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One of South Africa’s leading producers of bananas, Umbhaba Estates, is claiming R318 million following damage caused to its infrastructure, allegedly by protesters, in 2015, when police failed to take action despite being ordered to do so by a court.
Umbhaba, which produces bananas on three farms in Mpumalanga, has instituted a claim against Police Minister Bheki Cele and the Food and Allied Workers’ Union (Fawu), whose members it claims caused the damage.
Umbhaba alleges that the claim arises from an unprotected strike.
Fawu, however, objected to the company’s claim, saying that damage caused by strike action falls solely within the labour court’s jurisdiction and not that of the Pretoria High Court, where the matter was instituted.
Judge Ronel Tolmay ruled at the end of last month that Umbhaba should replace the words “strike” and “striking workers” with “protest action” and “protestors” in its court papers.
She said the question of whether it was a strike or a protest action would be determined when the matter was heard in court.
Fawu wanted the case heard in the labour court, but it is not the only defendant. The labour court does not have jurisdiction in respect of Umbhaba’s claim against the police, which is the other defendant, Tolmay ruled.
As a result of the behaviour of the protestors and the related reaction of the police, or lack thereof, the claim against both defendants must be heard in the same proceedings, she found.
Tolmay said the claim against the police relates to the fact that they took no steps to prevent damage to Umbhaba’s facilities during the protests and riots, which lasted about four months.
Umbhaba said in its court papers that it distributes bananas to retailers nationwide.
As a certified organic producer, it relies heavily on stable labour, especially in the care of its orchards.
It claims Fawu organised the protest action on the company’s Hectorspruit farm between November 4 2015 and March 2016.
The protest was across the road from the farm’s main entrance.
The protesters prevented farmworkers from reaching work. When the workers arrived for work, the protestors forced them to participate in the protest.
Abel Mkhatshwa, an employee of the banana farm, was allegedly assaulted on the first day of the protest.
The police were called and were at the gate. They allegedly witnessed the assault on Mkhatshwa, but did not arrest anybody in connection with the incident.
In the following days, gates were allegedly destroyed and fires were started.
These incidents were reported to the police, but they did not respond timeously or properly.
On November 10 2015, Umbhaba obtained a court order compelling the police to prevent further damage and violence against company employees, to little effect.
Umbhaba said the police had a duty to prevent crime, to combat it and to ensure that public order was maintained.
Fawu protestors also allegedly set the banana orchards on fire, assaulted more workers, burnt down houses and threw rocks at cars, and the police still took no action, said Umbhaba.
A police captain even threatened to confiscate the camera of a company employee while he was filming the illegal activities.
Umbhaba said that as a result of the fact that it could not plant bananas it suffered a production loss of R24.8 million.
The fact that it couldn’t fertilise caused a loss of R34 million.
Bananas worth R16.6 million were left rotting in storerooms and in orchards.
Damage of R3.3 million was caused to vehicles, fences, gates, houses and storerooms.
In its nursery, 152 914 young banana plants died due to a shortage of labour. They had to be replaced by R1.6 million worth of plants.
A further R1.4 million was spent on safety measures.
Umbhaba estimates that its loss in market share for March 2015 to June last year amounted to R142 million, and to June 2020, another R50 million.
The police minister and Fawu have yet to respond to the claims in court papers.
At the time the protest commenced, Fawu announced that it wanted to convince Umbhaba to allow workers to join the union.
The union said that certain employees were foreigners and others were from rural areas, and that the farm should not think that these people did not know their rights.
