On Tuesday the Supreme Court of Appeal delivered an important judgment in SATAWU v Garvis.
Some extracts:
[1] On Tuesday morning 16 May 2006 the appellant, the South African Transport and Allied Workers’ Union (the Union), arranged and organised a protest march, which constituted a gathering as defined in the Regulation of Gatherings Act 205 of 1993 (the Act). The march in the Cape Town City Bowl arose out of a protracted strike in the security sector by members of the Union. As the march proceeded, in the Union’s own words, it ‘descended into chaos’, with admitted extensive damage caused to vehicles and shops along the route.
[2] The first to eighth respondents are individuals who claimed that they had sustained loss as a result of the riot. At least one of the respondents claims to have been assaulted. They all instituted action in the Western Cape High Court, Cape Town, against the Union in terms of s 11 of the Act, alternatively under the common law, to recover the damages they had allegedly sustained and for which they contended the Union was liable. Section 11(1) of the Act creates a statutory liability on the part of organisations under whose auspices a gathering or demonstration was held that degenerated into a riot causing damage to others.
[3] Section 11(2) of the Act sets out three factors that a defendant to such an action has to prove in order to escape liability. Section 11(2) reads as follows:
‘It shall be a defence to a claim against a person or organization contemplated in subsection (1) if such a person or organization 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: Provided that proof that he or it forbade an act of the kind in question shall not by itself be regarded as sufficient proof that he or it took all reasonable steps to prevent the act in question.’ (My emphasis.)
[4] In defending the action the Union, in addition to denying liability in general terms, also contended that s 11(2)(b), particularly the part highlighted above, places too great a burden on trade unions and other organisations and individuals who intended to assemble to protest publicly. It was submitted that it has a stultifying effect on the rights set out in s 17 of the Constitution:
‘Everyone has the right, peacefully and unarmed, to assemble, to demonstrate, to picket and present petitions.’
[5] Put differently, it was contended that, faced with the onerous task of proving what is required by s 11(2)(b), unions, other organisations and individuals would be deterred from organising marches, protests and other gatherings for fear of financial ruin. Thus, it was contended that s 11(2)(b) was unconstitutional in that it offended against the right entrenched in s 17 of the Constitution in terms of which everyone has the right ‘peacefully and unarmed’, to assemble, demonstrate, picket and to present petitions.
[17] The Minister entered the litigation fray, denying that he was liable on the basis contended for on behalf of the Union. The Minister pleaded that members of the South African Police Service had taken all reasonable measures to regulate and manage the gathering. Furthermore, it was alleged on behalf of the Minister that the Police Service had consulted with the Union prior to the gathering and ascertained such facts as were necessary, including the anticipated number of participants. Based on this an operational plan was devised by the police to determine how best to regulate and monitor the gathering. The plan was put into operation and it included an adequate number of police to deal with the gathering. The Minister denied that members fired rubber bullets unreasonably or unnecessarily. He alleged that the armoured vehicles that were deployed were used to regulate and control the gathering.
[18] Although it was initially indicated on behalf of the Minister that he would abide the high court’s decision he was represented during the hearing of the matter in the court below and argument was presented on his behalf. The Minister made common cause with the other respondents in contending that s 11(2)(b) was not unconstitutional.
[20] In deciding the matter the court below had regard to the volatile environment in which the march was organised. This was information gleaned from the affidavit of the Union’s Provincial Secretary. According to him the strike in the security sector of industry leading up to the march in question took place in the context of heightened acrimony arising out of issues between Union members and employers and Government. By the time the march took place, approximately 50 people had already been killed in strike-related violence. It is uncontested, as recorded by the court below, that preceding the march there had been previous instances of damage caused to property belonging to the city and private persons.
[21] The court below noted that the Act had come into operation on 15 November 1996. It recorded that preceding legislation had made no provision for civil liability on the part of organisers or conveners of gatherings.
