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[2011] ZASCA 152
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South African Transport & Allied Workers Union v Garvis & others (007/11) [2011] ZASCA 152; 2011 (6) SA 382 (SCA); 2011 (12) BCLR 1249 (SCA); [2011] 4 All SA 475 (SCA); [2011] 12 BLLR 1151 (SCA); (2011) 32 ILJ 2426 (SCA) (27 September 2011)
Links to summary
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
no: 007/11
SOUTH
AFRICAN TRANSPORT AND ALLIED WORKERS’ UNION
…..............................................................................................
.Appellant
and
JACQUELINE
GARVIS
….........................................................................................................................................................
First
Respondent
THURAYA
NAIDOO
….........................................................................................................................................................
Second
Respondent
CHINATOWN
(RSA) INTERNATIONAL TRADING CC
….......................................................................................................
Third
Respondent
ANEES
SOEKER
…................................................................................................................................................................
Fourth
Respondent
ANDREWS
NJIOKWUEMEGI
…...............................................................................................................................................
Fifth
Respondent
DOLORES
ROSANNE REITZ
…..............................................................................................................................................
Sixth
Respondent
MAURICE
ROBERTSON
….................................................................................................................................................
Seventh
Respondent
HAROLD
BURGER
…............................................................................................................................................................
Eighth
Respondent
MINISTER
OF SAFETY AND SECURITY
…............................................................................................................................
Ninth
Respondent
_________________________________________________________________________________________________________
Neutral
citation:
South African Transport & Allied Workers Union v
Garvis & others
(007/11)
[2011] ZASCA 152
(27 September
2011)
CORAM:
Navsa, Brand, Van Heerden, Mhlantla JJA and Plasket AJA
HEARD:
5 September 2011
DELIVERED:
27 September 2011
SUMMARY:
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.
______________________________________________________________________
______________________________________________________________________
ORDER
______________________________________________________________________
On appeal from:
Western Cape High Court (Cape Town) (Hlophe JP sitting as court of
first instance):
The appeal is dismissed
and no order is made as to costs.
______________________________________________________________________
JUDGMENT
______________________________________________________________________
NAVSA JA (Brand, Van
Heerden, Mhlantla JJA and Plasket AJA concurring)
[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.
1
[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.
[6] In the paragraphs
that follow, I turn to consider the allegations by the respondents
about the riot as experienced by them and
the resultant damage
allegedly sustained by them. The allegations in relation to the
first, second and sixth respondents that appear
in those paragraphs
are drawn from affidavits filed by them, after an order by the court
below in terms of which the issue of the
constitutionality of s
11(2)
(b)
was, in terms of Uniform
rule 33(4), to be heard prior to and separately from the other issues
in the case,
2
and from their
particulars of claim. The assertions by the third, fourth, fifth,
seventh and eight respondents are drawn from their
particulars of
claim.
[7] The first respondent,
Ms Jacqueline Garvis, alleged that at the time of the riot she was a
street vendor selling items such
as travel bags, school bags,
wallets, etc at a location just outside Grand Central. She described
how, on the morning in question,
a group of marchers pushed through a
gate to the market where her stall was located. One of the persons in
the group used a pole
with which he smashed her stall. Parts of the
crowd looted her stall and robbed her of all her stock. She was
struck on her body
with a pole and was traumatised by the events. She
alleged that the replacement value of the goods lost by her was R3
805.
[8] The second
respondent, Ms Thuraya Naidoo, is a flower seller who does business
on the pavement alongside Adderley Street, near
the intersection with
Darling Street, in the centre of Cape Town. She alleges that she was
aware that the Union had organised a
march for the 16 May 2006. On
that day she was going about her business as usual when, at
approximately 11h30, a huge crowd approached
and a group of marchers
trampled her flowers. She was terrified as she witnessed her business
and stock being destroyed. According
to Ms Naidoo it took her months
to pay off her debt to the person who supplies the flowers she sells
in her business. She alleged
that the replacement value of the
flowers lost by her is R6 687.50.
[9] The sixth respondent,
Ms Dolores Reitz, recalls that on that morning she was in her car at
a set of traffic lights in Darling
Street. At the time, she was a
manager of a photographic shop in the Strand Concourse and was on the
way back there from a goods
supplier. Suddenly, she was surrounded by
a group of marchers who smashed her car with sticks and their fists.
