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[2012] ZACC 13
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South African Transport and Allied Workers Union and Another v Garvas and Others (CCT 112/11) [2012] ZACC 13; 2012 (8) BCLR 840 (CC); [2012] 10 BLLR 959 (CC); (2012) 33 ILJ 1593 (CC); 2013 (1) SA 83 (CC) (13 June 2012)
Links to summary
CONSTITUTIONAL COURT OF SOUTH
AFRICA
Case CCT 112/11
[2012] ZACC 13
In
the matter between:
SOUTH
AFRICAN TRANSPORT AND ALLIED
WORKERS
UNION
…......................................................................................
First
Applicant
CONGRESS
OF SOUTH AFRICAN TRADE UNIONS
…........................
Second
Applicant
and
JACQUELINE
GARVAS
…..........................................................................
First
Respondent
THURAYA
NAIDOO
…...........................................................................
Second
Respondent
CHINATOWN
(RSA) INTERNATIONAL TRADING CC
…....................
Third
Respondent
ANEES
SOEKER
…...................................................................................
Fourth
Respondent
ANDREW
NJOKWUEMEGI
…...................................................................
Fifth
Respondent
DOLORES
ROSANNE REITZ
…................................................................
Sixth
Respondent
MAURICE
ROBERTSON
…...................................................................
Seventh
Respondent
HAROLD
BURGER
…...............................................................................
Eighth
Respondent
MINISTER
OF SAFETY AND SECURITY
…...........................................
Ninth
Respondent
together
with
CITY
OF CAPE TOWN
…............................................................................
Intervening
Party
FREEDOM
OF EXPRESSION INSTITUTE
…...............................................
Amicus
Curiae
Heard
on : 9 February 2012
Decided
on : 13 June 2012
JUDGMENT
MOGOENG CJ (Yacoob ADCJ, Cameron
J, Froneman J, Khampepe J, Maya AJ, Nkabinde J, Skweyiya J and van
der Westhuizen J concurring):
Introduction
This is an application for
leave to appeal against a judgment of the Supreme Court of Appeal,
1
which dismissed the appeal
against a decision of the Western Cape High Court
2
(High Court) by Hlophe JP. The
High Court held that section 11(2) of the Regulation of Gatherings
Act
3
(Act) is constitutionally
valid. This section provides a limited defence for an organizer of a
gathering who is allegedly liable
for riot damage resulting from
that gathering. This liability is created by section 11(1) of the
Act.
Section 11(1) and (2) is set
out immediately to facilitate an understanding of the issues.
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 No. 34 of 1956), together with any other person who
unlawfully caused or contributed
to such riot damage and any other
organization or person who is liable therefor in terms of this
subsection.”
Section 11(2) provides:
“
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.”
Two
questions lie at the heart of this matter.
The first is what
section 11(2) means. In other words, does it create a real defence
that meets the constitutional requirement
of rationality
?
Assuming that the defence is rational, the second question is
whether the defence nevertheless limits the rights contained in
section 17 of the Constitution and, if so, whether that limitation
is justifiable.
Parties
The first applicant is the
South African Transport and Allied Workers Union (SATAWU), a trade
union registered in terms of the
Labour Relations Act.
4
The second applicant is the
Congress of South African Trade Unions (COSATU), a national trade
union federation, which currently
has 21 affiliated trade unions,
with a combined membership of nearly two million. SATAWU is
affiliated to COSATU.
The first and second
respondents are Ms Jacqueline Garvas and Ms Thuraya Naidoo. At the
time of the events which gave rise to
this matter, both Ms Garvas
and Ms Naidoo owned and operated small businesses in the Cape Town
City Bowl. Ms Garvas’ business
operations entailed the sale of
bags and Ms Naidoo sold flowers. The third respondent is Chinatown
(RSA) International Trading
CC, which at the time of the incident
that gave rise to these proceedings was the owner of a gift and
stationery shop, situated
in the Cape Town City Bowl. The fourth to
eighth respondents are Mr Anees Soeker, Mr Andrew Njokwuemegi, Ms
Dolores Rosanne Reitz,
Mr Maurice Robertson and Mr Harold Burger,
respectively. These respondents had financial interests in the
vehicles allegedly
damaged during the incident. The first to eighth
respondents shall be referred to jointly as “the respondents”.
The ninth respondent is the
Minister of Safety and Security (Minister).
5
He was joined in the High Court
proceedings after SATAWU had served a third party notice on him.
6
The City of Cape Town (City)
joined the proceedings in this Court as an intervening party and the
Freedom of Expression Institute
was admitted as amicus curiae.
Background
Our Constitution gives everyone
the right to picket, present petitions, demonstrate and assemble,
peacefully and unarmed.
7
In the exercise of this right,
SATAWU organised a gathering of thousands of people to register
certain employment-related concerns
of its members within the
security industry. This gathering was the culmination of a
protracted strike action in the course of
which some 50 people
allegedly lost their lives. It is also alleged that during this
strike action private property and property
of the City was damaged.
In preparation for the
gathering, SATAWU took steps to meet the procedural requirements set
out in the Act.
8
It gave notice of the gathering
to the local authority and appointed about 500 marshals to manage
the crowd. It apparently advised
its members to refrain from any
unlawful and violent behaviour and requested the local authority to
clear the roads of vehicles
and erect barricades along the
prescribed route on the day of the gathering.
In spite of these precautionary
measures, the gathering allegedly resulted in riot damage estimated
at R1.5 million. Several people
were injured and about 39 others
were arrested. The first to third respondents claim that as a
consequence of this gathering
their shops were vandalised and
looted. The vehicles in which the fourth to eighth respondents had
pecuniary interests were reportedly
damaged. As a result, the
respondents instituted action for damages against SATAWU under
section 11(1) of the Act,
9
alternatively, the common law.
In its plea, SATAWU denied
liability and delivered a conditional claim in reconvention. In that
claim, it sought a declarator
that the words “and was not
reasonably foreseeable” in section 11(2)(b) of the Act are
constitutionally invalid.
The grounds for the challenge were that
these words limited the right to freedom of assembly under section
17 of the Constitution
and the right to fair labour practices under
section 23 of the Constitution. The respondents and the Minister
resisted this challenge.
In the High Court
By agreement between SATAWU,
the Minister and the respondents, the High Court made an order that
the merits be determined separately
from the point of law. The
essence of the order was that the constitutional validity of the
words “and was not reasonably
foreseeable” in section
11(2)(b) be decided first, and the proceedings relating to the rest
of the issues be stayed, pending
the determination of the point of
law.
Before the hearing, SATAWU
abandoned its reliance on section 23 of the Constitution. The only
legal issue before the High Court
was therefore whether section
11(2) unjustifiably limits the right to assemble peacefully and
unarmed.
SATAWU advanced two
inter-related arguments in support of its contention that section
11(2) unjustifiably limits the right to
assemble peacefully and
unarmed. First, that the word “and” between section
11(2)(b) and section 11(2)(c) imposes
two requirements for an
organization to avoid liability. One, the organization must prove
that the act or omission which caused
the riot damage was not
reasonably foreseeable. Two, it must prove that it nevertheless took
reasonable steps to prevent the
occurrence of the act or omission
that was not reasonably foreseeable. SATAWU contended that it is
impossible for an organization
to take reasonable steps to prevent
an act or omission it did not and could not reasonably have been
expected to foresee. It
is for this reason that it contended that
the words “and was not reasonably foreseeable” render
the defence internally
incoherent and self-destructive.
Second, that in all instances
where there is an intended gathering, and a threat of violence, the
content of the negotiations
and consultations with the local
authorities will deal with the potential for injury to persons or
damage to property. It argued
that in these circumstances
organizations will almost always foresee the possibility of damage
arising from a gathering and thus
be held liable. For this reason,
it concluded that section 11(2) does not provide a viable defence to
a defendant who faces a
claim for riot damage as a result of which
organizations are exposed to the spectre of extensive liability.
This would, in their
view, discourage organizations from holding
gatherings and demonstrations as a result of a chilling effect it
has on the exercise
of the right to assemble.
The respondents and the
Minister argued that the right to freedom of assembly is conditional
upon its being exercised peacefully
and unarmed. Where riot damage
occurs it would, in their view, mean that the gathering was not
peaceful and therefore section
17 of the Constitution would not be
implicated. They further contended that SATAWU had placed no
evidence before the Court to
prove that section 11(2) has a chilling
effect on the exercise of the right, whereas the respondents had
provided evidence to
the contrary.
The High Court held that
section 17 is not implicated by section 11(2)(b) because the right
to freedom of assembly does not extend
to gatherings which are not
peaceful and section 11(2)(b) does not have a chilling effect on the
exercise of the right. It also
held that, even if section 11(2)(b)
does limit the right to freedom of assembly, this limitation must be
balanced against the
rights of individual members of the public to
dignity, freedom from violence and arbitrary deprivation of
property, all of which
are affected by riot damage. The Court
concluded that the limitation is reasonable and justifiable in an
open and democratic
society based on human dignity, equality and
freedom.
Aggrieved by this outcome,
SATAWU appealed to the Supreme Court of Appeal.
In the Supreme Court of
Appeal
The Supreme Court of Appeal
dismissed the appeal on the ground that the statutory defence
provided for in section 11(2) against
a claim for riot damage is not
illusory but real and capable of being proved. In support of this
conclusion, the Court cited
a number of hypothetical scenarios to
illustrate the circumstances in which the defence could be raised
successfully.
10
It then reasoned:
“
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.”
11
The Court also held that the
scope of the right to freedom of assembly does not extend to persons
who assemble in a manner that
is not peaceful or unarmed. It found
that the scheme of the Act, including section 11, is aimed at
restricting unlawful, violent
behaviour that violates the rights of
others and ensuring that organizers of those gatherings are held
liable.
The contention that section
11(2)(b) has a chilling effect on the exercise of the right to
freedom of assembly was rejected and
found to be unsubstantiated and
inconsistent with the unchallenged evidence put forward by the
respondents. It was concluded
that any chilling effect section 11
has is on unlawful behaviour, which is not protected by the right.
In this Court
The applicants contended in
this Court that the Supreme Court of Appeal was incorrect, that
section 11(2) is contradictory and
irrational, that it limits the
right to freedom of assembly in section 17 of the Constitution and
that the limitation is not
justifiable.
Issues
There are three preliminary
issues:
(a) Condonation for the late
filing of the application for leave to appeal.
(b) COSATU’s application
for leave to intervene in these proceedings.
(c) The application for leave to
appeal.
The issues of substance that
arise are whether—
(a) the words “and was not
reasonably foreseeable” cause section 11(2)(b) to be internally
inconsistent and irrational,
thus rendering the section
constitutionally invalid;
12
and if not,
(b) section 11(2) limits the
right to freedom of assembly; and if so,
(c) the limitation is
justifiable.
Condonation
The applicants seek condonation
for the late filing of the application for leave to appeal, which
they filed about three weeks
late. The explanation for the delay is
that SATAWU had to consult with its mother-body, COSATU, to decide
on the best joint approach
to the matter. As a prerequisite to
finalising those discussions, COSATU also needed a resolution from
its Central Executive
Committee in relation to the application for
leave to intervene and the best approach to the issues. Finally, the
applicants
submit that the respondents have suffered no material
prejudice as a result of the delay.
