Brief Summary

Regulation of Gatherings Act — Civil liability for riot damage — Plaintiffs sought damages from the South African Transport and Allied Workers Union (SATAWU) following property damage during a strike organized by the union — The court considered whether the phrase "and was not reasonably foreseeable" in section 11(2)(b) of the Regulation of Gatherings Act 205 of 1993 is unconstitutional — The court held that the inclusion of the phrase is inconsistent with the Constitution and thus invalid, impacting the liability of organizations for riot damage.

Comprehensive Summary

Summary of Judgment

1. Introduction

This judgment concerns a separated constitutional issue arising within an action for damages. The plaintiffs instituted an action against the South African Transport and Allied Workers Union (SATAWU) seeking compensation for “riot damage” allegedly caused during a gathering convened under the Regulation of Gatherings Act 205 of 1993. The damages claim was pleaded in terms of section 11(1) of that Act, alternatively under the common law.

The parties were Jacqueline Garvis and seven other plaintiffs (including both natural persons and a close corporation) as plaintiffs/respondents in the separated constitutional dispute; SATAWU as defendant/applicant in the separated constitutional dispute; and the Minister for Safety and Security as a third party.

The matter’s procedural posture was shaped by the defendant raising, as an alternative defence in its papers, a constitutional challenge to specific wording in the statutory defence created by section 11(2) of the Regulation of Gatherings Act. By agreement between the parties, an order was granted on 13 April 2010 directing that the constitutional issue be decided prior to and separately from the remaining disputes in the damages action. The hearing of the separated issue took place on 26 May 2010, and judgment was delivered on 9 September 2010.

The general subject-matter of the dispute concerned the interaction between statutory civil liability for riot damage arising from public gatherings and the constitutional protection of the right to assemble, demonstrate, picket, and present petitions.

2. Material Facts

On 16 May 2006, a gathering was convened in the Cape Town City Bowl under the auspices of SATAWU, falling within the scope of the Regulation of Gatherings Act. The gathering escalated into what the court described as a full-scale riot, which led to the destruction, damage, and loss of the plaintiffs’ property.

The context in which the gathering took place was described as particularly volatile. The march occurred during a protracted and acrimonious strike, and the court noted that the broader industrial action had been associated with nearly 50 deaths due to strike-related violence. The court also noted that there had been previous instances of damage to municipal and private property.

A letter of demand was addressed to SATAWU. When it became apparent that SATAWU would not satisfy the claims, the plaintiffs instituted action for damages on 6 March 2008. SATAWU delivered a plea, a notice under Rule 16A(1), a conditional claim in reconvention, and a third-party notice. Further pleadings followed, including pleas to the reconventional and third-party claims.

For purposes of the separated constitutional issue, the fact that the gathering resulted in riot damage was treated by the court as central to the constitutional analysis. The court also considered evidence and submissions directed at whether section 11 of the Act had any “chilling effect” on the convening of gatherings, including evidence from officials with experience in the administration of the Act.

The defendant identified steps it said it had taken to ensure the gathering proceeded peacefully (including communication to members, the use of marshals, warnings to participants, and requests to the local authority regarding vehicles and barricades). The court treated these points as part of the argument advanced by SATAWU to support its claim that the statutory defence was rendered unavailable by the impugned wording, but the judgment’s determination of the constitutional issue did not turn on a detailed factual finding about the adequacy of those steps in the specific riot.

3. Legal Issues

The central legal question was whether the inclusion of the words “and was not reasonably foreseeable” in section 11(2)(b) of the Regulation of Gatherings Act 205 of 1993 is inconsistent with section 17 and/or section 23 of the Constitution, and therefore invalid, and if so, what the consequences would be.

Although SATAWU’s papers referenced both section 17 and section 23, the court recorded that counsel for SATAWU did not advance argument on the alleged infringement of section 23. The argument and analysis before the court therefore focused on section 17 (the right, peacefully and unarmed, to assemble, demonstrate, picket, and present petitions).

