While the South African Constitution allows everyone the rights to picket, present petitions, demonstrate and assemble peacefully and unarmed, the sad reality is that these gatherings often turn violent and destructive. The recourse for victims of this kind of violence was recently clarified by the Constitutional Court.
During a protracted labour strike in 2006 which had already led to the deaths of approximately 50 people, SATAWU organised a protest march in the Cape Town city centre. The march ultimately turned violent and resulted in several injuries and extensive damage to privately owned and municipal property.
Approximately 40 people were arrested following the march.
The victims of the violence instituted action against SATAWU in the High Court, in terms of the Regulations of Gatherings Act ("the Act"), alternatively in terms of common law, to recover the damages they had suffered as a result of the march. SATAWU denied any liability on its part and challenged Section 11(2)(b) of the Act on the basis that this section limited an individual's right to freedom of assembly in terms of Section 17 of the Constitution.
Section 11(2) of the Act provides that, "It shall be a defence to a claim against a person or organisation contemplated in subsection (1) if such a person or organisation proves-
(a) that he or it did not permit or connive at the act or omission which caused the damage in question; and
(b) that the act or omission in question did not fall within the scope of the objectives of the gathering or demonstration in question and was not reasonably foreseeable; and
(c) that he or it took all reasonable steps within his or its power to prevent the act or omission in question...
SATAWU raised two central arguments. The first involved the use of "and
" between Section (b) and Section (c). It argued that this effectively imposed two requirements on an organisation to avoid liability for damage caused. Added to this SATAWU stated that it is impossible for an organisation to take reasonable steps to prevent an act or omission which it did not and could not reasonably have been expected to foresee. SATAWU submitted that the words "and was not reasonable foreseeable
" rendered the defence offered by the section internally incoherent and self-destructive.
The second argument was that in all instances of a planned gathering the discussions with local authorities would address the possibility of injury and damage to property. This meant that the organisers would almost always foresee the possibility of damage and would then be held liable. SATAWU concluded that Section 11(2) does not provide a viable defence to defendants who face a claim in terms of Section 11(1), which would discourage organisations from holding gatherings and have a "chilling effect
" on the right to assemble as provided for in the Constitution.
The High Court held that the right in Section 17 of the Constitution does not encompass gatherings that are not peaceful. Even if the section did limit the right, the limitation was reasonable and justifiable in an open and democratic society when balanced against the rights of individuals to dignity, freedom from violence and arbitrary deprivation of property.
The matter was taken on appeal to the Supreme Court of Appeal (SCA) by SATAWU which dismissed the appeal on the basis that the defence provided for in Section 11(2)(b) of the Act is a real defence. The SCA upheld the reasoning of the High Court and held that the only "chilling effect
" of the section was on unlawful behaviour, to which the right encapsulated in Section 17 of the Constitution does not extend.
Aggrieved by the SCA decision, SATAWU then approached the Constitutional Court for leave to appeal against the decision of the SCA on the basis that Section 11(2)(b) of the Act is internally incoherent and self-destructive and also unjustifiably limits the right in Section 17 of the Constitution. In a majority judgment, Mogoeng CJ held that Section 11(2)(b) of the Act "must be interpreted in a manner that yields a rational meaning, and preserves its validity so that the purpose it was enacted to serve is realised
Mogoeng CJ pointed out that in order to do so, Subsections (a), (b) and (c) of the Act must be read collectively and held that, "The real link between the foreseeability and the steps taken is that the steps must prove to have been reasonable to prevent what was foreseeable. If the steps taken at the time of planning the gathering are indeed reasonable to prevent what was foreseeable, the taking of these preventative steps would render that act or omission that subsequently caused riot damage reasonably unforeseeable. Both Section 11(2)(b) and Section 11(2)(c) would then have been fulfilled.
It was held that in light of this interpretation Section 11(2) is rational and that it does indeed provide a viable defence to defendants who face claims brought in terms of Section 11(1) of the Act.
In considering whether Section 11(2) of the Act limits the right contained in Section 17 of the Constitution, Mogoeng CJ held that the purpose of the section is to provide victims of violent and/or destructive gatherings with an avenue of effective redress. In applying the relevant test, Mogoeng CJ concluded that the limitation is reasonable and justifiable in that it aims to balance the rights of the organisers of such gatherings, as well as the rights of the victims when such gatherings turn violent and destructive.
While many will argue that the Act imposes too strict a liability on the organisers of such gatherings, it is submitted that this decision is a step in the right direction in dealing with the issue of injuries and/or damage caused to innocent people during violent and destructive gatherings.