The main question is whether it
is in the interests of justice to grant condonation. I am satisfied
that the delay is short, the
explanation is adequate, the
respondents suffered no prejudice and the question whether the Act
limits the right to freedom of
assembly is an important
constitutional issue. It is thus in the interests of justice to
grant condonation.
Leave to intervene
COSATU seeks leave to intervene
on the basis that it has a direct and substantial interest in the
outcome of this matter. This
interest is said to lie in the impact
of the Supreme Court of Appeal judgment on the federation’s
ability to exercise the
right to assemble peacefully and unarmed.
The judgment, they say, has a materially limiting effect on their
exercise of the right
to assemble.
I am satisfied that COSATU has
a direct and substantial interest in this matter and am therefore
inclined to grant leave to intervene
in these proceedings.
Leave to appeal
Two requirements must be
satisfied before an application for leave to appeal to this Court
may be granted. The application must
raise a constitutional issue
and it must be in the interests of justice to hear the matter.
This matter is about whether a
statute that regulates public gatherings, by imposing liability for
riot damage arising out of
a gathering and then creating a defence
to that liability that is narrower than would be available under the
common law, imposes
an unconstitutional limitation on the exercise
of the right to freedom of assembly. It also concerns the
rationality of this
defence. And rationality is an incident of the
principle of legality, which is a requirement of the rule of law.
13
The exercise of the right to
assemble by trade unions and other organizations is an important
constitutional issue. The riot damage
allegedly caused by the
gathering, which is said to have affected vulnerable people in the
business sector, underscores the public
interest in the matter. This
judgment will have significant implications for the exercise of the
right to assemble, not only
for the applicants, but also for the
public at large. The applicants have an arguable case and therefore
have some prospects
of success on appeal. It is thus in the
interests of justice that leave to appeal be granted.
The meaning of section 11(2)
and its alleged irrationality
The applicants do not challenge
the constitutional validity of section 11(1) insofar as it provides
that organizers of gatherings
should be held liable for the riot
damage resulting from their gatherings. It is the ambit of that
liability as constrained by
section 11(2) that they are particularly
concerned about. The applicants regard the degree of that constraint
as inadequate.
They posit that the Constitution entitles them to a
wider defence.
The first contention is that
the defence is inconsistent with the principle of legality, in that
it is irrational. The irrationality
is said to lie in the plain
impossibility of expecting the organization to take all reasonable
steps to prevent a specific act
or omission, even when that act or
omission was not reasonably foreseeable. The argument appears to be
that section 11(2)(c)
can never find application. If the act or
omission is reasonably foreseeable, then liability arises regardless
of the steps taken.
If the harm is not reasonably foreseeable, then
there are no reasonable steps that can be taken to avoid it. In
either case,
section 11(2)(c) plays no role.
To decide this issue, it is
necessary to examine section 11(2) and determine its meaning. The
section is repeated for convenience:
“
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.”
This Court has previously held
that an interpretation of a statutory provision that gives rise to
an absurdity or irrationality
should be avoided where there is
another reasonable construction which may be given to that
provision.
14
In other words, where a
legislative provision is reasonably capable of a meaning that keeps
it within constitutional bounds, a
court must, through the use of
legitimate interpretive aids, seek to preserve that provision’s
constitutional validity.
15
Thus, to the extent that it is
possible, section 11(2) must be interpreted in a manner that yields
a rational meaning, and preserves
its validity so that the purpose
it was enacted to serve is realised.
The somewhat unusual defence
created for an organization facing a claim for statutory liability
appears to have been made deliberately
tight. Gatherings, by their
very nature, do not always lend themselves to easy management. They
call for extraordinary measures
to curb potential harm. The approach
adopted by Parliament appears to be that, except in the limited
circumstances defined, organizations
must live with the consequences
of their actions, with the result that harm triggered by their
decision to organise a gathering
would be placed at their doorsteps.
This appears to be the broad objective sought to be achieved by
Parliament through section
11. The common law position was well
known when section 11 was enacted. The limitations of a delictual
claim for gatherings-related
damage in meeting the policy objective
gave rise to the need to enact section 11 to make adequate provision
for dealing with
the gatherings-related challenges of our times.
Parliament sought to ameliorate
the impact of imposing liability on an organizer by providing for a
viable, yet onerous, defence
under section 11(2). The purpose was:
(i) to provide for the statutory liability of organizations, so
as to avoid the common
law difficulties associated with proving the
existence of a legal duty on the organization to avoid harm; (ii) to
afford the
organizer a tighter defence, allowing it to rely on the
absence of reasonable foreseeability and the taking of reasonable
steps
as a defence to the imposition of liability; and (iii) to
place the onus on the defendant to prove this defence, instead of
requiring
the plaintiff to demonstrate the defendant’s
wrongdoing and fault.
In the context of what has been
said in relation to the purpose of the provision and for the reasons
that follow, the word “and”
between subsections (b) and
(c) of section 11(2) must be given its ordinary meaning. As
illustrated by the purpose of the section
set out above and the
ensuing discussion, none of this yields an irrational outcome.
An organization will escape
liability only if the act or omission that caused the damage was not
reasonably foreseeable, and if
it took reasonable steps within its
power to prevent that act or omission. Subsections (a), (b) and (c)
of section 11(2) must
be read together. They all refer to the same
act or omission that causes the damage,
16
which must not be reasonably
foreseeable,
17
and in respect of which
reasonable preventive steps within the power of the organization
must be taken,
18
when reasonably foreseeable, if
the organization is to escape liability.
The applicants’ major
contention is that any reasonable organizer who takes reasonable
steps to guard against an act or
omission materialising could never
prove that it was not reasonably foreseeable. In these
circumstances, the applicants say that
it would be quite impossible
to come within the purview of section 11(2) and that any
organization would automatically be liable.
The
submission overlooks the interrelationship between subsections
11(2)(b) and (c), and proceeds from a conceptualisation of
foreseeability that is grounded in the law of delict and not
necessarily in the wording of the section itself.
There is an inter-relationship
between the steps that are taken by an organizer on the one hand and
what is reasonably foreseeable
on the other. The section requires
that reasonable steps within the power of the organizer must be
taken to prevent the act or
omission that is reasonably foreseeable.
The real link between the foreseeability and the steps taken is that
the steps must
prove to have been reasonable to prevent what was
foreseeable. If the steps taken at the time of planning the
gathering are indeed
reasonable to prevent what was foreseeable, the
taking of these preventive steps would render that act or omission
that subsequently
caused riot damage reasonably unforeseeable. Both
section 11(2)(b) and section 11(2)(c) would then have been
fulfilled.
It must be emphasised that
organizations are required to be alive to the possibility of damage
and to cater for it from the beginning
of the planning of the
protest action until the end of the protest action. At every stage
in the process of planning, and during
the gathering, organizers
must always be satisfied of two things: that an act or omission
causing damage is not reasonably foreseeable
and that reasonable
steps are continuously taken to ensure that the act or omission that
becomes reasonably foreseeable is prevented.
This is the only way in
which organizers can create a situation where acts or omissions
causing damage remain unforeseeable.
In such a
case, the requirement of taking reasonable steps is not met simply
by guarding against the occurrence of the damage-causing
act or
omission. The inquiry whether the steps taken were sufficient to
render the act or omission in question no longer reasonably
foreseeable might be very exacting.
An important qualification is
that the steps that the organizers are required to take must be
within their power. Where steps
need to be taken that are not within
their power, they must ensure that those who have the duty to take
steps are notified of
the need to do so. What reasonable steps
within their power the organizers must take after this depends on
the reaction to this
notification. A defendant does, therefore, have
a viable defence in terms of section 11(2).
To illustrate that the defence
is viable, the Supreme Court of Appeal cited three examples of
circumstances in which organizers
would not be liable where there
had been proper planning in the sense that all reasonable steps had
been taken to prevent the
foreseeable. The first concerned a
policeman who mistakenly discharged his weapon causing a panic and
stampede of participants;
the second envisioned the sudden and
unexpected infiltration of a gathering by a gunman, unconnected to
the organizers, who fired
indiscriminately because of a grudge
against society; and the third involved a motorist who broke through
barricades and drove
into the marching crowd causing panic and a
riot.
The applicants contend that
these examples relate to acts and omissions that can only be
classified as not reasonably foreseeable.
They emphasise that their
concern is in relation to foreseeable conduct that takes place
despite the fact that they have taken
reasonable steps to avert the
danger of its occurrence. The answer to this contention is that the
organizers are obliged to take
reasonable steps to avert the
reasonably foreseeable harm-causing act or omission to render that
act or omission no longer reasonably
foreseeable. Let us take the
example of the car crashing through the barrier postulated by the
Supreme Court of Appeal. The possibility
of cars colliding with
pedestrians during a march would have been reasonably foreseeable by
any organization. If that organization
had not provided barriers and
a motor vehicle collided with the pedestrian either because the
pedestrian strayed onto the road
or because the vehicle veered
slightly off its path, the organizer would be liable. The erection
of the barriers would render
a collision between a vehicle and a
pedestrian no longer reasonably foreseeable.
Put
another way: reasonable preventive steps in relation to an initially
foreseeable act or omission eventually would make the
act or
omission no longer reasonably foreseeable. If an act or omission
were not at all reasonably foreseeable in advance, then
taking no
steps to guard against it will ordinarily be reasonable.
This is not
the way in which foreseeable harm and reasonable steps to prevent it
are expressed in the law of delict.
19
Under the Aquilian action, when deciding what reasonable steps a
person must take in relation to foreseeable harm there are two
variables relevant to this case, the seriousness of the harm and the
prospect of it happening. In
Herschel v
Mrupe
,
20
it was stated that—
“
the
circumstances may be such that a reasonable man would foresee the
possibility of harm but would nevertheless consider that the
slightness of the chance that the risk would turn into actual harm,
correlated with the probable lack of seriousness if it did,
would
require no precautionary action on his part.”
21
And in
Ngubane
v South African Transport Services
,
22
it is put
thus: “[I]t is acknowledged that reasonable steps are not
necessarily those which would ensure that foreseeable
harm of any
kind does not in any circumstances eventuate.”
23
We are dealing with a statutory
defence that must be given a rational meaning and this meaning does
not have to equate to that
of its delictual counterpart. Of course,
that also means that the meaning given to reasonable foreseeability
and the taking of
reasonable steps in section 11(2)(b) and (c)
should not be transposed unreflectively to the common law of delict.
In the light of what I consider
to be the proper interpretation of section 11(2), set out above, the
section is rational.
The next question is whether
or not this section limits the right to freedom of assembly.
Does section 11(2) limit the
right to assembly?
“
Everyone
has the right, peacefully and unarmed, to assemble, to demonstrate,
to picket and to present petitions.” That is
what section 17
of the Constitution promises the people in South Africa.
This means that everyone who is
unarmed has the right to go out and assemble with others to
demonstrate, picket and present petitions
to others for any lawful
purpose. The wording is generous. It would need some particularly
compelling context to interpret this
provision as actually meaning
less than its wording promises. There is, however, nothing, in our
own history or internationally,
that justifies taking away that
promise.
