Satawu and Another v Garvas and Others

• Jurisdiction: South Africa

Satawu and Another v Garvas and Others
2013 (1) SA 83 (CC)

2013 (1) SA p83

Citation	2013 (1) SA 83 (CC)
Case No	CCT 112/11; [2012] ZACC 13
Court	Constitutional Court
Judge	Mogoeng CJ, Yacoob ADCJ, Cameron J, Froneman J, Jafta J, Khampepe J, Maya AJ, Nkabinde J, Skweyiya J, Van der Westhuizen J and Zondo AJ
Heard	February 9, 2012
Judgment	June 13, 2012
Counsel	W Trengove SC (with H Maenetje SC and J Brickhill) for the applicants.; A Katz SC (with D Cooke) for the first to eighth respondents.; K Pillay for the ninth respondent.; IV Maleka SC (with N Bawa) for the intervening party.; AD Stein (with IB Currie and NC Ferreira) for the amicus curiae.

Flynote : Sleutelwoorde B

Damages — Riot damage — Liability of organiser of gathering — Defence — Section requiring organiser to continuously take reasonable steps to prevent damage-causing acts or omissions as they become foreseeable, to extent that their occurrence is no longer foreseeable — Where steps are outside of C organiser's power, it must notify third parties under duty to take steps in such circumstances, to do so — Regulation of Gatherings Act 205 of 1993, s 11(2).

Damages — Riot damage — Liability of organiser of gathering — Recovery by D organiser of contribution from other joint wrongdoer — Such entailing determining organiser's fault, which, coupled with determination of fault of other joint wrongdoer, allowing for organiser to recover contribution — Apportionment of Damages Act 34 of 1956, s 2(6)(a); Regulation of Gatherings Act 205 of 1993, s 11(2).

Constitutional law — Human rights — Right to assemble, demonstrate, picket E and petition — Sections limiting right, but such justifiable — Constitution, s 17; Regulation of Gatherings Act 205 of 1993, ss 11(1) and 11(2).

Headnote : Kopnota

This case concerns the constitutionality of ss 11(1) and 11(2) of the Regulation of Gatherings Act 205 of 1993 (the Act). The sections provide that: F

'(1) If any riot damage occurs as a result of —

(a)

a gathering, every organization on behalf of or under the auspices of which that gathering was held, or, if not so held, the convener;

(b)

a demonstration, every person participating in such demonstration,

shall, subject to subsection (2), be jointly and severally liable for that G riot damage as a joint wrongdoer contemplated in Chapter II of the Apportionment of Damages Act, 1956 (Act 34 of 1956), together with any other person who unlawfully caused or contributed to such riot damage and any other organization or person who is liable therefor in terms of this subsection.

(2) It shall be a defence to a claim against a person or organization H contemplated in subsection (1) if such a person or organization proves —

(a)

that he or it did not permit or connive at the act or omission which caused the damage in question; and

(b)

that the act or omission in question did not fall within the scope of the objectives of the gathering or demonstration in question and I was not reasonably foreseeable; and

(c)

that he or it took all reasonable steps within his or its power to prevent the act or omission in question: Provided that proof that he or it forbade an act of the kind in question shall not by itself be regarded as sufficient proof that he or it took all reasonable steps to prevent the act in question.' J

2013 (1) SA p84

A The facts were that the South African Transport and Allied Workers Union (SATAWU) had organised a gathering which resulted in a riot and damage to the property of the first to ninth respondents. The respondents proceeded against SATAWU in a high court for their damages, utilising s 11(1) of the Act. SATAWU denied liability and raised a claim in reconvention that B s 11(2)(b) was an unjustifiable limitation of the right to freedom of assembly. By agreement between the parties this point of law was determined separately and initially, with the high court finding against SATAWU, which finding was upheld by the Supreme Court of Appeal. SATAWU had then appealed to the Constitutional Court.

There the issues were whether the words 'and was not reasonably foreseeable' C rendered s 11(2) irrational and hence inconsistent with the principle of legality; whether s 11(2) limited the right to freedom of assembly; and if it did, whether this was justifiable. (Paragraph [26] at 92D.)

Whether s 11(2) was irrational

SATAWU argued that it was impossible to take steps to prevent an act or omission that was unforeseeable and hence the defence was irrational and inconsistent D with the principle of legality. (Paragraph [35] at 93I – 94B.)

