Unions, strike victims face off in ConCourt

2012-02-09 12:28

The Constitutional Court is set to decide whether it will accept the excuse most often offered by trade unions when it comes to violent strikes – that they are caused by “rogue elements”.

The court today heard oral argument in a case that sees Cosatu and the South African Transport and Allied Workers Union (Satawu) pitted against a group of private citizens who want to sue them for damages caused during a violent strike in Cape Town.

The 2006 strike, estimated to have cost the city R1.5 million, turned into a riot, when strikers began overturning the stalls of flower sellers and damaging motor vehicles by hitting them with sticks and their fists.

Victims of the strike, who testified to having been too traumatised to remember the individual culprits, later tried to sue Satawu for R71 855 under the Regulation of Gatherings Act.

This Act allows for an organisation to be held legally responsible for “riot damage” during a gathering that goes awry.

Satawu unsuccessfully attempted to challenge this in the Western Cape High Court and the Supreme Court of Appeal by saying that the Act infringes on the constitutional right to assemble and demonstrate peacefully.

The Act holds the organisers, and not the perpetrators of the damage or violence, strictly liable, unless they can prove that the damage was not reasonably foreseeable and that steps were taken to prevent the damage.

Wim Trengove (SC), lawyer for Satawu and trade union federation Cosatu, which joined the action in the Constitutional Court, argue that the Act does not take into regard that strike violence “may be caused by imposters, hostile members of the public or by counter demonstrators”.

“A gathering may be contaminated by riot damage in certain pockets, [but] this does not render the organisation and innocent participants guilty of unlawful conduct,” he said.

Central to the problem the unions have with the Act is the fact that the union, in order to escape from being held legally liable, would have to prove they did not “reasonably foresee” damages and had taken steps to prevent it.

Trengove argued that some damage could “almost always” be reasonably foreseen and that the defence was flawed because the more steps a union took to prevent riot damage the more they showed that they had foreseen some form of riot damage.

Anton Katz (SC), lawyer for the riot victims, argued that Parliament had chosen the mechanism to protect innocent people when gatherings turned violent.

Katz argued that the freedom to assemble and protest peacefully did not apply to a gathering that had turned into a riot situation.

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