Ruling opens door for stream of claims

Johannesburg – During the past week the Constitutional Court gave Cosatu’s increasingly outspoken critics powerful ammunition.

On Wednesday the court delivered its long-awaited decision in the case SA Transport and Allied Workers' Union (Satawu) vs Garvis.

The case arose as a result of Cosatu’s disastrous march in Cape Town during the 2006 private security sector strike, which culminated in large-scale violence and looting.

The decision paves the way for large monetary claims against Cosatu and its associates for any damage resulting from their marches.

Cosatu itself said the decision could destroy unions financially and last week declared it a blow.

The DA, which has increasingly campaigned against Cosatu, apparently had already prepared a case in anticipation of the Constitutional Court’s ruling.

Cape Town is ready to summons Cosatu's municipal workers union Samwu for R100 000 related to the union’s chaotic march in August last year, said Cape Town mayor Patricia de Lille shortly after the decision was announced.

She added that the city "would not hesitate to institute claims" if this year’s wage negotiations resulted in anything similar.

In the Constitutional Court Satawu and Cosatu tried to argue that provisions of the Regulation of Gatherings Act regarding compensation were unconstitutional.

In terms of this act Satawu had been summonsed for R1.5m relating to damage caused during its 2006 march.

This piece of legislation was adopted during the stormy early 1990s, but apparently never used as a weapon against unions until 2006.

In terms of the provisions of the act, the organiser of any march or gathering in a public space is responsible for violence or damage to property caused as a consequence of the march.

Although the Constitutional Court’s decision was welcomed by, inter alia, the DA and Fedusa union Uasa as a victory over riotous strikes, the act only allows claims against organisers of marches and nowhere is reference made to strikes themselves.

Ironically, this week’s decision holds no consequences for the lion’s share of the 2006 strike’s most grisly violence: the murder of more than 50 non-strikers thrown, for instance, from Metrorail trains.

The claim against Satawu relates instead to damage caused to two stalls, a shop and a handful of cars along the march.

The act also excludes strike lines on employers’ premises, which lines are regulated by the Labour Relations Act.

"It does not matter what the gathering is about - what matters is where you gather," said Sandile July of legal firm Werksmans.

"Although applicable to all marches, in practice it’s unions that are most affected," said Mbalenhle Cele, head of the legal clinic of the Freedom of Expression Institute (FXI), a friend of the court on Satawu’s side.

This is because unions, and specifically Cosatu and its associates, generally hold the biggest and most regular marches related to strikes, increasingly on socioeconomic issues such as e-tolling or labour broking.

Although the act has technically made such claims possible for two decades, it has until now virtually never been applied.

"I’d hesitate to say it has never been used, but this is the first case I've come across,” said Johan Botes from legal firm Cliffe Dekker Hofmeyr.

"What we are afraid of is that it has now become widely known, whereas relatively few people previously knew about it," said Cele.

Increasing unhappiness with violent and uncontrolled strikes renders this old act one of Cosatu’s biggest threats, but there are also efforts within legal circles to strongly combat riotous strikes.

Cosatu general secretary Zwelinzima Vavi declared a set of proposals for the new Labour Relations Act currently before parliament to be the single biggest threat to union rights since 1994.

These proposals include that strikes as a whole, rather than marches alone, can be suspended as soon as violence occurs. This could avoid monetary claims, and rather lead to a policing of criminal activity during strikes outside the official marches.

The number of unprotected strikes, which are often not called out by a union, could however flare up under such a system.

Violence could increase rather than reduce.

Last week’s decision by the Constitutional Court could very possibly encourage unions and other march convenors to maintain less discipline rather than combat violence, warns the Freedom of Expression Institute (FXI).

The FXI was involved as a friend of the court, defending Cosatu’s viewpoint.

Accountability for riot damage falls on the "convenor", who, in terms of the rules in the Regulation of Gatherings Act, notifies local authorities and the police of a planned march.

In its court papers the FXI said the accountability of organisers actually belongs with local authorities. These authorities have to approve marches and in practice are also in control of cordoning off and policing marches.

If you know you are accountable for compensation, you will probably prefer to remain anonymous and not apply for permission to hold marches - that’s the risk, said Cele.

According to Cele, the decision creates the risk of criminals and "saboteurs" now joining such marches, knowing that the union will have to take the blame for their actions.

This is in accordance with Cosatu’s argument that "agents provocateurs" could deliberately try to disrupt marches, on behalf of employers or other opposing parties, without fear of prosecution.

According to Johan Botes of Cliffe Dekker Hofmeyr it's a criminal offence to try to avoid accountability by holding marches without notice. The prescribed penalty is a fine of R20 000 or a year’s imprisonment.

"The R20 000 could possibly seem an attractive alternative to accountability for damage, but a year's imprisonment may be more of a deterrent," he said.

What Cosatu feared

The Regulation of Gatherings Act imparts particularly onerous liability on march organisers for any "riot damage".

This includes any damage in, around, before or after the strike - even if the damage was not caused by the organiser or his members.

The burden of proof is also placed on the organisers. The claimant merely has to prove damage that can be related to the march, said Botes.

The union concerned has a defence only if it can prove that it took all possible precautions to prevent any foreseeable damage.

If a union has to pay for the damage, it certainly can try to recover the money from the individuals who actually caused the damage.

The purpose of this provision is to give bystanders a real opportunity to be compensated, rather than having to prosecute individual demonstrators.

Satawu, supported by Cosatu, argued in the Constitutional Court that the burden of proof placed on it was not only too heavy, but literally impossible to meet.

The court basically found that the act should be interpreted in such a manner as to make sense and a union really has an opportunity to defend itself from claims.

Very strict accountability is, according to the ruling, indeed justifiable, despite the the extreme importance of the democratic right to protest.

 - Sake24

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