is
stationed at the National Office of the police and he
is in charge of
operational support. He has extensive experience in the mobilization
of forces within the police, both nationally
and internationally. He
has some (37) years of experience and he also enjoys experience in
the field of hostage negotiation, crowd
management, riot control and
internal stability issues.
[112]
One of
the constant challenges within the police is the issue of the
deployment of resources and the ever increasing costs of providing

these resources. In preparation for the Soccer World Cup, the VISPOL
section of the police were also trained in certain aspects
of crowd
management as ‘
first
responders’
.
Thereafter, it became compulsory that all members of the police
completed some sort of crowd management training during their
basic
training.
[113]
During
the years following, a new philosophy was introduced within the
police to move away from the strict application of ‘
Standing
Order 262’
.
[40]
A new policy
document was created with a view to establishing operational
guidelines for crowd control and this new policy document
did not
mean that the provisions of SO 262 were rendered obsolete, but rather
that some of these provisions became somewhat diluted.
According to
Colonel Annandale, the priority of the police is always to protect
life over property.
Mr
Jacobs
[114]
Mr
Jacobs testified that he has been in the employ of the police for the
last (24) years. He is now the National Head of ‘
Crime
Intelligence’
.
During 2012, he was the Deputy Provincial Commissioner for
‘
Operational
Services’
in the Western Cape. He holds the rank of Lieutenant-General. One of
his duties was the co-ordinating of the response by the police
and
the allocation of resources, so as to ensure an appropriate response
by the police. He was briefed and was made aware of the
situational
developments on a daily basis. He received intelligence reports and
incident reports every morning. All the police
cluster commanders
reported to him on a daily basis.
[115]
He
also met with the community leaders, the farm workers union leaders
and also the actual people who represented the farmers in
this area.
This was all done in order to attempt to obtain a comprehensive
picture of the situation in order to deploy the correct
resources. He
also liaised with crime intelligence, although there was no
intelligence about specific factories that were going
to be torched.
As a matter of policy, the police do not guard private properties.
[116]
He did
not feel the need to request that the military services be deployed
or to obtain reinforcements from other provinces. The
protests
occurred over a vast area and the protestors also made use of taxi
services to move from area to area. He emphasized that
during these
difficult times, normal policing still had to take place. It is much
more difficult to manage protests that are unplanned,
particularly
from a logistical point of view. All of these protests happened
simultaneously, albeit in different areas. The situation
was fluid
and well-orchestrated. The destruction was enormous, taking into
account, inter alia, the quantum of the insurance claims
over this
period and the fact that municipal buildings, state owned properties
and vehicles were damaged. In his (24) years of
experience, he had
not experienced protest action taking place over such a vast area of
land.
[117]
During
cross-examination, he opined that the operational system that was put
into place was more than adequate and the capacity
of the police was
sufficient, taking into the account the vast area and the
circumstances that prevailed during this time. The
main priority was
to prevent the loss of life and to stabilize the area, which was
accomplished.
Ms
Vos
[118]
Colonel
Vos testified that she had been in the employ of the police since
1984. She was the VISPOL co-ordinator, for the ‘
Winelands
Cluster’
.
She had a supervisory role and had to manage a vast area. She met
with Mr Jacobs as early as the 6
th
of November 2012 in order to put into operation a ‘
contingency
plan’
for the protests in the area.
[119]
She
met with Mr Jacobs prior to the protests in order to form a view of
what could be the extent of protest action expected from
the seasonal
farm workers. The focus, according to their intelligence, was the
possible destruction of farms. She has never experienced
such a large
protest action taking place over such a vast area. She was most
appreciative of the dedication of the members of the
police during
this time as many of them worked very long hours beyond their call of
duty.
[120]
On
Sunday, the 11
th
of November 2012, she met in Ceres with Mr Truter and a number of
reinforcements were sent to PAH. In her view, the police at all

