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
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
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
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
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
"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
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
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
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
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
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