Nothing said thus far detracts
from the requirement that the right in section 17 must be exercised
peacefully. And it is important
to emphasise that it is the holders
of the right who must assemble and demonstrate peacefully. It is
only when they have no intention
of acting peacefully that they lose
their constitutional protection. This proposition has support
internationally. As the European
Court of Human Rights noted:
“
[A]n
individual does not cease to enjoy the right to peaceful assembly as
a result of sporadic violence or other punishable acts
committed by
others in the course of the demonstration, if the individual in
question remains peaceful in his or her own intentions
or
behaviour”.
24
This means that it is
appropriate to proceed on the basis that section 17 of the
Constitution means what it generously says.
The long title of the Act
states that the purpose of the Act is “[t]o regulate the
holding of public gatherings and demonstrations
at certain places;
and to provide for matters connected therewith.” The Act
requires the appointment of persons responsible
for giving and
receiving notices to hold gatherings and to act at consultations or
negotiations in relation to the holding of
gatherings on behalf of
the organizers, the police and the local authority involved.
25
The mere legislative regulation
of gatherings to facilitate the enjoyment of the right to assemble
peacefully and unarmed, demonstrate,
picket and petition may not in
itself be a limitation. Section 11(2), read with section 11(1), goes
further than simply to regulate
the exercise of the right in order
to facilitate its full and appropriate enjoyment by those who
organise and those who participate.
Section 11(1) holds organizers
of a gathering liable for riot damage subject to section 11(2),
which provides a limited defence
to a claim of this kind. The effect
of these specific provisions, in the context of the Act as a whole,
is to render holders
of a gathering organised with peaceful intent
liable for riot damage on a wider basis than is provided for under
the law of delict.
This is all the more so given the extremely wide
definition of riot damage in the Act.
26
This means that proof of
liability will, as indicated earlier, be easier in a large number of
cases.
Compliance with the
requirements of section 11(2) significantly increases the costs of
organising protest action. And it may well
be that poorly resourced
organizations that wish to organise protest action about
controversial causes that are nonetheless vital
to society could be
inhibited from doing so. Both these factors amount to a limitation
of the right to gather and protest.
It must be emphasised that it
is not the right of organizations alone that is affected. It is
quite plausible that the organizer
of a gathering who anticipates
the involvement of, say, ten thousand people may be forced to cancel
it because a few hundred
of the participants would cause mayhem. In
these circumstances, the right of thousands of people to protest
peacefully and unarmed
is affected.
It is true that the increase in
costs and the wider basis on which there is civil liability will
render organizations more reluctant
to organise marches. But this is
better dealt with in the section concerned with the extent of the
limitation in the justification
analysis to which I now turn.
Justification
It falls to be determined
whether the limitation is constitutionally justifiable. To do so,
regard must be had to section 36 of
the Constitution, which
provides:
“
(1)
The rights in the Bill of 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.
(2) Except as provided in
subsection (1) or in any other provision of the Constitution, no law
may limit any right entrenched in
the Bill of Rights.”
A. The importance of the
right to assemble
The right to freedom of
assembly is central to our constitutional democracy. It exists
primarily to give a voice to the powerless.
This includes groups
that do not have political or economic power, and other vulnerable
persons. It provides an outlet for their
frustrations. This right
will, in many cases, be the only mechanism available to them to
express their legitimate concerns. Indeed,
it is one of the
principal means by which ordinary people can meaningfully contribute
to the constitutional objective of advancing
human rights and
freedoms. This is only too evident from the brutal denial of this
right and all the consequences flowing therefrom
under apartheid. In
assessing the nature and importance of the right, we cannot
therefore ignore its foundational relevance to
the exercise and
achievement of all other rights.
Under apartheid, the state took
numerous legislative steps to regulate strictly and ban public
assembly and protest.
27
Despite these measures, total repression of freedom of expression
through protest and demonstration was not achieved. Spontaneous
and
organised protest and demonstration were important ways in which the
excluded and marginalised majority of this country expressed
themselves against the apartheid system, and was part and parcel of
the fabric of the participatory democracy to which they aspired
and
for which they fought.
So the lessons of our history,
which inform the right to peaceful assembly and demonstration in the
Constitution, are at least
twofold. First, they remind us that ours
is a “never again” Constitution: never again will we
allow the right of
ordinary people to freedom in all its forms to be
taken away.
28
Second, they tell us something about the inherent power and value of
freedom of assembly and demonstration, as a tool of democracy
often
used by people who do not necessarily have other means of making
their democratic rights count.
29
Both these historical considerations emphasise the importance of the
right.
There is also international
support for this. The Special Rapporteur on extrajudicial, summary
or arbitrary executions, Christof
Heyns stated:
“
Supporting
freedom of assembly implies a realisation that, as expressed so
eloquently by the Spanish Constitutional Court, ‘in
a
democratic society, the urban space is not only an area for
circulation, but also for participation’.”
30
(Footnote omitted.)
Moreover, the inter-relation
between the various freedom rights and their importance to our
democracy has been recognised by this
Court. In
South African
National Defence Union v Minister of Defence and Another
,
31
O’Regan J, writing for the Court, stated:
“
[Freedom
of speech] is closely related to freedom of religion, belief and
opinion (s 15), the right to dignity (s 10), as well as
the right to
freedom of association (s 18), the right to vote and to stand for
public office (s 19) and the right to assembly (s
17). These rights
taken together protect the rights of individuals not only
individually to form and express opinions, of whatever
nature, but to
establish associations and groups of like-minded people to foster and
propagate such opinions. The rights implicitly
recognise the
importance, both for a democratic society and for individuals
personally, of the ability to form and express opinions,
whether
individually or collectively, even where those views are
controversial.”
32
In
S v Mamabolo (E TV and
Others Intervening)
33
Kriegler J stated:
“
That
freedom to speak one’s mind is now an inherent quality of the
type of society contemplated by the Constitution as a whole
and is
specifically promoted by the freedoms of conscience, expression,
assembly, association and political participation protected
by ss
15-19 of the Bill of Rights. It is the right – idealists would
say the duty – of every member of civil society
to be
interested in and concerned about public affairs.”
34
Freedom of assembly is no doubt
a very important right in any democratic society. Its exercise may
not, therefore, be limited without
good reason. The purpose sought to
be achieved through the limitation must be sufficiently important to
warrant the limitation.
B. The importance of the
purpose of the limitation
The purpose of the limitation
imposed by section 11 is very important. It is to protect members of
society, including those who
do not have the resources or capability
to identify and pursue the perpetrators of the riot damage for which
they seek compensation.
When a gathering imperils the physical
integrity, the lives and the sources of livelihood of the
vulnerable, liability for damages
arising therefrom must be borne by
the organizations that are responsible for setting in motion the
events which gave rise to
the suffered loss. And that is what this
important limitation is designed to achieve.
The fact that every right must
be exercised with due regard to the rights of others cannot be
overemphasised. The organization
always has a choice between
exercising the right to assemble and cancelling the gathering in the
light of the reasonably foreseeable
damage. By contrast, the victims
of riot damage do not have any choice in relation to what happens to
them or their belongings.
For this reason, the decision to exercise
the right to assemble is one that only the organization may take.
This must always
be done with the consciousness of any foreseeable
harm that may befall others as a consequence of the gathering. The
organizers
must therefore always reflect on and reconcile themselves
with the risk of a violation of the rights of innocent bystanders
which
could result from forging ahead with the gathering.
C. The nature and extent of
the limitation
Whilst the Act does have a
chilling effect on the exercise of the right, this should not be
overstated. The Act does not negate
the right to freedom of
assembly, but merely subjects the exercise of that right to strict
conditions, in a way designed to moderate
or prevent damage to
property or injury to people. Potentially, the exercise of the right
also occasions deterrent consequences.
One of them is the
presumption of liability for riot damage, which can be traced back
to the organization’s decision to
exercise the right to
assemble.
The effect of section 11 is
thus to place the organizers in the first line of fire when riot
damage occurs. The innocent victim
need not look any further than
the organizers for compensation. She does not need to prove
negligence on their part. In this
sense, the liability may be
considered to be ‘strict’.
D. Apportionment of Damages
To make liability for riot
damage less onerous, section 11 provides for apportionment of
damages. That liability is, in terms
of section 11(1), joint and
several in that the organization is—
“
a
joint wrongdoer contemplated in Chapter II of the Apportionment of
Damages Act, 1956 (Act No. 34 of 1956), together with any other
person who unlawfully caused or contributed to such riot damage and
any other organization or person who is liable therefor in
terms of
this subsection.”
The organizer’s right of
recourse or contribution is further entrenched by the provisions of
section 11(3) of the Act.
35
Is this
legislative choice of making immediate and less restrictive amends
for victims possible against organizations, and leaving
recourse
against other wrongdoers to the organizations, unreasonable? I think
not. The organizations are intimately involved
in the planning,
supervision and execution of the gathering but the potential victims
are not. Because of this the organizations
would be in a better
position than innocent victims to identify individuals or
institutions that caused the damage.
Although the primary
liability is imposed on the organization, a soft landing is availed
to it through the possibility of an apportionment
of damages, as it
is always open to the organization to track down the perpetrators
and recoup its loss from them.
It is thus
not unreasonable to allow the victim of riot damage to claim all
compensation from the organizers of a gathering and
then to leave it
to the organizers to seek recourse or contribution from others who
may have caused or contributed to the damage.
It is, in reality,
also the norm in our law of delict, as shaped by the Apportionment
of Damages Act
36
(Apportionment
Act).
It is
argued, however, that the organizers’ right of recourse or
contribution is illusory, because the Apportionment Act
is based on
an apportionment of fault, in particular negligence, and is thus
inapplicable to cases of strict statutory liability.
It is true that
case law
37
under the
Apportionment Act is to that effect in respect of apportionment of
liability under section 1 of the Act.
38
Commentators have, however, pointed out that Chapter II of the Act,
dealing with joint and several wrongdoers, applies more generally
to
liability in delict, rather than to damages caused “by the
fault” of someone, as is required by section 1. Earlier
academic commentators emphasised that section 2 applies even to
delicts that do not require fault, like the
pauperien
action,
vicarious liability and breach of a statutory duty,
39
whilst later writers tend to focus more on vicarious liability.
40
The difficulty cannot in my
view be resolved only on these differences in the wording of the
Apportionment Act. It is indeed correct
that section 2(1) does not
refer to fault as a requirement, but in the subsections dealing with
recourse between wrongdoers,
the apportionment is on the basis of an
amount that the court “may deem just and equitable having
regard to the degree
in which that other joint wrongdoer was
at
fault in relation to the damage suffered by the plaintiff
”
(my emphasis).
41
A textual argument can thus be made either way. But it is not to the
Apportionment Act that we must look to determine whether
the right
of recourse or contribution is created. It is to the Act itself.
42
And when one does that, the problem disappears.
The liability created by the
Act is not liability where the organization’s own ‘fault’
is irrelevant. Fault
is always relevant where an organization relies
on section 11(2) as a defence, since section 11(2)(c) requires it to
prove that
it “took all reasonable steps within [its] power to
prevent the act or omission in question”. In each case where
it is able to prove this, and that the act or omission was not
reasonably foreseeable, it would not be liable. But, where it is
liable, its liability is not exclusive.