The car was consequently
badly damaged and she was terrified. In her
particulars of claim she alleged that she had suffered damages in the
amount of R5
584.71.
[10] The fourth
respondent, Mr Anees Soeker, is a carpenter who claimed that his
motor vehicle was vandalised during the march,
causing him to sustain
damages in an amount of R17 043.53.
[11] The fifth
respondent, Mr Andrew Njiokwuemegi, a customs clearance officer, also
alleged that his car was vandalised during
the march, causing him to
sustain damages in an amount of R11 458.23.
[12] The seventh
respondent, Mr Maurice Robertson, a businessman, claimed that he
had his motor vehicle vandalised during the
march and that he
sustained damages in an amount of R5 864.25.
[13] Finally, the eighth
respondent, Mr Harold Burger, who is self-employed, stated that his
motor vehicle was vandalised by marchers
and that he consequently
sustained damages in an amount of R18 599.15.
[14] In an affidavit
filed in the proceedings in the court below subsequent to the order
in terms of Uniform rule 33(4), Mr B J
Engelbrecht Botha, who is
employed as legal advisor to the Speaker of the City of Cape Town,
stated that in the riot following
on the march, participants began
breaking windows, damaging cars and looting stores, causing damage
estimated to be in the region
of R1.5 million. Most of the damage was
done to motor vehicles. According to him, several people were injured
and about 39 people
were arrested. In this regard he referred to a
newspaper report. This part of his affidavit was uncontested.
[15] In opposing the
action the Union also served a third party notice on the Minister of
Safety and Security (the Minister), claiming
in the attached
annexure, that in the event of it being held liable to any or all of
the respondents it was entitled to a contribution
from him. The Union
alleged that the losses suffered by the respondents were caused, at
least in part, by the negligent conduct
of members of the South
African Police Service. They were said to be negligent in the
following respects:
(a) they failed to ensure
that adequate numbers of police officers were on hand to man the Cape
Town railway station at the time
that the Union’s members
arrived from their various departure points;
(b) they failed to ensure
that adequate numbers of police officers were on hand to monitor the
gathering and to prevent damage being
caused to third parties;
(c) they failed to ensure
that the police officers on duty at the gathering were adequately
equipped to deal properly with the marchers
who participated in the
gathering;
(d) they fired rubber
bullets at those participating in the gathering, thereby causing the
gathering to become disrupted and unmanageable
by the Union’s
marshals;
(e) they failed to disarm
persons in unlawful possession of traditional and/or dangerous
weapons;
(f) the armoured police
vehicle at the head of the march moved unduly slowly, thereby
disrupting the progress of Union members towards
Parliament, thereby
causing frustration; and
(g) they failed to take
all steps reasonably necessary to protect the property of third
parties.
[16] In addition to
denying liability on any basis the Union, in a conditional
counterclaim, sought an order declaring that s 11(2)
(b)
is unconstitutional and sought the excision of what it
contended were the offending parts.
[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.
[19] The separated issue
was heard by Hlophe JP and was decided against the Union with the
following order being made:
‘
(a)
It is 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.
(b) No order as to
costs.’
The present appeal is
before us with leave to appeal having been granted by the learned
Judge President.
[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.
[22] Before focusing on
the specifics of the constitutional challenge by the Union, Hlophe JP
embarked on a careful examination
of the procedure created by the Act
for the organisation and notification of an intended gathering. The
Act provides for consultations
and negotiations in relation to
gatherings. Section 2 states that any organisation or branch of an
organisation intending to hold
a gathering ‘shall appoint . . .
a person to be responsible for the arrangements for that gathering
and to be present thereat,
to give notice in terms of section 3 and
to act on its behalf at any consultations or negotiations
contemplated in section 4, or
in connection with any other procedure
contemplated in this Act.’ Section 2 also contemplates a deputy
to be appointed to
the person referred to in the preceding sentence.
Section 2(2)
(a)
provides
that the Commissioner of police or a person authorised thereto by him
shall authorise a suitably qualified and experienced
member of the
police to represent the police at consultations or negotiations
contemplated in section 4. It obliges the Commissioner
to notify all
local authorities or any local authority concerned of every such
authorisation and of the name, rank and address
of such authorised
member.