times, adopted a situational response based on intelligence and that
was re-active in nature.
Mr
Stefanus
[121]
He is
a Captain in the police services and he has (25) years of experience.
He is an expert in crowd management and received training,
both
locally and abroad. In his view crowd management commanders are
always obliged to operate reasonably, viewed objectively.
In his
view, the video footage that was shown to the court was insufficient
in that it did not capture a total picture of what
happened during
this protest action.
[122]
In his
view, the police correctly strategically placed themselves in WBA for
a specific purpose and their objectives in this connection
were
achieved. The protestors were armed and sought confrontation with the
police and that is why they, inter alia, dug the trench
to obstruct
the police. There was no clear information on what factories would be
attacked as crime intelligence suggested that
it was a protest at the
instance of farm workers and that ‘
farms’
in the area, were going to be destroyed by the protestors.
[123]
In the
event that the protestors were not contained, then in that event,
innocent people could have been injured and the priority
is always
‘
life
over property’
.
In his view, there was a proper solution in place to address the
problems and the risk assessments were adequate. Further in his
view,
the safety of the police was also an important aspect, which was not
taken into account by the plaintiffs’ expert.
[124]
Significantly,
in his view, the protestors on the 12
th
of November and the 13
th
of November 2012, were not necessarily the same protestors that
caused damage to the plaintiffs’ properties on the 14
th
and the 17
th
of November 2012, respectively. To have placed the ‘
Nyala’
at the back of the premises of HSM would not have tactically been a
sound decision as , inter alia, it would have been very difficult
to
extricate the ‘
Nyala’
should it have been attacked by the protestors. Further, he was of
the view that the area was patrolled extensively from the 13
th
to the 17
th
of November 2012.
Mr
Jones
[125]
Mr
Jones testified that at that time he held the rank of a Warrant
Officer in the police. He has been with POPS since 1990 and has
been
a policeman for well over (40) years. He was called out to Ceres at
03h00 on the 13
th
of
November 2012. He arrived in Ceres at about 05h45 and commenced with
a parade and a briefing. He arrived in PAH at about 06h45
and went to
WBA with (3) vehicles, (8) members of POPS, (2) pick-ups and a
‘
Nyala’
vehicle. They were all armed with full riot gear, tear gas, stun
grenades and rubber bullets. They arrived in WBA at about 07h00.
Upon
arrival there were approximately (1500) angry protestors present who
were intent on entering the town of PAH, via WBA and
VTR.
[126]
He
kept meticulous notes of the events that unfolded, which were
subsequently written into an occurrence log.
[41]
Upon arrival and as
soon as they alighted from their vehicles, they were pelted with
stones by the protestors. Colonel Truter attempted
to negotiate with
the protestors, via the medium of an interpreter, but this had no
effect. Colonel Truter was removed from the
scene as he was not
clothed in full riot gear. After the necessary warnings were given,
Warrant Officer Jones issued out an order
to ‘
take
action’
against the protestors. Tear-gas, stun grenades and rubber bullets
were fired at the protestors. The protestors were eventually
driven
back down WBA. It was a fluid ‘
push
and pull’
process to get the protestors to be driven down WBA. The protestors
eventually reduced to about (500) in number. POPS was kept
busy for
about (18) hours before calm was restored.
Mr
Truter
[127]
He was
promoted to the rank of Major shortly before the protests action in
PAH and was the Station Commander in PAH. He was instructed
by
Colonel Vos to draft a contingency plan in order to prepare
operationally for the protest action. The intelligence reports at
his
disposal did not refer to protest action being directed against
factories in PAH. In his view, Warrant Officer Jones and the
members
from POPS had adequately gained control of the situation in WBA. The
situation in PAH was relatively calm during the period
from the 14
th
to the 17
th
of November 2012, save for the fact the regular patrols and normal
complaints were attended to during this period.
Mr
Kayster
[128]
He was
attached to POPS and had training in crowd control and management and
was deployed to the Ceres area on the 11
th
of November 2012. He held the rank of a Warrant Officer in the
police. He initially performed duties in the ‘
Tandfontein’
and ‘
Nduli’
areas in order to control the farm workers who were protesting and he
was charged with keeping the road secure for road transport.
[129]
He was
re-deployed to PAH on the 14
th
of November 2012 and reference was made to an
operational
diary that he meticulously kept during this period. In summary, the
diary showed that he patrolled the area in WBA on
regular intervals
on the 14
th
of November 2012 and on a few occasions dispersed unruly crowds that
had gathered in the area. According to his recollection, (2)
police
pick-up vehicles and a ‘
Nyala’
vehicle were deployed in order to patrol the area in the vicinity of
PAH on the 14
th
of November 2012.
[130]
On
the 14
th
of November 2012 and at about 10h30, he together with Warrant Officer
September fired a large number of rubber bullets towards
the feet of
some protestors who had gathered outside the plaintiffs’
properties with the intention of causing damage and
looting these
premises. They together, managed to disperse these protestors and
thereafter patrolled the area until they were called
to a meeting at
14h20 in the afternoon. Upon returning from the meeting they again
patrolled the area between the hours of 18h30
and 19h30.
[131]
During
cross-examination, it was suggested to him that he had entered onto
the premises of the second plaintiff with a ‘
Nyala’
vehicle on the day in question. He did not agree. As far as he could
recall, he at one stage entered onto these premises but he
was on
foot at the time. He bore no recollection of any discussion with Mrs
Hanekom of the second plaintiff or Mr Hanekom of the
first plaintiff.
He did recall engaging with some person connected to the first
plaintiff. He could not remember that a container
housing diesel had
caught fire in the nearby vicinity on that particular day.
DISCUSSION
[132]
It is
common cause that the protest action was unlawful as it did not
comply with the Gatherings Act.
[42]
The protest action was spread across a vast area comprising of no
less than (14) towns. The provincial human resources, including