In that case recourse against,
or contribution from, others would arise, for where the section
11(2) defence is raised, recourse
and contribution would be
relevant. In each case the organization’s degree of fault
under section 11(2)(c) would have been
in issue at the trial and
determined by the judicial officer. To determine recourse or
contribution against other wrongdoers,
what would be left to
establish would be the degree of fault of those wrongdoers in
relation to the damages suffered by the plaintiff.
And when that
happens, the requirements of the Apportionment Act too would have
been met.
Recourse and contribution under
section 11(1) and (3) of the Act are thus not illusory. Nor is it
unreasonable or unfair as between
joint wrongdoers. Their eventual
contributions would still be determined by their respective degrees
of “fault” under
the Apportionment Act. And as for
making it easier for the innocent victim of riot damage to make her
claim against the organizers,
that is not unreasonable, because the
organizers are not left without recourse against other joint
wrongdoers.
The applicants submit that
placing the onus on the organizers to prove the statutory defence
renders the limitation unjustifiable.
I disagree. If victims of riot
damage were required to prove the elements section 11(2) obliges the
organizers to establish,
their position would be difficult. The
facts are usually within the knowledge of the organizers. Victims’
damages claims
could otherwise be rendered illusory.
E. The balance between the
limitation and the purpose and less restrictive means
The purpose of the section is
to ensure that a gathering that becomes destructive and results in
loss to others does not leave
its victims without recourse. It is
thus to protect the rights of individuals who may be affected
detrimentally by riot damage
that takes place in the course of the
exercise of the right to assemble.
There is a tight fit between
the limitation and its purpose. The purpose is to achieve an
appropriate balance between the right
to assemble on the one hand
and the safety of people and property on the other. That balance has
been struck.
In assessing whether less
restrictive means exist to achieve the purpose of the Act, I am
mindful of the position adopted by this
Court in
Mamabolo
,
43
where it was
stated:
“
Where
s 36(1)(e) speaks of less restrictive means it does not postulate an
unattainable norm of perfection. The standard is reasonableness.
And,
in any event, in theory less restrictive means can almost invariably
be imagined without necessarily precluding a finding
of justification
under the section. It is but one of the enumerated considerations
which have to be weighed in conjunction with
one another, and with
any others that may be relevant.”
44
In view of the special nature
and legitimacy of the purpose the Act seeks to achieve, and the fine
balance that it seeks to strike
between the conflicting rights and
interests of organizations and members of the public, it cannot be
said that any less restrictive
means is available.
The limitation on the right to
assemble is reasonable and justifiable in an open and democratic
society based on human dignity,
equality and freedom.
Costs
The respondents have succeeded
in this Court. There is no reason to deny them costs, including the
costs of two counsel.
Order
In the result, the following
order is made:
1. Condonation is granted.
2. Leave to intervene is
granted.
3. Leave to appeal is granted.
4. The appeal is dismissed.
5. The applicants are ordered
to pay the costs of the first to eighth respondents in this Court,
including costs of two counsel.
JAFTA
J (Zondo AJ concurring):
Does section 11(2) of the
Regulation of Gatherings Act
45
limit the rights in section 17
of the Constitution?
46
If so, is the limitation
justifiable? These are the questions which arise for determination
in this matter. The second question
will, however, be reached only
if the answer to the first question is a positive one. The matter
comes before this Court as
an application for leave to appeal
against the judgment of the Supreme Court of Appeal
47
which dismissed an appeal
against an order of the Western Cape High Court.
48
I have had the benefit of
reading the judgment of Mogoeng CJ which holds that section 11(2)
of the Act limits the rights in
section 17 of the Constitution and
that the limitation is justifiable. While I agree that condonation,
the application to intervene,
and leave to appeal should be
granted, and that the appeal be dismissed, I respectfully disagree
that the limitation contended
for has been established. In my view,
section 11(2) does not implicate nor does it limit any of the
rights entrenched in section
17 of the Constitution.
The factual and statutory
background
On 16 May 2006, the South
African Transport and Allied Workers Union (SATAWU) organised a
protest march in the centre of Cape
Town (City). Participants in
the march were members of SATAWU, who were engaged in a protracted
labour strike that had turned
violent. The acrimonious strike had
led to the deaths of about 50 people before the protest march. The
strike generated a highly
volatile atmosphere which could turn
violent upon the slightest provocation.
As required by the Act, SATAWU
had to give notice to the City, notifying it about the march it
intended to hold.
49
Section 3 of the Act requires
that notice be given at least seven days before the date on which a
gathering is to be held. The
Act defines a gathering to include
“any assembly, concourse or procession of more than 15
persons in or on any public
road”.
50
However, if it is not possible
to give notice seven days in advance, it may be given at least 48
hours before the commencement
of the gathering. The notice must
contain, amongst other details listed in the section, the name and
contact details of the
convener; the purpose of the gathering; the
place where it is to be held; the time, duration and date of the
gathering; and
the route of the procession.
Upon receipt of the notice, a
local authority must consult a relevant member of the South African
Police Service, regarding
the necessity to hold negotiations on the
proposed gathering. If the relevant member indicates that
negotiations are necessary,
a meeting is convened between the local
authority, the police and the convener of the gathering. The
purpose of the meeting
is to discuss and agree terms and conditions
under which the gathering will be held.
51
If information comes to the
attention of the local authority that the gathering is likely to
cause serious disruption of traffic,
injury to participants of the
gathering or other people, or extensive damage to property, the
local authority should meet with
the convener and other relevant
parties to discuss steps to be taken to avoid harm or disruptions.
If not convinced that steps
proposed to prevent harm will succeed,
the local authority may prohibit the gathering.
52
Where a gathering takes place
and the police become convinced that it will result in harm to
either participants or other people
and that adequate protection is
not possible, the police may demand that participants disperse.
53
But if a gathering takes
place, and during the course of it damage is caused as a result of
injury to a person or destruction
to property, the Act imposes
liability for such damage on the convener of the gathering.
54
The convener may avoid
liability only if it establishes the defence set out in section
11(2).
55
Section 11(1) of the Act
provides:
“
If
any riot damage occurs as a result of—
a gathering, every
organization on behalf of or under the auspices of which that
gathering was held, or, if not so held, the
convener;
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
No. 34 of 1956), together with any other
person who unlawfully caused or contributed to such riot damage and
any other organization
or person who is liable therefor in terms of
this subsection.”
Although the section is not a
model of clarity, its reading indicates that liability for damage
caused as a result of a gathering
is imposed on the convener of the
gathering or an organisation on behalf of whom the gathering was
held. The convener is held
jointly and severally liable together
with the person who caused or contributed to the damage. What is
striking is the fact
that “riot damage” is defined in
wide terms and that liability does not arise in respect of violent
and riotous
gatherings only. Even a peaceful gathering does give
rise to a claim against the convener. This is so because “riot
damage”
in the Act 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.”
56
It matters not that the
gathering was peaceful or violent. As long as damage occurs as a
result of the gathering the convener
is liable, whether that damage
was caused before or after the gathering or even if the damage was
not directly caused by the
gathering.
SATAWU complied with the Act
by giving notice of the march to be held on 16 May 2006 to the
City. This led to negotiations between
the City, the police and
SATAWU, taking place on 10 May 2006. The parties agreed on the
route to be followed during the march
and certain conditions were
also imposed. Some of those conditions were that no undue
obstruction would be caused to pedestrians
or vehicular traffic;
every precaution would be taken to ensure the safety and protection
of the public, traffic and participants;
and SATAWU would appoint
sufficient marshals to ensure good order and compliance with
conditions of the march. SATAWU acknowledged
that it understood the
provisions of the Act.
The negotiations and the
conditions imposed were triggered by information that the march
might result in damage being caused.
The violence perpetrated in
relation to the strike had already caused the deaths of a number of
people. Apparently the City
thought that SATAWU could take adequate
steps to prevent damage, hence it did not prohibit the march.
Indeed the march took
place on 16 May 2006. Regrettably, it
degenerated into chaos and extensive damage was caused to vehicles
and other property
along the route. Street vendors were robbed of
their stock and quite a number of people suffered damage as a
result of the
march. To obtain compensation for their loss, the
victims of the march instituted an action in the High Court.
In the High Court
The first to eighth
respondents based their claim against SATAWU on section 11(1) of
the Act. Apart from denying liability,
SATAWU pleaded that should
it be found liable, the words “and was not reasonably
foreseeable” in section 11(2)(b)
of the Act must be declared
inconsistent with the Constitution and invalid.
Following the claim for
constitutional invalidity, SATAWU lodged a notice in which this
claim was raised. This is a procedural
step required by the High
Court rules.
57
The notice articulates the
constitutional challenge in these terms:
“
1.
The Defendant avers 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 (‘the Act’) is
incompatible with the Constitution of the Republic of
South Africa,
1996, in that they infringe on the rights contained in sections 17
and 23 of the Constitution.
2. More particularly, the
Defendant in convention avers that the inclusion of the said words
has the result that—
2.1 Persons who wish to
exercise their right to assemble, to demonstrate, to picket or to
present petitions peacefully and unarmed
may be precluded from doing
so due to the risk of incurring strict liability for acts or
omissions merely because such acts or
omissions are reasonably
foreseeable, notwithstanding the fact that the persons in question
have complied with all the other
aspects of the defence set out in
section 11(2) of the Act;
. . .
3. The inclusion of the
abovementioned words in section 11(2)(b) of the Act is accordingly
invalid.”
Upon application by the
parties the High Court separated the constitutional challenge from
the other issues and the determination
of those issues was stood
over to a later date. The Court considered the claim for
constitutional invalidity. It held that
section 11(2) does not
limit any of the rights in section 17 of the Constitution. Based on
the facts of the case, the Court
held that SATAWU could not rely on
section 17 because that section guarantees the right to assemble
peacefully and unarmed
whereas the present march was violent. The
violent nature of the march, held the Court, placed it outside the
ambit of assemblies
protected by section 17.
In the event that this finding
was held to be wrong, the High Court proceeded to consider whether
the limitation is justifiable
in terms of section 36 of the
Constitution. It embarked on a justification analysis, during the
course of which various factors
were taken into account. It
concluded that the limitation is justifiable.
In the Supreme Court of
Appeal
Unhappy with the decision of
the High Court, SATAWU appealed to the Supreme Court of Appeal. In
that Court, SATAWU argued that
if section 11(2)(b) could be read
intelligibly to afford it a real defence to the claim, it would be
unnecessary to consider
whether the limitation was justifiable
because in that event section 11(2) would constitute a reasonable
and justifiable limitation.
58
This is a novel approach to
the determination of constitutional invalidity where the challenge
is based on the assertion that
an impugned provision limits a right
in the Bill of Rights.
Acceding to the invitation,
the Supreme Court of Appeal proceeded to interpret section 11(2)
and held that despite the conjunctive
nature of the defence it
postulates, the section means that a defendant would escape
liability under the Act unless the act
giving rise to damage was
reasonably foreseeable and the defendant has failed to take
reasonable steps to prevent harm because
“[o]ne can only take
steps to guard against an occurrence if one can foresee it.”
59
The appeal was dismissed.
