Minister of Police and other v Umbhaba Estates (Pty) Ltd and others

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Van Der Merwe JA, Molemela JA, Nicholls JA, Mothle JA and Nhlangulela AJA
• Judgment Date: 01 June 2023
• Docket Number: 1281/2021
• Hearing Date: 28 February 2023
• Court: Supreme Court of Appeal

Molemela JA (Van der Merwe, Nicholls and Mothle JJA and Nhlangulela AJA concurring):

[1]

This appeal concerns the conduct of members of the South African Police Service (the police) in response to criminal acts committed by employees during the course of industrial action that took place at the premises of a private company known as Umbhaba Estates (Pty) Ltd (Umbhaba). The latter and some of its employees had, in an action instituted at the Gauteng Division of the High Court, Pretoria (the high court) claimed damages against the Minister of Safety and Security, the responsible Minister for the South African Police Service ('the Minister of Police'), the National Commissioner of the South African Police Service ('the National Commissioner') and the Provincial Commissioner of Police Service ('the Provincial Commissioner'). They were cited in their representative capacities as the first, second and third defendants respectively. The trial proceeded before Mtati J. Although the second paragraph of the

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Molemela JA (Van der Merwe, Nicholls and Mothle JJA and Nhlangulela AJA concurring)

judgment of the high court records that the merits and quantum were separated by agreement between the parties in terms of Rule 33(4) of the Uniform Rules of Court, and that the matter before the high court only proceeded in respect of the issue of liability, paragraph 5 thereof recorded that the issue of causation was also deferred for later consideration and thus did not form part of that judgment.

[2]

At the stage when the summons was issued, there were 53 plaintiffs. However, at the commencement of the trial, some plaintiffs had withdrawn their claims against the defendants. Others did not participate in the proceedings because their whereabouts were unknown, as a result of which their attorneys of record withdrew for lack of instructions. Following an unsuccessful application for a postponement, the claims in respect of 48 plaintiffs were dismissed. Ultimately, the trial in the high court proceeded only in respect of Umbhaba, (which was cited as the first plaintiff) and the sixth plaintiff Ms Alida Mkhabela (Ms Mkhabela), together referred to as the respondents. The high court upheld their claims. Following an unsuccessful application for leave to appeal launched in the high court, the Minister of Police, National Commissioner, and the Provincial Commissioner (together referred to as the appellants) approached this Court seeking leave to appeal against the judgment of the high court. This appeal is with the leave of this Court.

[3]

The background facts are detailed in the judgment of the high court. Umbhaba was a large agricultural enterprise operating out of three geographical locations situated at Hazyview, Hectorspruit and Kiepersol. Its core business was the growing, ripening, distribution and selling of bananas. It was one of the leading banana producers in South Africa and also produced other subtropical produce such as avocados, litchis and macadamia nuts. It was common cause that the production of subtropical fruit is labour and management intensive, and the produce perishable. The Kiepersol farm, situated in the Kiepersol area, Mpumalanga, was one of the locations where the aforesaid products were produced.

[4]

On 5 July 2007 and for the remainder of the month of July there was a prolonged strike in one of Umbhaba's operations. The strike was centred at the Kiepersol farm situated in Hazyview. Kiepersol farm was bought by Umbhaba

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approximately six months before the commencement of the strike and its workforce consisted of about 100 employees. However, Umbhaba's total workforce consisted of between 1500 and 2500 employees. The reason for the strike action at Kiepersol appears to have been the fact that the conditions of employment offered by Umbhaba to the employees who worked at Kiepersol were less favourable than those that had been offered by its previous owner. Umbhaba required the employees to work on Saturdays when they had previously not done so. The strike commenced on 5 July 2007 and was characterised by various acts of intimidation, assaults, malicious damage to property, vandalism, theft and looting. In addition, the particulars of claim asserted that the striking employees blockaded the farm and yard, which housed the offices, workshop, banana ripening facilities, pack-house area, storage area for vehicles and other stores on the farm and thus made it impossible for the non-striking employees to perform their day-to-day duties. Banana trees were hacked down, fresh produce was stolen and numerous orchards on the farm were set on fire.