visible policing and public order policing units were deployed and
re-deployed to the various areas, depending on the fluctuating

severity and volatility of the protest action, from time to time.
[133]
It is
further common cause that the protest action and unlawful conduct on
the part of protesters and the criminality in the area,
was
unprecedented in the history of the Western Cape farming region. Many
farmers and businesses engaged the services of private
security
companies to protect their properties and possessions. In some
instances, the fire brigade services could only carry out
their
duties whilst under police protection.
[134]
The
plaintiffs allege that the police breached their legal duty and acted
negligently and unlawfully, and that as a result of the
defendant’s
negligence in respect of the protest action on the 13
th
of November 2012, criminality was prevalent in the industrial area of
PAH. The damages suffered by the plaintiffs was accordingly
as a
direct consequence of the negligence of the police at the scene of
the protests on the 13
th
of November 2012 and, thereafter.
[135]
The
crux of the complaint by the plaintiffs is that as a direct result of
the unlawful failure of the police to act positively against
the
protestors, their movable property and their immovable properties
were destroyed and as a result they were unable to continue
with the
operation of their businesses.
[136]
In
response to this, the defendant, inter alia, accepts that having
reference to section 205(3) of our Constitution,
[43]
and the South African Police Service Act
[44]
,
the police have a general duty to prevent, combat and investigate
crime, maintain public order and uphold and enforce the law.
However,
they advance that during this period, the police instructed the
plaintiffs’ members and employees to vacate their
properties
for purposes of protecting their safety and bodily integrity.
[137]
I must
render a decision on, inter alia, the following issues, namely;
whether the police were in breach of their legal duty and
whether
their conduct in relation to the plaintiffs during the relevant
period was negligent and if so, wrongful. If I find that
the police
were negligent, then in that event, I also need to determine if they
were causally negligent in any manner, and if so,
was there any
contributory negligence on the part of the plaintiffs. Most
significantly, I need to determine ‘
wrongfulness’
in the context of whether any public or legal policy considerations
militate against the defendant being held liable for any damages

