Earlier today the Constitutional Court handed down judgment is this a matter.
The appeal by the trade union was disallowed with costs.
This is the media summary provided by the Constitutional Court earlier today with the addition of links to the earlier judgments.
The following explanatory note is provided to assist in reporting this case and is not binding on the Constitutional Court or any member of the Court.
On 13 June 2012, the Constitutional Court handed down judgment about the constitutionality of a law which makes organisers of gatherings liable for damages caused by the gathering unless they took all reasonable steps to avoid the damage and they did not reasonably foresee that damage. The Supreme Court of Appeal
upheld a decision of the Western Cape High Court saying that the law was valid.
The South African Transport and Allied Workers Union (SATAWU) had organised a gathering of thousands of people through the City of Cape Town to register employment – related concerns. Some 50 people had lost their lives in the course of SATAWU’s protracted strike action before the gathering. During the gathering, much property including private property was damaged.
In response to a claim for damages made by people who claimed that they suffered loss as a result of the gathering, SATAWU challenged the constitutional validity of the law that imposed liability on organisers. The Union contended that the defence allowed by the law is non-existent and unjustifiably limits the right to freedom of assembly in the Constitution
In a majority judgment, Mogoeng CJ held that the law aims to afford victims effective recourse where a gathering becomes destructive and results in injury, loss of property or life. The majority held that the defence provided for by the law is viable and that the limitation on the right to freedom of assembly in section 17 of the Constitution is reasonable and justifiable, because it serves an important purpose and reasonably balances the conflicting rights of organizers, potential participants and often vulnerable and helpless victims of a gathering or demonstration which degenerates into violence. Mogoeng CJ emphasised that the reasonable steps taken on the one hand and reasonable foreseeability on the other hand were inter-related. Organisers are obliged at all times to take reasonable steps to prevent all reasonably foreseeable conduct that causes damage and the reasonable steps must be of the kind that render the conduct causing damage unforeseeable. For these reasons, the majority dismissed the appeal.
In a concurring judgment, Jafta J reasoned that the appeal should be dismissed, on the basis that SATAWU had failed to prove that the law limits the right to freedom of assembly, or that the defence that it creates is irrational.
The following explanatory note was provided prior to the hearing to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.
“On Thursday 9 February 2012, at 08h00, the Constitutional Court will hear a case that arises out of a damages claim made in the Western Cape High Court by eight of the respondents (various individuals, including street vendors, shop owners and motor vehicle owners) against the South African Transport and Allied Workers Union. They alleged that their property was damaged during a march organised by the Union.
The case was brought in terms of a section of the Regulation of Gatherings Act which allows a claim for what is referred to as “riot damage” against an organisation on whose behalf or under whose auspices the gathering was held. An organisation would not be liable if it proved that it did not commit or connive at the conduct causing the damage, the conduct in question does not fall within the objectives of the gathering or demonstration concerned, was not reasonably foreseeable, and that the organiser took all reasonable steps within its power to prevent the conduct in question. The applicant, SATAWU contended in the High Court that the requirement that the conduct was not reasonably foreseeable by it was unconstitutional because it infringed the constitutional right to freedom of assembly and fair labour practice. The first eight respondents, together with the Minister of Safety and Security, the ninth respondent, contended that the provisions were constitutional. The High Court held that the requirement was not inconsistent with the Constitution and the Supreme Court of Appeal confirmed this order.
The Constitutional Court is called upon to decide whether the requirement of the defence was irrational, and/or unjustifiably limits the constitutional right to freedom of assembly in the light of the right to fair labour practice. The respondents and the Minister support the findings of the High Court and the Supreme Court of Appeal
The Freedom of Expression Institute has been admitted as a friend of the Court. It supports the Union and maintains that the requirement, in addition to being an infringement of the right to freedom of assembly, also violates the right to freedom of expression as well as the principles of the rule of law and democracy. The City of Cape Town has been joined as an intervening party. It contends for the constitutionality of the defence requirement.”