The law, like the suburban American house, is designed to order a particular pattern of relationships, many of them oriented around the heterosexual nuclear family. For real people in contemporary circumstances to inhabit the house the law built, one has to find side doors and discreet corners, while the dominant space changes little and the façade remains unaltered. The two big L.G.B.T.-rights Supreme Court victories that came before Bostock—Windsor and Obergefell—did exactly that: they carved out a place for monogamous same-sex couples who want to marry (statistically, these are more apt to be white middle-class people like the plaintiffs) in the house of the American nuclear family.
One of the most fundamental democratic rights in a constitutional democracy is the right to gather peacefully with others and to take part in protest action, either to convey one’s point of view about an important political or social matter or in support of one’s right to strike. During the apartheid years protest marches and gatherings were often “banned” or violently disrupted by the Police in order to prevent citizens from expressing their anger and disgust at the apartheid regime.
We should therefore not lightly celebrate the imposition of limits on this right. Even in the democratic era, City and Police officials often act as if this is not a right we enjoy at all (despite it being enshrined in the Constitution and protected by the Gatherings Act) but rather a privilege to be granted only if they believe that it would not be too much trouble.
It was therefore with interest that I read the Constitutional Court decision in the case of South African Transport and Allied Workers Union (SATAWU) and Another v Garvas and Others, which was handed down yesterday. The case (and appeal from a judgment by the Supreme Court of Appeal discussed on this Blog previously) dealt with the question of whether the provisions in the Gatherings Act which holds the organisers of a gathering responsible for any “riot damage” caused by the gathering or demonstration in specific defined circumstances was rational and constitutionally valid.
Section 11(2) of the Act states that the organisers of a gathering or demonstration will normally be held liable for such damage, but only if they cannot show that they did not approve of the acts which caused the damage; 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 that they took all reasonable steps within their power to prevent the act or omission in question, provided that proof that they forbade an act of the kind in question will not by itself be regarded as sufficient proof that they took all reasonable steps to prevent the act in question.
SATAWU had argued before the Constitutional Court that section 11(2) is contradictory and irrational as the section expected the organization of a gathering or demonstration to take all reasonable steps to prevent a specific act or omission, even when that act or omission was not reasonably foreseeable. The Union argued in the alternative that the section limited the right to freedom of assembly guaranteed in section 17 of the Constitution and that the limitation on this right was not justifiable. The main judgment, written by Chief Justice Mogoeng), rejected all these arguments.
The judgment attempts to strike a balance between protecting the important right to assemble on the one hand, and the interests of the wider society and individuals who may potentially be affected by violent or destructive protest action. The Court noted that it was obliged – to the extent that it is possible – to interpret the section in a manner that yields a rational meaning, and preserves its validity so that the purpose it was enacted to serve is realised. It then remarked that:
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 [in section 11(2)], 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.
The Court noted that the Act reverses the onus of proof, placing the onus on the organisers of the march or gathering to show that the rioting was not reasonably foreseeable or that if it was, that it took reasonable steps within its power to prevent that act or omission causing the riot damage from happening. Put differently, 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. But the organisers would have to demonstrate this to the court, which place them in a difficult position and open them up to claims for damage that ensues during a protest march..
Interpreted in this way, the section places an onerous duty on the organisers known for arranging volatile and violent protest marches to take all reasonable steps to prevent their marches from becoming violent and leading to damage. If the local Vroue Landbou Unie or Stokvel organised a gathering or march, the steps they would have to take would be far less onerous than if SATAWU organised a gathering because one would not reasonably foresee the former gatherings ending in violence and so would not require special steps to be taken, while one would foresee the possibility of violence in the latter case and would require more onerous steps. Chief Justice Mogoeng spelt out the effect of this interpretation as follows:
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.
Although this section therefore provides a liable defence to the organisers of a march or gathering against claims for damage caused by rioting during the march or gathering, the main judgment found that this nevertheless limited the right to freedom of assembly protected in section 17 of the Constitution. This is because compliance with the requirements of section 11(2) significantly increases the costs of organising protest action. It may also 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.
The limitation was nevertheless found to be a justifiable one in terms of the limitation clause set out in section 36 of the Constitution. In making this finding the Court emphasised the importance of freedom of assembly for our democracy.
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.
However, it also found that the limitation served the very important purpose of protecting 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.
The judgment means that in future the organisers of protest marches would not always be able to wash their hands of the violence and destruction flowing from a march. When a march turns ugly, the organisers can be sued for the damage that ensues and unless they can show that they did not reasonably foresaw that damage would ensue or that they foresaw it but took all reasonable steps to prevent it, they would be held liable for any damage caused. Only time will tell whether this will alter the behaviour of organisations holding large demonstrations.BACK TO TOP