The South African Police Service ("SAPS") has a legal duty to prevent, combat and investigate crime, to maintain public order, and to protect and secure the inhabitants of South Africa. In executing these legal duties, they may exercise such powers and perform such duties and functions as are conferred on them by law.

In the context of strikes in the workplace, there has been a worrying trend for the SAPS not to perform these legal duties and instead to require a court order directing them to do so. In some cases, they fail to execute such court orders.

This was the case in Minister of Police and Others v Umbhaba Estates (Pty) Ltd and Others. Umbhaba Estates and some of its employees referred a delictual claim to the High Court against the Minister of Police, the National Commissioner of the SAPS and the Provincial Commissioner of the SAPS (Mpumalanga), for damages suffered as a result of the SAPS' failure to take action against the unlawful conduct of striking employees at Umbhaba Estates. The High Court found that the SAPS' inaction was negligent and unlawful. However, it did not have to deal with another requirement for liability, namely that of causation (ie, to what extent the inaction of the SAPS caused loss to Umbhaba Estates). The parties agreed to defer this issue to a later date. The Minister and the National and Provincial Commissioners appealed to the Supreme Court of Appeal ("SCA"). The SCA delivered its judgment on 1 June 2023.

From 5 July 2007 to 24 July 2007, the employees of Umbhaba Estates (a producer of bananas and other subtropical produce located in Mpumalanga), embarked on a strike which was marred by violent acts from its first day. The striking employees burnt tyres, blockaded entrances into the employer's premises, damaged farming equipment, threw petrol bombs into the employer's premises, uprooted plants on the farm, stole produce and dumped it on the side of the road, and assaulted non-striking employees and management, amongst various other unlawful acts.

Umbhaba Estates sought the assistance of the local SAPS and was met with a lacklustre response from them. On one occasion, the SAPS informed the Umbhaba Estates that the SAPS did not involve itself in labour matters and that the employer should obtain an interdict and that, only once it did so, would the SAPS intervene. Umbhaba Estates then obtained an interdict from the Labour Court. However, this did not deter the striking employees from continuing with their unlawful conduct. Despite the interdict, the SAPS did not take any decisive action against the striking employees. Umbhaba Estates sought two more orders from the Labour Court in attempts to hold the striking employees in contempt of court and to prompt the SAPS to effect arrests of those striking employees who were committing unlawful acts. In response, the SAPS effected only a few arrests.

The SCA agreed with the High Court that public policy and the Constitution placed a legal duty on the SAPS to prevent the commission of crime and maintain public order at Umbhaba Estates for the duration of the strike. This was especially so after the SAPS became aware of the Labour Court's orders. The failure of the SAPS to act was unjustified, and therefore unlawful, especially as they did not plead a lack of resources.

On the element of negligence, the SCA held that the test for negligence rests on two legs: reasonable foreseeability and the reasonable preventability of harm or damage. The SCA found that the SAPS were notified of the imminent strike before it commenced and had opportunity to put in place preventative measures. The evidence presented to the court of the striking employees brandishing weapons, even in the presence of the SAPS, and being violent towards the management of Umbhaba Estates when they tried to address them, ought to have been indicative to the SAPS that violence could erupt. Despite this, the SAPS failed to put in place preventative measures, such as patrolling the premises. The SAPS could not explain why they did not patrol the premises, at least intermittently, to deter any unlawful acts. The SAPS' failure to act persisted even after the Labour Court had issued the three court orders. The SAPS were also present on Umbhaba Estates' premises when an employee, one of the claimants, was attacked by a group of striking employees but they failed to arrest any of the striking employees for this conduct.

Importantly, the SCA:

  • dispelled the SAPS' notion that they could not be expected to perform the duties of security guards at Umbhaba Estates premises by maintaining order on private property. The SCA held that "[t]he fact that the acts of criminality were being committed within the premises of private property did not excuse the police inaction";
  • stated that the SAPS had a constitutional duty to intervene to prevent unlawful acts being committed by the striking employees before the court orders were issued;
  • stated that the SAPS' inaction, despite three court orders, was "most deplorable";
  • found that the action of the SAPS fell short of the steps that reasonable police officers ought to have taken to comply with the court orders issued by the Labour Court, and in general compliance with the SAPS' constitutional duties; and
  • found that, due to the SAPS' inaction, Umbhaba Estates suffered extensive damage to its property.

Ultimately, the SCA dismissed the appeal and confirmed that from 5 to 24 July 2007, the SAPS wrongfully and negligently failed to prevent striking employees from causing damage to Umbhaba Estates' farm and from injuring one of the employees.

This is an important judgment that will hopefully clear up the confusion that seems to exist in the ranks of the SAPS on how to respond to unlawful conduct during a strike. This judgment may ensure that the SAPS, in the context of strikes, acts in accordance with their constitutional duty to maintain public order without awaiting to be prodded by the courts to do so. It is also important that employers, in anticipation of a strike that could potentially turn violent, inform the SAPS and keep them updated on the occurrences during the strike, as Umbhaba Estates did in this matter.

As far as claims for damages are concerned, it is worth mentioning that the court did not have to deal with the issue of causation and that this issue is one that any future claimant for damages will have to address.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.