allegedly suffered by the plaintiffs.
[138]
It
seems to be common cause that the nature and extent of the protest
action, during this time, was unprecedented. The protest action
was
unlawful and did not comply with the Gatherings Act. The opportunity
to put any measures in place and to plan beforehand was
accordingly
very limited.
The
co-ordination of the police resources was undertaken of the Mr Lamoer
and his testimony, in this connection, was corroborated
by Captain
Stephanus
.
[139]
He was
placed in an ideal position to engage with the other senior officials
so as to co-ordinate the deployment and re-deployment
of the VISPOL
and the POP members, and the allocation of resources. He in turn,
kept the National Commissioner of Police informed
on a regular basis
regarding the situation in the Western Cape, at this time. In order
to support the VISPOL members in the respective
towns in the area,
VISPOL members from other police stations were deployed. POPS units,
with their ammunition, gear and other resources,
from George and
Paarl were also deployed to the area.
[140]
Major
roads as well as smaller roads were continuously being barricaded and
stones were thrown by protesters at passing vehicles.
This posed a
significant risk to the safety of people’s lives in these
areas. Fields were set alight, buildings (including
a police station
and a municipal office) were set alight. Plant, machinery, and
businesses were torched. Petrol bombs were thrown
by the protesters
and criminal looting and stealing, followed.
[141]
Turning
now for a moment, specifically to the area of PAH. This policing
district consisted of approximately (50) farms and the
terrain
consisted of open fields, gravel roads, mountains and hills. The area
measures (3554) km² in extent. There is a satellite
police
station at ‘
Op-Die-Berg’
about (40) km away, but still within its policing precinct. This
village also consists of farms, shops and residential homes which,

were all placed at risk during the protest action.
[142]
The
main artery in this PAH industrial zone is WBA as it serves as the
main road to the residential phases, the businesses and is
also the
route utilized to transport a number of farmworkers on an almost
daily basis. The BMF property was approximately (8000)
m
2
in extent, while the factory building was approximately (1000) m
2
in extent. HSF measures no less than (2.1) hectares. In turn, the DTS
premises was much larger than the BMF premises and was easily

accessible. There are two unfenced vacant plots adjacent to BMF and
CVF. The premises of HSF are also accessible from the informal

settlements, which were in close proximity.
[143]
On the
13
th
of November 2012, there were over (60) incidents of protest action in
the PAH area, which were typically violent and involved large
crowds
of protesters. The most significant incident was on WBA. A large
crowd of protesters sought access to VTR and into the town
of PAH.
Taking into account the topography of the area, the police sought to
keep the crowd at the far end of the intersection
on WBA, with the
intention of eventually dispersing them back into their residential
areas. A trench in WBA had been dug by the
protesters so as to
prevent the ‘
Nyala’
from proceeding further down WBA.
[144]
The
protesters hurled stones and petrol bombs at the police and WBA was
strewn with stones, crates and rocks. CVF was set alight
by
protesters as well as two forklifts and several crates. Two police
members were injured and were evacuated. The staff employed
by DTS
did not report for work as they were intimidated and they were afraid
that their houses may have been torched. Many calls
were received at
the police station about fires burning and police contacted the fire
brigade in Ceres. The schools in the area
also closed early and the
school children were sent home. The police were on duty at WBA from
about 07h00, until after midnight.
[145]
The
evidence reveals that the protest action had subsided considerably
the following day. Early that morning, a crowd of approximately
(75)
protesters gathered in WBA, but by mid-morning, the crowd had largely
dispersed. However, many incidents continued to occur
in the area, as
well as the other parts of PAH. The police were deployed and
re-deployed to attend to those situations, as and
when, they arose.
During this time, the police also conducted patrols in WBA and in the
vicinity of the plaintiffs’ factories.
[146]
When
Mr Hanekom attended upon his premises in the presence of his
insurance broker, they were advised to vacate the area as a group
of
protesters were headed in their direction. It is not disputed that
the remaining portion of the BMF was set alight on 17
th
of November 2012, this in the early hours of the morning. Both the
identity of the perpetrators and the circumstances of this
destruction, remains unknown. This in my view is a significant fact.
[147]
The
plaintiffs’ case, to a large extent hinges on the evidence
tendered by their experts, Professor Snyman and Colonel Bezuidenhout.

