Penalizing protest action

In a judgment which 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 – 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 members of the protesting organisation – the mere fact that the damage happened during the march is enough in the way of proof for anyone to be able to claim damages from the organisers.

In May 2006, after a security guards’ strike by the South African Transport and Allied Workers Union (Satawu) turned violent, then Cape Town mayor Helen Zille decided to sue for damages on behalf of individuals who had suffered losses from the strike.

Ever since then, 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 who also weighed in on the side of the DA.

However, the judgment has a far broader reach. The head of the Freedom of Expression Institute’s law clinic, Mbalenhle Cele pointed out “assemblies, with all their potential for disruption, are often the only way for individuals to give voice to their grievances, and to do so effectively.” This is primarily because politicians only listen to the language of disruption.

While unions normally follow the correct channels and apply for permission to hold marches, making their leaders easily identifiable as organisers, social movements and communities often protest spontaneously or together with other small organisation. If a small non-profit organisation or a refugee rights group happens to support one of these protests, will they be held responsible for damages as the easily identifiable party?

Unions survive off their members’ subscription fees and while some have made shady forays into the murky world of union investment companies, many unions have little reserve funds, using the bulk of member fees to cover legal costs and maintain basic offices. The DA’s hostility to organised labour and protestors in general is no secret.

The conservative opposition party has been unable to mount any effective propaganda campaign against the unions, which continue to organise high numbers of workers. Having failed to find a working class audience willing to adopt failed free market ideas, it is unsurprising that the DA would resort to finding means to financially cripple the unions – effectively the only way of silencing them.

The process of financially crippling the unions can now be accelerated by anyone with an interest in doing this - the DA, big 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.

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 and not accidentally - against protestors. The case of Andries Tatane, slain by police last year, is an example. The well-publicised case of the residents of Hangberg is another example.

When the people of this hillside community in Cape Town’s Hout Bay stood together to protect their long-standing community 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 unsuccessfully 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 has been 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 make an attempt to quantify the time spent by commuters in the traffic jam as money, and sue for these 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.

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 seven-day strike at a construction company sued more than 1000 Australian workers for striking. These workers were fined a total of R56 million, suspended for seven years – as long as they didn’t strike again during that 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 Australian newspaper reported last month.

The Mogoeng judgment in favour of the DA and police minister Nathi Mthethwa has clearly started South Africa down a similarly slippery slope.

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* Anna Majavu is a writer concentrating on the rights of workers, oppressed people, the environment, anti-militarism and what makes a better world. This article was first published by SACSIS.

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