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[2021] ZAGPPHC 436
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Umbhaba Estates (Pty) Ltd and Others v Minister of Police and Others (22208/2009) [2021] ZAGPPHC 436 (20 May 2021)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case
No: 22208/2009
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
NOT
REVISED
Date:
20 May 2021
In
the matter between:
UMBHABA
ESTATES (PTY) LTD AND
PLAINTIFF
FIFTY
THREE OTHERS
and
MINISTER
OF POLICE
1
ST
DEFENDANT
NATIONAL
COMMISSIONER
OF THE SAPS
2
ND
DEFENDANT
PROVINCIAL
COMISSIONER OF THE SAPS
3
RD
DEFENDANT
Coram:
Mtati
AJ
Delivered:
20
May 2021 - This judgment was handed down electronically by
circulation to the parties' representatives by email, by being
uploaded
to the CaseLines system of the GPO and by release to SAFLII.
The date and time for hand-down is deemed to be 10:00 on 20 May 2021.
Summary:
Duty
of care - failure by the police to respond to request to restrain
protracted strike resulting in damage to property- responsibility
of
the police to act positively in preventing crime - legal convictions
of the community to expect police to act- failure to do
so results in
wrongful and negligent conduct.
Procedure:
Postponement - withdrawal as attorney of record - no mandate to seek
postponement - interests of justice to be considered
in deciding the
application - to be weighed with the intention to reach finality on
proceedings
JUDGMENT
MTATI
AJ
Introduction
[1] This
matter recounts a number of incidents that relate to the
responsibility
of police officers in instances of a strike by
employees of a private company. Specifically, the issue for
determination is the
liability of the police on whether their conduct
was wrongful and negligent resulting, in principle, damage which
could have been
circumvented had the police taken appropriate action
well in advance.
[2] The
merits and quantum have by agreement between the parties been
separated
in terms of Uniform Rule 33 (4) and the Court has so
ordered and accordingly, this matter proceeded only on the issue of
liability.
At the commencement of the proceedings it became apparent
that some of the Plaintiffs are no longer pursuing their claims
against
the Defendants and further that Counsel for the Plaintiffs
and the Plaintiffs representatives no longer have a mandate to
proceed
on behalf of other Plaintiffs. This turn of events
necessitated a request by the Court that the parties agree and
formulate a written
framework describing all the Plaintiffs who are
proceeding with this litigation, those whose matters are withdrawn
and those where
Counsel withdraws as an attorney of record. The
written formulation agreed to by the parties was handed in as exhibit
1 titled
"Proposed Formulation".
[3] In
summary the formulation by the parties resulted in the matter being
proceeded with in respect of the claims of the 1
st
and the
6th Plaintiff. The claims of the following Plaintiffs were withdrawn:
2 to 5, 13, 20, 23, 37, 41, 44 and 52. The Plaintiffs'
attorneys have
withdrawn as attorneys of record due to lack of instructions in
respect of the following Plaintiffs: 7 to 12, 14
to 19, 21, 22, 24 to
36, 38 to 40, 42 and 43, 45 to 51 and 53.
[4] Mr
Labuschagne for the Plaintiffs requested the Court that the claims in
respect of all the Plaintiffs where the attorney has withdrawn for
lack of instructions should be postponed
sine die
since they
did not know of the date of trial and further that it shall be in the
interests of justice to do so. Mr Phaswane for
the Defendants opposed
this proposition and argued that the attorneys had no mandate to make
such an application. I shall revert
to this application later in this
judgment.
[5] The
issues that are separated and not forming part of this judgment are
therefore the following:
5.1.
Whether
the plaintiffs suffered damage under the heads of damages as pleaded;
5.2.
The
extent to which such damage is causally linked to the wrongful
conduct; and
5.3.
The
quantum of such damages.
[6] The
tenet of the Plaintiffs' claim is based on the duty of care on the
part of the Defendants to protect them and their property from
unlawful behaviour of the striking workers as contained in various
provisions of our Constitution.
The parties
[7] The
First Plaintiff is Umbhaba Estates (Pty) Ltd (Umbhaba), a company
incorporated
in terms of the Companies Act of South Africa, No. 61 of
1973 with its registered office situated at Umbhaba Estates, R40
road,
Hazyview, Mpumalanga.
[8] The
Second to the Fifty Third Plaintiffs are constituted of directors,
managers, security officers, electricians and general farm workers
all employed or forming part of the First Plaintiff. I do not
intend
stating each one of them except the 5th Plaintiff who is Ms Alida
Mkhabela, an adult farm worker, employed by Umbhaba.
[9] The
First Defendant is The Minister of Safety and Security, the
responsible
Minister of the South African Police Services, as set out
in section 1 of the South African Police Services Act, 68 of 1995
hereinafter
referred to as the Minister.
[10] The
Second Defendant is The National Commissioner of the South African
Police Services.
[11] The
Third Defendant is the Provincial Commissioner of the South African
Police Services,
Mpumalanga hereinafter referred to as the Provincial
Commissioner.
The background facts
[12] It
is common cause that the First Plaintiff is a large agricultural
enterprise operating
out of three geographical locations in
Mpumalanga. Their core business is growing, ripening, distribution
and selling mainly bananas
to customers throughout South Africa. They
also produce avocados, litchis and macadamia nuts.
[13] On
the 5th of July 2007 and for the remainder of the month of July there
was a prolonged
strike in one of their operations. The strike was
focussed on their Kiepersol farm situated in Hazyview, Mpumalanga.