Conclusions
[32] It is necessary to record at the outset that counsel on behalf of the Union accepted that, if it were held that s 11(2)(b) was intelligible, could be given content, and afforded a real defence to a statutory claim, then it would not be necessary for this court to proceed, as the court below did, to the limitation exercise provided for in s 36 of the Constitution. This means it was accepted that, whatever the difference between liability in terms of s 11 of the Act and liability at common law, the difference would be constitutionally valid provided that this court found s 11(2)(b) of the Act to have the qualities referred to in the preceding sentence. Put differently, counsel for the Union conceded that if s 11(2) provides a viable defence, it constitutes a reasonable and justifiable limitation in terms of s 36 of the Constitution.
[43] In the present case, according to the testimony of the Union’s own representative, events leading up to the march had led to a volatile situation. The strike had been protracted and acrimonious and there had been many deaths. In those circumstances it is arguable that no degree of measures could be taken so as to prevent the march from degenerating into a riot. Even at common law it would appear that a defendant who persisted in organising a march in those circumstances would almost inevitably be landed with liability. Put differently, if one persists in organising an event where it is reasonably foreseeable that no measure or means could be employed to prevent it from degenerating into a riot, then when that eventuality occurs one could hardly be expected to escape liability for the harm caused to persons or property. In short, a reasonable trade union would not persist in organising and proceeding with a march in the circumstances sketched in this paragraph.
[47] Our Constitution saw South Africa making a clean break with the past. The Constitution is focused on ensuring human dignity, the achievement of equality and the advancement of human rights and freedoms. It is calculated to ensure accountability, responsiveness and openness. Public demonstrations and marches are a regular feature of present day South Africa. I accept that assemblies, pickets, marches and demonstrations are an essential feature of a democratic society and that they are essential instruments of dialogue in society. The Constitutional Court has recognised that the rights presently enjoyed by employees were hard-won and followed years of intense and often grim struggle by workers and their organisations. The struggle for workers’ rights can rightly be expected to continue. Trade unions should ensure that a noble struggle remains unsullied. The Act was designed to ensure that public protests and demonstrations are confined within legally recognised limits with due regard for the rights of others.
[49] It was submitted on behalf of the Union that damage to public property caused by a gathering that degenerated into a riot was a small price to pay to preserve and protect the precious right to public assembly and protest, which is integral to a democratic state. I agree with the court below that members of the public are entitled to protection against behaviour that militates against the rule of law and the rights of others and that, if liability is to attach to unlawful behaviour at a gathering that causes a riot, it would seem just and in accordance with constitutional values that it should attach to the organisers in the circumstances contemplated in s 11 of the Act. As stated above the Union’s legal representatives therefore rightly accepted that if s 11(2)(b) could be given content, as described above, it would not be necessary for us to proceed to the limitation exercise contemplated in s 36 of the Constitution. For the reasons set out above I do not find the provisions of s 11(2)(b) internally contradictory and self-destructive. It appears to me to be structured in such a manner as to ensure that liability should attach where it rightly belongs.
[50] The chilling effect of s 11(2)(b) described on behalf of the Union is not only unsubstantiated but is contradicted by the police and the City of Cape Town, who presented unchallenged evidence that in their extensive experience the provisions of the Act have not deterred people from public assembly and protest. If anything, the regularity of public assembly and protest in the 15 years of the existence of the Act proves the contrary. The chilling effect that the provisions of the Act should rightly have is on unlawful behaviour that threatens the fabric of civilised society and which undermines the rule of law. In the past the majority of the population was subjected to the tyranny of the state. We cannot now be subjected to the tyranny of the mob.
[51] Before us it was submitted on behalf of the Union that the provisions of the Act were too wide and presented the spectre of limitless liability for organisers of gatherings. It was submitted that organisers might be liable even for conduct that strictly speaking was not unlawful. In this regard we were referred to the definition of ‘riot damage’ in the Act which:
‘. . . means any loss suffered as a result of any injury to or the death of any person, or any damage to or destruction of any property, caused directly or indirectly by, and immediately before, during or after, the holding of a gathering.’