[23] Section 2(4)
(a)
of the Act makes provision for a responsible officer to be appointed
by the local authority with whom the organisers can liaise
and whom
they are obliged to notify concerning the identity and particulars of
an intended gathering. Section 3 obliges the convener
of a gathering
to give formal notice thereof to the responsible officer of the local
authority. Section 3(3) of the Act sets out
the extensive information
that has to be provided by the convener, including the anticipated
number of participants and where possible
the number and names of
marshals to be appointed and how these marshals are to be
distinguished from the other participants.
[24] Section 4 obliges
the responsible officer of the local authority concerned to consult
with the authorised member of the police
about the necessity for
negotiations concerning any aspect of the conduct of, or any
condition with regard to the proposed gathering.
Section 4(2)
(b)
envisages a subsequent meeting involving the convener, the
responsible officer and the police to reach agreement on the conduct,
organisation and control of the gathering. In the event of a failure
to reach agreement the Act empowers the responsible officer
to impose
conditions in relation to the intended gathering. Section 5 of the
Act sets out circumstances in which the responsible
officer of the
local authority may prohibit a meeting. Section 8 of the Act
determines the conduct of the convener, marshals and
participants in
the gathering. It includes the appointment of a number of marshals.
It requires steps to be taken to ensure orderly
and peaceful conduct.
[25] Section 9 sets out
the powers of the police in relation to a gathering, including the
power to regulate vehicular and pedestrian
flow. It also deals with
the use of force by the police to control a gathering.
[26] That background
leads us to s 11 which, as set out above, forms the statutory basis
for a claim against organisations or individuals
who organise a
gathering that turns into a riot causing damage to others, whilst at
the same time setting out a basis for avoiding
liability.
[27] In dealing with the
submissions on behalf of the Union, that s 11(2)
(b)
is
unconstitutional, Hlophe JP had regard to the evidence presented by
the Union and the common cause facts. All the material steps
required
to be taken in terms of the Act had been met by the Union. The Union
had approximately 500 marshals in attendance and
appears to have
communicated to their members on an ongoing basis that they were to
desist from unlawful behaviour. They had requested
the local
authority to clear the roads of vehicles and to erect barricades.
[28] On the strength of
what is set out above it was submitted that the Union had taken all
reasonable steps to prevent any harm
being caused to the public. It
was accepted on behalf of the Union that in the extensive planning
contemplated in the Act that
precedes a gathering, the potential for
a breakdown of order is discussed and thus inevitably, harm being
foreseen enters the equation.
Thus it was submitted that it was
almost impossible for an organisation such as the Union to avoid
liability in terms of the provisions
of the Act. Put differently, the
Union and like organisations as well as individuals who convened a
gathering would be unable to
satisfy the requirements for a valid
defence in terms of s 11(2) of the Act because the foreseeability of
harm in the planning
stages potentially lands it with liability at
source.
[29] The court below
rejected the submission that s 11(2)
(b)
offended against s 17
of the Constitution, which expressly states that one has a right to
assemble, demonstrate, picket and to
present petitions ‘peacefully
and unarmed’. This right, the court below held does not extend
to unlawful behaviour
at gatherings or where persons bear weapons. It
was on that basis that the submission was held to be groundless.
[30] The court below went
on to consider the submission on behalf of the Union about the
chilling effect of s 11(2)
(b)
, namely, that if allowed to
stand, it would lead to the end of public assembly and protest. In
this regard the court below found
it telling that notwithstanding the
provisions of the Act, with the spectre of looming liability, the
Union nevertheless proceeded
with the gathering. The court below also
had regard to the affidavit deposed to by the local authority’s
responsible officer
that he frequently warns organisers of gatherings
of the dangers of liability as envisaged in the Act but that his
experience is
that it has no deterrent effect. Hlophe JP also
considered against the Union, the affidavit of Colonel Cloete, the
Minister’s
senior legal adviser, to similar effect. Both
deponents stated the indications are to the contrary, that the right
to public assembly
and protest is frequently being exercised and that
this is promoted by the overall scheme of the Act and not impeded by
s 11(2).
Importantly, there was no evidence to the contrary presented
by the Union.