The strike
was characterised by violence through various acts of
intimidation, assaults, malicious damage to property, vandalism,
theft, road
blockades and various acts of looting.
[14] According
to the evidence, the South African Police Services (SAPS) were
informed of the
looming strike before it commenced on the 5th of July
2007. Importantly, the SAPS were informed of suspicions that there is
a great
likelihood that the strike is likely to be violent. I shall
deal hereunder with the testimony of the two witnesses called on
behalf
of the First and the Sixth Plaintiffs testifying on specific
incidents that took place during the strike. It is the Plaintiffs
case that there were no reasonable steps taken by the SAPS to
safeguard non-striking workers and property. This is disputed by the
Defendants.
[15] It
appears that the Kiepersol farm had been bought by the First
Plaintiff approximately
six months before the strike. The First
Plaintiff assumed the services of about one hundred employees who
worked for the erstwhile
owner of the Kiepersol farm. The reason for
the strike was seemingly as a result of a new requirement by the
First Plaintiff that
these workers were also to also work on
Saturdays when they were not accustomed to work Saturdays with their
former employer.
The evidence
[16] Mr
Dean Ernest Plath (Mr Dean) testified that he is a senior farm
manager and a director
at Umbhaba. The Umbhaba agricultural business
was started by his father and he has been formally working on the
business for some
approximately 22 years. The Umbhaba business
operates in three farms one of which is the Kiepersol farm where the
strike took place.
[17] Umbhaba
employs between 1500 to 2500 employees depending on the season. The
nature of the
business is labour intensive. Mr Dean proceeded to
describe the three farm operations and handed in a number of videos
as exhibits
as well as photos. I will not deal with all the exhibits
in this judgment save where specifically required to do so. The main
event
surrounding the strike and the alleged acts of unlawful conduct
took place at Kiepersol farm.
[18] The
aerial photograph of the Kiepersol farm was handed in and marked
exhibit 4. Kiepersol
farm consists of the main gate situated on the
western side of the farm. Approximately 40 metres or so towards east
there is another
gate referred to as the south yard gate. The south
yard gate provides access to the main farming operations including
the administration
building where morning meetings and trainings are
held. There is also a big building which is used by farm workers to
package the
farm produce. There are also toilets outside to what I
refer to as the main building as it appears to be the largest
building that
is used by staff. Around the buildings and mostly on
the northern side there is farm equipment. These buildings are
cordoned off
by a wall. The Court also observed that there is another
gate within the cordoned structure which is on the extreme south east
of the cordoned wall referred to as the main yard gate.
[19] Behind
the cordoned buildings (main farm operations) on the eastern side
there are a number
of smaller structures which were confirmed by Mr
Dean to be houses accommodating some of the workers. His testimony
was that these
houses were occupied by both striking and non-striking
workers. I pause to mention that the houses referred to above are
within
Kiepersol farm. On the southern side of the main farm
operations the Court observed banana plantations with a gravel path
between
the wall and the banana plantations. Access to the houses
referred to above on the eastern side of the buildings can be
obtained
through the main yard gate alternatively, through a gravel
path between the southern wall and the banana plantation. In other
words
one does not necessarily need to enter the south yard gate in
order to access the houses.
[20] On
29 June 2007 Mr Dean received a notice of the intended strike which
was to commence on
5 July 2007. After receipt thereof he proceeded to
inform the Hazyview Police Station. This is because when they took
occupation
of the farm after buying same they faced some resistance
from some of the employees of the erstwhile owner. Their farming
operations
commence from between 6h30 to 7h00 on a daily basis except
on Sundays when the staff is off-duty.
[21] On
5 July 2007 when they arrived at work for their normal early meetings
they were met with
some resistance from the striking workers who
blockaded the main gate. They were hurling stones into the building
of the main operations.
Some of the striking workers were wielding
sticks screaming and intimidating the non-striking workers. They were
beating them and
rounding them up to prevent them from entering the
premises. One of their company vehicles was knocked with knobkerries
as it was
entering their premises.
[22] Mr
Dean and other managers decided to open and keep a diary of the
chronology of events
including telephone records of all calls made to
police officials including the station commissioner and other senior
officials.
This chronology was timeously discovered and referred to
throughout the evidence of Mr Dean. No objection was raised to the
calls
made nor an objection to the accuracy of the numbers. Neither
was there any objection raised to the accuracy of the names of
officials
as rightful owners/possessors of those numbers.
[23] They
locked the gates to prevent the striking workers from entering the
buildings. All this
happened between 6h30 and 6h35. He personally
called the police on his issued mobile phone and through use of the
landline. He
informed the police of these incidents of assault,
intimidation and damage to property. The police who are stationed
about 15 km
away did not immediately come to their rescue. It was
only at about 7h30 when two junior police officers arrived. The
police approached
them and informed them that the union officials
wanted to talk to Mr Dean and his father.
[24] Mr
Dean and his father approached the gate and bemoaned the level of
violence that was taking
place. Mr Dean testified that he was himself
almost hit with a brick. The Court observed through the video footage
the two union
officials in the presence of the police talking to the
witness and another person supposedly the father of Mr Dean.
Disturbingly,
there is one person in the video footage who violently
attempted to grab the camera that was taking the video footage. This
happened
in full view of the police although in his testimony,
Captain Makwakwa, whose evidence I shall deal with later, denied
seeing the
episode.
