The Applicants in the matter were Unions, the Congress of South African Trade Unions (“COSATU”) and the South African Transport and Allied Workers Union (“SATAWU”). The Respondents in the matter were the institutors of the High court claim for damages following a destructive strike namely; Jacqueline Garvas, Thuraya Niadoo, Chinatown RSA International, Annees Soeker, Andrew Njiokweumegi, Dolores Rosanne Rietz, Maurice Robertson, Harold Burger and the Minister of Safety and Security as an intervening party in the initial suite.
COSATU has challenged the constitutionality of section 11 of the RGA which states that the organisers of a march/protest can be held liable for property damaged during the protest. The Act renders organisers of gatherings liable for damages caused by the gathering unless they took all reasonable steps to avoid the damage and they did not reasonably foresee that damage.
The challenge came as a result of a protest by the South African Transport and Allied Workers Union (SATAWU) of thousands of people through the City of Cape Town, the gathering was meant for the union members to express their employment related concerns. Prior to this gathering about 50 people lost their lives in the course of SATAWU’s protracted strike action. During the gathering, much property including private property was damaged.
The matter was initially heard at the High court wherein the claimants who had suffered damages in the course of the destructive gathering instituted legal proceedings and were successful in their claim. The matter was appealed by the unions in the Supreme Court of Appeal, which however upheld the decision of the Western Cape High Court saying that the law was valid.
In addressing the matter, the Constitutional Court dismissed the constitutional challenge. Mogoeng CJ held that the law aims to afford victims effective recourse where a gathering becomes destructive and results in injury, loss of property or life. The majority held that the defence provided for by the law is viable and that the limitation on the right to freedom of assembly in section 17 of the Constitution is reasonable and justifiable, because it serves an important purpose and reasonably balances the conflicting rights of organizers, potential participants and often vulnerable and helpless victims of a gathering or demonstration which degenerates into violence. Mogoeng CJ emphasised that the reasonable steps taken on the one hand and reasonable foreseeability on the other hand.
The FXI’s aim in getting involved in this matter was mainly to highlight how S11 has the potential effect of stifling the right to protest, picket and assembly.