South African Transport and Allied Workers Union and Another v Garvas and Others; Congress of South African Trade Unions intervening; Freedom of Expression Institute as Amicus Curiae

SATAWU organized a protest march in Cape Town on 16 May 2006 during a protracted and violent strike in the security industry. Despite complying with the Regulation of Gatherings Act (notice given, negotiations held, marshals appointed), the march degenerated into chaos resulting in extensive damage to property and vehicles owned by street vendors and others. The victims (respondents) sued SATAWU under section 11(1) of the Act, which imposes joint and several liability on organizers for "riot damage" arising from a gathering. SATAWU denied liability and counterclaimed that section 11(2)(b)'s words "and was not reasonably foreseeable" were unconstitutional as they created an impossible defence that limited the right to freedom of assembly in section 17 of the Constitution. SATAWU argued that if an act was not reasonably foreseeable, no reasonable steps could be taken to prevent it (as required by s 11(2)(c)), making the defence internally contradictory and illusory.

• Whether section 11(2) of the Regulation of Gatherings Act limits the right to freedom of assembly in section 17 of the Constitution
• Whether the words 'and was not reasonably foreseeable' in section 11(2)(b) render the statutory defence internally inconsistent and irrational
• If section 11(2) limits section 17 rights, whether the limitation is reasonable and justifiable under section 36 of the Constitution
• The proper interpretation of section 11(2) - whether the requirements in subsections (b) and (c) must be read conjunctively or disjunctively
• Whether organizers can rely on the apportionment of damages and recourse against other joint wrongdoers
• Whether section 17's protection extends to gatherings that result in violence

Application for leave to appeal granted. Appeal dismissed. Section 11(2) of the Regulation of Gatherings Act declared constitutionally valid. SATAWU and COSATU ordered to pay costs of the first to eighth respondents, including costs of two counsel.

Section 11(2) of the Regulation of Gatherings Act, properly interpreted, provides a rational and viable defence to statutory liability for riot damage. The requirement that organizers prove (a) no permission/connivance, (b) damage-causing act not within objectives and not reasonably foreseeable, and (c) all reasonable steps taken to prevent the act, must be read so that reasonable preventive steps can render initially foreseeable harm no longer reasonably foreseeable. This interpretation avoids the absurdity of requiring steps to prevent unforeseeable harm. While section 11(2) limits the section 17 right to freedom of assembly by imposing liability conditions that increase protest costs and may deter marginalized organizations, this limitation is justified under section 36. The limitation is proportionate because: it serves the legitimate and important purpose of protecting innocent victims of riot damage; it balances organizers' rights against victims' rights to dignity, security and property; organizers have choice whether to proceed while victims have none; the Act provides for apportionment of damages and recourse against actual perpetrators; and no less restrictive means exist to achieve the protective purpose. The right to peaceful assembly in section 17 is not lost when violence occurs if the organizers and participants maintain peaceful intentions - sporadic violence by others does not remove constitutional protection.

Mogoeng CJ (majority): Freedom of assembly is central to constitutional democracy, providing voice to the powerless and being one of the principal means for ordinary people to contribute to advancing human rights. South Africa's history under apartheid, where assembly rights were brutally denied, informs the foundational importance of this right. The right's exercise must be balanced against others' rights to dignity, freedom from violence, and property. Organizations must continuously ensure throughout planning and execution that harm is not foreseeable and reasonable steps are taken. The "riot damage" definition is very wide, covering damage occurring before, during or after a gathering, whether directly or indirectly caused. Jafta J (minority): The challenge was improperly framed - section 11(1) which imposes liability was not challenged, only section 11(2) which provides the defence. Following Shaik, parties must accurately plead constitutional challenges and courts should hold them to their pleadings. No evidence was led that section 11(2) actually deters organizations from protesting. Reading "and" as "or" between subsections (b) and (c) solves the problem without constitutional invalidity. The Supreme Court of Appeal erred in accepting the parties' agreement that justification analysis was unnecessary if the defence was real - section 36 requires courts themselves to determine justification. Courts should prefer interpretations that preserve constitutional validity where reasonable.

This judgment is significant for: (1) Affirming the constitutional importance of freedom of assembly as a fundamental democratic right, particularly for marginalized and powerless groups to participate in democracy. (2) Establishing that section 17's protection of peaceful assembly is not lost merely because violence occurs during a gathering - the focus is on the peaceful intentions of participants, not sporadic violence by others. (3) Clarifying the liability regime for protest-related damage under the Regulation of Gatherings Act - organizers can be held strictly liable but have a meaningful defence if they take adequate precautions. (4) Demonstrating how courts balance competing rights - freedom of assembly versus protection of vulnerable victims of riot damage. (5) Illustrating constitutional interpretation principles: courts must interpret statutes to preserve validity where possible, and "and" may be read as "or" to avoid absurdity or unconstitutionality. (6) Reinforcing pleading requirements in constitutional litigation - parties must accurately specify which provisions are challenged (following Shaik). (7) Confirming that organizers have recourse against actual wrongdoers through apportionment of damages. The case has major implications for labor unions, civil society organizations, and protest movements in balancing the exercise of assembly rights with responsibility for damage.