Penalising protest action

Anna Majavu* discusses the implications of the latest Constitutional Court judgement that makes organisations liable for damages arising from protests.

Increased police brutality and the prospect of conservative politicians using public money to sue and bankrupt organisations they ideologically oppose – are the likely outcomes the Constitutional Court judgment against protest organisers. In a judgment that upheld a repressive clause in the apartheid-era 1993 Regulation of Gatherings Act, Chief Justice Mogoeng Mogoeng ruled that members of the public who suffer damages from protestors have the right to recoup their losses from whoever hosted the protest. That is, whether the damages were caused by members of the organisation, or not. There is no onus on the person suing the organisation to prove that the damages were caused by the protesting organisation’s members. The mere fact that the damage happened during the march is proof enough.

DA/ANC support

In May 2006, after a security guards’ strike by the South African Transport and Allied Workers Union (SATAWU) turned violent, Cape Town mayor Helen Zille sued for damages on behalf of individuals who had suffered losses from the strike. Ever since, the DA has been trying to get Parliament to pass their private members’ bill aimed at holding unions liable for strike damages. The Constitutional Court has now done their job for them, supported by ANC police minister Nathi Mthethwa. However, the judgment has a far broader reach. The head of the Freedom of Expression Institute’s law clinic, Mbalenhle Cele pointed out that assemblies, despite their disruptive potential, are often the only way for individuals to voice their grievances. This is primarily because politicians only listen to the language of disruption. While union leaders are easily identifiable as organisers, social movements and communities often protest spontaneously or with other small organisations. If a small ngo or a refugee rights group supports a protest, will they be held responsible for damages as the easily identifiable party?

DA hostility

While some unions have investment companies, many have little reserve funds and use the bulk of members fees to cover legal costs and maintain basic offices. The DA’s hostility to organised labour and protestors in general is no secret. Having failed to find a working class audience willing to adopt failed free market ideas, the DA is resorting to financial means to cripple the unions and silence them. This process can now be accelerated by anyone with an interest in doing this business, some factions of the ANC and the intelligence services. Any of these groups can land unions with a R2 million damages bill simply by inserting undercover agents into a march with an instruction to cause damage to property. This is not a far-fetched notion – it has happened before and indeed, with a judgment like this already working in their favour, anti-union groups would be foolish not to use dirty tricks to finish the unions off altogether. The DA, big business, some factions of the ANC and the intelligence services are all aware that in marches of over five thousand workers, it would be difficult for participants to identify non-union members in their ranks, especially since the trade unions have a tradition of inviting supporters ranging from family members, neighbours, churchgoers, priests, and assorted leftists to their marches.

Police violence

The judgment ignores the police track record of deliberately sparking violence during protests. In the judgment, Mogoeng said unions would not be held liable in the event of a policeman discharging his gun by accident into a crowd, causing a stampede. However, he made no mention of violent police who regularly go on the attack – deliberately – against protestors. The case of Andries Tatane, slain by police last year, is an example; and the well-publicised case of the residents of Hangberg is another. When the people of this hillside Houtbay community in Cape Town’s united to protect themselves from gentrification, the police broke their own regulations by firing rubber bullets at close range into the residents’ faces, taking out the eyes of four people, and provoking pandemonium. It is well-known that peaceful union marches are unlikely to end quietly because police normally attack the tail end of a march, or pick off a group of people on their way home who have become separated from the crowd. At a union march two years ago in Cape Town, police became extremely annoyed after workers burnt tyres across the road – even though there was no damage to property or person. The police later embarked on a chaotic armed hunt of workers through the taxi rank – with the workers running for their lives and the police in hot pursuit, firing rubber bullets as they ran.

The current culture of police brutality is likely to worsen as a result of this judgment. The judgment also opens the way for politicians to use public money to promote their own political agendas. Mogoeng made much of the need to protect innocent bystanders who did not choose for their property or persons to be damaged. Yet in the SATAWU case, Zille said she herself instructed lawyers to sue the union on behalf of individuals whose cars and other property had been damaged during the march. These individuals received the assistance of the DA because the case dovetailed with the bill the DA was trying to push through Parliament. Zille has never made a similar offer to pay for lawyers for the blinded residents of Hangberg to sue the police who shot their eyes out, and this was clearly an ideologically skewed use of public funds rather than a genuine defence of ordinary people. The judgment also opens the way for politicians to attempt to claim damages even where nothing was damaged. Zille was furious five years ago when 93 Cape metro police protested by travelling in a pre-planned convoy for two hours along the N2 highway, bringing traffic to a standstill. The protest was entirely peaceful yet if it happened today, the city could sue for costs. A similar scenario is already unfolding in Australia where unions are fined for every day of an unprotected strike. Under the guise of saving the public from havoc and turmoil”, political leaders in New South Wales are currently seeking to fine unions the equivalent of R1.5 million for every day of a wildcat strike raising the fine from the current R150 000 a day.

A slippery slope

In Australia, workers are individually fined if they embark on unprotected strikes. Earlier this year, 13 companies that claimed to have been affected by a sevenday strike at a construction company sued more than 1000 Australian workers for striking. The workers were fined a total of R56 million, suspended for seven years – as long as they don’t strike again during this time. In this case, private companies were able to argue that the strike had disrupted work on a site of economic significance to the Australian economy. The Mogoeng judgment in favour of the DA and police minister Nathi Mthethwa has clearly started South Africa down a similarly slippery slope.