[25] An
observation made by Mr Dean was that on arrival of the police there
appeared to be calmness
by the striking workers as they regrouped
elsewhere on the street. They appeared to respect the presence of the
police. The police
on the other hand seemed to take the matter very
casually and left soon after the discussions with the union
representatives. According
to Mr Dean the acts of criminality
continued throughout the day. Some of the First Plaintiff's employees
who were employed as electricians
were also threatened with murder if
they continued to work. There was no compliance with picketing rules
by the strikers.
[26] According
to Mr Dean there were about 50 instigators in the strike but the
strikers were
in the region of about 300. The police on the other
hand estimated the number of strikers to about 50. In my view nothing
turns
on this.
[27] The
following day, the 5
th
of July 2007, was marked with a
reduced members of staff who were prepared to work as a result of the
continuous intimidations.
A security guard, Mr Monyai, was also
assaulted from within the farm. A video footage was played for the
Court depicting injuries
on the right eye, right shoulder and some
abrasions on the back of Mr Monyai. According to Mr Dean a criminal
case was opened for
this incident and he was not certain if the
matter was investigated further.
[28] The
strikers were continuing with their unlawful conduct of hurling
stones and barricading
the gates or at least some of them. At some
stage Mr Dean's father fired some warning shots to thwart the
constant attacks by the
strikers. Mr Dean called the police again and
on several occasions as demonstrated by his itemised billing showing
the number of
calls made. He spoke to the Station Commissioner by the
name of Superintendent Nobela. Later Captain Mbambo, who had also
been
constantly called, arrived on the scene. Captain Mbambo
encouraged the witness (Mr Dean) and management to talk to the
striking
workers since the incidents were labour related matters and
that they, the police, do not have capacity. Management decided to
employ the services of armed security guards as they were approaching
the weekend and were concerned about security of Managers
and their
families.
[29] As
indicated above the reason for the strike was because the striking
workers did not want
to work on Saturdays. As such there were no
striking activities during Saturdays and Sundays throughout the month
of July. The
5
th
of July 2007 was on a Friday . It was
only on Monday the 9th July 2007 that the activities of the strike
resumed. According to
the witness, Captain Mbambo was called on his
mobile number on three occasions informing him that the strikers are
back and blockading
the gates and burning fires on some of the gates.
[30] It
is on 9 July 2007 that Mr Dean and management decided to approach the
Labour Court for
an interdict against the union, one union official
and the striking workers who were all cited as the 1st to the 3rd
Respondents.
The order was granted on the same day. An excerpt of the
order fully dealt with in paragraph 2 thereof provide that:
"2.1.
The 1
st
, 2
nd
and
3rd Respondents are interdicted from picketing at the main entrance
of the Kiepersol Farm and compelled to picket
a
distance
of 500 meters in
a
northerly direction (away from the
R40 towards Kiepersol) from the main entrance of the Kiepersol
Farm on the opposite side of the road.
2.2.
The
1st, 2nd and 3rd Respondents are interdicted from entering the
Kiepersol Farm during working hours except for purposes of using
allocated
toilet facilities.
2.3.
The
residing employees leaving their living area in the morning and
returning in the evening may only do
so
through the main
entrance gate. The employees must pass the southern side of the
walled yard area using only the farm road between
the yard and the
banana orchard
..."
[31] The
order referred to above was handed over to Captain Mbambo who was in
the company of
Captain Khoza who explained the order to the striking
workers. However and notwithstanding the explanation of the order
there was
again burning of fire obstructing entrance to the farm in
the late afternoon according to the witness. On one of these acts of
violence when the striking workers were hurling stones, the witness
was in the presence of Captain Mbambo and Captain Khoza. It
was only
after stones were also hurled at the police that the first arrests
took place according to Mr Dean. Captain Mbambo summoned
for police
back-up and this led to the arrest of four of the suspects.
[32] It
is clear that the striking workers were not heeding to the court
order and it is for
that reason according to Mr Dean that on 10 July
2007, a day after the initial order, they went back to court to
obtain a contempt
of court order. A
rule nisi
was granted
against the Respondents to show cause why they should not be found in
contempt of court. The relevant excerpt of that
order in these
proceedings is contained in paragraphs 2 and 3 which read as follows:
"2.
Member of the South African Police are hereby authorised to arrest
such of the individual Respondents
who breach the order
of court of
gth
July 2007 and to bring
such arrested individuals before the Magistrates Court in the area of
jurisdiction of Nelspruit in order
to enable the public prosecutor to
decide on the charges of criminal
conduct to be
preferred against such individuals
.
3.
In particular members of the South African Police are authorized to
arrest such of the individual Respondents who continue
to
intimidate
the employees of the Applicant and/or who
continue to damage the property of the Applicant
..."
[33] A
meeting was held in the morning of 11 July 2007 around 9h30
constituted by the witness,
Superintendent Nobela (station
commissioner) as well as Captain Mbambo. The purpose thereof was to
explain the order obtained by
the witness together with additional
and specific responsibilities imposed upon the police.
[34] The
police did not enforce the order according to the witness since at
about 11h00 on the
11
th
of July 2007 the strikers were
still not at their dedicated and agreed picketing spot. There was
still smouldering fire next to
the main gate. On the same day at
about 16h00 a petrol bomb was thrown into the yard leading to a
burning of a tractor. Approximately
four hundred kilograms of fruit
was picked up along the road which was looted from inside the farm.