The dispute primarily concerned constitutional validity (a question of law), together with an evaluative inquiry into whether the alleged limitation of a right (if any) would be justifiable under section 36 of the Constitution. It also involved an assessment of whether, on the evidence, the defendant established a factual foundation for its contention that the impugned statutory wording effectively prevented it (or similarly situated organisations) from convening gatherings.

4. Court’s Reasoning

The court began by identifying the relevant statutory framework. It described the Regulation of Gatherings Act as recognising the right to assemble and as shifting from an “application” to a “notification” model. The court emphasised that the Act contains an express regime for civil liability: under section 11(1), where riot damage occurs as a result of a gathering, the organisation under whose auspices it was held is jointly and severally liable as a joint wrongdoer, subject to the defence in section 11(2). The statutory defence requires proof of each of three elements, including the requirement in section 11(2)(b) that the act or omission did not fall within the objectives of the gathering and was not reasonably foreseeable.

On the constitutional challenge, the court addressed SATAWU’s contention that the foreseeability requirement in section 11(2)(b) makes the section 11(2) defence effectively unavailable, because an organiser who takes reasonable steps to prevent harm will typically do so precisely because harm is foreseen. SATAWU argued this would deter assemblies and demonstrations protected by section 17 by exposing organisers to extensive liability.

The plaintiffs and the Minister argued that section 17 protects only assemblies that are “peaceful and unarmed”, and that where a gathering results in riot damage it falls outside the scope of constitutional protection afforded by section 17. They contended that section 17’s internal qualification functions as a boundary to the right itself, and that violent or riotous gatherings do not attract section 17 protection.

The court accepted these submissions. It reasoned that section 17 did not arise on the facts because the gathering resulted in riot damage and was therefore not peaceful. In the court’s view, the right relied upon by SATAWU is conditional on peacefulness; accordingly, the constitutional right in section 17 does not encompass gatherings that are violent or riotous in nature. On this basis the court considered the section 17 infringement claim to be misconceived.

The court also rejected the defendant’s “preclusion” or “chilling effect” argument on the evidence. It noted that SATAWU proceeded with the march despite being aware of the Act’s provisions, and that SATAWU was unable to point to a single instance where it or another party called off a gathering because of the “spectre of extensive liability”. The court described the contention that organisers would be precluded from convening gatherings as speculative, and it relied on evidence from the City of Cape Town’s Deputy Responsible Officer and the Minister’s senior legal adviser, both of whom stated from experience that section 11 had not deterred gatherings and that the regulatory framework facilitated, rather than impeded, the exercise of assembly rights.

Although it held section 17 did not apply, the court nevertheless proceeded to consider justification under section 36 in the alternative. It identified competing constitutional rights implicated by riotous gatherings, including the public’s rights to dignity, freedom from violence, and property, alongside organisers’ interests in assembling and demonstrating. The court reasoned that the impugned wording served an important purpose by placing the risk of riot damage on an organiser who foresees such damage, thereby obliging organisers to take steps to prevent harm and supporting the State’s duty to protect the lives, dignity and property of citizens. It also reasoned that there was no evidence that gatherings were actually prevented, and that risk could be mitigated through safety procedures and/or insurance, making the burden not disproportionately severe relative to the benefits achieved. The court further noted that SATAWU did not propose less restrictive means in its papers.

Finally, the court addressed interpretive approach and remedy. It stated that courts are enjoined to read down legislation where reasonably possible to preserve constitutionality, relying on Constitutional Court authority for the proposition that where a legislative provision is reasonably capable of a meaning that places it within constitutional bounds, it should be preserved. In that connection, the court considered that the “reasonable foreseeability” requirement in section 11(2) is, in an important respect, narrower than the common-law test, because it requires the organiser to show that the specific act or omission causing the damage was not reasonably foreseeable (whereas the common-law foreseeability test concerns the general nature and manner of harm).