In this Court
The question whether section
11(2) of the Act is invalid by reason of being inconsistent with
section 17 of the Constitution
must be determined with reference
and be confined to the case pleaded by SATAWU. It is not proper to
proceed on the footing
that in general the Act constitutes a
limitation to the right of assembly. The attack is not directed at
the Act in its entirety
nor is it a general challenge. By contrast,
the attack is sharp and narrow. It is confined to section 11(2) and
nothing more.
Because section 11(1) was left out of the attack in
circumstances where SATAWU was aware that it is this section that
imposes
liability, it is incorrect to read section 11(1) together
with section 11(2) for purposes of determining whether the latter
section is inconsistent with section 17 of the Constitution or not.
This Court has warned parties
who challenge the validity of Acts of Parliament to plead their
cases accurately, particularly,
as in this case, where the
constitutional challenge is raised through a Rule 16(A) notice. In
Shaik v Minister of
Justice and Constitutional Development and Others
60
(
Shaik
)
this Court had to consider whether to grant leave to appeal against
a judgment of the High Court declining to declare section
28(6) of
the National Prosecuting Authority Act
61
inconsistent with section 35
of the Constitution and for that reason invalid. The High Court had
held that the words “any
person” in the impugned
section did not refer to an accused person. While that Court held
that the impugned section limited
the right to remain silent, it
held that the limitation was justified.
The main reason for this Court
to refuse leave was that the applicant, in his Rule 16A notice, had
targeted the wrong subsection
even though the basis of the attack
was clear from the papers. The complaint was that “the s 28
procedure empowers the
prosecuting authority to require a suspect
to answer questions without giving the suspect full immunity from
the consequences
of such answers”. The similarities between
the Rule 16A notice in that case and the present notice are
striking. There
the notice read:
“
1.
Whether the applicant’s right to a fair trial is infringed by
the summons served on the applicant requiring that he be
questioned
in terms of s 28(6) of [the Act] and to produce documents.
2. Whether s 28(6) of (the Act)
is unconstitutional and invalid as a result of violating the rights
entrenched in ss 14 (privacy),
16 (freedom of expression), 33 (just
administrative action), 34 (access to courts) and 35 (fair arrest,
detention, trial) of
the final Constitution.”
Comparing the two notices
reveals that both single out a specific subsection for attack. Each
notice asserts that the impugned
provision limits a specified right
in the Bill of Rights. The sting of the attack in both cases is
outside the impugned subsection
but in other parts of the same
section which are not mentioned in the notice.
This Court construed the
notice in
Shaik
as excluding an attack on
section 28(8) and (10)
62
of the same Act. And because
the notice made no reference to these subsections, the Court
refused to grant leave directed at
challenging the omitted
subsections even though the parties themselves had understood the
real challenge to have been directed
at the omitted subsections and
argument had been presented which covered them.
63
The Court said:
“
The
kernel of the applicant’s attack throughout has been that the
section 28 procedure empowers the prosecuting authority
to require a
suspect to answer questions without giving the suspect full immunity
from the consequences of such answers.
This
attack has been based on s 35 of the Constitution and has focused
exclusively on subs 28(6) of the Act. Section 28(6) is,
however, the
wrong provision to target
.
It does no more than describe the Investigating Director’s
powers and says nothing about the obligations of the examinee.
It
neither compels the examinee to heed the summons nor to answer any
questions, nor does it stipulate what questions the examinee
is
obliged to answer, nor what use may be made of any answer, nor what
the consequences might be if the examinee should fail
or refuse to
answer any question.
The
sting of the section – for purposes of the s 35 attack –
is found in
s
28(8) and (10)
.
The punishment for the offence created by s 28(10) is not prescribed
in the Act and, accordingly, the general enabling provisions
of s
276 of the CPA – that empowers, amongst other things, the
imposition of imprisonment – apply.
The
compulsion to attend, to be sworn in or to make an affirmation, and
to answer questions fully, are all stipulated in ss (10).
The extent
of examinees’ privilege to refuse to answer questions, and the
manner and extent to which answers – that
examinees are
obliged to give – may subsequently be used against them, are
detailed in ss (8). Indeed, the constitutional
attack in the High
Court and this Court focused on the alleged constitutional
inadequacy of the direct use immunity
provided for in ss (8)(b).
. . .
The minds of litigants (and in
particular practitioners) in the High Courts are focused on the need
for specificity by the provisions
of Uniform Rule 16A(1). The
purpose of the Rule is to bring [the case] to the attention of
persons (who may be affected by or
have a legitimate interest in the
case) the particularity of the constitutional challenge, in order
that they may take steps
to protect their interests. This is
especially important in those cases where a party may wish to
justify a limitation of a chap
2 right and adduce evidence in
support thereof.
It
constitutes sound discipline in constitutional litigation to require
accuracy in the identification of statutory provisions
that are
attacked on the ground of their constitutional invalidity.”
64
(Emphasis added and footnotes omitted.)
If it was proper to
incorporate the omitted subsections into the attack, because the
real complaint was located in them and
section 28 was to be read as
a whole, this Court could not have made the statements quoted
above. Moreover it is clear from
those statements that the Court
regarded the mentioning of section 28(6) only in the Rule 16A
notice to constitute an exclusive
focus on it which precluded any
reference to section 28(8) and (10). By the same token the
mentioning of section 11(2) only
in the present notice must mean
that the challenge focused exclusively on this subsection. There is
a difference between the
principle that requires the whole section
to be read for purposes of interpretation, on the one hand, and the
process of determining
the scope of a constitutional attack, on the
other. The scope of the challenge is not determined with reference
to the entire
section where only one subsection is targeted.
Shaik
makes this plain.
In
Shaik
, this Court
having laid down the principle that a constitutional challenge must
be accurately worded, stated its reasons for
refusing leave thus:
“
The
wrong provision in the Act has been targeted for constitutional
attack. The potential ambit of s 28 has been misunderstood,
with the
attendant consequences referred to above. . . . Under all these
circumstances, it is not in the interests of justice
to grant leave
to appeal in which the thrust of the constitutional attack is not in
substance against s 28(6) but against
s 28(8) and (10).”
65
It is significant, however, to
note that this Court refused leave in
Shaik
despite the fact
that it had serious concerns over the constitutional validity of
section 28, albeit in respect of an issue
that was not properly
raised in the pleadings but still related to the section 28
procedure. The Court stated:
“
There
is a concern about the constitutional validity of ss 28(6), (8) and
(10) of the Act. It was not formally raised or dealt
with in
argument as a ground for attack under s 35 of the Constitution.
While refraining from pronouncing on it, the Court cannot
allow the
concern to pass unmentioned. It relates to the fact that, under s
28(6)(b), the ‘Investigating Director or a
person designated
by him’ questions the person summoned under oath or
affirmation, without the necessity of any other person
being
present, let alone a person who is independent of the Directorate of
Special Operations.
. . .
The s 28 procedure raises the
spectre of the interrogator and interrogatee alone in one room for
days, the former asking the questions
and making the record, the
latter simply answering questions.”
66
On this aspect the Court held
that it was not in the interests of justice to determine the
constitutional validity of section
28, based on a ground that was
not pleaded even though it had serious concerns over the validity of
the section.
67
In this case, unlike in
Shaik
where the applicant sought to
expand his challenge by including section 28(8) and (10), SATAWU
did not seek to impugn the validity
of section 11(1). Reading
section 11(1) together with the impugned provision will not only be
inconsistent with
Shaik
but will also be tantamount to
subjecting section 11(1) to an indirect or a collateral challenge
in circumstances where no attack
was raised against it. This
approach is impermissible. Thus in
Phillips
and Others v National Director of Public Prosecutions
68
this Court held:
“
It is
not ordinarily permissible to attack statutes collaterally. The
constitutional challenge should be explicit, with due notice
to all
affected. This requirement ensures that the correct order is made;
that all interested parties have an opportunity to
make
representations; that the relevant evidence can, if necessary, be
led and that the requirements of the separation of powers
are
respected.” (Footnotes omitted.)
Accuracy in the pleadings is
important not only for purposes of defining issues for parties
involved in a particular litigation.
Orders of constitutional
invalidity have a reach that extends beyond parties to a case where
a claim for a declaration of invalidity
is made. But more
importantly these orders intrude, albeit in a constitutionally
permissible manner, into the domain of the
legislature. The
granting of these orders is a serious matter and they should be
issued only where the requirements of the
Constitution for a review
of the exercise of legislative powers have been met. In section 2,
the Constitution proclaims its
supremacy and declares that law or
conduct inconsistent with it is invalid. But the power to determine
whether a particular
law is indeed inconsistent with the
Constitution is conferred on superior courts.
69
Section 172(1)(a) obliges
courts to declare law or conduct inconsistent with the Constitution
to be invalid. The declaration
must, however, be restricted to the
extent of the inconsistency.
70
The inconsistency delineates
the scope of the judicial review and the consequent declaration of
invalidity in respect of a particular
challenge. It was in this
context that in
Shaik
this Court observed:
“
It is
constitutionally a serious matter for any Court to declare a
statutory enactment of Parliament – or for that matter
of any
legislature – invalid, because it constitutes a serious
invasion, albeit a constitutionally sanctioned one, by one
arm of
the State into the sphere of another. Moreover, an order by this
Court that a statutory provision is constitutionally
invalid does
not operate between the litigating parties only, but is generally
binding on all persons and organs of State.”
71
Holding parties to pleadings
is not pedantry. It is an integral part of the principle of legal
certainty which is an element
of the rule of law, one of the values
on which our Constitution is founded. Every party contemplating a
constitutional challenge
should know the requirements it needs to
satisfy and every other party likely to be affected by the relief
sought must know
precisely the case it is expected to meet.
Moreover, past decisions of this Court have adopted this approach
and in terms of
the doctrine of judicial precedent we are bound to
follow them unless we say they are clearly wrong. Judicial
precedent serves
the object of legal certainty. Following previous
decisions constitutes not only compliance with the doctrine of
judicial precedent
but also accords with the principles of judicial
discipline and accountability.
72
It is against this background
that the question whether section 11(2) of the Act is invalid must
be determined. Although in
the Rule 16A notice SATAWU invoked both
sections 17 and 23 of the Constitution as the benchmark against
which section 11(2)
must be tested, in the courts below and in this
Court too, they did not persist in the assertion that the impugned
provision
infringes section 23. Therefore, we are called upon to
weigh section 11(2) against only section 17 of the Constitution.
Does section 11(2) of the
Act limit section 17 of the Constitution?
The proper approach to this
question is to adopt a two-stage enquiry.
73
During the first leg of the
enquiry, the focus is on whether the impugned provision is
inconsistent with the Constitution by
way of limiting a right in
the Bill of Rights. If the answer yielded at this stage of the
enquiry is negative, then the enquiry
comes to an end. But if the
answer is in the affirmative, the Court has no option but to embark
on a justification analysis
with a view to determining whether the
limitation meets the requirements of section 36 of the
Constitution.
74
For it is only a law that
meets the requirements of this section that can legitimately limit
a right in the Bill of Rights.
A court called upon to
determine the validity of legislation may not base its decision on
the mere say-so of the parties regarding
whether or not a
particular limitation is justified. This is so because section 36,
when read with section 172, obliges courts
themselves to determine
whether a 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
those listed in the section.