Professor Snyman’s evidence consisted entirely of an academic
opinion and she conceded that she is not a specialist in the
field of
public order policing.
[148]
During
cross examination she conceded that she could not give an ‘
opinion’
on the actual conduct of the police in these particular
circumstances. What I am left with is an academic opinion, ‘
nothing
more and nothing less’
.
In
order for me to properly assess and weigh up the evidence of Colonel
Bezuidenhout, other than dealing with certain factual evidence
about
when the plaintiffs’ suffered their alleged damages, I have to
bear in mind the following concessions made by him,
namely;
[148.1] that a
number of clusters were affected simultaneously, involving (29)
police stations;
[148.2] that the
focus of the protest was aimed at farms;
[148.3] that
extensive damage was caused during the protest action in many areas;
[148.4] that
members of the public were intimidated to partake in the protest
action;
[148.5] that the
police were faced with an abnormal crowd management situation, and
[148.6]
that no notice of the protest action was given to the police and they
were caught off-guard;
[149]
He
was driven to concede that his opinion was based on documents
presented to him and he performed an ‘
ex
post facto’
reconstruction of what happened, this after having held discussions
with the plaintiffs’ legal team. Further, that the protest

action of the 13
th
and 14
th
of November 2012, emanated from the nearby residential areas and by
that stage no substantial damage had been suffered by the plaintiffs.

These concessions must be holistically viewed within the factual
matrix of the position on the ground at PAH after the 13
th
of November 2012.
[150]
Whilst
the test for negligence is trite and is an objective test as set out
in
Kruger
,
[45]
the
important elements of the ‘
delict’
which
require scrutiny in this case, are the elements of wrongfulness and
causation.
The
enquiry is whether the alleged harm caused to the plaintiffs demands
the imposition of liability in these particular circumstances.
This
is case-specific.
[151]
In
Loureiro
[46]
,
the Constitutional Court expressed the wrongfulness enquiry, inter
alia, as follows:
‘
The
wrongfulness enquiry focuses on the [harm-causing] conduct and goes
to whether the policy and legal convictions of the community,

constitutionally understood, regard it as acceptable. It is based on
a duty not to cause harm – indeed to respect rights
– and
questions the reasonableness of imposing liability’
[152]
In
my view, it must be accepted, as a starting point, that where
positive conduct harms the person or property of another, such

conduct is ‘
prima
facie’
wrongful.
Significantly, for the purposes of this case, the negligent causation
of ‘
pure
economic loss’
is not regarded as
prima
facie
wrongful.
[47]
There is no general
right not to be caused pure economic loss.
[48]
In considering
whether there was a legal duty on the defendant, on the facts of this
case, I must have regard to public and legal
policy considerations
consistent with our constitutional norms.
It
is not the reasonableness of the conduct of the police which requires
scrutiny, but rather it is the reasonableness of imposing
liability
on the defendant, on the facts and circumstances of this matter,
which falls to be determined.
[153]
This
cannot be determined with reference to my idiosyncratic views. I must
also, at the same time consider the issue of causation,
both factual
and legal, the latter going to the issue of the
remoteness
of the loss.
[49]
The
issue of remoteness is inextricably linked to the issue of
wrongfulness as this is also determined largely by considerations
of
public or legal policy. Thus, even where negligent conduct resulting
in pure economic loss, is for reasons of policy, found
to be
wrongful, it may, for other reasons of policy, be found to be too
remote.
[154]
From
a policy consideration perspective, the enquiry in the circumstances
is, inter alia, if it would be overly onerous and burdensome
to hold
the police liable in circumstances where they have to contend with
different protest related incidents which occur simultaneously
in
different towns.
[50]
Wrongfulness
typically acts as a brake on liability, particularly in the areas of
the law of delict
where
it is undesirable or overly burdensome to impose liability.
I
must also be mindful of the fact that protest-related incidents are
almost a daily occurrence in South Africa. The police could