[31] The court below
dealt with the further submission on behalf of the Union that s 11(2)
of the Act was internally self-destructive
and therefore incoherent.
It was contended that this was so because, in all relevant
circumstances where the defendant discharged
its duty of taking all
reasonable steps within its power to prevent the act or omission in
question, the act or the omission will
always be reasonably
foreseeable in terms of s 11(2)
(b)
.
It was submitted that it was not logically possible to take
reasonable steps to prevent an act from occurring if one does not
foresee the possibility of such an act occurring. Thus it was
submitted that the defence contained in s 11(2) is illusory and
inherently doomed to failure. Before us it is this latter argument
that became the focal point of the argument on behalf of the
Union.
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.
3
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.
[33] At common law the
test for negligence leading to liability finds its clearest statement
in
Kruger
v Coetzee
1966
(2) SA 428
(A) at 430E-F. Liability ensues if:
‘
(a)
a
diligens
paterfamilias
in
the position of the defendant ─
(i) would foresee the
reasonable possibility of his conduct injuring another in his person
or property and causing him patrimonial
loss; and
(ii) would take
reasonable steps to guard against such occurrence; and
(b) the defendant failed
to take such steps.’
[34] In Neethling,
Potgieter and Visser
Law
of Delict
5ed
(2006) p 118 the learned authors correctly state the following:
‘
Whether
a
diligens
paterfamilias
in
the position of the person concerned would take any guarding steps at
all and, if so, what steps would be reasonable, must always
depend on
the particular circumstances of each case. No hard and fast basis can
be laid down.’
[35] Apart from being
couched in the negative, because it relates to the setting up of a
defence, I have some difficulty in understanding
why the provisions
of s 11(2)
(b)
,
set out in para 3 above, differ radically or even significantly from
the common law requirements for liability for negligence.
In this
regard I discount questions of whether or not an unjustifiable
reverse onus has been imposed on defendants since this aspect
was not
pursued before us. As stated above, the appeal was limited to
questioning the viability of a defence in terms of s 11(2)
(b)
.
This involves considering whether the subsection is intelligible and
whether it can be applied to the advantage of potential defendants.
[36] Furthermore, I fail
to see why the statutory defence is illusory and why defences
ordinarily available at common law are excluded
by the provisions in
question. A number of examples prove that point. Take the case of the
gathering of thousands of trade union
members with hundreds of
marshals in attendance and where steps were taken to ensure that
no-one was armed, there was collaboration
with the police about the
route of a protest march and all such eventualities as occurred to
both the police and the trade union
organisers were taken into
account in the planning. That notwithstanding, a riot ensued because
one of the policemen in attendance
had not engaged the safety catch
on his weapon, causing it to discharge as he moved alongside the
crowd, with the consequence that
participants panicked and stampeded.
In those circumstances an innocent bystander seeking to hold the
trade union liable for damages
would probably fail at the first
hurdle. That eventuality could hardly have been foreseen by the Union
and if any liability attaches
it would attach to the police.
[37] Consider the case of
a gathering, where exactly the same precautions as set out in the
preceding paragraph were taken, but
where the march was suddenly and
unexpectedly infiltrated by a gunman unconnected to the trade union,
who bore a grudge against
society and who started firing
indiscriminately, causing panic. Once again this would not have been
an action that was reasonably
foreseeable and the trade union faced
with a claim for damages by a shopkeeper whose shop in the vicinity
of the march was damaged
would probably be able to mount a successful
defence.
[38] Another imagined
instance is one where, despite barricades having been agreed and
erected by police and despite marshals and
the police taking
precautions to ensure a free-flow of marchers through the streets and
to prevent incursions by vehicular traffic,
a motorist nonetheless
breaks through those barricades and drives into the marching crowd
causing panic and a riot with resultant
damage to persons and
property. I fail to see how in those circumstances the trade union
could be held liable.
[39] In all three
instances it would have been clear that the actions following upon
the unforeseen events did not form part of
the purpose of the
gathering and it would have been equally clear that the Union did not
permit or connive in the actions that
caused the panic that led to
loss being sustained by others. Furthermore, the Union would have
taken all reasonable steps to ensure
that a stampede or unruly
behaviour did not occur.