[35] The
uncontroverted evidence of Mr Dean is that the violent acts of
intimidation and damage
to property continued after the second court
order of contempt. The acts of violence escalated to throwing of
petrol bombs into
the property causing further damage to property. A
number of criminal cases were opened each time there was evidence of
wrong-doing.
On 13 July 2007 the First Plaintiff approached the court
for the third time on an urgent basis seeking an intervention from
the
police and in this instance the court ordered as follows:
"1.
A copy of the order of this Court dated 10 July 2007is to be served
on the Commissioner of Police, Mpumalanga as well as
on
the
National Commissioner,
South African Police
Services.
2.
Mr Stanley Thulane Nobena, the Chairman of the 1st Respondent BBBWU
who is in attendance at Court when this order [is] issued
is hereby
directed to inform the individual Respondents to desist from all
criminal and wrongful conduct
..."
[36] Mr
Maritz, who was leading Mr Dean, was thorough in linking every
unlawful act to the calls
made to individual police officials and as
reflected in the itemised billing. These incidents were also
cross-referenced to their
diary containing chronology of events as
well as police dockets where some were opened.
[37] After
a number of letters were sent to the police officials in Hazyview
requesting assistance
and specifically to the office of the
Provincial Commissioner together with the Minister of Police it
appears as though it was
on the 17
th
July 2007 that any
substantial intervention took place. On this day according to Mr Dean
there were a number of police officers
in police vehicles. The
striking workers were moved to a place further from the main entrance
to what appeared to be in line with
the prescribed location in
accordance with the court order.
[38] The
evidence indicates that whilst there had still been some level of
non compliance
with the court orders after the 17th July 2007
the level of violence had lessened until on 24 July 2007 when the
Sixth Plaintiff
got injured through a stab wound according to Mr
Dean.
[39] On
20 July 2007 after a disciplinary hearing was held 251 striking
workers were dismissed.
[40] A
video footage of 24 July 2007 was played in Court where a group of
people appear to be
storming the farm operations area inside a
building where workers appear to be packing some fruit. There was a
huge commotion which
resulted in injury to the Sixth Plaintiff. I
will detail her evidence soon hereafter. The police were again called
to effect arrests
against the assailants but not arrests took place
according to Mr Dean.
[41] Mr
Dean completed his evidence describing the extent of damage to the
property including
the damage to the fence, gates, looting and
burning of the orchard. The police arrived at the farm on 25 July
2007 and they were
taken around the farm where they were shown the
extent of the damage. During this process they met a trespasser by
the name of
Isaac Skhosana who was one of the dismissed workers. The
police refused to effect an arrest even at this instance insisting
that
their purpose was to inspect the damage and not to arrest any
people.
[42] In
cross examination by Mr Phaswane for the Defendants it was stated by
Mr Dean that there
were about 300 striking workers. About 100 of
those stay in the houses within the farm. Whereas the strike was
characterised by
violence, they did not evict the striking workers as
to do so would have been inhumane. Furthermore, the moveable ablution
facilities
that were placed next to the main gate had been damaged by
the strikers which necessitated access to the toilets that were
inside
the farm.
[43] The
witness was asked if it would have been practical for the police to
enter and do policing
act inside a private property to which the
witness responded in the positive. Mr Dean's response was premised on
the basis that
there had been acts of violence that were committed
inside the property and there had been criminal cases opened against
specific
individuals coupled with video footage which should have led
to the arrests but to no avail. According to the witness the arrests
only took place when Captain Mbambo himself was in the line of fire.
[44] The
witness reiterated that the strike was marked with violence and they
were hurled with
stones, assaulted and there were acts of theft and
burning of the orchards. On a question why they did not apply
self-defence mechanisms
to defend themselves he responded by stating
that the striking workers were their employees and they did not to
want to meet force
with force. However, in about two occasions, Mr
Roy Plath (father to the witness) fired gunshots to ward off attacks
where there
was risk to life.
[45] Mr
Dean testified that he did not believe the police when at a stage
they said that they
do not have capacity to assist. He stated that he
called them on each instance that there were unlawful incidents but
they just
did not come. He confirmed that the police came to the farm
on the 14th July 2007 and he took them around the farm indicating the
extent of damages. He did not mention this particular date of the
14
th
in his evidence in chief nor was it mentioned on his
diary as by this time a lot of damage had already taken place he
said. Furthermore,
he stated that his diary recorded incidents that
had a bearing on the direct farm operations and not the visit by the
police to
take photographs of the damaged property.
[46] The
witness was questioned at length about his expectations from the
police and further
that it could not have been expected of the police
to be at his premises throughout the strike. He explained that in
most instances
when the police arrived at the farm there would be
calm by the striking workers which indicated that the strikers
respected the
presence of the police. According to him if the police
arrested the instigators well in time when the acts of violence were
taking
place, there would not have been extensive damage.
[47] The
witness confirmed that on 9 July 2007 four suspects were arrested two
of whom were the
instigators. He had no knowledge that the Senior
Public Prosecutor declined to prosecute the four suspects. He also
confirmed the
arrest of three suspects on the 13th July 2007 and one
other the following day being the 14
th
July 2007.
[48] The
witness confirmed that he was not personally present when Ms Alida
Mkhabela got injured
and as such did not see what happened. His
account of the story derives from Ms Mkhabela herself.