potentially suffer indeterminate liability should every property
owner seek to hold the police liable for damage to their personal

property, where spontaneous unlawful conduct is perpetrated and in
circumstances where the police are unable to concentrate their

resources at a particular business or property, as required, at any
given time.
[155]
Where
the conduct of the police, takes the form of an omission, special
policy considerations come into play. The police were not
responsible
for ‘
setting
in motion’
the damages that caused the plaintiffs losses. Rather, it was the
conduct of the protesters and a criminal element which set in
motion
the plaintiffs’ losses.
[156]
In
regard to the issue of ‘
vulnerability
to risk’,
it
is evident that on the plaintiffs own version that they protected
their interests by taking special insurance cover against unrest
or
riotous situations. The first plaintiff and the second plaintiff were
indemnified for their losses by SASRIA
[51]
in
the amounts of R 8046, 213.00 and R4055, 364.00, respectively.
[157]
In
the case of
Za
v Smith
[52]
,
Brand
JA stated the following;
‘
What
it essentially lays down is the enquiry – in the case of an
omission – as to whether, but for the defendant’s

wrongful and negligent failure to take reasonable steps, the
plaintiff’s loss would not have ensued. In this regard, this

court has said on more than one occasion that the application of the
‘but-for test’ is not based on mathematics, pure
science
or philosophy. It is a matter of common sense, based on the practical
way in which the minds of ordinary people work, against
the
background of everyday-life experiences. In applying this common
sense, practical test, a plaintiff therefore has to establish
that it
is more likely than not that, but for the defendant’s wrongful
and negligent conduct, his or her harm would not have
ensued’
[158]
It
remains undisputed that whatever happened in WBA when the properties
of the plaintiffs were damaged, these were not isolated
incidents
confined to a particular area and restricted to a particular date.
The destruction of CVF occurred under extremely challenging

circumstances as the police were faced with a fine balancing act of
either protecting property or protecting the lives of persons.
In my
view, the events that unfolded in WBA on the 13
th
of November 2012, cannot be causally related to any damages suffered
by the plaintiffs. This is because the facts do not support
such a
finding. The plaintiffs also wisely abandoned the theory that the
police gave preferential treatment to the DTG.
[159]
I
say this also because, it is on the 14
th
and 17
th
of November 2012, that the first plaintiff’s factory was
damaged and some of the content stolen. It is also on the 14
th
of November 2012, that the second plaintiff’s property, was
damaged. Counsel for the plaintiffs, wisely conceded that the
conduct
of the perpetrators on the 14
th
of November 2012, was more in the nature of ‘
sporadic
criminal’
activity. Bearing in mind that on the 14
th
of November 2012, the police were not faced with a crowd management
situation at all
.
Furthermore, it is unclear from the evidence presented, as to the
precise manner as to how the plaintiffs’ properties were

torched on the 14
th
November 2012. It is also not known as to the manner in which the
first plaintiff’s property was torched on the 17
th
of November 2012.
[160]
It
was common cause that plaintiffs’ properties were easily
accessible by criminal elements. The locality, size, and topography

