A problematic limitation on the right to freedom of assembly

One of the most effective ways in which South Africans – through organisations like the UDF and Cosatu – could mobilise support for the anti-apartheid struggle in South Africa and could demonstrate its resistance to the continued existence of an illegitimate state was through protest marches and demonstrations. No wonder that the apartheid state tightly regulated such marches and often banned them outright. During the various States of Emergency in the nineteen eighties “illegal” protest marches were often broken up violently by the police who used teargas, rubber bullets, water cannons and live ammunition to stop citizens from protesting against the National Party regime.

In order to “normalise” political activity in South Africa in preparation for the first democratic election, the apartheid Parliament adopted the Regulation of Gatherings Act 205 of 1993. This Act for the first time affirmed that citizens had a right to take part in demonstrations and protest marches and provided for an elaborate procedure — requiring negotiations between the authorities and the organisers of a march or a demonstration — to ensure that such demonstration and marches were conducted in an orderly fashion to ensure that these marches and demonstrations caused the least disruption to other members of the public.

The right “peacefully and unarmed, to assemble, to demonstrate, to picket and to present petitions” was also enshrined in section 17 of South Africa’s 1996 Constitution. This right is pivotal for the proper functioning of a democracy. If political organisations, civil society groups and members of the public are not free to demonstrate and to take part in protest marches, the participatory aspect of our democracy would be fatally weakened. We vote every five years, but we get to participate in our democracy in the five years in-between elections, amongst others, by taking part in demonstrations and protest marches.

It is against this background that a recent judgment of the Supreme Court of Appeal in the cash of The South African Transport and Allied Workers Union v Garvers and Others must be evaluated. The case dealt, amongst others, with the question of whether a Union under whose auspices a gathering or demonstration was held and then degenerated into a riot causing damage to others could be held liable in terms of the Gatherings Act.

The respondents in this cased sued the South African Transport and Allied Workers Union for damages in terms of section 11(1) of the Act because of damages which resulted from a Union march held in 2006. The march in the Cape Town City Bowl arose out of a protracted strike in the security sector by members of the Union. As the march proceeded, in the Union’s own words, it “descended into chaos”, with admitted extensive damage caused to vehicles and shops along the route.

Section 11(1) of the Act states that “[i]f any riot damage occurs as a result of a gathering, every organisation 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 which occurred”. Riot damage is defined 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”.

The potentially broad scope of this section is somewhat limited by section 11(2) of the Act which sets out three factors that a defendant to such an action has to prove in order to escape liability for the damage caused by the marchers. Section 11(2) reads as follows:

It shall be a defence to a claim against a person or organisation contemplated in subsection (1) if such a person or organisation 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.

In defending the action, the Union (in addition to denying liability in general terms) also contended that s 11(2)(b), particularly the part highlighted above, places too great a burden on trade unions and other organisations and individuals who intended to assemble to protest publicly. It was submitted that it has a chilling effect on the rights set out in s 17 of the Constitution.

In other words, the Union argued that faced with the onerous task of proving what is required by s 11(2)(b), unions, other organisations and individuals would be deterred from organising marches, protests and other gatherings for fear of financial ruin. Section 11(2)(b) was unconstitutional in that it offended against the right entrenched in s 17 of the Constitution. Because the onus was placed on the organisers of the march to prove all three requirements set out in section 11(2) and because this would be difficult to do, the section would — if regularly invoked — prevent organisations from holding legitimate protest marches and demonstrations for fear of facing financial ruin.

The SCA, in a judgment written by Navsa JA, rejected these arguments. The Court argued that this section did not differ much from the common law position. In terms of our common law, liability ensues if a reasonable person or institution would foresee the reasonable possibility that the conduct would injure another in his person or property; would take reasonable steps  to guard against such an occurrence; and the defendant failed to take such steps. Despite the fact that section 11(2) states that an organisation would need to prove the existence of all three factors mentioned, Navsa JA stated:

Apart from being couched in the negative, because it relates to the setting up of a defence, I have some difficulty in understanding why the provisions of s 11(2)… differ radically or even significantly from the common law requirements for liability for negligence. It was submitted that the conjunctive nature of the provisions of s 11(2) (b)  relating to a defendant was especially pernicious, because at common law all a defendant needed to show to escape liability, when sued in a delictual action based on negligence, was that a reasonable person in his or her position would not have foreseen the reasonable possibility of his or her conduct injuring another in their person or property, causing damage to be sustained. The absence of that factor alone would usually mean that a defendant would escape liability.  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.