Therefore, in my respectful view, once
the Supreme Court of Appeal accepted that section 11(2) imposes a
limitation of a right
in the Bill of Rights, it ought to have done
a justification analysis rather than accepting the argument that if
the section
is construed as affording a real defence, the
justification analysis enquiry would be unnecessary.
75
Although it is apparent from
its judgment that the Supreme Court of Appeal accepted that section
11(2) constitutes a limitation,
the judgment does not expressly say
so. Nor is it clear which right that Court found section 11(2) to
be limiting and how the
limitation arises. As stated earlier, the
question whether a limitation is reasonable and justified arises
only if indeed the
court before which the claim for constitutional
invalidity is made, is satisfied that the impugned provision limits
a right
in the Bill of Rights.
This leads me to the first leg
of the enquiry, which is whether section 11(2) limits any of the
rights in section 17 of the
Constitution. It is proper to commence
this part of the enquiry by first construing section 17 to
determine what sort of rights
it guarantees. It provides:
“
Everyone
has the right, peacefully and unarmed, to assemble, to demonstrate,
to picket and to present petitions.”
What emerges from the plain
reading of section 17 is that it guarantees four rights. These are
the rights to assemble freely,
to hold a demonstration, to hold
pickets, and to present petitions. In democracies like ours, which
give space to civil society
and other groupings to express
collective views common to their members, these rights are
extremely important. It is through
the exercise of each of these
rights that civil society and other similar groups in our country
are able to influence the political
process, labour or business
decisions and even matters of governance and service delivery.
Freedom of assembly by its nature
can only be exercised
collectively and the strength to exert influence lies in the
numbers of participants in the assembly.
These rights lie at the
heart of democracy.
In the apartheid era the
exercise of these rights, even though they were not
constitutionally entrenched, was the only means
through which black
people in this country could express their views in relation to
government decisions that affected their
lives. Now that they are
guaranteed by the Constitution, the enjoyment of these rights may
only be restricted in a manner allowed
by the Constitution because
the Constitution itself recognises that none of these rights is
absolute and lays down conditions
for their limitation.
Section 36 of the Constitution
tells us that the rights in the Bill of Rights may be limited only
in terms of a law of general
application to the extent that the
limitation itself is reasonable and justifiable. Implicit in this
injunction is the fact
that for a limitation to arise, it must be
clear from the terms of the law that it limits a guaranteed right
and to what extent.
It is only if such law, when properly
construed, clearly restricts the exercise of a right in the Bill of
Rights that it can
be said that it constitutes a limitation of the
right in question. For this sort of limitation to survive
constitutional scrutiny,
it must satisfy all the requirements of
section 36.
Plain reading of section
11(2)
This brings me to the
interpretation of the impugned provision. Section 11(2) provides:
“
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.”
The text of this section
reveals that its object is to restrict the extent of liability
imposed by section 11(1) by insulating
defendants from its reach.
But in order to enjoy the protection it affords, section 11(2)
demands that the following requirements
be met:
(a) the defendant must show
that it did not permit or connive at the act or omission that caused
the damage giving rise to the
claim;
(b) it must further establish
that the act or omission in question did not fall within the scope
of the objectives of the gathering
and was not reasonably
foreseeable; and
(c) in addition, it must prove
that it took all reasonable steps to prevent the act or omission
that caused damage.
Plainly read, the language of
this section indicates that all three conditions must be met for a
defendant to be entitled to
protection. The difficulty is that
there is a contradiction between conditions (b) and (c). The first
requires that the defendant
must prove that the act or omission
which caused damage was not reasonably foreseeable. By contrast,
the second implicitly
requires that the defendant must have
foreseen the wrongful act or omission and must have taken
reasonable steps to prevent
it.
Regarding condition (c),
liability may be avoided if the steps taken to prevent the act or
omission that caused harm are found
to have been reasonable, for
the section requires nothing more or less than reasonable steps to
be taken to prevent the act
or omission. This plainly does not mean
that the convener must, in order to avoid liability, prevent the
occurrence of the
act or omission foreseen to be capable of causing
harm. The convener only needs to take reasonable steps to meet the
requirement.
The failure to take reasonable steps signifies an
action falling short of the requisite standard. Liability ensues
due to a
failure to meet the standard set.
If the section required the
convener to prevent the damage causing act completely, all
conveners would have been required to
take steps to achieve that.
And if such steps were taken, then perhaps the reasonably
foreseeable damage causing act would
cease to be foreseeable. But
the obligation imposed by section 11(2) does not require conveners
to take steps that completely
prevent acts causing damage. It
merely requires that reasonable steps be taken to prevent acts of
that nature.
The reasonableness of the
preventive steps taken is determined with reference to the nature
and extent of the harm foreseen
as at the time when the convener is
expected to take steps to prevent it. The fact that the harm
actually occurred is not relevant
to the inquiry because the
convener is not required to prevent it completely, but to take
reasonable steps to guard against
the act which may cause harm. If
that act is not reasonably foreseeable as condition (b) demands,
then the whole exercise of
determining the reasonableness of the
steps taken becomes impossible. The requirement that the act or
omission that caused
harm must not have been reasonably foreseeable
lies at the heart of the conflict between conditions (b) and (c).
But this conflict does not
translate into a limitation of the rights in section 17 of the
Constitution. This is so because section
11(2) lays down an
objective standard of what can reasonably be foreseen by every
reasonable convener. A reasonably foreseeable
act ought to be
foreseeable to all reasonable conveners and a convener who fails to
take reasonable steps to prevent it cannot
enjoy the protection of
the section. Whereas a merely foreseeable act may be foreseen by
some reasonable conveners, it might
not be foreseen by other
equally reasonable conveners. Those conveners to whom the
harm-causing act was not foreseeable cannot
be expected to take
reasonable steps to prevent what they could not foresee.
On a plain interpretation, it
is impossible for any defendant to prove that it meets the three
conditions collectively. It is
clear from the Rule 16A notice
lodged by SATAWU that this is what prompted it to challenge the
validity of section 11(2). It
asserted in essence that the
unavailability of the defence despite compliance with other
requirements of the section might
discourage people from exercising
their section 17 rights. This, however, is a speculative
possibility because no evidence
was led to support it and
significantly section 11(2) does not impose liability on conveners
of gatherings. It is difficult
to imagine how a defence which
restricts what is apparently a limitation of a section 17 right
brought about by section 11(1)
can itself become a limitation of
the right it seeks to protect. It will be recalled that the effect
of section 11(2) is to
promote the exercise of the right of
assembly by protecting conveners of gatherings from liability
imposed by section 11(1).
SATAWU’s complaint is
essentially that the defence afforded by section 11(2) is illusory
and therefore unattainable. But
if the impugned words are removed,
it argued, then the defence becomes real. While this may be so, the
difficulty that arises
is that this Court and any competent court
for that matter, can sever words from an Act of Parliament only if
it finds them
to be inconsistent with the Constitution. The
condition precedent to severance is the finding of constitutional
inconsistency.
In present circumstances this finding can only be
based on proof that the impugned provision limits the section 17
rights.
Alive to this requirement, SATAWU contended in the Rule 16A
notice that the words “and was not reasonably foreseeable”
are incompatible with the Constitution and “they infringe on
the rights contained in sections 17 and 23 of the Constitution.”
However, the obstacle standing
in the way of the finding that the impugned provision infringes the
section 17 rights is that
section 11(2) does not, either expressly
or impliedly, prevent anybody from exercising those rights. Its
subject-matter is
the defence to liability imposed by section 11(1)
which falls outside the scope of the present challenge. It may well
be that
the defence afforded by section 11(2) is unattainable. But
this deficiency does not translate into a limitation of section 17
of the Constitution. Section 17 does not mandate that national
legislation that affords the defence we are concerned with here
be
passed. Put differently, there is no direct link whatsoever between
section 11(2) and section 17 of the Constitution. A
link between
them comes into existence when section 11(1) is brought into the
picture because it is the latter section that
imposes liability for
damage arising from the exercise of the section 17 rights, in
circumstances where no wrongful acts can
be attributed to the
convener of a gathering. Thus section 11(1) creates a new form of
liability which was not recognised in
our law. At common law,
vicarious liability is the only form where a defendant is held
liable for damage it did not cause.
As stated earlier, section
11(1) cannot be invoked in order to buttress an otherwise
inadequate claim for constitutional invalidity.
SATAWU must be held
to the case it has pleaded. If it cannot be shown that section
11(2) read in its own terms limits the section
17 rights, then the
claim must fail for having not established that the impugned
provision constitutes a limitation of those
rights.
On its face, it seems that
section 11(1) limits the rights in section 17 by imposing liability
for damage caused as a result
of the exercise of these rights.
Furthermore, at face value section 11(1) appears to have been cast
widely to the extent that
a claim based on it may arise even when
damage occurs as a result of a peaceful assembly or demonstration.
This is evident
from the wide meaning of “riot damage”.
Therefore, I cannot agree with the Supreme Court of Appeal when it
says
that the word “riot” must be given its ordinary
meaning.
76
Where Parliament defines a
word in a statute, the courts are duty-bound to uphold its defined
meaning unless this meaning in
the context of the provision
interpreted leads to an absurdity not contemplated.
77
Therefore the departure from
the defined meaning of “riot damage” by the Supreme
Court of Appeal is neither warranted
nor justified.
Accordingly, it is incorrect
to read section 11(2) as providing a defence to claims for damages
which arise from violent gatherings
only. Nor do I find support in
the text of section 11 of the Act for the view that it was
“designed to prevent unlawful
violent behaviour” as the
Supreme Court of Appeal held.
78
If that was the case, then it
could have meant that SATAWU’s claim fails at the starting
line because section 17 of the
Constitution guarantees peaceful
gatherings only. A provision that prevents violent gatherings
cannot be held to be limiting
the right of assembly in section 17
of the Constitution.
Thus at a practical level, the
application of section 11(2) is activated by a claim that a
convener of a gathering be held liable
in terms of section 11(1).
The defence which section 11(2) affords may be invoked once there
is a claim based on section 11(1)
only. The existence of that claim
must precede the invocation of the defence because it has to be a
defence to a particular
claim. Absent the section 11(1) claim,
there can be no talk of calling section 11(2) to a convener’s
aid. This illustrates
plainly in my view, that the limitation of
the right to assemble freely is not located in section 11(2) but in
section 11(1)
and possibly other provisions of the Act, which fall
outside the boundaries of the present challenge. Therefore as
presently
formulated, the challenge for constitutional invalidity
is ill-conceived.
In present circumstances I
find that SATAWU has failed to show that section 11(2) constitutes
a limitation of section 17 of
the Constitution. What it has
succeeded in demonstrating is that the conjunctive reading of the
section renders it impossible
to prove the three conditions it lays
down for escaping liability. But this defect cannot be cured
through the present constitutional
challenge because no limitation
has been shown to exist. As appears below, the solution to the
present problem lies in the
interpretation of the provision.
The main judgment finds that
the requirements of section 11(2) “significantly increases
the costs of organising protest
action.” Added to this is the
fact that “it may well be that poorly resourced organizations
that wish to organize
protest action about controversial causes
that are nonetheless vital to society could be inhibited from doing
so.” The
main judgment then concludes that “[b]oth
these factors amount to a limitation of the right to gather and
protest.”