[49]
The next witness that testified is Ms Alida Mkhabela who stated under
oath that she is
employed by Mr Dean at Umbhaba as a driver. At the
time of the strike she was a packer at another farm (Umbhaba 2)
belonging to
Umbhaba. On 24 July 2007 she was ferried to Kiepersol
farm to assist after a number of striking workers were dismissed. She
was
in a group of other workers who were transported from Umbhaba 2
to Kiepersol.
[50]
Upon arrival at Kiepersol they proceeded to the packing house where
they started packing
the fruit. After a while she had a call of
nature and proceeded to the bathrooms which are inside the yard.
Whilst at the bathroom
she heard a commotion outside. She exited the
bathroom and saw that the noise was made by the striking workers. The
striking workers
were inside and outside the packing house.
[51]
She was struck with a bottle, screamed and ran to the police who were
inside the yard of
the farm operations. She sustained an open wound
on her right leg next to her knee. Whereas the police were
approximately eight
meters away from her, they did nothing to assist
her. According to her testimony the police saw what happened to her
and she was
expecting assistance from them. The strikers had
knobkerries and encircled her forcing her to join the strike.
[52] After
the injury she was taken to Doctor Nel who cleansed the wound and
applied stiches
and gave her some medication. She then went home to
recuperate. She now remains with a scar and she is very heartbroken
about what
she had to endure on that day. The Court was referred to
pictures where the police and police vehicles were clearly visible.
[53]
In cross examination she stuck to her version that the police saw her
that she was injured
but did not come to her rescue. The police,
according to her were facing her direction and should have seen her
getting injured.
Whilst she did not specifically ask for police
assistance her version is that they were facing her direction. At
that moment the
witness became very emotional and shed tears
resulting in the Court taking a short break.
[54] The
witness could not recall if she was taken to the doctor by Mr Dean or
Mr Dumisani who
was her supervisor. She further could not recall if
she made and signed a statement at the police station when she opened
a criminal
case of assault with intent to cause grievous bodily harm.
Neither could she recall that there was a suspect who was arrested
for
causing her injury. She was however steadfast that she never went
to court to testify on her case. This ended the testimony of the
First and the Sixth Plaintiffs whereafter they closed their case.
[55] Two
witnesses were called on behalf of the Defendants, the first being
Captain Lukiel Shadrack
Makwakwa. He testified that he has thirty
three years' service in the police service and that in 2007 at the
time when the strike
took place he held the rank of an Inspector and
was stationed at Hazyview police station under Crime Prevention Unit.
[56] He
together with other police officers went to the Kiepersol farm on 5
July 2007 as there
was an industrial action taking place at there.
They were in two police vans and were later joined by other
colleagues of his in
a mini bus. The Kiepersol farm self is
approximately fifteen kilometres from the police station.
[57] Upon
arrival at the farm he observed approximately fifty employees who
were outside the
farm and were singing songs and were protesting.
They disembarked from their vehicles and observed the situation. He
was then approached
by two union members who requested him to
accompany them to the locked gate providing access to the main
building since they wanted
to talk to the employer of Kiepersol farm.
He together with other police officers accompanied the two union
officials to the gate.
[58] At
the gate the employer was called by a security officer. At this
moment the striking workers
were further away and did not form part
of the delegation to the gate. At the gate the union officials spoke
to Mr Dean but did
not reach an agreement. After reaching the
stalemate the union officials were escorted back to the striking
workers. The union
officials had some discussions with the strikers
and after a while everybody dispersed.
[59] He
testified that they did not enter the premises as they did not have
any complaint. The
only reason for their presence was to make an
observation since there were striking workers. There was no person
who was injured
nor did he see any damaged property or burning tyres.
They then patrolled the area to see if everything was in order and
having
satisfied himself they then left the scene. He did not go
again to Kiepersol farm until on 1 August 2007 when he went to effect
an arrest of a suspect who was arrested of theft of bananas.
[60] Captain
Makwakwa testified that there are eight officers per shift who work
in the Crime
Prevention Unit. Four of these officers conduct patrols
travelling in two per each vehicle and another four remain in the
Community
Service Centre. Their shift commences at 6h00 until 18h00
when they will be relieved by another shift.
[61] In
cross examination by Mr Labuschagne he stated that he was informed of
the strike through
a police radio whilst they were on patrol. He
confirmed that Superintendent Nobela was a station commander at the
time of the strike.
There was no information that was shared with
them of the strike at Kiepersol. Normally they would be advised at
the police parade
of all incidents that are taking place but they
were not informed about this particular strike in any parade that he
attended.
[62] His
testimony upon being confronted about his earlier version that he
first visited the
scene on 27 July 2007 was that it was a mistake as
he first visited the scene on 5 July 2007. He went to Kiepersol once
during
the month of the strike. He disputed that the striking workers
were around three hundred and that his estimate was that the strikers
were about fifty in number. He further disputed that the person who
was talking to the strikes between the locked gates was Mr
Roy Plath
but rather Mr Dean. He also did not see that Mr Roy Plath was upset.
Strangely, he also did not see one of the union
members attempting to
grab the camera that was taking the footage of the discussions at the
gates although this was very clearly
visible to the Court.
[63] The
next witness called on behalf of the Defendants was Brigadier
Theogang David Makatane who
is himself a member of the SAPS based at
the Legal and Policy Services at Mpumalanga Provincial office based
in Nelspruit. In July
2007 he was a Senior Superintendent which rank
was later changed to Colonel. His role in the police is to provide
advice, conduct
training and attend to civil litigation.
