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damage do not have any choice in relation to what happens to them or their belongings. For this reason, the decision to exercise the right to assemble is one that only the organization may take. This must always be done with the consciousness of any foreseeable harm that may befall others as a consequence of the gathering. The organizers must therefore always reflect on and reconcile themselves with the risk of a violation of the rights of innocent bystanders which could result from forging ahead with the gathering... Whilst the Act does have a chilling effect on the exercise of the right , this should not be overstated. The Act does not negate the right to freedom of assembly, but merely subjects the exercise of that right to strict conditions, in a way designed to moderate or prevent damage to property or injury to people.
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logically impossible to mount a defence under section 11(2): a defensible act or omission may not be reasonably foreseeable, but the organisers of a gathering must take "all reasonable steps" to prevent such act or omission, meaning that the organiser must act to prevent an eventuality that it did not foresee and could not reasonably have been expected to foresee. Second, SATAWU argued that personal injury or property damage is a foreseeable possibility in the case of almost all gatherings. Thus, SATAWU contended that section 11(2) does not provide a viable defence to the organisers of public gatherings, and that those organisers are therefore exposed to extensive liability under the RGA. It argued that this situation has a
31:
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the scope of the objectives of the gathering or demonstration in question and was not reasonably foreseeable; and 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.
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In this respect, Mogoeng agreed with SATAWU that section 11(2), read with section 11(1), "significantly increases the costs of organising protest action", creating a chilling effect, deterring gatherings, and limiting the constitutional right to freedom of assembly. The court therefore proceeded to a
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The fact that every right must be exercised with due regard to the rights of others cannot be overemphasised. The organization always has a choice between exercising the right to assemble and cancelling the gathering in the light of the reasonably foreseeable damage. By contrast, the victims of riot
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during the march; the first-named plaintiff, Jacqueline Garvas (spelled Garvis in lower court proceedings), owned and operated a small business which sold bags. The other five plaintiffs were individuals whose vehicles were allegedly damaged during the march. They brought suit under section 11(1) of
553:
Stu
Woolman was highly critical of the Constitutional Court's judgment, arguing that it – and both lower courts – severely underestimated the social cost of limiting freedom of assembly in order to protect other individual rights. For Woolman, "The right to assemble places a sometimes exacting toll
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SATAWU objected in particular to the inclusion of the phrase "and was not reasonably foreseeable" in subsection 11(2)(b); it argued that this phrase places an undue burden on trade unions and other groups which intend to assemble in public protest. First, it argued that subsection 11(2)(b) makes it
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of its members in the security sector. The march constituted a gathering as defined by the
Regulation of Gatherings Act 205 of 1993 (RGA), and SATAWU met the act's various procedural requirements, including providing notice of the gathering and appointing marshals to manage the crowd. Despite these
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It shall be a defence to a claim against a person or organization contemplated in subsection (1) if such a person or organization proves— that he or it did not permit or connive at the act or omission which caused the damage in question; and that the act or omission in question did not fall within
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dismissed SATAWU's appeal, upholding the decision of the High Court and
Supreme Court. The court dismissed SATAWU's argument that the unforeseeability requirement makes section 11(2) of the RGA irrational, holding that section 11(2) provides "for a viable, yet onerous, defence". It also dismissed
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dismissed a constitutional challenge to section 11 of the
Regulation of Gatherings Act 205 of 1993. The relevant provisions of the act widen the circumstances in which persons can be held liable for riot damage incurred during public gatherings which they have organised. The Constitutional Court
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Finding that no less restrictive means are available to achieve the objects of section 11 of the RGA, the court concluded that the RGA's limitation on the right to assemble is reasonable and justifiable. Section 11 is therefore consistent with the
Constitution.
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joined. Jafta agreed that the appeal should be dismissed, but at an earlier stage of argumentation: he found that section 11(2) of the RGA does not implicate or limit any of the rights entrenched in section 17 of the
Constitution.
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history of political suppression; however, he noted that section 11 of the RGA also served an important and legitimate purpose, aiming "to protect members of society" from riot damage. Mogoeng wrote:
385:, it also entered a challenge to the constitutionality of subsection 11(2) of the RGA, which creates a limited defence against the liability created by subsection 11(1). Section 11(2) reads:
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handed down judgment on the constitutional question on 9 September 2010, finding that subsection 11(2)(b) of the RGA was consistent with section 17 of the
Constitution.
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sustained as a result of the violence. The eight plaintiffs included three persons who owned shops in the city centre that had allegedly been vandalised and
307:, which turned violent and resulted in significant property damage. The Constitutional Court handed down judgment on 13 June 2012, with Chief Justice
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Defending against the plaintiffs' claim in the High Court, SATAWU denied liability under subsection 11(1) of the RGA. However, as an
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692:"My Tea Party, Your Mob, Our Social Contract: Freedom of Assembly and the Constitutional Right to Rebellion in Garvis v Satawu"
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533:
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SATAWU's argument that section 11(2) has a chilling effect that is incompatible with the
Constitution.