But, in my respectful view,
the factors relied upon do not prove that section 11(2) limits the
right to freedom of assembly.
Apart from the fact that the second
factor is stated in terms that are not definite, there is no
evidence on record which supports
these factual findings. The
deponent to the affidavit filed by SATAWU asserted that without a
meaningful defence afforded by
section 11(2), a defendant like
SATAWU “faces the spectre of extensive liability in terms of
section 11(1) of the Act.”
He stated that SATAWU is “run
on an extremely tight budget” and this liability will
bankrupt it. He concludes by
stating:
“
In
light of the obstacle caused by the inclusion of the words ‘and
was not reasonably foreseeable’ in section 11(2)(b)
of the Act
to successfully raising a defence based on this section, the
defendant will be precluded, in effect, from convening
a gathering
in all instances where there is a spectre of the defendant being
held liable in terms of section 11(1) of the Act.
The effect of the
aforementioned words falls nothing short of entirely emasculating
the defence contemplated in section 11(2).”
SATAWU’s complaint was
that since it has foreseen the damage causing act and has taken
reasonable steps to prevent it, it
would be impossible for it to
prove that that act was not reasonably foreseeable. Nowhere in its
evidence did SATAWU say the
requirements of section 11(2)
significantly increase the costs of organising protest action.
More significantly, this was
not the ground on which SATAWU based its challenge for a
declaration of constitutional invalidity.
As earlier stated, in its
Rule 16A notice SATAWU contended that it was the words “and
was not reasonably foreseeable”
which were incompatible with
the Constitution in that they infringed the section 17 rights.
According to the decision of this
Court in
Phillips
,
“[i]t is impermissible for a party to rely on a
constitutional complaint that was not pleaded.” Furthermore,
“[a]ccuracy in pleadings in matters where parties place
reliance on the Constitution in asserting their rights is of the
utmost importance.”
79
If a litigant is not allowed
to rely on a complaint that was not pleaded, it must equally be
impermissible for a court to base
its finding on whether there is a
limitation of a constitutional right, on a complaint that was not
pleaded. Consistently with
this proposition, this Court in
Shaik
declined to determine the
constitutional validity of section 28 of the National Prosecuting
Authority Act
80
on a ground which was not
raised by litigants but by the Court.
81
The finding that SATAWU has
failed to show that section 11(2) limits the rights in section 17
of the Constitution makes it unnecessary
to proceed to the other
leg of the enquiry, namely, whether the limitation is reasonable
and justifiable. Suffice it to say
that the focal point of the
analysis in the main judgment is the justification of the provision
that imposes liability rather
than the one that affords a defence
to a claim for damages. In other words, it does not seek to justify
the defence against
a claim but offers reasons why the conveners of
gatherings should be held liable.
Proper construction of
section 11(2)
The removal of the obstacle
standing in the way of raising the section 11(2) defence by SATAWU
does not, in my view lie in a
declaration of invalidity. In this
regard I agree with the approach adopted by the Supreme Court of
Appeal in construing the
section.
82
Conditions (b) and (c) must be
read disjunctively. The word “and” between the two
conditions must be interpreted
to mean “or”. Construed
in this way, section 11(2) means that a defendant is not required
to do the impossible
in proving both conditions (b) and (c). On
this construction a defendant would be required to prove conditions
(a) and (b)
or (a) and (c). On this aspect of the case, the
question that arises is whether this Court is empowered to depart
from the
literal meaning of “and” to interpret this
word to mean “or”.
As far back as 1924 our courts
accepted that sometimes a statute would reflect the word “and”
when what was contemplated
was “or”. Thus the Appeal
Court held “and” to be an equivalent of “or”
or vice versa.
83
Recently, the Supreme Court of
Appeal tabulated circumstances in which the word “and”
may be read to mean “or”.
In
Ngcobo
and Others v Salimba CC; Ngcobo v van Rensburg
,
84
the Supreme Court of Appeal
defined circumstances where one of these words could be interpreted
to mean the other. The Court
said:
“
It is
unfortunately true that the words ‘and’ and ‘or’
are sometimes inaccurately used by the legislature,
and there are
many cases in which one of them has been held to be the equivalent
of the other . . . . Although much depends on
the context and the
subject matter . . . it seems to me that there must be compelling
reasons why the words used by the legislature
should be replaced;
in
casu
why ‘and’ should be read to mean ‘or’, or
vice
versa
.
The words should be given their ordinary meaning ‘ . . .
unless the context shows or furnishes
very
strong grounds
for presuming that the legislature really intended’ that the
word not used is the correct one. . . . Such grounds will
include
that if we give ‘and’ or ‘or’ their natural
meaning, the interpretation of the section under
discussion will be
unreasonable
,
inconsistent
or
unjust
.
. . or that the result will be
absurd
. . . or, I would add,
unconstitutional
or
contrary
to the spirit
,
purport
and objects of the Bill of Rights
”
85
(Emphasis in original and references omitted.)
It is clear from the statement
quoted above that our courts are entitled to construe “and”
to mean “or”
in circumstances listed in the statement.
Two of those circumstances present themselves when the word “and”
between
conditions (b) and (c) of section 11(2) is given its
ordinary meaning. The ordinary meaning of “and”, as
stated
earlier, leads to an inconsistency if a defendant is called
upon to establish both conditions simultaneously. The consequence
of that is an absurdity which could never have been contemplated
when section 11(2) was enacted. The purpose of this section
is to
limit the extent of liability imposed by section 11(1) on
organisers of gatherings. It is plain from the language of
section
11(2) that organisers must act prudently if they are to avoid
liability under section 11(1).
It follows that the
inconsistency and absurdity which flow from the natural meaning of
“and” between the two conditions
justify the reading of
that word to mean “or”. This construction addresses the
core of the complaint raised by
the applicants. Indeed at the
hearing in this Court their counsel conceded, correctly so in my
view, that if section 11(2)(b)
and (c) are read disjunctively, the
problem would be solved.
Moreover, reading “and”
to mean “or” achieves the purpose of section 11(2)
which is to restrict liability
imposed by section 11(1) and by so
doing promote the right of freedom of assembly. This alone
justifies the departure from
the ordinary meaning of the word
“and”.
This construction seriously
undermines the claim for constitutional invalidity. As the main
judgment correctly points out, if
a provision is capable of two
constructions: one interpretation rendering it inconsistent with
the Constitution while the other
does not, the interpretation that
preserves the validity of the provision must be preferred. In
Hyundai Motor
Distributors
,
86
this Court reaffirmed as a
sound principle of constitutional interpretation, the rule that in
cases where the impugned legislation
is capable of two reasonable
constructions, courts must prefer the interpretation which conforms
with the Constitution. This
interpretive approach preserves
legislation from constitutional invalidity.
Therefore, even if it were to
be said that SATAWU has made out a case on the issue of limitation,
reading section 11(2)(b) and
(c) separately renders the enquiry
into its constitutional validity unnecessary. This is so because
the whole case is about
construing the section in a manner that
affords a defendant in SATAWU’s position, a real defence.
It is for
these reasons that I would grant leave and dismiss the appeal.
For the Applicants: Advocate W Trengove SC,
Advocate H Maenetje SC and Advocate J Brickhill instructed by
Cheadle Thompson &
Haysom Inc.
For the First to Eighth Respondents: Advocate A
Katz SC and Advocate D Cooke instructed by Fairbridges Attorneys.
For the Ninth Respondent: Advocate Karrisha
Pillay instructed by the State Attorney.
For the Intervening Party: Advocate IV Maleka SC
and Advocate N Bawa instructed by Webber Wentzel (Cape Town).
For the Amicus Curiae: Advocate AD Stein,
Advocate IB Currie and Advocate NC Ferreira instructed by Freedom of
Expression Institute.
1
SATAWU
v Garvis and Others
2011 (6) SA 382
(SCA) (Supreme Court of
Appeal judgment).
2
Garvis
and Others v SATAWU (Minister for Safety and Security, Third Party)
2010 (6) SA 280
(WCC).
3
205
of 1993.
4
66
of 1995.
5
Now
the Minister of Police.
6
This
was done under Rule 13 of the Uniform Rules of Court. SATAWU joined
the Minister because it took the view that it would be
entitled to a
contribution from the Minister in the event that it is liable to the
respondents. Its view in this regard was premised
on the argument
that any losses sustained by the respondents were caused, at least
in part, by the negligent conduct of members
of the South African
Police Service.
7
Section
17 of the Constitution provides:
“
Everyone has the right,
peacefully and unarmed, to assemble, to demonstrate, to picket and
to present petitions.”
8
See
sections 2, 3 and 4 of the Act.
9
Set
out in full at [2] above.
10
Supreme
Court of Appeal judgment above n 1 at paras 36-9.
11
Id
at para 41.
12
In
the High Court and Supreme Court of Appeal proceedings, SATAWU did
not use the language of the rule of law, principle of legality
or
rationality. Rather, it argued that the defence created by section
11(2) is internally incoherent and self-destructive. Central
to the
applicants’ argument, however, is that the reasonable
foreseeability requirement in section 11(2)(b) makes it impossible
for a defendant to rely successfully on the defence. Nothing should
be made of this difference in terminology. It follows that
SATAWU
sought to rely on rationality from the outset.
13
Section
1(c) of the Constitution. See
Pharmaceutical Manufacturers
Association of SA and Another: In re Ex parte President of the
Republic of South Africa and Others
[2000] ZACC 1
;
2000 (2) SA
674
(CC);
2000 (3) BCLR 241
(CC) and
Fedsure Life Assurance Ltd
and Others v Greater Johannesburg Transitional Metropolitan Council
and Others
[1998] ZACC 17
;
1999 (1) SA 374
(CC);
1998 (12) BCLR
1458
(CC).
14
S
v Mhlungu and Others
[1995] ZACC 4
;
1995 (3) SA 867
(CC);
1995
(7) BCLR 793
(CC) at para 36. See generally Du Plessis “Statute
Law and Interpretation” 25(1)
LAWSA
2011 at para 334.
15
Bertie
van Zyl (Pty) Ltd and Another v Minister for Safety and Security and
Others
[2009] ZACC 11
;
2010 (2) SA 181
(CC);
2009 (10) BCLR 978
(CC) at para 20 and
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);
2000 (10)
BCLR 1079
(CC) at para 26.
16
Section
11(2)(a).
17
Section
11(2)(b).
18
Section
11(2)(c).
19
See
Kruger v Coetzee
1966 (2) SA 428
(A) at 430E-G, where the
test was formulated as follows:
“
For the purposes of liability
culpa
arises 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.”
20
1954
(3) SA 464
(A).
21
Id
at 477.
22
[1990] ZASCA 148
;
1991
(1) SA 756
(A).
23
Id
at 776.
24
Ziliberberg
v Moldova
ECHR (Application No 61821/00) (4 May 2004) at para 2.
See also
Cisse v France
ECHR (Application No 51346/99) (9
April 2002) at para 50 and
Christians Against Racism and Fascism
v United Kingdom
(1980) 21 DR 138 (Application No 8440/78) at
para 4.
25
Section
2, read with sections 3 and 4 of the Act.