[64] He
recalled a request by Superintendent Nobela who asked that he visits
Umbhaba Estate to explain
a court order and provide them with an
advice. He does not recall the exact date but his visit was after the
employer had obtained
a court order against the strikers. On his
arrival at Kiepersol there were about twenty but not more than thirty
people near the
gate who were chanting and singing songs. He was
introduced to other police officers who were on the scene by the
station commander
and was handed the court order. In his company was
the station commander, other police officials and a Manager whose
name is either
Mr Roy Plath or Mr Dean.
[65] A
discussion was held after reading the court order and he, with the
assistance of other SAPS
members measured the distance of five
hundred meters as the designated area of where the picketing should
take place. The striking
workers moved to the identified place and
when he left the scene the strikers had moved. He also testified that
he advised members
of the Crime Prevention Unit to monitor compliance
with the court order. He never visited the premises again nor was he
called
to be informed of any acts of non-compliance. He denied ever
intimating to Mr Dean that he would rather join the strikers to avoid
injury rather than confront them to stop the acts of violence.
[66] Brigadier
Makatane did not remember and as such could not deny that he visited
the scene
on the 12
th
July 2007 after a second court order
had already been obtained. He however denied that the strikers only
moved on the 16
th
July 2007 as according to his version,
the strikers moved away on the same day that he visited the scene. In
his testimony he only
visited the scene once and gave instructions
that the compliance with the order be monitored. He does not know
what took place
when he had left.
[67] The
matter was adjourned for two days at the request of the Defendants
since they sought
to call other witnesses who were not present at
Court. The matter was indeed postponed on the proviso that the
Defendants shall
bear the costs of the postponement. On 11 March 2021
when the matter resumed, the Defendants closed their case since they
could
not secure further witnesses.
The
issues
[68] In
the light of the pleaded case it appears to me that the following
issues require determination:
68.1.
Whether
the police owed the Plaintiffs a duty of care in terms of the common
law, the applicable provisions of the Constitution
and any other
enabling legislation;
68.2.
Whether
the police's conduct was wrongful;
68.3.
Whether
the police were negligent; and
68.4.
Whether
the conduct or omission by the police resulted in damage or injury.
Evaluation
[69] It
is common cause that from the 5
th
of July 2007 up until
about the 27th July 2007 there was a strike at the Kiepersol farm in
Hazyview which is owned by the First
Plaintiff. It is not disputed
that this strike was characterised by violence and intimidation which
resulted in arrests of some
of the suspects. The First Plaintiff
obtained three court orders on an urgency basis in an attempt to
properly manage the striking
workers. The majority of these workers
were dismissed after disciplinary enquiries were held. It is also not
in dispute that the
First Plaintiff suffered damages as a result of
the strike through burning of the orchards, failure to access the
farm and further
damage to farming equipment (tractor) and to a
vehicle.
[70]
The
Plaintiffs pleaded case is that they persistently and repeatedly
requested the assistance of the police to prevent the strikers
from
committing various
acts
of
violence,
to comply
with the
court orders and generally maintain public
order.
[1]
They go on
to assert that the police failed to take any action, alternatively
that they failed to take adequate action to impede
the various
unlawful actions
of the
striking workers.
[2]
[71]
In
response to the main cause of complaint against the Defendants, the
Defendants admitted the various requests for assistance.
[3]
The Defendants further pleaded that adequate action was taken and
arrests were made to restore order as
and when
requested by the Plaintiffs.
[4]
It was never the case of the Defendants that they lacked sufficient
resources to restore order thereby pleading justification.
The
testimony of Captain Makwakwa that they advised the Plaintiffs to
talk to the striking workers as they lacked capacity can
accordingly
not be
sustained
by the
pleadings.
[72]
It
is trite law that a party in litigation has to be apprised
of the case
that
he/she
has to meet. The Defendants specifically pleaded and throughout the
trial, except the limited portion of Captain Mbambo,
have been
steadfast that the police took adequate steps to prevent the violence
during the strike. In the matter of
F
v Minister of Safety and Security
[5]
Froneman
J
in
his minority judgment affirmed that wrongfulness can be avoided only
by pleading some form of justification for the breach
of
the legal
duty. The case before me has no such justification nor was the Court
persuaded that such justification
was in
existence.
[73] In
my view the starting point is to determine the prescripts contained
in our Constitution
that define responsibilities of the South African
Police Service to safeguard and protect the populace and property.
Section 205
(3) of the Constitution bears relevance and provides
that:
"(3)
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."
[74]
Furthermore,
section 13 of the Police Act
[6]
assigns specific duties to members of
the police.
The relevant provision thereof reads as follows:
"(1)
Subject
to the Constitution
and with due
regard to the fundamental
rights of every person, a
member may exercise such powers and shall perform such duties and
functions as are by law conferred on
or assigned to a police
official."
[75] It
cannot be disputed that there are a number of fundamental rights of
people that were
affected by the strike both before the court orders
were obtained and thereafter. I say this as a result of injuries
sustained
by some of the workers, blockading the entrances to
property and damage to property. Section 7(2) of the Constitution
enjoins the
state to respect, protect, promote and fulfil the rights
contained in the Bill of Rights. The police are also obliged to
comply
with their self-crafted Standing Orders amongst which is
standing order 262 which provides requirements to manage a crowd as
in
the case of the striking workers.