It was contended that definition was overly wide and that liability would ensue even in the absence of fault.
[52] The submission referred to in the preceding paragraph is fallacious. The definition cannot be read without considering the ordinary meaning of the word ‘riot’ which is: ‘a violent disturbance of the peace by a crowd’. The entire scheme of the Act, including s 11, is designed to prevent unlawful violent behaviour that impinges on the rights of others and to ensure that persons or organisations which organise assemblies that degenerate into riots should bear liability.
[53] For all the reasons set out above, the appeal must fail. Because of the constitutional issue raised there should, like in the court below, be no order as to costs.
[54] The appeal is dismissed and no order is made as to costs.
View or download the judgment by clicking on .SATAWU v Garvis.
SUMMARY as provided by the SCA:
Constitutional validity of s 11(2)(b) of the Regulation of Gatherings Act 205 of 1993 ─
protest march organised by Trade Union degenerating into riot ─
damage caused to property ─
persons affected sued Trade Union in terms of s 11 of the Act ─
high court called upon to decide the separated question of the constitutional validity of s 11(2)(b) ─
Trade Union contending that right to freedom of assembly and protest entrenched in s 17 of the Constitution infringed by the creation of statutory liability without providing a viable defence ─
submitted that holding organisations that organised assemblies and marches liable would have a chilling effect ─
high court correct in concluding that s 17 of the Constitution not implicated ─
assemblies that were peaceful and in which participants were unarmed were protected ─
held that s 11(2)(b) was not internally contradictory and provided viable defences to organisers ─
organising a march preceded by many deaths and increasing animosities might in itself lead to liability ─
Evidence presented in the court below indicated that notwithstanding the existence of s 11 gatherings continuing to be a feature of South African life and that there was no chilling effect ─
warning by court about being subjected to mob rule.
Here is the editorial from Business Day today.
EDITORIAL: Incentive for peaceful strikes
THE Congress of South African Trade Unions’ (Cosatu’s) initial response to the Supreme Court of Appeal’s ruling confirming that organisers of public demonstrations can be held liable for the violent actions of participants was quite encouraging
THE Congress of South African Trade Unions’ (Cosatu’s) initial response to the Supreme Court of Appeal’s ruling confirming that organisers of public demonstrations can be held liable for the violent actions of participants was quite encouraging.
Rather than coming out with a knee-jerk rejection of the judgment, the union federation issued a considered statement that, while keeping the option of appeal to the Constitutional Court alive, appears to indicate that the decision was not altogether unexpected. Nor should it have been; no legal system worth its salt would sanction an arrangement that allowed the organisers of an event to refuse to accept any responsibility for its outcome.
This is especially true when innocent members of the public are caught up in violent or criminal behaviour sparked by a protest march and suffer physical injury or material loss as a result of the demonstration. Victims of such criminality have rights too and, as is often the case in matters legal, these need to be balanced against the rights of others — such as union members’ right to strike.
Most importantly, Cosatu reiterated that it does not condone the violence and damage to property that all too often occurs during strikes in SA, and reaffirmed its commitment to peaceful industrial action — and the responsibility to ensure that its marshalling system plays a role in keeping such events peaceful and orderly.
The precise wording of its comments on the possible appeal is instructive: Cosatu said it would “challenge any ruling that seeks to pass the liability for the violent actions of a few individuals and agent provocateurs on (to) the shoulders (of) trade unions. Should this be the implication contained in the judgment, (Cosatu) will have no other choice but to take this matter up with the Constitutional Court.”
Our reading of the judgment is that Cosatu has nothing to fear in this respect. The individuals responsible for acts of violence or vandalism will always be liable in the first instance. The most useful consequence of the court’s ruling will be that the organisers of protest marches will have a strong incentive to hand guilty parties over to the authorities to face the music for their actions.