On costs, the court exercised its discretion to make no order as to costs. It relied on the constitutional litigation principle that adverse costs orders may deter litigants from vindicating constitutional rights, while noting that the principle is not inflexible. It considered the constitutional issues raised to be of public importance and noted that the parties had agreed to have the constitutional point determined separately in advance of the main action.

5. Outcome and Relief

The court declared that the inclusion of the words “and was not reasonably foreseeable” in section 11(2)(b) of the Regulation of Gatherings Act 205 of 1993 is not inconsistent with section 17 of the Constitution of the Republic of South Africa, 1996.

The court made no order as to costs in relation to the separated constitutional issue.

Cases Cited

Islamic Unity Convention v Independent Broadcasting Authority and Others 2002 (4) SA 294 (CC).

Investigating Directorate: Serious Economic Offences and Others v Hyundai Motor Distributors (Pty) Ltd and Others; In re Hyundai Motor Distributors (Pty) Ltd and Others v Smit NO and Others [2000] ZACC 12; 2001 (1) SA 545 (CC).

Affordable Medicines Trust and Others v Minister of Health and Another [2005] ZACC 3; 2005 (6) BCLR 529 (CC); 2006 (3) SA 247 (CC).

Legislation Cited

Constitution of the Republic of South Africa, 1996 (sections 10, 12(1)(c), 17, 23, 25, 36, 172(1)(b)).

Regulation of Gatherings Act 205 of 1993 (sections 2, 3, 4, 5, 8, 9, 11).

Apportionment of Damages Act 34 of 1956 (Chapter II, as referenced in section 11(1) of the Regulation of Gatherings Act).

Transitional Executive Council Act 151 of 1993 (as referenced in the historical background to the Bill).

Rules of Court Cited

Uniform Rules of Court, Rule 16A(1).

Held

The court held that section 17 of the Constitution, which protects the right to assemble and demonstrate only peacefully and unarmed, did not apply to the gathering in issue because it resulted in riot damage and was therefore not peaceful. On that basis, the constitutional challenge to the foreseeability requirement in section 11(2)(b) failed.

The court further held, in the alternative, that even if section 11(2)(b) limited section 17 rights, the limitation would be reasonable and justifiable under section 36, given the protective purpose of allocating risk for riot damage to organisers who foresee such risk and the need to safeguard the public’s constitutional rights to dignity, freedom from violence, and property.

The court also held that legislation should be interpreted to preserve constitutionality where reasonably possible (read-down), and it indicated that the foreseeability requirement in section 11(2) is directed at foreseeability of the specific act or omission causing the damage, which the court regarded as narrower than the common-law formulation.

LEGAL PRINCIPLES

Section 17 of the Constitution contains an internal qualification: constitutional protection is afforded only to assemblies and demonstrations that are peaceful and unarmed. Where a gathering is violent or riotous and results in riot damage, reliance on section 17 protection is excluded on the court’s approach.

In constitutional litigation, a party alleging infringement must establish a coherent factual foundation for claims such as a statutory provision having a “chilling effect” on constitutional rights. Speculative assertions without cogent supporting evidence were treated as insufficient in this case, especially in light of contrary experiential evidence from officials involved in the administration of the statutory scheme.

Even where rights are implicated, limitations analysis under section 36 requires a balancing of rights and interests, including the importance of the limitation’s purpose, its extent, the relationship between limitation and purpose, and whether less restrictive means exist. In this case, the court treated the statutory allocation of liability risk for riot damage as serving the protection of other constitutional rights (including dignity, freedom from violence, and property) and as compatible with an overall regulatory framework supporting orderly gatherings.

Courts should, where reasonably possible, interpret legislation in a manner that preserves constitutional validity, consistent with the principle that a provision reasonably capable of a constitutionally compliant meaning should be maintained within constitutional bounds.

Garvis and Others v South African Transport and Allied Workers Union (2580/2007) [2010] ZAWCHC 175; 2010 (6) SA 280 (WCC) ; [2011] 2 All SA 86 (WCC ; (2010) 31 ILJ 2521 (WCC) (9 September 2010)