[76]
The
next point I propose to deal with is the conduct or omission on the
part of the police. Can it be said their conduct or omission
was
wrongful. In the matter of
Mashongwa
v Passenger Rail Agency
[7]
the
Constitutional Court indicated the following:
"[19]
Khampepe
J pointed out in Country
Club
that:
'Wrongfulness
is generally
uncontentious
in
cases
of positive
conduct that harms the person
or property of another. Conduct of this
kind is prima
facie wrongful.'
In
my view that principle remains true whether one is dealing with
positive conduct, such
as
an
assault
or
the
negligent
driving
of
a
motor
vehicle,
or negative conduct where there is
pre-existing duty, such as the failure to provide safety equipment
in
a
factory or to protect
a
vulnerable person
from harm."
[77] The
version of Mr Dean was clear and consistent in all respects. He
produced for the Court
a clear chronology of events together with a
list of mobile numbers and to whom each number belonged to. The
critic by Mr Phaswane
that he allowed the striking workers to remain
in the farm is rather unsympathetic to the striking workers. These
workers had nowhere
else to go but staying in the farm with every
right to strike for their rights. To expect the Plaintiff to have
evicted them is
rather drawing a short straw. I find nothing untoward
on the manner in which the First Plaintiff dealt with the strikers
preferring
to follow the legal route than the other way round.
[78] Ms
Mkhabela suffered injuries on the 24th of July 2007 and does not know
who through her
with a bottle. That is the summary of her evidence
which is not disputed. Whether she was taken by Mr Dean to the Doctor
or someone
else, in my view, nothing turns on it. What is important
though is that the police were in close proximity to her and inside
the
premises when she suffered injuries and no immediate arrest took
place but only after she opened a criminal case.
[79] In
this case the Defendants acknowledged that they have received all the
requests for assistance.
This is before the actual commencement of
the strike on 5 July 2007. Indeed there were police officials on the
scene on that day
according to the evidence. It is on this day when
Captain Makwakwa arrived with his colleagues and they approached Mr
Dean together
with Mr Plath in the company of union officials.
According to Captain Makwakwa there were no violent events that
required their
intervention.
[80] That
there were no violent events as per his testimony the Court finds
somewhat strange.
The Court confronted him with a video footage shown
to the Court where one of the union officials violently attempted to
grab the
camera from Mr Dean. Captain Makwakwa is himself clearly
visible in the footage but he was steadfast that he did not see the
incident.
Furthermore, on the same video footage, it was clear to the
Court that the parties were not in a cordial conversation. They were
shouting at each other. The manner in which the parties were talking
to each other should have been a clear sign that the strike
had to be
monitored. Notwithstanding this incident Captain Makwakwa and his
colleagues left the scene after some fifteen minutes.
[81] It
is also astonishing that Captain Makwakwa, based in Crime Prevention
Unit, who patrol
amongst other areas the Kiepersol vicinity, never
again patrolled the area where there was an ongoing strike. What is
even more
shocking is his response on a question by the Court that
they were never informed of a violent strike during their daily
parades.
The Station Commissioner, Superintendent Nobela, was
frequently telephoned on her mobile phone and that this matter was
never raised
with those that conduct patrols is rather bizarre.
[82] The
Court cannot fault the evidence of Brigadier Makatane. He came to the
scene to provide
advice which he did and that was the last visit to
Kiepersol farm. Importantly, he provided advice to the police
officials that
they must patrol the area from time to time to ensure
that the strike is peaceful. He was in the company of the Station
Commissioner
at the time, Superintendent Nobela. This clearly did not
take place according to the evidence of Captain Makwakwa.
[83] The
Station Commissioner who appears to have known about the violent
strike together with
Captain Mbambo did not testify for the
Defendants. They undoubtedly could have shed some light on what
happened during the month
of July 2007. The attitude of the police in
managing the strike was more reactionary to the violent events that
took place and
almost like a "don 't care" in my view.
[84] It
is clear from the evidence that each time the police made a presence
there was some measure
of calm and co-operation from the strikers but
soon as they left the incidents of violence commenced. The police
could have just
informed each shift to patrol the area and monitor if
there are any acts of violence. This could have at least mitigated
the level
of lawlessness that took place.
[85]
The
police had a legal duty to act positively to prevent harm to the
Plaintiffs. The legal convictions of the community required
of the
police to act more swiftly to prevent harm to the Plaintiffs
[8]
.
The legal convictions of the community incorporate constitutional
values and norms and in our constitutional democracy it cannot
be
acceptable of the police to sit idle when they should have reasonably
foreseen that the strike will turn violent. When a crime
is imminent
and foreseen it is expected of the law enforcement agency to take
appropriate action. The duty of the police to provide
assistance
arises from their mandate to carry out law and order.
[86]
Mr
Phaswane for the Defendants referred the Court to the decision of
Blue
Mountain Productions CC and Another v Minister of Police
[9]
.
Similarly
in this case there was a widespread labour unrest in the Witzenberg
Valley where protesters were damaging property, looting
and torching
orchards. It was argued that the police's response
was not
sufficient. In that case the Western Cape Division concluded in
favour of the Defendants and stated that the strike was
widespread
and
unprecedented
in the
history of the Western Cape farming region.
[87] The
Blue Mountain case is distinguishable from the current case in my
view. The strike and
unlawful acts were confined to Kiepersol farm
and not the whole of Mpumalanga area and not even all three farms
owned by the First
Plaintiff. There was no need of additional
deployment of police. The police had the capacity to patrol the area
and conduct continuous
monitoring which they failed to do. Their
failure to respond to various pleas for assistance was not only
negligent but wrongful.