[40] It was submitted
that the conjunctive nature of the provisions of s 11(2)
(b)
relating to a defendant was especially pernicious, because at common
law all a defendant needed to show to escape liability, when
sued in
a delictual action based on negligence, was that a reasonable person
in his or her position would not have foreseen the
reasonable
possibility of his or her conduct injuring another in their person or
property, causing damage to be sustained. The
absence of that factor
alone would usually mean that a defendant would escape liability. The
plaintiff, on the other hand, would
have had to meet the
Kruger v
Coetzee
test set out in para 33 above in its entirety.
[41] Even though the
conjunctive nature of the defence set out in s 11(2)
(b)
of the
Act, on the face of it, seems burdensome one can only take reasonable
steps in respect of conduct that is reasonably foreseeable.
It does
appear that unless the act complained of ─ leading to the riot
─ was reasonably foreseeable, a defendant would
probably in all
of the instances set out above escape liability. One can only take
steps to guard against an occurrence if one
can foresee it.
[42] As stated above, it
was submitted on behalf of the Union that when an intended gathering
takes place where there is a threat
of violence, it is inevitable
that the content of the discussions between the police and organisers
deals with the potential for
injury to persons or damage and that
therefore it will always unjustifiably be contended against
organisations such as unions that,
because they foresaw that
eventuality, they should be held liable. It was contended that it was
akin to strict liability being
imposed on organisations which
organise gatherings.
[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.
[44] Furthermore, it
might well be that the separated question in terms of Uniform
rule 33(4) was premature in that the reasons
for the gathering
degenerating into a riot had not yet factually been established.
Having the question of the constitutionality
of s 11(2)
(b)
tested in a vacuum was undesirable. What, if at a trial in due
course, it is established that some Union marshals were instrumental
in the gathering turning into a riot? What if the evidence
establishes that some Union officials made inflammatory speeches
preceding
the march, and that this had the effect of causing a riot?
In those circumstances the provisions of the Act or the application
of common law principles would almost inevitably mean the Union would
be held liable for damages sustained by innocent third parties.
Could
it rightfully be said that in those circumstances the ensuing
statutory liability offended against constitutional values
and norms?
I think not. It is arguable that, in the circumstances set out above,
common law liability would attach to the Union
and the exploration of
the constitutional point would be unnecessary. What if the factor
that caused the riot was wholly unconnected
to the march and could
not have been foreseen by any one of the actors envisaged by the Act?
In those circumstances one can hardly
imagine that liability could
attach to the Union either statutorily or at common law.
[45] The reasons for the
riot ought to be properly explored by the trial court in due course.
This court has repeatedly warned that
piecemeal litigation is not to
be encouraged. Sometimes parties consider issues to be discrete and
submit that a decision on a
separated issue would lead to an
expeditious disposal of the litigation, but that submission and
agreement on separation often
turns out to be ill-advised. In this
regard see
Denel
(Edms) Bpk v Vorster
2004
(4) SA 481
(SCA) para 3 and
Consolidated
News Agencies (Pty) Ltd (in liquidation) v Mobile Telephone Networks
(Pty) Ltd & another
2010
(3) SA 382
(SCA) paras 89 and 90. The Constitutional Court has
commented on the undesirability of matters being referred to it where
facts
are in dispute.
4
It has also commented on
the difficulties of dealing with complex questions of law,
constitutional or otherwise, and being called
upon to engage in the
limitation exercise, presently provided for in s 36 of the
Constitution, as a court of first instance. The
Constitutional Court
has stated that it should not be called upon to do so in
circumstances in which a decision on the constitutional
issue might
not be decisive for the case.
5
Be that as it may, we are
called upon to consider whether the court below, with the material
available to it was correct in its
ultimate conclusion.
[46] During the
pre-constitutional era public protests and demonstrations against a
denial of fundamental human rights were often
met by brute force with
resultant loss of life. The Sharpeville massacre and the 1976 Soweto
student uprising are stark examples
that are etched into the national
psyche. In any event, the legislature, after an extensive
consultative process, and following
on the brutal experiences of the
Apartheid era, promulgated the Act.
6
[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.
7
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.
8
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.
[48] I agree with the
court below that the rights set out in s 17 of the Constitution,
namely, the right to assemble and demonstrate,
are not implicated
because persons engaging in those activities have the right to do so
only if they are peaceful and unarmed.