of the area where the plaintiffs’ properties were situated made
the task of the police very difficult. The deployment of
the police
in a single place was simply not an option, this due to all the
spontaneous events and the areas in which the various
incidents
arose.
[161]
On
the 14
th
of November 2012, the evidence in respect of the role of the police
and its presence indicates that they were present patrolling
and it
is apparent that the safety of the lives of persons was of primary
concern to the police. Further, the police were not tasked
with fire
prevention and fire combatting duties and it would have served no
purpose had the police entered onto the BMF property,
while it was
burning. The police are not trained and tasked with the duties of
dowsing fires and the plaintiffs did not join the
fire services as a
party to their action.
[162]
In
the early hours of the 17
th
of November 2012, the BMF property was once again burning. No protest
action took place at this hour. In my view, it could not
have been
reasonably expected of the police to be present especially if one has
regard to the background and factual matrix relating
to this matter.
As far as the second plaintiff’s premises are concerned, the
video evidence indicates that criminals entered
the factory and set
it alight whilst they were inside. The evidence certainly does not
indicate that protesters or criminal elements
were actively in the
process of setting the plaintiffs’ properties alight in the
presence of the police and that the police
took no reasonable steps
to prevent the protesters from setting these properties alight.
[163]
In applying the
general approach to causation, factual causation is the starting
point, and the tool for establishing factual causation
is the
‘
but-for’
test.
[53]
This involves a hypothetical
enquiry as to what probably would have happened but for the wrongful
conduct of the defendant.
[164]
The common law test
has never been applied inflexibly but has always recognised that
sometimes ‘
common
sense
’ may have
to prevail over strict logic. Legal causation in turn involves the
question of whether there is a sufficiently
close relationship
between a factual cause and the loss.
[165]
Legal causation is
the ‘
conduit’
for policy considerations and, in particular, guards against
liability in an indeterminate amount for an indeterminate time to
an
indeterminate class.
[54]
The proximate effective cause
must be identified if there are two or more possible causes.
[166]
Applying
the ‘
direct
consequences criteria’
of causation, I cannot on the evidence before me, make a finding that
the loss suffered by the plaintiffs followed directly from
the
positive conduct or any omission by the police. Further, if I apply
the ‘
but
for test’
of factual causation, undoubtedly, the failure of the fire services
to assist the plaintiffs either ‘
caused
or contributed’
to the losses suffered by the plaintiffs.
[167]
The
undisputed evidence is that it is not the policy of the police to
guard premises. As a rule, the police did not guard individual

premises during protest action unless the premises are designated as
a ‘
key-point’
.
The action of the
police will always be the product of judgments made in conflict
situations which cannot always be submitted to
strict and inflexible
rules. Whilst it is so that the defendant was under a legal duty to
act positively to prevent harm to the
plaintiffs, it is also
reasonable to expect the defendant to have taken positive measures to
prevent the harm.
[168]
I have
to make a judgment based,
inter
alia,
upon
the perception of the legal convictions of the community and on
considerations of policy, in determining whether it was
reasonable
to have expected of the defendant to have taken positive measures to
prevent the harm. Whether a legal duty exists in a particular
case,
is thus a conclusion of law depending on a consideration of all the
various circumstances.
[55]
[169]
Put in
another way, I am enjoined to decide whether or not the community
regards a particular act or omission as wrongful. The legal

convictions of the community, in this context, are the legal
convictions of the legal policy makers, such as the legislature and

judges.
[56]
The
approach to the question as to whether a particular omission to act,
should be regarded as unlawful, is an ‘
open
ended and flexible’
approach, taking into account the norms and values, constitutionally
infused.
[170]
The
element of wrongfulness is less straightforward and more contentious
when dealing with liability for negligent omissions and
for
negligently caused pure economic loss.
[57]
The plaintiffs’
claims against the defendant are based an alleged negligent omissions
on the part of its employees. The determination
of the unlawfulness
or otherwise of a ‘
negligent
omission’
occurs in only in circumstances where the law regards it as
sufficient to give rise to a legal duty so as to avoid the
negligently
causing harm. This enquiry is a very broad one in which
all the relevant circumstances must be brought into account.
[58]
[171]
I am
of the view, having considered the issues of wrongfulness and
causation, that policy considerations in these circumstances
militate
against a finding in favour of the plaintiffs. In my view, the police
did not act wrongfully, taking into account the
undue demands that
were placed upon them in these circumstances. Even if I am wrong on
this score, I also find that the plaintiffs
failed to establish that
the damages suffered by them, followed directly from the conduct or
omission by any member of the defendant.
[172]
In the result, the following order is made;
[172.1]
That the
plaintiffs’ claims are dismissed
.
[172.2]
That the
first and second plaintiff, jointly and severally, the one paying the
other to be absolved, are liable for the defendant’s
costs
(inclusive of the costs of two counsel), on the scale as between
party and party, as taxed or agreed.
_______________