I am not sure this is a plausible argument. What happens in a case where the riot was not reasonably foreseeable but the Union was unable to prove that it connived in the (not reasonably foreseen) act or omission which followed and which caused injury or damage to property? What happens if the riot was not reasonably foreseeable but the Union was unable to prove that when it occurred it took all reasonable steps to stop it? For example, where a Union organises a march and reasonably believes that the march would be peaceful and this belief turns out to be wrong, it would still have to prove that during the march it did everything it could to prevent the march from turning into a riot and did not — trough omission — “allow” the riot to ensue.

It seems to me this would indeed be very difficult to prove as one would have to prove that one has done certain things and that one has not done other things.

There may be good policy reasons to place such a heavy burden on the organisers of a march and such policy reasons may come into play when deciding whether the limitation of the right to assembly has been justifiable in terms of the limitation clause. But to find, as the SCA did, that this section places no limit on section 17 at all does not seem plausible to me. At the very least, a plausible judgment would have had to find that section 11 of the Gatherings Act places a limitation on the right to assemble peacefully but that this limitation was justifiable in terms of the limitation clause.

The SCA pointed out that section 17 only protects peaceful and unarmed marches. However, the impugned section deals exactly with situation where a peaceful and unarmed march turns nasty. Would an organisation not think twice before organising what it believes will be a peaceful march because of a fear that it would be held liable for damages that might occur because a peaceful march turns ugly? Would this not have a “chilling effect” on the right guaranteed in section 17? This is exactly what the Union argued in this case, but the argument was dismissed by the SCA:

The chilling effect of s 11(2)(b)described on behalf of the Union is not only unsubstantiated but is contradicted by the police and the City of Cape Town, who presented unchallenged evidence that in their extensive experience the provisions of the Act have not deterred people from public assembly and protest. If anything, the regularity of public assembly and protest in the 15 years of the existence of the Act proves the contrary. The chilling effect that the provisions of the Act should rightly have is on unlawful behaviour that threatens the fabric of civilised society and which undermines the rule of law. In the past the majority of the population was subjected to the tyranny of the state. We cannot now be subjected to the tyranny of the mob.

I am not sure this is a plausible argument either as the provisions of section 11 of the Act have seldom if ever been invoked. If the provisions of section 11 are invoked regularly it may well have a chilling effect on the freedom of organisations to hold peaceful marches. In a different political climate in which Unions find themselves in opposition to the government of the day, this section may well be invokers by that government to harass and even destroy the union involved. On reflection, I am therefore not so sure that section 11(2) should have been found to be constitutionally valid at all.

I am not contending that it should not be possible to hold the organisers of marches liable for damage that occurs during a march. Clearly, organisers of marches should be held liable for irresponsible and reckless behaviour by march organisers that lead to injury or damage to property. This would be necessary to ensure that citizens are not subjected to “the tyranny of the mob”.

But by doing so by placing a reverse onus on march organisers to prove that it could not reasonably have foreseen the damage and that it had not taken all reasonable measures to prevent the damage, section 11 limits the rights of ordinary citizens in a sweeping manner. Surely the same goal may be achieved by using less restrictive means?

I would imagine that many South Africans tired of the lawless behaviour of some union members would applaud this judgment. But I am worried that this section might well be open to abuse by a government hell bent on repressing dissent.

If a strong social movement rises up in South Africa and mounts increasingly large protest marches against service delivery problems, corruption, police brutality and state repression, such a movement may be hamstrung or even destroyed by the state who could invoke this section against the movement who may genuinely have lost control of protestors at a march organised by it.

The movement will then have to come to court and prove that a riot was not reasonably foreseen, something that might be difficult to do if the police is known to be highly antagonistic towards the marchers or if it is foreseen that fanatic supporters of the ruling party was out to sabotage the march by provoking marchers. It might then be reasonably foreseen that marchers will be provoked by the police or by citizens to try and get them to riot, which would mean that march organisers will then be held liable for any damage caused.

This is not an easy issue, but I fear that the SCA has only considered the current political situation and its judgment may have been clouded by its impatience with the irresponsible behaviour of some union leaders. When one considers the constitutionality of a legal provision one has to look past the present towards the future and should ask whether — in different circumstances — the impugned provision would still be viewed as so harmless. In this case, I am far from sure that it would.

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