“Solidarity for Ever”
Can a union be held liable for damages during protest actions?
Johanette Rheeder

Protected strikes have since the first dawn of the strike day been plagued by violence, wrongful death, looting, protest marches, damage to property and intimidation. The Marikana inquiry is still not finalised with shocking accounts of murder and violence, stunning many with surprise at the price people are paying for better wages and the seemingly unbridgeable gap between demand and offer, sometimes rendering the intended power play of the Labour Relations Act (LRA) foul of its intention of peacefully balancing rights, for the benefit of employee and employer.

When negotiating, the objective is to find an expedient, mutually acceptable solution that partially satisfies both parties. Compromising might mean splitting the difference, exchanging concessions, or seeking a quick middle-ground position. Different negotiation tactics will then be applied to achieve settlement as close as possible to that parties’ mandate. If the parties cannot settle, protected strikes, protest marches, picketing and secondary strikes are used to force the hand of the employers. Various types of destructive collective bargaining behaviour can also take place during these processes such as intimidation, violence, assault, damage to property and common misconduct.

It is not disputed that unions, officials and shop stewards alike, ought to be protected from certain liabilities in order to enable them to effectively perform their functions assigned to them by the LRA. The LRA, section 97(3), indemnifies union representatives (shop stewards) from civil liability for acts conducted in the furtherance of their lawful duties and prohibits victimisation. These actions can constitute automatic unfair conduct on behalf of the employer. However, employees committing crimes or misconduct are not protected from civil or criminal action or disciplinary action and even dismissal, emanating from their behaviour during strike action, including a protected strike. There is also no doubt that a shop steward that goes beyond the acceptable bounds of conduct in fulfilling his duties, can be disciplined and dismissed for misconduct.

A union also cannot escape the conduct of its members, officials and shop stewards and can be held liable for delictual damages due to the fault of the union, which caused a loss to the employer. A union can be held liable for the acts of its members, if the employer can prove that there was a wrongful act committed by its employees, the union members, and that the union is legally liable for its member’s actions (it is called vicarious liability). The wrongful act must constitute an offence and must have caused a loss to the employer. The employer will also have to prove that the union, or its shop stewards, authorized, instigated or ratified the commission of the wrongful act, before the union could be held liable.

In the case of Algoa Bus Company / SATAWU & others1, the Labour Court held that the provision that compensation for unlawful strikes must be “just and equitable” mean that it must be fair. While the provision entitling employers to claim compensation for unlawful strikes was designed to compensate them for losses actually suffered, the amount awarded need not necessarily do so. In this case, the strike did not last as long as the applicant had stated, therefore the applicant was not entitled to the full amount claimed (full amount of damages). The Union and employees were ordered jointly to pay the applicant R100 000 in monthly instalments of R50.

An unprotected strike or illegal conduct can be barred by way of an interdict in the labour court and if breached can lead to contempt proceedings in the labour court, which is penal in effect. Claims of damages can also be brought by employers, third parties and the public who fall prey to unprotected strikes or to criminal behaviour of union members whilst on strike. The labour court has exclusive jurisdiction to order just and equitable compensation to employers for any loss attributable to the strike, lock-out or conduct, after having regard to certain factors. The purpose of this is not punitive but to compensate the employer for losses actually suffered. The employer will have to prove the extent of the loss.

But what about the damages caused to the public in the course of protest action or marches? Does a member of the public have a claim against the union? The Constitutional Court answered in the affirmative

In the case of South African Transport and Allied Workers Union and another v Garvas and others (City of Cape Town as Intervening Party and Freedom of Expression Institute as amicus curiae)2, during a protracted and violent strike in the security industry, the applicant union (“SATAWU”) applied for permission for its members to gather in the Cape Town City centre after undertaking to appoint about 500 marshals to control the crowd and warning its members that they should refrain from unlawful or violent conduct. The gathering deteriorated into a riot, which resulted in damage to property estimated at about R1,5 million. Shops and stalls were vandalised and looted, vehicles damaged and several people were injured. Members of the public, specifically vendors and vehicle owners, instituted action against SATAWU for damages under section 11(1) of the Regulation of Gatherings Act 205 of 1993 (“RGA”), alternatively the common law. The union denied liability.

The CC looked at the constitutionality of section 11(1) of the RGA and found that the RGA places the onus on the convener of the gathering to prove that harm was not reasonably foreseeable and that reasonable steps were taken to avoid it. In terms of section 17 of the Constitution “Everyone has the right, peacefully and unarmed, to assemble, to demonstrate, to picket and to present petitions.” Under the RGA, this right is restricted in that section 11(1) regulates that an organisation will be held liable for riot damage only if the act or omission that caused the damage was not reasonably foreseeable and if the convener failed to take reasonable steps to prevent the act or omission. The CC found the RGA is aimed at restricting unlawful and violent behaviour and is constitutional. If the steps taken to prevent foreseeable harm were reasonable, the convener will escape liability under the RGA. However, conveners are expected to be alive to the possibility of damage and to take preventive steps from the beginning to the end of the gathering; it is not sufficient for the convener to take steps at the start and then allow those at the gathering free rein. The constitutional right to assemble and demonstrate is subject to the qualification that the participants must be peaceful and unarmed. Once people resort to violence, they lose this constitutional right.

The Court held that the purpose of the limitation imposed by section 11 of the RGA is very important. The Act is designed to assist victims of riot damage who lack the resources to identify and pursue the perpetrators to secure compensation for damage they have suffered by shifting liability to the conveners. That every right must be exercised with due regard to the rights of others cannot be overemphasised. Organisations have a choice whether to hold gatherings that may lead to rioting. The victims of riot damage have no such choice. Organisers must, therefore, reflect on the harm that might befall others as a result.

1(2009) 18 LC 1.18.2 and also reported in [2010] 2 BLLR 149 (LC)
2(2012) 20 CC 1.11.3 (also reported in [2012] 10 BLLR 959 (CC)

Johanette Rheeder
Director: Johanette Rheeder Incorporated
www.jrattorneys.co.za