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What are the Legalities around Looting?

In South Africa, we have freedom of conscience, religion, thought, belief, and opinion as stated in Section 15 of the Constitution of the Republic of South Africa 1996, and further provides for in Section 17, the right to peacefully assemble, unarmed to demonstrate, picket and to present petitions.

Holding protest actions in South Africa is legal and is the accepted method of showing discontent with issues in the Country. However, destruction of privately owned businesses and the violence of looting is not allowed in terms of South African law and remains to be a criminal offense.

Protests in South Africa

The recent protests in South Africa, sparked by the arrest of former President Jacob Zuma’s arrest, lead to approximately 330 deaths.  The unrest began in Gauteng and KwaZulu Natal on the evening of 9 July 2021 intensified into rioting, looting and violence.

Whilst protesting is protected in South Africa by the constitution, the Constitution also protects the right to life in the Bill of Rights. The looting and destruction combined with the violent actions that arose are without doubt criminal as the deprivation of life, with the escalation of criminal acts causing such a death, amounts to murder having taken place.

The South African Human Rights Commission (“SAHRC”) lays out the definition of protesting and reinstates that it remains the responsibility of the protestors to have peaceful and legal protests without intimidation towards non-striking workers.

Furthermore, the South African Police Service (“SAPS”) has the responsibility to prevent and combat crime that may threaten the safety and security of any community. This crime includes, but is not limited to, destruction of property and the causing of bodily harm.  

The SAPS Predicament

However, SAPS also needs to act without the use of excess force, delivering professional law enforcement techniques to prevent the police’s involvement from worsening the situation.

In terms of the Dangerous Weapons Act of 2013, no gathering participant may have in their possession any dangerous weapon, including firearms or items that can be mistaken for firearms.

Protest Applications are Mandatory

The application of protest and gathering applications must be submitted a week in advance. Such an application may be rejected if the gathering could result in disruption of traffic, destruction of property or carries the risk that it may result in personal injury.

None of these protesting conditions were met and thus the local authorities were within their legal right to prevent such a gathering from occurring. The attendance at an illegal protest or gathering is breaking the law and the offenders can be held accountable as such action.

In South Africa the right to have a peaceful protest remains protected but is limited, to being that of a peaceful protest and clearly excludes protests that involve the violence and looting on the scale seen in South Africa in the recent unrest.

Insurance payouts on looting damage:

In South Africa, in light of the recent unrest in Kwa Zulu Natal and Gauteng, many businesses have suffered severe loss and devastation. Following such destruction many small businesses are starting to try find their feet and in doing so are looking how to mitigate their damages.

SASRIA Cover

Most insurance companies contain the same clause, in which they exclude damages that arise from protest action. In terms of the South African Special Risks Insurance Association (SASRIA), a state-owned enterprise, most insurance policies are taken out in line with and including SASRIA cover. South Africa is one of the few countries in the world that provide such insurance at an affordable rate, providing unique cover against looting and protests of nature South Africa has experienced recently. The role of SASRIA is to restore businesses so that they can  operate again after such events in order to minimize job losses and the mitigate the damage experienced by such businesses.

Individuals and businesses do have the choice to opt out of SASRIA cover (they are informed of the risks associated with not having this cover), so it is recommended and sold through brokers who deal with insurance. SASRIA works in the public and private sector in which it pays compensation out to insurers who then pay the money out to their clients.  The objective is to place the insured party in the same financial position as they were prior to the protest action.

How to claim from SASRIA

To claim with SASRIA, one needs to have opened a case file with the police, as soon as safely possible after the event and within 30 days of the incident. Once you have your case number, you will be able to lodge your claim. Your claim should firstly be lodged with your personal broker, and then SASRIA as an order of events. Obtaining footage of the damage and an assessment of financial implications will also increase your successes in the claim. Included in the claim could be the wages and salaries of the employees unable to work during both the unrest and the time taken to repair the business.

During the unrest in South Africa, the spokesperson for SASRIA assured the nation that they do have enough funds to cover the expected loss that arose from the protests that took place in both Gauteng and KwaZulu Natal. Thus the insured businesses affected by the looting in Gauteng and KwaZulu Natal should be covered to some extent by SASRIA.

Some of the bigger insurance companies have vowed to pay off claims for the looting, in which they have pledged millions of Rands, to expedite the building of the SMME’s that were damaged and to provide interim relief. SASRIA has mandated that the smaller claims can be assessed and covered by the insurance companies themselves on behalf of SASRIA in order to ensure a speedier resolution of the claims, whilst their normal processes remain in place for the larger claims.

Bailey Haynes Inc. Attorneys in Cape Town

Insurance claims arising as a result of political or other civil unrest can be complex. It is important to seek legal or other advice if you are unsure of your position. Feel free to contact us if required.

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