The Supreme Court of Appeal has found the South African Police Service wrongfully and negligently failed to prevent striking farm workers from damaging a Mpumalanga banana farming operation and injuring one of the employees.
Police appealed against a Pretoria high court finding they had turned a blind eye and failed to act against an unprotected strike at Umbhaba Estates from July 5 to July 24 2007, despite having been ordered to do so by a court.
At the time, Umbhaba was one of the country’s leading producers of bananas, operating as a large agricultural enterprise at three locations — Hazyview, Hectorspruit and Kiepersol. It also produced avocados, lychees and macadamia nuts with the farming being labour and management intensive, and the produce perishable.
On July 5 2007 a strike, that continued for the remainder of the month, started at the Kiepersol farm in Hazyview, which had been bought by Umbhaba six months earlier. About 100 employees from Umbhaba’s 2,000-plus workforce embarked on a strike because they were required to work on Saturdays — something that had not been required by the previous owner.
According to court papers, the strike was characterised by various acts of intimidation, assaults, malicious damage to property, vandalism, theft and looting. Banana trees were hacked down, fresh produce was stolen and numerous orchards on the farm were set on fire and non-striking workers were intimidated.
Umbhaba managers made repeated calls to the police for help to prevent the unlawful activity and maintain law and order but failed to get a response. They continued to negotiate with the striking workers without success.
Senior farm manager Dean Plath, who had worked for Umbhaba for 22 years, told the court he had been informed of the intended strike and threats of violence and had informed the police.
The strike began with workers armed with sticks and stones congregating at the farm and a non-striking worker was whipped with a sjambok as an intimidatory tactic to get more workers to join the strike. The situation calmed within an hour after two policemen arrived.
The officers called for a meeting between the farm managers, workers and union representatives. A non-striking employee was tasked with recording everything on video. Footage captured showed managers reporting the violence and intimidation taking place, while a union official was seen trying to grab the video camera and threatening to break it.
The police left after the discussions, leaving striking employees to continue “with acts of criminality throughout the day”.
The strike continued the following day, beginning with an Umbhaba security guard being assaulted and injured with a steel rod. Non-striking workers stayed away and managers were barred from entering as all the entry gates were barricaded.
Then a mob of striking employees brandishing knobkerries rushed the management team. A house on the property was damaged, orchards were vandalised, and banana trees were ripped out and destroyed.
Police, when called out, refused to respond without a court interdict, saying the matter was not a police responsibility and “Umbhaba must deal with its own labour problem”. The matter was reported to the Hazyview station commander when the mob began threatening to kill workers inside the farm premises.
When striking workers started lighting fires, warning shots were fired. Police were informed the labour dispute was already in court but still refused to respond to requests for their presence only.
The police told Umbhaba management to speak to the workers, but the managers felt they could not do this safely. Umbhaba employed a private security company to protect non-striking employees, and the strike was suspended for the weekend — considered by workers as their off-days.
The strike continued on the Monday when Umbhaba approached the labour court for an interdict — and won an order barring the union and workers from picketing within 500m of the farm. Police who informed the union and workers of the order and they agreed to comply with it.
But the strike continued and five workers were arrested after the farm was petrol-bombed. Umbhaba returned to the labour court for a contempt of court finding, and the court instructed police to arrest those in breach of the first order as well as workers found to be intimidating and threatening others.
Police again failed to act and workers damaged the mobile toilets placed at the gates for their use and looted about 400kg of fruit. A tractor was set on fire, and five petrol bombs were extinguished by security guards.
Umbhaba then won a court order instructing the union chair to inform workers to “desist from all criminal and wrongful conduct”.
But the strike continued and Umbhaba managers were barred from leaving the farm. Police were summoned but made no arrests. Workers were told a disciplinary process was to be held on July 18, but the union said no members would attend as the strike was ongoing. The hearing went ahead, and the union responded that a protest march would go ahead the next day. The police were informed.
The violence escalated when the striking employees were informed they had been dismissed. They gathered at the farm entrance and threatened violence against non-striking workers.
Worker Alida Mkhabela testified she was busy packing fruit when she heard a commotion and realised the striking employees had entered the property. Some of them were armed with sjamboks and knobkerries, and one of them hit her with a bottle, causing a gash. Striking employees surrounded her and tried to force her to join their action, but she was too badly injured.
On the occasions that the police officers did visit the scene, they were there for only a few minutes and then left. Their response was not fit for purpose and thus fell short of the required standards.
— Appeal court
She said at the time of her assault two police officers were standing just a few metres away but did nothing to assist. Umbhaba managers managed to take her for medical assistance, and police made no arrests.
“On the occasions that the police officers did visit the scene, they were there for only a few minutes and then left. Their response was not fit for purpose and thus fell short of the required standards,” the court found.
“There was no monitoring of the situation. The police therefore failed to prevent ongoing damage. Intimidation of non-striking employees and malicious damage to property became the order of the day. Despite three court orders being issued by the labour court, the arrests were few and far between. The blatant noncompliance with court orders was captured in a video footage. The same footage served to show the inadequacy of the police response.”
Police argued they had told striking workers to stay 500m away, but conceded they had not monitored the situation. While claiming to have taken adequate steps to prevent violence, the court found it noteworthy that there was no plea of insufficient resources as a reason for their failures.
The numerous calls made by the management of Umbhaba pleading for the police’s intervention in the days that followed were borne out by the itemised billing invoice issued by the cellular phone service provider to Umbhaba, the court found, referring to 69 calls in 11 days.
The court criticised the officers directly involved for failing to take the stand, drawing the inference that they were unable to explain their poor performance. They had also failed Mkhabela by allowing her to be injured and then failing to help her.
Umbhaba can now proceed with its compensation claim against SAPS, previously estimated to have been R318m. This includes property damage, production losses, spoilt fruit, a crop of 152,914 young banana plants that died due to a shortage of labour having to be replaced with R1.6m worth of plants, security costs and a loss in market share.
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