Strike action is prominent in South Africa with grievances often pertaining to service delivery and wage increases. With COVID-19 taking its toll on the South African economy we can expect an increase in the number of strike actions.

Many strike actions are peaceful and achieve their purpose, however, some turn violent causing blatant lawlessness and endangering members of the public. In those circumstances, members of the police service are deployed to prevent and combat crime and maintain public order.

What our history has shown us is that the police officials are not afraid to use means and measures necessary to maintain public order, often resulting in the assault of strikers. In the past, civil litigation could be instituted against the police officials for damages arising from unlawful assault. However, judgment in the case of Phawe and Others v Minister of Police [2019] ZANWHC 51  (“Phawe”) was handed down by Acting Judge Laubscher on 28 November 2019 which significantly limits a claimant's rights to sue the Minister of Police for the unlawful actions of his employees.

In the case of Phawe, the plaintiffs instituted action against the Minister of Police (“the Minister”) for damages sustained because of unlawful assault by members of the police service during a labour strike. The police officials shot rubber bullets, released tear gas and stun grenades to allegedly prevent and combat crime and maintain public order.

The Minister admitted the assault, however, argued that it was not unlawful nor wrongful but rather reasonable in the circumstances.  The onus fell on the Minister, who admitted the assault, to prove the lawfulness of it.

The defence of necessity

The defence of necessity is summarised as follows as per Harms Amler's Precedents of Pleadings:

“A person, acting out of necessity may lawfully inflict harm on another.  The danger             must exist or be imminent, and there must be no reasonable means of averting having           regard to all inflicting harm.  The means and measures must not be excessive, having   regard to all the circumstances of the case.  Whether a situation of necessity existed is a factual question which must be determined objectively.

What is apparent is that the Minister need not establish that their actions were directed at a wrongful attacker. Their conduct can be directed against an innocent person for the purpose of protecting an interest of the police official or a third party against a dangerous situation.

To succeed on this defence, the Minister would have to prove the requirements set out in the case of Maimela and Another v Makhado Municipality and Another 2011 (6) SA 533 (SCA) at paragraph 17, which states the following:

(a) a legal interest of the defendant must have been endangered;

(b) by a threat which had commenced or was imminent but which was;

(c) not caused by the defendant's fault, and, in addition, it must have been;

(d) necessary for the defendant to avert the danger, and

(e) the means used for this purpose must have been reasonable in the circumstances.”

The evidence led in the Phawe case displayed a picture of violent strike action with strikers setting tyres and trucks alight, blocking roads and jumping over fences. Members of the police force testified that they were worried about the safety of other members of the public. They threw stun grenades and tear gas to try disperse the crowd. The strikers then started attacking members of the police force with stones and at that point they then fired rubber bullets at the strikers.

Acting Judge Laubscher found that the police officials' conduct was reasonable in that they protected the lawful interest of other citizens, acting against the crimes being committed and endeavoured to maintain public order. Acting Judge Laubscher concluded that members of the police service acted in accordance with the defence of necessity. The plaintiffs' actions were dismissed.

This judgment has limited the scope for potential actions instituted against the Minister of Police for unlawful assault caused during violent strike action. What is even more apparent is that the Minister need not prove that the claimant was involved in the strike action. In other words, an innocent bystander may find themselves caught in the crossfire and will not have a claim against the Minister if the circumstances of the assault could be justified by the defence of necessity.

Of course, the facts of each case may differ and not all circumstances will be justified with the defence of necessity. Attorneys should consider the case of Phawe to determine its applicability to a potential claimant's case. Attorneys should be cautious to institute action against the Minister and not unnecessarily exposing their clients to risk and a potential cost order.

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.