South Africa: Strike/Protest March Violence: Lessons From The Constitutional Court

In South African Transport and Allied Workers Union vs Garvis and Others 2011 (12) BCLR 1249 (SCA) the union, SATAWU, organised a protest march as part of a national strike. The march constituted a gathering as defined in the Regulation of Gatherings Act 205 of 1993 ("the Act"). It descended into chaos, resulting in extensive damage to vehicles and shops along the route. The Respondents in this case, mainly small business owners along the route of the march 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) of the Act 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 SCA"). The SCA dismissed the appeal and inter alia found that the constitutional right to assemble, demonstrate and picket was not infringed because persons engaging in assemblies and demonstrations had the right to do so only if they were "peaceful and unarmed". The SCA further held that causing and participating in riots was contrary to constitutional values and the public was entitled to protection against behaviour that militated against the rule of law and the rights of others, so that, if liability was to attach to unlawful behaviour at a gathering that caused a riot, it was just and in accordance with constitutional values that liability should attach to the organisers in the circumstances contemplated in section 11 of the Act.

SATAWU disagreed with the decision and appealed to the Constitutional Court. Judgment was handed down yesterday by the Constitutional Court (South African Transport and Allied Workers Union and Another v Jacqueline Garvas and Others - Case no. CCT 112/11 /2012 ZACC 13).

The Constitutional Court rejected the argument presented by SATAWU and COSATU to the effect that section 11(2) of the Act was irrational because any reasonable organizer who took reasonable steps to guard against an act or omission materializing 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 organizer to determine whether an act or omission causing harm or damage is reasonably foreseeable and to ensure that reasonable steps are continuously taken to ensure that the act or omission that could become reasonably foreseeable is prevented. If the steps taken at the time of planning the gathering are indeed reasonable to prevent what was foreseeable, the taking of these preventive steps would render that act or omission that subsequently caused riot damage reasonably unforeseeable. On this basis section 11(2) was not irrational.

The Constitutional Court was careful to re-emphasise in its judgment, as had been done by the High Court and SCA, 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 was to enable victims of riot damage to look no further than the organizers 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 organizers to prove the statutory defence set out in the section, was rejected on the basis that it would otherwise be very 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) was 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 will now need to go a lot further than they have been 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 they don't heed the lessons learnt by SATAWU in this matter, they could face substantial liability to business owners, employers and municipalities whose property is damaged or destroyed by marchers.

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