The Supreme Court of Appeal in Bloemfontein has dismissed Bidvest Protea Coin’s appeal to avoid paying damages to Mandla Mabena, an employee who lost sight in his left eye during a protected strike in Mpumalanga nine years ago.
Bidvest sought reconsideration and variation of a dismissed appeal, but the court upheld previous rulings, confirming Bidvest’s liability.
Mabena was injured during a month-long strike organised by the Association of Mine Workers and Construction Union at Wonderfontein Mine outside Middelburg.
The incident occurred when a non-striking harvester drove into a striking worker’s vehicle, escalating tensions.
“The striking workers, in response, threw stones at the harvester and at employees of Bidvest who were in place to secure the mine.
“Employees of Bidvest, as they had done earlier in the day, in two groups, advanced upon the workers and opened fire with rubber bullets,” the Supreme Court judgment reads.
“The striking workers ran into the nearby bushes, where Mr. Mabena was struck by a rubber bullet in his left eye, as a result of which he lost the sight of his eye.”
Mabena sued Bidvest for compensation. The Middelburg High Court, separating liability and quantum, found Bidvest 100% liable.
Bidvest denied the incident, claiming no intent or negligence, or alternatively, that their employees acted in a “situation of sudden and unexpected emergency” or that Mabena’s negligence contributed to his injury.
The Supreme Court highlighted Bidvest’s questioning of whether Mabena was injured by their employees, and if so, whether their actions were justified by necessity, or if Mabena contributed to his injuries by being part of “wrongdoers”.
“The trial court found that Bidvest relied upon the defence of sudden and unexpected emergency but had failed to plead the defence of necessity.
“It concluded that Mr. Mabena was shot at point blank range by an employee of Bidvest, causing him to lose his left eye,” the judgment noted.
Consequently, Bidvest was held 100% liable for Mabena’s damages. Bidvest’s appeal to the full court was also dismissed.
“First, the full court found no basis to interfere with the trial court’s assessment of the evidence and the conclusions it reached.
“Second, it held that the defence of necessity had not been pleaded and should not have been raised, as it was, at the start of the trial,” noted the judgment.
“Third, it doubted that the defence of sudden emergency, as pleaded, would have succeeded.
“Fourth, on viewing the video footage of the events of the day, the full court concluded the striking workers were ‘at a state of sudden emergency’ created by the harvester that was approaching them, and not ‘the other way around’.”
Bidvest then sought special leave to appeal to the Supreme Court, which was also dismissed.
“Bidvest’s affidavit in support of its application invoked exceptional circumstances that, it contended, warranted the referral of the decision on petition to this court for reconsideration and variation,” the Supreme Court noted.
The acting deputy president of the court referred the decision for reconsideration, but the court still ruled against Bidvest.
The judges clarified that while the president could refer cases for reconsideration, the final judgment remained with the court, and such referrals required “exceptional circumstances”, which Bidvest’s case lacked.
Bidvest argued it had been unfairly treated regarding its introduction of the necessity defence, which was rejected in previous court sittings.
“A fair reading of the judgement of the full court indicates that it did have regard to the evidence led at trial and concluded that it could find no error that the trial court had made as to the defence of necessity,” the court noted.
“Once this is so, there was no unfairness of the kind attributed by Bidvest to the full court. And hence there are no exceptional circumstances disclosed that permit a reconsideration of the decision on petition.”
The Supreme Court struck the case off the roll and awarded costs to Mabena.