The court disagreed, holding that the section could be interpreted to preserve its validity. The interpretation was that an organiser had to continuously take reasonable steps to prevent damage-causing acts or omissions that became reasonably foreseeable. The court noted that the steps had to be within the E organiser's power; where outside its power, it had a duty to notify third parties who were under duty to take steps in such circumstances, to do so. The reasonable steps the organisers had to take after the notification depended on the third parties' responses. With this interpretation the section was rational and it remained to determine whether it limited the right to assemble, and, if it did, whether it did so justifiably. (Paragraphs F [42] – [47] and [50] at 95G – 97C and 98A.)

Did s 11(2) limit the right to assembly?

The court held that ss 11(1) and 11(2) made organisers of gatherings liable for riot damage on a wider basis than under the common law, and that compliance with s 11(2)'s requirements significantly increased the costs of G organising gatherings. These factors amounted to a limitation of the right to assemble and this required justification. (Paragraphs [56] – [59] at 98I – 99E.)

Justification

A. The importance of the right to assemble

H The court held that exercise of the right was intertwined with the exercise of the other freedom rights and central to South Africa's democracy. (Paragraphs [61] and [65] – [66] at 99I – 100C and 101G.)

B. The importance of the purpose of the limitation

The purpose of the limit, to protect members of society, including victims of riot I damage unable to identify and without the resources to pursue the perpetrators of the damage, was very important. (Paragraph [67] at 102A – C.)

C. The nature and extent of the limitation

While the Act did have a chilling effect on the exercise of the right, this could not be overstated: it did not negate it but merely subjected its exercise to strict J conditions. And it placed the organisers first in line in terms of legal

2013 (1) SA p85

recourse because a victim of riot damage could look directly to them for A compensation and was not required to prove negligence on their part. (Paragraphs [69] – [70] at 102F – H.)

D. Apportionment of damages

Section 11(1) in fact made an organisation's liability less onerous, in that it provided for it to be joint and several with that of a person causing riot B damage or with that of another organisation liable by way of the section. This was through application of the Apportionment of Damages Act 34 of 1956 (the ADA). And an organiser's right of recourse was further secured by s 11(3). (Paragraph [71] at 102I – 103A.)

It was not unreasonable for the legislature to provide for a victim's immediate recourse against an organiser, and for the organiser to seek recourse against C third persons, in that the organiser would be in a better position than the victim to identify who had caused the damage, and it was always open to the organiser to pursue the perpetrators and to recoup its loss from them. (Paragraphs [72] – [73] at 103B – D.)

But could the ADA, which relied on an apportionment of fault, be applied here, where, under the Act, a victim was not required to prove fault on the part of D the organisation? In this regard the ADA provides in s 2(6)(a) that a '. . . joint wrongdoer may . . . recover from any other joint wrongdoer a contribution . . . of such an amount as the court may deem just and equitable having regard to the degree in which that other joint wrongdoer was at fault . . . .' The court held that the ADA could be applied, in that the organisation's s 11(2) defence raised and required a determination of its E fault, after which it would be left to determine the degree of fault of the other joint wrongdoers, so satisfying the requirements of the apportionment statute. (Paragraphs [74] – [77] at 103E – 105B.)

Nor did the legislature's placing of the onus to prove the s 11(2) defence on the organisation render the limitation of the right to assembly unjustifiable. The facts supporting the defence would usually be within the knowledge of the organisers. (Paragraph [79] at 105D – E.) F

E. The balance between the limitation and the purpose, and less restrictive means

The court held that there was a tight fit between the limitation and its purpose, the protection of the rights of victims of riot damage, and that less restrictive means were not available. (Paragraphs [81] and [83] at 105G and 106D.)

Accordingly the limitation of the right to assemble was reasonable and justifiable, G and the appeal would be dismissed. (Paragraphs [84] and [86] at 106B and 106D.)

Cases Considered

Annotations:

Case law

Southern Africa H

Albutt v Centre for the Study of Violence and Reconciliation, and Others 2010 (3) SA 293 (CC) (2010 (5) BCLR 391; [2010] ZACC 4): referred to

Barlin v Licensing Court for the Cape 1924 AD 472: referred to

Bertie van Zyl (Pty) Ltd and Another v Minister for Safety and Security and Others 2010 (2) SA 181 (CC) (2009 (10) BCLR 978; [2009] ZACC 11): I dictum in para [20] applied

Coetzee v Government of the Republic of South Africa; Matiso and Others v Commanding...