Quote of the week

It is clear that no legitimate objective is advanced by excluding domestic workers from COIDA.  If anything, their exclusion has a significant stigmatising effect which entrenches patterns of disadvantage based on race, sex and gender…. In considering those who are most vulnerable or most in need, a court should take cognisance of those who fall at the intersection of compounded vulnerabilities due to intersecting oppression based on race, sex, gender, class and other grounds.  To allow this form of state-sanctioned inequity goes against the values of our newly constituted society namely human dignity, the achievement of equality and ubuntu.  To exclude this category of individuals from the social security scheme established by COIDA is manifestly unreasonable.

Victor AJ
Mahlangu and Another v Minister of Labour and Others (CCT306/19) [2020] ZACC 24 (19 November 2020)
10 September 2010

Freedom of assembly or freedom to riot?

What happens when an organisation – for example Nehawu, the Family Policy Institute or the Springboks Fan Club – organises a protest march or a demonstration and it turns violent and destructive? You know the drill: a few thousand members of an organisation march through the streets of a big city, some of them angry and ready to vent, when a protestor suddenly hurls a brick through a shop window and another smashes the window of a parked car. All hell breaks loose and hundreds of thousands of Rand of damages occur.

In terms of section 11 of the Regulation of Gatherings Act 205 of 1993, the organisers of the protest march or demonstration could be held vicariously liable for the damage done by the marchers or demonstrators. This means that even if organisers of a protest march or demonstration took steps to prevent the destruction of property, the organisation may nevertheless be sued for the damages that occurred because of a riot that ensues.

The organisation will be liable unless it could prove that it did not permit or connive in the riot; and that the riot did not fall within the scope and objectives of the march or demonstration and was not reasonably foreseeable; and that it took all reasonable steps to prevent the riot. In Garvis and Others v South African Transport and Allied Workers Union and Another the Cape High Court had to decide whether the underlined provision did not unfairly limit the right in section 17 of the Bill of Rights of everyone peacefully and unarmed to assemble, to demonstrate, to picket and to present petitions.

It was argued in court that  if an organisation was always going to be held liable for damages that occur during a march or demonstration unless it could prove that the riot was not reasonably foreseeable, it would have a chilling effect on the right as guaranteed in section 17. Was it not unfair to hold an organisation financially liable for damage resulting from a riot even where it took all reasonable measures to prevent that riot from occurring? Would it not stop holding demonstrations and marches for fear of having to pay millions of Rand in damages to claimants whose property had been destroyed?

The High Court, in a neatly argued judgment by Hlophe JP, found that section 11 of the Act was indeed constitutionally valid. This was first because it did not infringe on the right to assemble and demonstrate peacefully. Where a gathering is not peaceful, the organisers or trade unions who had organised the gathering can therefore not rely on section 17 for protection as they had not organised a peaceful event.

Second, the Court argued that there was no evidence that the section actually had a chilling effect on organisations such as SATAWU from organising marches and demonstrations. Although it was aware of these provisions, it nevertheless held several marches and demonstrations, which showed that the section had not dissauded organisations from holding demonstrations and marches.

Even if this was wrong, argued the court, the limitation of the section would be justified by the limitations clause. The purpose of this section was rather important as it was aimed at protecting the rights to dignity, to be free from all forms of violence and the right not to be arbitrarily deprived of property.

It was also aimed at promoting order and the rule of law and to deter mob violence. Moreover, it would be rather difficult to achieve these goals without holding organisations vicariously liable for damages that could reasonably have been foreseen as it would be almost impossible to identify and sue individual marchers or demonstrators. During a riot few people are actually arrested and caught red handed destroying property.

In this case, it was therefore possible for those people who had suffered damages after SATAWU workers went on the rampage to claim from the Union as they should reasonably have foreseen that a riot would break out, given the volatile situation which existed at the time. Although the Union took reasonable steps to try and prevent workers from trashing the city of Cape Town, they should have foreseen that a riot could break out and should therefore be held liable for the damage cause by the mayhem.

For most people who posess any kind of property, this outcome would seem rather satisfying. One might well argue – as Hlophe JP did – that a march or demonstration that turns violent and which leads to the wanton destruction of property are not protected at all by the right to peaceful assembly – ever. No one has the right to organise a demonstration or a protest march knowing full well that it might turn ugly and that one’s members might go on a rampage. I agree with this view.

But what happens if the riot is not caused by one’s own members but by those opposed to the organisation who has organised the demonstration or the march? What happens if I belong to an organisation who wishes to hold a peaceful march through the streets of Ventersburg on the day on which Eugene Terreblanche’s alleged murderers appear in court to show support for the accused. I might know that members of the AWB would not be happy to hear that 5000 people are going to demonstrate – completely peacefully – outside the court, holding up placards that suggest that Terreblanche was the real murderer and calling for a banning of the AWB.

I might reasonably foresee that AWB members would not want that march to continue and that its members might provoke the 5000 peaceful marchers and would try and start a riot. My organisation would therefore potentially be held liable for any damaged caused by the ensuing riot. But is this fair and does it not make my right to peaceful assembly contingent on the acceptability of the message I wish to convey during the protest march or assembly? Should my organisation be punished because its message might provoke others to riot and to smash up the streets? Would this not constitute a rather fundamental limitation on the right to protest peacefully because it makes the exercise of my right contingent on the tolerance shown by others?

This seems like a difficult question, but I suspect that the Act as it now reads places too severe a restriction on the right to assemble peacefully. To demonstrate peacefully is one of the most important rights underpinning our democracy and limiting that right should be allowed in only very restricted situations. What is needed, perhaps, is to read words into this section which limits the vicarious liability of an organisation to those cases where the riot was started by members of one’s own organisation and where the damage was actually done by them.

Otherwise, our right to assemble peacefully could be held to ransom by the whims of intolerant members of the public of competing organisations who would wish to stop one from expression one’s views.

2015 Constitutionally Speaking | website created by Idea in a Forest