26
Riot
damage is defined in section 1 of the Act as—
“
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.”
27
See
Woolman “Freedom of Assembly” in Woolman et al (eds)
Constitutional Law of South Africa
2 ed (Juta & Co
Ltd, Cape Town 2008) at 43-4 to 43-6 for examples.
28
See
Ex parte Gauteng Provincial
Legislature: In re Dispute
Concerning the Constitutionality of Certain Provisions of the
Gauteng School Education Bill of 1995
[1996] ZACC 4
;
1996 (3) SA
165
(CC);
1996 (4) BCLR 537
(CC) at para 46.
29
Woolman
“My Tea Party, Your Mob, Our Social Contract: Freedom of
Assembly and the Constitutional Right to Rebellion in
Garvis
v SATAWU
(Minister for Safety &
Security, Third Party)
2010 (6) SA 280
(WCC)”
(2011) 27
SAJHR
346
at 348, captures the important, instrumental nature of freedom of
assembly:
“
By creating
space for crowd action, s 17 vouchsafes a commitment to a form of
democracy in which the will of the people is not
always mediated by
political parties and the elites that run them”.
On
the importance of participation in democratic processes, see:
Doctors for Life International v Speaker of
the National Assembly and Others
[2006] ZACC
11
;
2006 (6) SA 416
(CC);
2006 (12) BCLR 1399
(CC) at para 115,
where this Court held that participation by the public in a
representative democracy enhances the civic dignity
of those who
participate, promotes a spirit of democratic and pluralistic
accommodation, and is of special importance to those
that are
relatively disempowered; and
Albutt v Centre
for the Study of Violence and Reconciliation, and Others
[2010] ZACC 4
;
2010 (3) SA
293
(CC);
2010 (5) BCLR 391
(CC)
,
where this Court held that the participation of victims in a special
dispensation process, initiated to deal “with the
‘unfinished
business’ of the Truth and Reconciliation Commission”
(para 4), was necessary to achieve nation-building
and national
reconciliation (paras 58-9).
30
Report
of the Special Rapporteur on extrajudicial, summary or arbitrary
executions, Christof Heyns (A/HRC/17/28) 26 May 2011 at
para 33.
31
[1999]
ZACC 7
;
1999 (4) SA 469
(CC);
1999 (6) BCLR 615
(CC).
32
Id
at para 8.
33
[2001]
ZACC 17; 2001 (3) SA 409 (CC); 2001 (5) BCLR 449 (CC)
(
Mamabolo
).
34
Id
at para 28.
35
Section
11(3) of the Act provides:
“
For the purposes of—
(a) recourse against, or contribution by, any person
who, or organization which, intentionally and unlawfully caused or
contributed
to the cause of any riot damage; or
(b) contribution by any person who,
or organization which, is jointly liable for any riot damage by
virtue of the provisions of
subsection
(1)
,
any person or organization held
liable for such damage by virtue of the provisions of
subsection
(1)
shall,
notwithstanding the said provisions, be deemed to have been liable
therefor in delict.”
36
34
of 1956.
37
See
Thoroughbred Breeders’ Association v Price Waterhouse
2001 (4) SA 551
(SCA) at para 17 of the majority judgment of Marais
JA, Farlam JA and Brand AJA;
Dlakela v Transkei Electricity
Supply Commission
1997 (4) SA 523
(Tk) at 526G-J; and
South
British Insurance Co Ltd v Smit
1962 (3) SA 826
(A) at 835A-C.
38
Section
1(1) of the Apportionment Act provides:
“
(a) Where any person suffers
damage which is caused partly by his own fault and partly by the
fault of any other person, a claim
in respect of that damage shall
not be defeated by reason of the fault of the claimant but the
damages recoverable in respect
thereof shall be reduced by the court
to such extent as the court may deem just and equitable having
regard to the degree in
which the claimant was at fault in relation
to the damage.
(b)
Damage shall for the purpose of paragraph (a) be regarded as having
been caused by a person’s fault notwithstanding
the fact that
another person had an opportunity of avoiding the consequences
thereof and negligently failed to do so.”
39
See
for instance
McKerron
The
Law of Delict: A Treatise on the Principles of Liability for Civil
Wrongs in the Law of South Africa
7 ed
(Juta & Co, Limited, Cape Town 1971) at 109, 305 and 310; Lee
and Honoré
The South African Law
of Obligations
2 ed (Butterworths,
Durban 1978) at 229-32. For judicial support of this view see
Mohamed J in
Randbond Investments (Pty)
Ltd v FPS (Northern Region) (Pty) Ltd
1992
(2) SA 608
(W) at 619E-G.
40
Burchell
Principles of Delict
(Juta & Co, Ltd, Cape Town 1993) at
241;
Van der Walt and Midgley
Principles
of Delict
3 ed (LexisNexis
Butterworths, Durban 2005) at 247; Neethling et al
Law
of Delict
5 ed (LexisNexis, Durban
2006) at 245.
This difference in emphasis may have been due
to the slightly different working of the Apportionment Act.
Nevertheless, the points
made by McKerron id and Lee and Honor
é
id are still valid in the context of the current Act.
41
Section
2(6)(a) of the Apportionment Act. See also section 2(7)(a),
2(8)(a)(ii) and 2(11)(a) of this Act.
42
Smith
v Road Accident Fund
[2006] ZASCA 15
;
2006 (4) SA 590
(SCA) at para 10.
43
Above
n 33.
44
Id
at para 49.
45
Act
205 of 1993 (Act). Provisions of the section are quoted in [94] and
[123] below.
46
Section
17 of the Constitution is quoted in [119] below.
47
SATAWU
v Garvis and Others
2011 (6) SA 382
(SCA);
2011 (12) BCLR 1249
(SCA).
48
Garvis
and Others v SATAWU
(Minister for Safety and Security, Third
Party)
2010 (6) SA 280
(WCC).
49
Section
3 of the Act.
50
Section
1 of the Act.
51
Section
4 of the Act.
52
Section
5(2) of the Act.
53
Section
9 of the Act.
54
Section
11(1) of the Act.
55
The
full text of section 11(2) is quoted in [123] below.
56
Section
1 of the Act.
57
See
Rule 16(A) of the Uniform Rules of Court.
58
SATAWU
above n 3 at para 32.
59
Id
at para 41.
60
[2003]
ZACC 24
;
2004 (3) SA 599
(CC);
2004 (4) BCLR 333
(CC) at paras 24-5.
61
32
of 1998.
62
In
relevant part section 28 provides:
“
(6) For the purposes of an
investigation—
(a) the Investigating Director may summon any person
who is believed to be able to furnish any information on the subject
of the
investigation or to have in his or her possession or under
his or her control any book, document or other object relating to
that subject, to appear before the Investigating Director at a time
and place specified in the summons, to be questioned or to
produce
that book, document or other object;
(b) the Investigating Director or a person designated
by him or her may question that person, under oath or affirmation
administered
by the Investigating Director, and examine or retain
for further examination or for safe custody such a book, document or
other
object: Provided that any person from whom a book or document
has been taken under this section may, as long as it is in the
possession of the Investigating Director, at his or her request be
allowed, at his or her own expense and under the supervision
of the
Investigating Director, to make copies thereof or to take extracts
therefrom at any reasonable time.
. . .
(8)(a) The law regarding privilege
as applicable to a witness summoned to give evidence in a criminal
case in a magistrate’s
court shall apply in relation to the
questioning of a person in terms of subsection
(6): Provided that such a person shall not
be entitled to refuse
to answer any question upon the ground that the answer would tend to
expose him or her to a criminal charge.
(b) No evidence regarding any
questions and answers contemplated in paragraph
(a) shall be admissible in any criminal proceedings,
except in
criminal proceedings where the person concerned stands trial on a
charge contemplated in subsection
(10)(b) or
(c)
,
or in section
319(3) of the Criminal Procedure Act, 1955 (Act
No. 56 of 1955).
. . .
(10) Any person who has been summoned to appear before
the Investigating Director and who—
(a) without sufficient cause fails to appear at the
time and place specified in the summons or to remain in attendance
until he
or she is excused by the Investigating Director from
further attendance;
(b) at his or her appearance before the Investigating
Director—
(i) fails to produce a book, document or other object
in his or her possession or under his or her control which he or she
has
been summoned to produce;
(ii) refuses to be sworn or to make an affirmation
after he or she has been asked by the Investigating Director to do
so;
(c) having been sworn or having made an affirmation—
(i) fails to answer fully and to the best of his or her
ability any question lawfully put to him or her;
(ii) gives false evidence knowing that evidence to be
false or not knowing or not believing it to be true,
shall be guilty of an offence.”
63
Shaik
above n 16 at para 23.
64
Shaik
above n 16 at paras 21-2 and 24-5.
65
Id
at para 33.
66
Id
at paras 38 and 39.
67
Id
at para 40.
68
[2005]
ZACC 15
;
2006 (1) SA 505
(CC);
2006 (2) BCLR 274
(CC) at para 43.
69
Sections
167-9 of the Constitution.
70
Section
172(1) provides in relevant part:
“
When deciding a
constitutional matter within its power, a court—
(a) must declare that any law or conduct that is
inconsistent with the Constitution is invalid to the extent of its
inconsistency”.
71
Shaik
above n 16 at para 23.
72
Ex
parte Minister of Safety and Security: In re S v Walters
[2002]
ZACC 6
;
2002 (4) SA 613
(CC);
2002 (7) BCLR 663
(CC) at para 57.
73
See
Coetzee v Government of the Republic of South Africa, Matiso and
Others v Commanding Officer, Port Elizabeth Prison and Others
[1995]
ZACC 7
;
1995 (4) SA 631
(CC);
1995 (10) BCLR 1382
(CC) at para 9;
S
v Williams and Others
[1995] ZACC 6
;
1995 (3) SA 632
(CC);
1995
(7) BCLR 861
(CC) at para 54;
S v Makwanyane and Another
[1995] ZACC 3
;
1995 (3) SA 391
(CC);
1995 (6) BCLR 665
(CC) at para
100; and
S v Zuma and Others
[1995] ZACC 1
;
1995 (2) SA 642
(CC);
1995 (4) BCLR 401
(CC) at para 21.
74
Section
36(1) provides:
“
The rights in the Bill of
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.”
75
SATAWU
above n 3 at para 32.
76
SATAWU
above n 3 at para 52.
77
Hoban
v ABSA Bank Ltd t/a United Bank and Others
1999 (2) SA 1036
(SCA) at paras 18-9.
78
SATAWU
above n 3 at para 52.
79
Above
n 24 at para 39-40.
80
Above
n 17.
81
Shaik
above n 16 at paras 38-40.
82
SATAWU
above n 3 at para 40-1.
83
Barlin
v Licensing Court for the Cape
1924 AD 472
at 478.
84
1999
(8) BCLR 855
(SCA).
85
Id
at para 11, per Olivier JA, with Mahomed CJ, Grosskopf JA, Farlam
AJA and Madlanga AJA concurring.
86
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);
2000 (10) BCLR 1079
(CC). At para 23 Langa DP said:
“
Accordingly, judicial
officers must prefer interpretations of legislation that fall within
constitutional bounds over those that
do not, provided that such an
interpretation can be reasonably ascribed to the section.”