WILLE, J
[1]
The
‘police’
[2]
BMF
- the Blue Mountain Factory
[3]
HSF-
the Hanekom Saagmeule Factory
[4]
WBA
[5]
PAH
[6]
Act
68 of 1995
[7]
Both
movable and immovable
[8]
The
town is actually named Prince
Alfred’s
Hamlet.
[9]
The
‘plan’
[10]
The
development was a ‘phased’ development
[11]
A
nearby farming area
[12]
The
12
th
of November 2012
[13]
VTR
– this road is also known as the ‘R303’
[14]
In
the nearby vicinity of his factory - DTS
[15]
Via
the means of a gravel road towards the rear section of his premises
and not via WBA
[16]
CVF
[17]
Who
was in charge of the Public Order Police - POPS
[18]
The
14
th
of November 2012
[19]
Warrant
Officer Esterhuizen
[20]
At
about 20h00
[21]
The
16
th
of November 2012
[22]
Near
to Saldana Bay
[23]
On
the 12
th
of November 2012
[24]
HSF
[25]
Both
small villages in the area
[26]
On
the 12
th
November 2012
[27]
Via
the rear entrance on a gravel road
[28]
Joint
Operational Centre
[29]
Members
of the Visible Policing Unit
[30]
SAP
15 - documents
[31]
The
person w
ho
was –
operationally
- in charge at the time
[32]
The
Du Toit Group of Companies
[33]
Exhibit
G
[34]
A
cluster typically consisting of between 6 and 7 police precincts
[35]
Provincial
Joint Operation Centre
[36]
The
Regulation of Gatherings Act, Act 25of 1993
[37]
Dated
2011
[38]
During
the day upon a date which he was unable to recall
[39]
Representing
the majority of the farmers in this region
[40]
‘
SO
262’
[41]
This
occurrence log was entered in the record as an exhibit
[42]
Regulation
of Gatherings Act 25 of 1993
[43]
The
Constitution of the Republic of South Africa, Act 108 of 1996
[44]
Act
68 of 1995
[45]
Kruger
v Coetzee
1996 (2) SA 428
at 430
[46]
Loureiro
and Others v Imvula Quality Protection (Pty) Ltd
2014
(3) SA 394
(CC) at para [53]
[47]
Trustees
Two Oceans Aquarium Trust v Kantey and Templer (Pty) Ltd 2006 (3) SA
138 (SCA)
[48]
Administrateur,
Natal v Trust Bank van Afrika Bpk
1979 (3) SA 824
(A) at 833A-B
[49]
International
Shipping Co (Pty) Ltd v Bentley
1990 (1) SA 680
(A) at 700E-G
[50]
Bowley
Steels (Pty) Ltd v Dalian Engineering (Pty) Ltd
1996 (2) SA 395
(T)
at pp 399 – 400
[51]
The
private insurance that they had for riots and unrests
[52]
2015
(4) SA 574
(SCA) at 589D - G
[53]
Lee
v Minister for Correctional Services
2013 (2) SA 144
(CC) at para 40
[54]
Country
Cloud Trading CC v MEC, Department of Infrastructure Development
2015 (1) SA 1
(CC) at para 24
[55]
Carmichele
v Minister of Safety and Security and Another
[2001] ZACC 22
;
2001 (4) SA 938
(CC)
at para -7
[56]
Van
Eeden v Minister of Safety and Security
2003 (1) SA 389
(SCA) at
page -395 para - 9
[57]
Trustees,
Two Oceans Aquarium Trust v Kantey and Templer (supra) at page 144
para -10
[58]
Cape
Town Municipality v Bakkerud
2000 (3) SA 1049
(SCA) at 1056 G - H