It is that kind of
demonstration and assembly that is protected. Causing and
participating in riots are the antithesis of constitutional
values.
Liability in terms of s 11 follows on the unlawful behaviour of those
participating in a march. The court below rightly
had regard to
similar wording in the Constitution of the United States, where
people are given the right to assemble peacefully.
Such provisions in
constitutions such as ours are deliberate. They preclude challenges
to statutes that restrict unlawful behaviour
in relation to
gatherings and demonstrations that impinge on the rights of others.
9
[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’.
10
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.
_________________
M S NAVSA
JUDGE OF APPEAL
APPEARANCES:
For Appellant: E Fagan SC
S Miller
Instructed by
Bernadt Vukic Potash &
Getz Cape Town
Lovius-Block Bloemfontein
For 1
st
- 8
th
Respondents: A Katz SC
D Cooke
Instructed by
Fairbridges Cape Town
McIntyre & Van Der
Post Bloemfontein
For 9
th
respondent: K Pillay
Instructed by
The State Attorney Cape
Town
The State Attorney
Bloemfontein
1
Section
11(1) provides:
‘
If
any riot damage occurs as a result of-
(a)
a
gathering, every organization on behalf of or under the auspices of
which that gathering was held, or, if not so held, the convener;
(b)
a
demonstration, every person participating in such demonstration,
shall, subject to
subsection (2), be jointly and severally liable for that riot damage
as a joint wrongdoer contemplated in Chapter
II of the Apportionment
of Damages Act, 1956 (Act 34 of 1956), together with any other
person who unlawfully caused or contributed
to such riot damage and
any other organisation or person who is liable therefor in terms of
this subsection.’
2
The
court below, in ordering the separation, granted leave to any party
wishing to adduce evidence in relation to the constitutional
point
to do so by filing affidavits.
3
Section
36 recognises that fundamental rights may be limited only in terms
of law of general application to the extent that the
limitation is
reasonable and justifiable in an open and democratic society based
on human dignity, equality and freedom, taking
into account all
relevant factors including:
‘
(a)
the nature of the right;
(b) the importance of
the purpose of the limitation;
(c) the nature and
extent of the limitation;
(d) the relation between
the limitation and its purpose; and
(e) less restrictive
means to achieve the purpose.’
4
Van
der Spuy v General Council of the Bar of South Africa (Minister of
Justice and Constitutional Development, Advocates for Transformation
and Law Society of South Africa Intervening)
[2002] ZACC 17
;
2002 (5) SA 392
(CC).
5
S
v Bequinot
[1996] ZACC 21
;
1997 (2) SA 887
(CC) para 15.
6
The
history leading up to the promulgation of the Act, dealing in
particular with the Goldstone Commission of Inquiry regarding
the
Prevention of Public Violence and Intimidation are set out in
Woolman, Roux, Klaaren, Stein, Chaskalson and Bishop
Constitutional
Law of South Africa
(2ed) vol 3, pp 43-4 to 43-7. Save to state
that the Goldstone Commission convened a multinational panel of
experts to thrash
out a new approach to public assembly it is for
present purposes not necessary to recount that history. From the
report of the
Commission it is clear that it conducted hearings with
interested persons, including the South African Police, political
parties
and the Congress of South African Trade Unions ─ para
5.2 of the report.
7
The
founding values of our Constitution are set out in ss 1, 2 and 3 of
the Constitution.
8
Sidumo
& another v Rustenburg Platinum Mines Ltd & others
2008
(2) SA 24
(CC) para 74.
9
See
Iain Currie & Johan de Waal
The Bill of Rights Handbook
5
ed (2005) p 405-407 and Woolman Roux Klaaren Stein Chaskalson Bishop
Constitutional Law of South Africa
(2ed) vol 3 pp 43-19 to
43-20 where German jurisprudence is discussed. See also
Fourways
Mall (Pty) Ltd & another v South African Commercial Catering and
Allied Workers Union & another
1999 (3) SA 752
(W) where it
was held that neither s 17 of the Constitution nor the
Labour
Relations Act 66 of 1995
countenance assaults and other forms of
conduct that infringed upon the rights of the general public.
10
Concise
Oxford Dictionary 10 ed revised (2002).