In South African Transport and Allied Workers Union v Garvis (2011 (12) BCLR 1249, SCA), the South Africa Transport and Allied Workers Union (SATAWU) organised a protest march as part of a national strike. The march involved a 'gathering' as defined in the Regulation of Gatherings Act 205, 1993. The march descended into chaos, resulting in extensive damage to vehicles and shops along the march route. The respondents in this case - mainly small business owners along the route who had suffered the brunt of the damage - claimed that they sustained loss as a result of the riot and claimed damages from SATAWU in terms of Section 11 of the act in the High Court. SATAWU challenged the constitutionality of Section 11(2)(b) on the basis that it was inconsistent with the constitutional right to assemble, demonstrate and picket.

The High Court found against SATAWU and SATAWU appealed to the Supreme Court of Appeal. The Supreme Court of Appeal dismissed the appeal and, among other things found that the constitutional right to assemble, demonstrate and picket was not infringed because persons engaging in assemblies and demonstrations have the right to do so only if they are "peaceful and unarmed". The court further held that causing and participating in riots is contrary to constitutional values, and the public is entitled to protection against behaviour that militates against the rule of law and the rights of others, so that, if liability were to attach to unlawful behaviour at a gathering that caused a riot, it would be just and in accordance with constitutional values that liability should attach to the organisers in the circumstances contemplated in Section 11.

SATAWU disagreed with the decision and appealed to the Constitutional Court. A judgment was handed down on June 13 (Case CCT 112/11 /2012 ZACC 13).

The Constitutional Court rejected the argument presented by SATAWU and the Congress of South African Trade Unions (COSATU) to the effect that Section 11(2) is irrational because any organiser that took proper steps to guard against an act or omission materialising could never prove that it was not reasonably foreseeable and would automatically be found liable in terms of this section. The court found that Section 11(2) requires the organiser to determine whether an act or omission causing harm or damage is reasonably foreseeable, and to ensure that proper steps are continuously taken to ensure that the act or omission is prevented. If the steps taken at the time of planning the gathering are indeed suitable to prevent what was foreseeable, taking these preventive steps would render the act or omission that subsequently caused riot damage reasonably unforeseeable. On this basis, Section 11(2) was not deemed irrational.

The Constitutional Court was careful to re-emphasise in its judgment - as had been done by the High Court and the Supreme Court of Appeal - that the constitutional right to assemble and demonstrate is constitutionally protected and guaranteed so long as it is exercised peacefully. In the event that an organisation reasonably foresees the possibility of damage or mayhem resulting from the gathering, it has a choice to proceed with the gathering or cancel it. Accordingly, the decision to assemble resides with the organisation and hence it should be responsible for any reasonably foreseeable damage arising from such assembly.

The court pointed out that the effect of Section 11 is to enable victims of riot damage to look no further than the organisers for compensation without having to prove negligence. SATAWU and COSATU's argument that this was an unjustifiable limitation on the right to assemble and demonstrate, as it placed the onus on organisers to prove the statutory defence set out in the section, was rejected on the basis that it would otherwise be difficult for innocent victims of riot damage to succeed with their claims for compensation.

The Constitutional Court concluded that the purpose of Section 11(2) is to protect the safety and property of the public from the reasonably foreseeable possibility of riots arising from a gathering and the balance between the limitation of Section 11(2) on the right to assemble and demonstrate and its purpose was established.

SATAWU and COSATU's appeal to the Constitutional Court was accordingly dismissed with costs.

Unions must now go a lot further than they have done to date in exercising greater control over their protest marches to prevent the violence and damage to property that has sadly characterised many such marches in recent years. If unions do not heed the lessons learnt by SATAWU, they could face substantial liability to business owners, employers and municipalities whose property is damaged or destroyed by demonstrators.

For further information on this topic please contact Stuart Harrison at ENSafrica by telephone (+27 11 269 7600), fax (+27 11 269 7899) or email ([email protected]).