South African Transport and Allied Workers' Union v Garvis and Others

On 16 May 2006, the South African Transport and Allied Workers' Union (SATAWU) organised a protest march in Cape Town City Bowl arising from a protracted strike in the security sector. The march was a gathering as defined under the Regulation of Gatherings Act 205 of 1993. Despite having approximately 500 marshals and following statutory consultation procedures with police and the City of Cape Town, the march descended into chaos and a riot, causing extensive damage to vehicles, shops, and property along the route. At least one person was assaulted, and damage was estimated at approximately R1.5 million. Approximately 39 people were arrested. The march occurred against a backdrop of heightened tensions, with approximately 50 people having been killed in strike-related violence preceding the march. Eight individual respondents and one company sued SATAWU under section 11 of the Act to recover damages. SATAWU defended the action and counterclaimed that section 11(2)(b) of the Act was unconstitutional because it infringed the right to freedom of assembly under section 17 of the Constitution. The Union joined the Minister of Safety and Security as a third party, alleging police negligence contributed to the riot.

• Whether section 11(2)(b) of the Regulation of Gatherings Act 205 of 1993 is inconsistent with section 17 of the Constitution, which guarantees the right to assemble, demonstrate, picket and present petitions peacefully and unarmed
• Whether section 11(2)(b) creates an impossible or illusory defence for organisers of gatherings, thereby having a 'chilling effect' on the exercise of constitutional rights to assembly and protest
• Whether section 11(2)(b) is internally contradictory in requiring that an act or omission 'did not fall within the scope of the objectives of the gathering' AND 'was not reasonably foreseeable'
• Whether the conjunctive requirements of section 11(2)(b) impose strict liability on organisers
• Whether organisers can escape liability under section 11 when they have taken all reasonable precautions but a riot nonetheless occurs

The appeal was dismissed. The Western Cape High Court's declaration that section 11(2)(b) of the Regulation of Gatherings Act 205 of 1993 is not inconsistent with section 17 of the Constitution was upheld. No order as to costs was made, given the constitutional nature of the issues raised.

The binding legal principles established are: 1. Section 17 of the Constitution protects only the right to assemble, demonstrate, picket and present petitions 'peacefully and unarmed' - it does not extend to or protect riots, violent assemblies, or assemblies where participants are armed. 2. Section 11(2)(b) of the Regulation of Gatherings Act 205 of 1993 does not infringe section 17 of the Constitution because liability only attaches when a gathering degenerates into a riot, which falls outside constitutional protection. 3. Section 11(2)(b) provides a viable and intelligible defence to organisers of gatherings. It is not internally contradictory or self-destructive. The requirement that an act causing damage 'was not reasonably foreseeable' can be satisfied even where general discussions about potential violence occurred during planning. 4. The conjunctive requirements of section 11(2) are not unconstitutional. A defendant must prove: (a) no permission or connivance; (b) the act did not fall within the scope of objectives AND was not reasonably foreseeable; and (c) all reasonable steps were taken to prevent it. These requirements are coherent because one can only take reasonable steps to prevent foreseeable occurrences. 5. The defences available under section 11(2) are not materially different from common law defences to delictual liability based on negligence, particularly as articulated in Kruger v Coetzee. 6. There is no unconstitutional 'chilling effect' on the right to assembly where evidence demonstrates that protests and gatherings continue to be regular features of democratic life despite the existence of statutory liability provisions. 7. Where a gathering is organised in circumstances where it is reasonably foreseeable that no measures could prevent it from degenerating into a riot, and the organiser persists nonetheless, liability may properly attach both under the Act and at common law.

The court made several important non-binding observations: 1. Premature separation of issues: The court criticised the decision to separate the constitutional question under Uniform Rule 33(4) before the factual causes of the riot were established. It observed that such piecemeal litigation is undesirable and that the reasons for the riot should be properly explored at trial. Various factual scenarios might render the constitutional question unnecessary. 2. Historical context and importance of protest: The court acknowledged that public protests were met with brutal force during apartheid (referencing Sharpeville and the 1976 Soweto uprising), and that workers' rights were 'hard-won' following 'years of intense and often grim struggle.' The court recognised that assemblies, pickets, marches and demonstrations are 'an essential feature of a democratic society' and 'essential instruments of dialogue.' 3. Constitutional values and accountability: The court emphasised that South Africa's Constitution represents a 'clean break with the past' and is focused on human dignity, equality, human rights, accountability, responsiveness and openness. 4. Warning against mob rule: The court stated memorably: '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.' It emphasised that the Act should have a 'chilling effect' on 'unlawful behaviour that threatens the fabric of civilised society and which undermines the rule of law.' 5. Noble struggle must remain unsullied: The court observed that 'Trade unions should ensure that a noble struggle remains unsullied.' 6. Constitutional Court jurisdiction: The court noted the Constitutional Court's repeated observations about the difficulties of dealing with complex constitutional questions as a court of first instance, particularly where facts are in dispute or where the limitation analysis under section 36 is required, and especially where a decision on the constitutional issue might not be decisive. 7. Scope of 'riot damage': The court rejected the argument that the definition of 'riot damage' in the Act was overly broad, noting that it must be read together with the ordinary meaning of 'riot' as 'a violent disturbance of the peace by a crowd.' 8. Price of democracy: The court rejected the Union's submission that damage to public property was 'a small price to pay' to preserve the right to public assembly, holding instead that the public is entitled to protection against behaviour militating against the rule of law.

This judgment is significant in South African law for several reasons: 1. Constitutional interpretation of the right to assembly: It clarifies that section 17 of the Constitution protects only peaceful and unarmed assembly - riots and violent conduct fall outside constitutional protection. 2. Balance between protest rights and public order: The judgment strikes a balance between protecting the hard-won right to protest (particularly important for trade unions and historically disadvantaged groups) and protecting the public from unlawful violence and property damage. 3. Statutory civil liability for protest-related damage: It upholds the constitutional validity of a statutory regime that holds organisers of gatherings liable for riot damage, subject to viable defences. 4. Post-apartheid context: The judgment acknowledges the importance of protest in South Africa's democratic transition while warning against 'tyranny of the mob' replacing apartheid-era state tyranny. 5. Interpretation of the Regulation of Gatherings Act: It provides detailed analysis of the Act's comprehensive scheme for regulating gatherings, including consultation, notification, and marshaling requirements. 6. Procedural caution: The judgment warns against premature separation of constitutional issues before facts are fully established, reinforcing the Constitutional Court's preference for deciding constitutional matters on a proper factual matrix. 7. Rule of law: It emphasises that constitutional democracy depends on the rule of law, which includes protection of persons and property from mob violence, even in the context of legitimate protest. The case remains authoritative on the constitutional validity of holding protest organisers civilly liable for riot damage while providing meaningful defences.