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- In two recent cases, the High Court of Pretoria found that the South African Police Service (SAPS) doesn’t need a court order to prevent fight and investigate crime.
- The High Court recently ruled that the police has a legal obligation to act proactively to prevent damage and harm.
- The police are expected to act in the event of an imminent, foreseeable crime. This duty to assist arises from the police’s mandate to enforce law and order.
- The article below discussed situations where SAPS was found to have not acted in accordance to the South African Police Service Act, 1995 (Act 68 of 1995).
In two cases, Impangele Logistics (Pty) Ltd vs All Truck Drivers’ Foundation (ATDF) and Mable Coal Proprietary Limited vs Buthelezi Ntuthuko and 63 others  JOL 46091, the High Court of Pretoria found that the South African Police Service (SAPS) has, inter alia, a constitutional mandate to prevent fight and investigate crime, and that it is not a prerequisite to first obtain a court order before the SAPS may act.
The minister of safety and security as well as the national and provincial commissioner of Mpumalanga were recently in the firing line at the Court of Appeal in the case of the Minister of Police and others vs Umbhaba Estates (Pty) Ltd and others 2023 JDR 1899 (A). They were held liable for damage that resulted from criminal conduct that could have been prevented, had the police taken the necessary steps to prevent the crime early on.
Background of the case
Umbhaba Estates is a large agricultural enterprise in Mpumalanga. Their core business is the cultivation and distribution of bananas, as well as the production of avocados, litchis and macadamia nuts.
On 29 June 2007, the senior farm manager and a director of Umbhaba Estates received notice of an impending strike by aggrieved employees, which would commence on 5 July 2007 on the farm Kiepersol in Hazyview. After receiving the notice, the farm manager informed the Hazyview police. The SAPS was requested on several occasions to assist and protect Umbhaba Estates during the strike.
As planned, the protracted strike commenced on 5 July 2007 and was characterised by violence, acts of intimidation and assault, malicious damage to property, vandalism, theft, roadblocks and looting. Non-striking employees were prevented from performing their daily duties and orchards were set on fire.
Captain Mbambo insisted that Umbhaba Estates first obtain an interdict before the police could act. He said the police does not get involved in labour disputes. During the strike, Umbhaba Estates had to obtain three urgent court orders in order to manage the striking workers. The police acknowledged that Umbhaba Estates had repeatedly requested assistance and said adequate action was taken to restore order as and when it was required of the SAPS.
The High Court ruling
The High Court of Pretoria found that the strike violated several fundamental human rights before and after the court orders were obtained. The court, with reference to Section 7(2) of the Constitution of the Republic of South Africa, 1996 (Act 108 of 1996), emphasised that the Bill of Rights must be respected, protected, promoted and given effect to, and that the police must adhere to self-imposed standing orders.
The High Court also ruled that the police had a legal obligation to act proactively to prevent damage and harm, as well as that the legal convictions of the community (which incorporate constitutional values and norms) required the police to act swiftly to prevent the plaintiffs from being harmed.
The police are expected to act in the event of an imminent, foreseeable crime. This duty to assist arises from the police’s mandate to enforce law and order. Finally, the High Court ruled that the plaintiffs proved, on a balance of probabilities, that the actions of the police were unacceptable and illegal, and that the police are liable for the damage caused.
The SAPS’s appeal
An appeal was lodged by an aggrieved minister of safety and security, as well as the national and provincial commissioner at the Supreme Court of Appeal. The court, however, dismissed the appeal by ruling that, although the police did not deny that they had a legal obligation to maintain public order, they could in any case not deny this duty in light of Section 205(3) of the Constitution and Section 13 of the South African Police Service Act, 1995 (Act 68 of 1995).
The Supreme Court of Appeal found that the Constitution and public policy placed a legal duty on the police to prevent crime and maintain public order on the farm for the duration of the strike. In light of legal and public policy considerations, constitutional norms and values, the police’s actions were deemed unacceptable and unlawful and their intervention insufficient. Timely intervention would have prevented unnecessary damage.
The Supreme Court of Appeal could not fault the High Court’s ruling. The steps the police took from 5 to 24 July 2007 fell far short of what a reasonable police officer would have taken. By the time they acted decisively, the damage was already severe. The police were found negligent.
The ruling is welcomed and will hopefully encourage the SAPS to act proactively in future and not adopt a couldn’t-be-bothered attitude. – Clarissa Pienaar, Moolman & Pienaar Incorporated
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