Johan Botes, director in the employment practice at Cliffe Dekker Hofmeyr business law firm explains that the court dismissed an appeal by the South African Transport and Allied Workers Union (SATAWU) against an earlier finding by the Supreme Court of Appeal that similarly confirmed that they may be held liable for damage caused by protestors.
"Numerous small business owners and also vehicle owners initiated proceedings to hold SATAWU liable for damage caused by demonstrators following a march arranged by SATAWU to protest various employment issues pertinent to the security industry. Flower and handbag stalls along the way of the march were looted or damaged with various private vehicles ending on the receiving end of angry protestors' frustrations," he says.
"SATAWU's liability for these damages arise from section 11(1) of the Regulation of Gatherings Act (RAGA). This section creates liability for every participant in the gathering, every organisation on behalf of or under the auspices of which that gathering was held, or, if not so held, the convener, for riot damage caused. The RAGA creates a statutory defence (section 11(2)) against such liability where a party can show that he or it took all reasonable steps within his or its power to prevent the act or omission in question," Botes explains.
The questions before the Constitutional Court centred around the interpretation of section 11(2) - does it create a defence - and if so, whether the defence limits the right to freedom of assembly in section 17 of the Constitution and whether this limitation is reasonable.
"The Court confirmed in a majority judgment that the defence against liability provided in section 11(2) of RAGA is viable. It held further that the limitation of the right to freedom of assembly is reasonable. The Court stated that the limitation serves an important purpose in balancing conflicting rights of organisers, participants and vulnerable or helpless victims. Mogoeng CJ warned that organisers of such public gatherings are obliged to take reasonable steps to prevent all reasonably foreseeable conduct that causes damage," he says.
Botes explains that the effect of this is that all conduct that causes damage must be unforeseeable if the organisers are to escape liability. If one considers the judgment, it becomes clear that where the conduct that cause damage can be foreseen, steps taken to prevent it that prove to be unsuccessful will not be seen as reasonable steps. Thus, organisers are under obligation to prevent all foreseeable damage if they wish to rely on the defence in section 11(2) of RAGA.
"The judgment offers welcome relief to those victims of thuggish behaviour that has pockmarked certain strikes in the recent past. The judgment should be praised by all in favour of the right to peaceful demonstration. It sends a clear message to organisers to ensure that their meetings are not high-jacked by criminal elements set on using the right to freedom of assembly to loot, pillage or cause mayhem," Botes adds.