[5]

Umbhaba asserted that since the commencement of the strike, its management team had repeatedly and consistently asked the police for assistance in order to prevent the striking employees from continuing to commit unlawful acts, to ensure compliance with the court orders and to generally maintain public order. However, the appellants took no action, alternatively failed to take adequate action to prevent the unlawful actions of the striking employees. In their plea, the appellants admitted the various requests for assistance but asserted that: reasonable steps were taken by inter alia negotiating with the employees on numerous occasions; adequate action was taken to restore order as and when requested; and arrests were effected to restore order.

[6]

During the hearing, an inspection in loco was conducted and the layout of the farm was placed on record. The farm had two gates, one on the western side of the farm, and another on the south side. The gate on the south side provided access to the main farming operations, including the administration building where meetings and training sessions were held. On the southern side of the main farm operations there were banana plantations with a gravel path leading to the banana plantations. There was a big building that was used by farm employees for purposes of packaging the

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produce, with toilets situated in close proximity thereto. The buildings were cordoned off by a wall. There was a gate on the extreme south-east side of the cordoned wall, which was referred to as the main yard gate. Some of the farm employees lived in the houses situated within the premises of the farm. Some houses were occupied by striking employees, while others were occupied by those who were not participating in the strike. Access to the houses on the eastern side of the building could be obtained through the main yard gate, alternatively through the gravel path between the southern cordon wall and the banana plantations.

[7]

The undisputed timeline pertaining to the events that unfolded during the strike lies at the heart of this appeal. The events were narrated by Mr Dean Plath (Mr Plath), a senior farm manager and director, who had worked for Umbhaba for 22 years. His evidence pertaining to how events unfolded was largely uncontested. Most of it was borne out by video footage and photographs that were admitted into evidence. He stated that on 29 June 2007, he received a notice of an intended strike that was scheduled to commence on 5 July 2007. After receipt of the notice, he went to the police station to report the matter. The reason why he hastened to the police station was that after Umbhaba had taken over the farm operations, they had had some resistance from some of the employees who had worked for the erstwhile owner. He therefore informed the police that he suspected that the strike would be violent.

[8]

The tone was set on the first day of the strike, 5 July 2007. Mr Plath arrived at the farm at approximately 06h30. Upon his arrival, he noted that striking workers had congregated at the main entrance of Kiepersol farm. Some of them were armed with sticks. They hurled stones at several people, whipped non-striking workers with sjamboks as an intimidatory tactic to get them to join the strike, and hit one of the manager's vehicles with rods and knobkerries. With the help of other employees, Mr Plath closed the gates to prevent the striking employees from entering the buildings. He then called the police to inform them about the situation. Two police officers arrived at 07h30. The striking mob calmed down when the police arrived.

[9]

The police informed Mr Plath that the union officials wanted to speak with him and his father, Mr Roy Plath, who also had business interests in Umbhaba. Mr Plath

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and his father agreed to talk with the union officials. One of the non-striking employees was instructed to make a video recording of that interaction and the scene in general. Mr Plath was almost hit with a brick as he and his father were approaching the union officials. During that conversation, Mr Plath complained about the violence and intimidation that was taking place. The union official remarked that that 'was alright'. The video footage was shown in court during the proceedings. In the footage, one of the union officials in question was observed trying to violently grab the camera from the person who was recording at the scene and threatening to break it. The police left soon after the discussions with the union representatives had taken place. However, the striking employees carried on with acts of criminality throughout the day. The padlocks used to lock one of the gates were vandalised by the side gate and the main gate was blockaded by the striking employees, thus preventing access into and out of the farm premises.

[10]

On 6 July 2007, despite knowing that the strike was ongoing, there was no police presence at the main entrance. On that morning, a...