Jimmy Gama, Amcu's national treasurer and spokesman. Photo: Simphiwe Mbokazi

Johannesburg - It would be difficult for Anglo American Platinum (Amplats) to successfully sue the Association of Mineworkers and Construction Union (Amcu) for damages resulting from the current strike because the strike was protected by the Labour Relations Act (LRA), Halton Cheadle, a professor of public law at UCT and a drafter of the act, said yesterday.

What might not be protected, though, were offences committed in the course of the strike or in furtherance of the strike such as intimidation or damage to property, Cheadle said.

He said the court was unlikely to grant the amount of damages sought as a number of factors would have to be considered. Cheadle said the committee on freedom of association of the International Labour Organisation considered that sanctions that effectively destroyed a union were in breach of the right to freedom of association.

He said Amplats would have to prove a criminal offence and that it was the union that was responsible for the offence.

Mpumi Sithole, the spokeswoman for Amplats, said yesterday that the provisional quantum of the damages claim was about R591 million, although as Amcu’s wrongful conduct was continuing, further damages would accrue.

It is thought Amplats will sue under the Regulation of Gatherings Act, which holds organisers of a demonstration that becomes riotous responsible for damages that could have been reasonably foreseen.

Last year the Constitutional Court found against the SA Transport and Allied Workers Union in a suit over a violent march in Cape Town in 2006.

Paul Hjul, an independent researcher, said yesterday that he did not believe that referring to gatherings as illegal when they were merely unprotected and non-compliant with the Regulation of Gatherings Act was the best course of action for one who wished to claim damages from organisers of the gathering.

“There are, however, far too many variables and questions of fact which will need to be established in court and, while I believe Amplats is entitled to damages, the determination of the amount of damages that can be proved will be a challenge,” he said.

Jimmy Gama, the national treasurer at Amcu, said the union would hold a press conference to give its side of the story shortly. “We have not received their [Amplats] papers yet,” Gama said yesterday.

Joseph Maqhekeni, the president of the National Council of Trade Unions, to which Amcu is affiliated, said the threat by Amplats to sue Amcu was an attempt to damage and even destroy the union.

He noted that the threat was framed outside the LRA because the strike was legal.

“We condemn this attempt by Amplats to shift the focus from the underlying issues, and we call on the Department of Labour to intervene,” Maqhekeni said.

“We have been informed that in addition the union has learnt that other companies will also sue Amcu for damages. We are very concerned that the Labour Department has been quiet on this issue.”

Impala Platinum said there had been no incidents of intimidation since it sent employees on leave two weeks ago.

“If it becomes necessary, we will consider taking legal action,” Johan Theron, an Impala spokesman, said yesterday.

The R591m damages claim was a lesson for the union to comply with picketing rules, especially if it had signed an agreement with the company prior to the strike undertaking not to intimidate non-striking employees or damage property, National Union of Mineworkers (NUM) president Senzeni Zokwana said yesterday.

“This is a lesson that Amcu has no right to damage property or intimidate those who want to work. If anything the damages claim will retain the spirit of the LRA.”

Zokwana reflected on how NUM was sued by Eskom in 2000 for R6m worth of damage at its premises during a strike.

He said NUM had been compelled to deploy its members to work on Eskom’s projects without compensation as it could not afford to pay the claim.

Eskom sued NUM after it breached an agreement which it had signed prior to the strike in terms of which it was obliged to ensure that there was no damage to property. - Business Report