A recent Constitutional Court judgment on protest actions results in continuing exposure for the targets of protests when they cannot identify the protestors involved.
South Africa has a long, complex and ongoing experience of protest action. But has the law surrounding protests been developed to take into account the interests of both the protestor and its target? We discuss this below in the context of a recent Constitutional Court judgment.
Protests in South Africa – The Context
Section 17 of the Constitution of South Africa1 states that
"everyone has the right, peacefully and unarmed, to assemble, to demonstrate, to picket and to present petitions". This right is further regulated by the Regulation of Gatherings Act2 , which in its preamble specifically states that "the exercise of such right shall take place peacefully and with due regard to the rights of others".
Between January 2013 and December 2017, 4 391 incidents of "protest and collective violence" were recorded3. It was estimated in 2018 by the South African Police Services (SAPS) that approximately 35 protests take place across South Africa’s mining communities monthly4. It was also recorded by the SAPS that a total of 909 protest actions occurred between 1 August 2020 and 31 January 20215.
The Constitutional Court
The recent judgment of the Constitutional Court in the matter of
Commercial Stevedoring Agricultural and Allied Workers’ Union and Others v Oak Valley Estates (Pty) Ltd and Another6 concerned a protected strike and the consequent action taken to secure the rights of the protested.
A protected strike was organised at a farm by employees of the company operating the farm. The picketing rules for the strike were determined by the CCMA and the Commissioner noted there had been previous protest action resulting in violence. It was common cause that the strike in question resulted in intimidation of employees, damage to property, various breaches of the picketing rules and unlawful interference in the operations of the protested employer. This conduct is undesirable and violates the rights of others. It was also stated in writing by the applicants in the matter, the representative trade union, that the protests emanated from the local community, over whom the applicant exercised no control, even though the protest action related to
"the alleged racially based allocation of employee housing by Oak Valley and its refusal to recognise “seasonal” workers as permanent employees". It is clear that such matters were unlikely to be within the knowledge of the local community. Regardless, the applicant, a representative trade union, proposed that the matter be resolved urgently by negotiation.
The protested employer then sought an interim interdict against the applicant and its members employed at the farm interdicting them from, inter alia, interfering with its operations. In addition,and noting the applicant’s statement that the protests were driven by the local community, over whom the applicant exercised no control, the protested employer sought to interdict
“people who associate themselves with the Individual Respondents in the criminal and unlawful conduct”.
The Labour Court of South Africa granted the protested employer the relief it sought. The Labour Appeal Court of South Africa upheld the final interdict. The matter was then brought before the Constitutional Court for adjudication, and it ultimately upheld the appeal on the basis that a link was not established between the protesters and the unlawful conduct.
In reaching its decision, the Constitutional Court analysed case law related to protests.
It said that the requirement of a link affords employers
"the required measure of protection" and quoted the High Court, which held in a previous decision that
"with the modern methods of access control, CCTV cameras, etc, there is ample opportunity for the applicant’s security services to be able to identify those persons who were on the campus when the violence occurred, and steps could be taken to identify them".
All of the case law relied upon by the Constitutional Court involved protests by a group ascertainable by the protested applicant, such as their own staff, or students within the institution. In these circumstances, a link can certainly be established. It is unfortunate, however, that the Constitutional Court provided no protection for applicants who are the subject of community protests by persons who are unknown to the applicant. This is often the case with community-based protests, which are common in the mining industry, as opposed to labour and/or student protests. The effect of the Constitutional Court's order is that where one cannot identify the wrongdoer, one is precluded from protection from the wrongdoer and conversely, for as long as the wrongdoer evades identification, the wrongdoer is immune from being interdicted.
It must further be emphasised that South Africa's protests-related statistics paint a grave picture of the prevalence of protests. The extent of unlimited protests were clearly visible during the looting that engulfed Gauteng and KwaZulu-Natal around July 2021.
Based on all the above, the judgment of the Constitutional Court creates exposure for protested applicants who are the subject of protests by persons whom they cannot identify due to the nature of operations. This is often mining companies who are the subject of protests by neighbouring communities. It is respectfully submitted that for the reasons above, this case must be distinguished, based on the facts, where the facts do not accord with the judgment passed by the Constitutional Court. In short, it is our view that the above judgement can only apply in the context of protests where the identities of the protesters are reasonably ascertainable by the applicant.