[88] I
am persuaded that the Plaintiffs have succeeded in proving on a
balance of probabilities
that the conduct of the police viewed
against the legal and public policy considerations, constitutional
norms and values was unacceptable
and accordingly unlawful. If the
police had responded to a number of requests from the First Plaintiff
and patrolled the area,
the likelihood is that the damage would not
have eventuated.
Application for a
postponement
[89] Now
I turn to the application by Mr Labuschagne that the case of all the
other Plaintiffs
who did not participate in these proceedings should
be postponed
sine die
since they did not know of the date of
trial and further that it shall be in the interests of justice to do
so.
[90] There
are two groups of these Plaintiffs, the first group consist of those
who withdrew
their claims against the Defendants and, the second
group consist of those who did not participate in the proceedings
resulting
in the attorneys of record withdrawing for lack of
instructions. The reasons proffered by Mr Labuschagne is that the
whereabouts
of many of these Plaintiffs is unknown and as such they
could not provide full and further instructions to their attorneys.
It
is for that reason primarily that a postponement is sought.
[91] I
accept that these Plaintiffs were all farm workers and some even
seasonal workers who
go back and forth from various areas depending
on the season. It is equally so that careful consideration should be
taken in deciding
whether their cases should be dismissed for lack of
participation in these proceedings in the light of the interests of
justice.
On the other hand the Defendants are equally entitled to
closure and finality of these proceedings.
[92] The
Court cannot speculate on the exact reasons why these Plaintiffs
failed to provide instructions
to their appointed attorneys. There
was no evidence led as to the reasons for their absence or lack to
provide full instructions.
As the Plaintiffs it was incumbent upon
them to make enquiries about the progress of their case wherever they
find themselves.
To expect the Defendants to litigate again on this
matter due to failure by these Plaintiffs would, in my view, be
against the
interests of justice. At any rate once the Counsel for
these Plaintiffs has withdrawn on their behalf, it seems to me, they
no
longer have mandate to represent them. I am not persuaded that it
will be in the interests of justice to postpone this matter for
non-participating Plaintiffs as reasoned above . The fate of the two
groups of Plaintiffs' should be dealt in the same way as there
was no
evidence led on their behalf except the evidence of the First and the
Sixth Plaintiffs.
Costs
[93] The
general principle is indeed that the successful party is entitled to
his/her costs.
In the main the First and the Sixth Plaintiffs have
been successful in demonstrating that the conduct of the police was
unlawful
and thereby wrongful. That is not the end of the matter as
the Defendants have equally been successful in persuading the Court
that the claims of the other Plaintiffs should be dismissed.
[94] In
so far as costs are concerned for the non-participating Plaintiffs I
am inclined to consider
the Biowatch principle the purpose of which
is to shield unsuccessful litigants from the obligation of paying
costs to the state.
I am aware that this is not a constitutional
matter
per se
where the principle was developed but, in my
view, it does involve a number of constitutional principles. I cannot
find that their
conduct leading to the dismissal of their case
warrants a decision to award costs against them. As indicated there
may be various
reasons leading to their failure to provide further
instructions to their representatives.
[95] As
a result I make the following order:
1. The
Defendants are liable to pay the proven or agreed damages
of the
First and the Sixth Plaintiffs arising from a strike that took place
in July 2007 as a result of their wrongful and negligent
conduct;
2. The
Defendants shall make payment of the First and Sixth Plaintiffs'
taxed or agreed party and party costs on the High Court scale which
costs shall include, but not limited to ( subject to the taxing
master's discretion) the following:
2.1.
The
reasonable fees of Senior Counsel and Junior Counsel from 1 March
2017 to 17 March 2017;
2.2.
The
cost of sworn translator in respect of the evidence of Ms Alida
Mkhabela;
2.3.
The
cost associated with the hosting of the trial proceedings at the
offices of Adams and Adams as agreed to by the parties;
2.4.
The cost of the stenographer.
3. The
First and Sixth Plaintiff shall allow the 14 (fourteen) court
days to
make payment of the agreed or taxed costs from date of settlement or
taxation thereof.
4. The
claims of the following Plaintiffs: 2 to 5, 13 , 20 , 23,
37, 41, 44,
52 7 to 12, 14 to 19, 21, 22, 24 to 36, 38 to 40, 42, 43, 45 to 51
and 53 are dismissed with no order as to costs.
MTATI
AJ
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
APPEARANCES
Counsel
for the Plaintiffs :
EC Labuschagne SC (with him SG Maritz)
Instructed
by:
Adams & Adams
Counsel
for the defendants:
MS Phaswane (with him SK Sioga)
Instructed
by:
The Office of the State Attorney, Pretoria
Date
of hearing :
1 march 2021 to 17 march 2021
Date
of judgment:
20 may 2021
[1]
See para 18 of the Particulars of claim
[2]
See para 19 of the Particulars of claim
[3]
See para 12 of the Defendants Plea, p89
[4]
See para's 13, 15 and 17 of the Defendants Plea, p91
[5]
F v Minister of Safety and Security & Others
2012 (1) SA 536
(CC) at para 118
[6]
The
South African Police Service Act 68 of 1995
[7]
Mashongwa v Passenger Rail Agency of South Africa
2016 (3) SA 528
(CC) at para 19 23 I
[8]
See Van Eden v Minister of Safety and Security 2003 (1) SA 389 (SCA)
[9]
Blue Mountain CC and Another v Minister of Police 2020 SALR (4) SA
401 (WCC)