“A precedent-setting judgment by Western Cape High Court Judge-President John Hlophe last month on the award of damages caused by strike action has given support to the Democratic Alliance’s (DA’s) view that strikes that turn violent should be suspended by court order and that trade unions should be held liable for any damages.
The DA yesterday submitted a draft private members’ bill to Parliament which proposes to amend the Labour Relations Act to make trade unions responsible for any destruction of property, violence and intimidation by union members during a strike. Failure to take reasonable steps to prevent this from happening would result in the unions being responsible for damages caused, and possibly for punitive damages as well”.
View or download the judgment of Hlophe JP dated 9 September 2010 in Garvis v SATAWU Case 2580/07 (WCC).
Linda Ensor has drawn attention to that judgment and the Draft Bill in Unions ‘should pay for strike action’ appearing in the Business Day today.
The above extracts are from that article as well as the following extracts:
Constitutional right to assemble, demonstrate and picket
“Judge Hlophe’s judgment was passed down in the case of Jacqueline Garvis and seven others who claimed R70000 in damages from the South African Transport and Allied Workers Union (Satawu) and Safety and Security Minister Nathi Mthethwa under the Regulation of Gatherings Act after a protracted strike in May 2006 in Cape Town.
The strike developed into a riot and resulted in damage to their property. Nearly 50 people died during the acrimonious strike”.
Right limited to peaceful gatherings
“The question before the judge was whether section 11 of the act — which makes the organisers of a gathering civilly liable for any riot damage if the damage was “reasonably foreseeable” — was inconsistent with section 17 of the constitution, which guarantees the right to assemble, demonstrate and picket.
Judge Hlophe found there was no inconsistency as the right to assemble had to be limited to peaceful gatherings only if other constitutional rights (such as the right to protection of individuals and their property) were to be respected”.
Presumption of trade union responsibility
“In terms of the DA’s proposal, trade union responsibility for damage, injury and illegal acts would be presumed in all cases if it could be proved that a member committed or was responsible for it”.
It is recommended that the entire article be read on the Business Day website.