An organiser of a public gathering will be held liable for continuing with a gathering where riot damage is reasonably foreseeable unless it takes reasonable steps to prevent the damage or injury. In its June 2012 judgment (South African Transport and Allied Workers Union v Garvas and Other) the Constitutional Court found that the limitation on the right to assemble in section 11(2) of the Regulation of Gatherings Act 1993 which makes the organiser liable for avoidable riot damage is reasonable and justifiable in an open and democratic society, based on human dignity, equality and freedom.
Section 11(1) of the Act creates statutory liability for organisers of public gatherings or demonstrations which result in a riot causing damage to others. Section 11(2) of the Act sets out the requirements for the defence to escape liability. These three requirements must be proved by an organiser of a public gathering or demonstration to escape liability. A person defending liability to prove that:
- it did not permit or connive at the damaging act or omission;
- the damaging act or omission did not fall within the objectives of the gathering or demonstration and was not reasonably foreseeable; and
- it took all reasonable steps possible to prevent the damaging act or omission. Proof that it forbids the damaging act or omission will not suffice because proof is required that all reasonable steps were taken.
The riot damage resulted from a march organised by SATAWU in the Cape Town City Bowl on 16 May 2006, to register certain employment related concerns of its members within the security industry. The gathering was the culmination of a protracted strike action in the course of which approximately 50 people had already lost their lives.
In preparing for the gathering, SATAWU took steps to meet the procedural requirements of the Act by giving notice of the gathering to the local authority and appointing 500 marshals to manage the crowd. SATAWU also advised its members to refrain from any unlawful and violent behaviour and requested the local authority to clear the roads of vehicles and erect barricades along the prescribed route on the day of the gathering.
In spite of the precautionary measures, the gathering resulted in a riot which caused damage estimated at R1.5 million. A number of small businesses had their stock damaged or destroyed. Several people were injured. About 39 people were arrested. The respondents instituted an action for damages against SATAWU under section 11(1) of the Act, alternatively the common law.
SATAWU denied liability and brought a counterclaim seeking to have the words “and was not reasonably foreseeable” in section 11(2)(b) of the Act declared constitutionally invalid. SATAWU’s challenge was that these words limit the right to freedom of assembly under section 17 of the Constitution and the right to fair labour practices under section 23 of the Constitution.
SATAWU’s contention was that section 11(2) is irrational as it limits the rights to freedom of assembly, which limitation is not justifiable. Section 11(2) they said is irrational because it is impossible to expect an organisation to take all reasonable steps to prevent a specific act or omission, even when the act or omission is not reasonably foreseeable. This argument was not met with favour.
The judgment canvassed two central questions:
Does section 11(2) create a real defence that meets the constitutional requirement of rationality?
If the defence is rational, whether the defence limits the rights to freedom of assembly and, if so, whether that limitation is justifiable.
Is section 11(2) rational
The argument advanced by SATAWU was that section 11(2)(c) could never find application because, if the act or omission is reasonably foreseeable, then liability arises regardless of the steps taken. An organisation will escape liability only if the act or omission that caused the damage was not reasonably foreseeable, and if it took steps within its power to prevent that act or omission. The court found that on a proper interpretation of section 11(2) the section is rational.
Whether the limitation is justifiable
Section 17 of the Constitution states that “everyone has the right, peacefully and unarmed, to assemble, to demonstrate, to picket and to present petitions”. The court had to determine whether the limitation set out in section 11(2) constitutes a justifiable limitation in terms of section 36 of the Constitution. The court looked at the importance of the right to assemble including that spontaneous and organised protests and demonstrations were important ways that the marginalised majority of our country expressed themselves during apartheid. The court also looked at an array of case law and had regard of international law in finding that the limitation on the right to assemble is reasonable and justifiable in the circumstances.
The appeal was dismissed and SATAWU was ordered to pay the damages and costs.
Teneille Govender, Associate
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