The facts of the matter are relatively simple. In 2019 community members in Postmasburg in the Northern Cape blockaded and obstructed a road which provided access to certain mines of Afrimang, an employer in the area. The Maremane Communal Property Association (“the Applicant”), comprising several businesses located on the Afrimang mine, launched an urgent application in the Kimberly High Court to interdict the unlawful conduct. An interim interdict was issued by the Court on 16 August 2019, and later confirmed. The Applicant approached the Station Commander at SAPS Postmasburg to request that the police officers assist in enforcing the order. The SAPS refused to assist, indicating that the order did not specifically direct and authorize members of SAPS Upington and SAPS Postmasburg to do so.
In October 2021 the community members resumed their blockade of the road leading to the mine. The Applicant once again approached SAPS Upington with the same order, but the police officers refused to intervene for the same reasons originally provided. The Applicant was forced to approach the High Court again, on the same grounds as the previous application, but on this occasion sought a specific order that members of SAPS assist the Sheriff in serving and executing the order. The interim interdict was granted, and a final order confirming the interdict was handed down on 11 March 2022. A copy of the order was also given to the SAPS, who promised to execute it the next day.
This, however, did not happen. Despite various engagements with members of SAPS Upington and Postmasburg, and the order, the SAPS refused to assist the Applicants. They even went so far as to state that even if the Applicant were to register a hundred complaints, they would simply not take action to assist.
The Applicant, in desperation, launched a third urgent application. The urgent application was granted and directed the Station Commander of Postmasburg and Station Commander of SAPS Upington to execute the orders previously granted. A punitive costs order was also made against the respondents. The respondents, astonishingly, sought leave to appeal this order.
Leave to Appeal?
The Respondents challenged the order on several grounds, but most importantly argued that the duty to serve and execute court orders rests on the Sheriff and that the cost order against the Respondents was not just and equitable.
The Court rejected the Respondent's arguments and clarified that the main issue is not whether SAPS had the primary responsibility of executing court orders but rather that ‘once an order of court has been served by the Sheriff, members of the community can approach the SAPS for assistance in enforcing the terms of the court order without first enlisting the services of the Sheriff to once again, try to enforce the court order’.
The Court highlighted that in this case the community members were engaged in criminal and disorderly conduct. The Applicant had requested the SAPS to prevent crime and maintain public order. The Court held ‘that members of SAPS cannot hide behind the wording of a court order to refuse assistance to members of the community when their assistance is requested. It would be a classic case of abdication of the police’s constitutional responsibilities’.
The Court further stated that whenever criminal acts are committed, society is entitled to look up to the SAPS for assistance, and the police have a corresponding duty to help. The Court stated that ‘with or without a court order, the applicant was entitled to approach the police for assistance whenever criminal and/or disorderly conduct was being committed against them’.
The Applicant in this matter was forced to approach the Court on several occasions because of the failure of the SAPS to fulfil its constitutional obligations. The Court held that the Respondents opposed the application on spurious and contradictory grounds, and, most significantly, that the Respondents refused to perform their constitutional obligations at a time when their assistance was most needed. In those circumstances, a punitive cost order was justified.
In its closing remarks, the Court criticized the conduct of the police officers by stating that it seemed that some members of the police had completely forgotten why they are wearing a police uniform, and that the actions, or rather failure to act, by the police cannot be condoned and that it must never be tolerated. The application for leave to appeal was dismissed with costs.
The judgment is a sobering read. Employers are increasingly having to enlist the services of private security companies, as they have resigned themselves to the fact that the SAPS are thoroughly unhelpful and ineffective. Hopefully this judgment will send a much-needed wake-up call to the SAPS, reminding its members of their constitutional obligation to assist society when criminal acts arise or are anticipated.