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of the
Constitution. In this regard, Mogoeng discussed the importance of freedom of assembly to any
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210:(Yacoob, Cameron, Froneman, Khampepe, Maya, Nkabinde, Skweyiya and van der Westhuizen concurring)
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damage to vehicles and shops along the route; several people were injured and 39 were arrested.
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joined the plaintiffs in opposing SATAWU's constitutional argument. High Court Judge
President
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limitations exercise to ascertain whether the rights limitation is justifiable under
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the RGA, which provides that the convening organisation of any gathering may be held
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for riot damage which occurs as a result of a gathering held under its auspices.
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Section 11(2) of the Regulation of Gatherings Act 205 of 1993 is consistent with
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South African Transport and Allied Workers Union and Another v Garvas and Others
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438:, which dismissed the appeal in a unanimous judgment written by Judge of Appeal
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340:(Cosatu), organised a protest march to demonstrate solidarity with a protracted
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South African Transport and Allied Workers Union and Another v Garvas and Others
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161:
157:
149:
141:
137:
715:
673:
650:"You Break it, You Own it: South African Assembly Jurisprudence after Garvis"
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on the state and other members of society. But it is a price worth paying."
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severed the constitutional challenge from other matters of dispute. The
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Mogoeng's majority judgment was joined by Acting Deputy Chief Justice
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wrote a separate concurring judgment, in which Acting Justice
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Handing down judgment on 13 June 2012, Chief Justice
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330:South African Transport and Allied Workers' Union
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299:The case arose from a May 2006 protest march in
292:, thereby limiting the constitutional right to
345:measures, the march resulted in an estimated
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597:"Union 'not liable' for all protest damage"
740:Constitutional Court of South Africa cases
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20:
450:during a hearing on 9 February 2012. The
356:In the aftermath, SATAWU was sued in the
288:conceded that these provisions created a
624:"Ruling opens door for stream of claims"
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419:By agreement between the parties, the
338:Congress of South African Trade Unions
696:South African Journal on Human Rights
622:Rensburg, Dewald van (17 June 2012).
7:
685:
683:
444:Constitutional Court of South Africa
285:Constitutional Court of South Africa
42:Constitutional Court of South Africa
14:
571:"Striking guards trash Cape Town"
648:Woolman, Stu (1 December 2015).
324:On 16 May 2006 in the centre of
442:. SATAWU appealed again to the
425:Minister of Safety and Security
735:2012 in South African case law
708:10.1080/19962126.2011.11865019
487:, redoubled by South Africa's
446:, where it was represented by
268:section 17 of the Constitution
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745:South African delict case law
409:Constitution of South Africa
265:Regulation of Gatherings Act
311:writing for the majority.
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358:High Court of South Africa
262:rationality of legislation
120:Garvis and Others v SATAWU
112:High Court of South Africa
105:SATAWU v Garvis and Others
534:Johann van der Westhuizen
454:joined proceedings as an
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123:[2010] ZAWCHC 175
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485:constitutional democracy
403:, which is protected in
377:Constitutional challenge
336:and an affiliate of the
108:[2011] ZASCA 152
16:South African legal case
436:Supreme Court of Appeal
434:SATAWU appealed to the
421:Western Cape High Court
332:(SATAWU), a registered
101:Supreme Court of Appeal
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85:[2012] ZACC 13
61:13 June 2012
690:Woolman, Stu (2011).
666:10.1515/icl-2015-0405
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116:Western Cape Division
170:van der Westhuizen J
401:freedom of assembly
399:on the exercise of
383:alternative defence
303:, organised by the
294:freedom of assembly
248:freedom of assembly
243:Delictual liability
226:(Zondo concurring)
603:. 9 February 2012
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508:, Acting Justice
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452:City of Cape Town
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577:. 17 May 2006
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631:. Retrieved
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579:. Retrieved
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510:Mandisa Maya
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448:Wim Trengove
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415:Prior action
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195:Constitution
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92:Case history
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654:ICL Journal
538:Chris Jafta
429:John Hlophe
334:trade union
218:Concurrence
202:Decision by
142:Yacoob ADCJ
73:Docket nos.
729:Categories
558:References
536:. Justice
506:Zak Yacoob
481:section 36
405:section 17
315:Background
208:Mogoeng CJ
191:section 17
166:Skweyiya J
162:Nkabinde J
158:Khampepe J
150:Froneman J
138:Mogoeng CJ
76:CCT 112/11
65:2012-06-13
716:0258-7203
674:1995-5855
549:Reception
489:apartheid
326:Cape Town
301:Cape Town
146:Cameron J
81:Citations
628:Business
575:BBC News
466:Judgment
234:Keywords
178:Zondo AJ
633:5 March
607:5 March
581:5 March
407:of the
362:damages
258:protest
224:Jafta J
193:of the
174:Maya AJ
154:Jafta J
103:–
63: (
58:Decided
714:
672:
601:News24
532:, and
371:liable
366:looted
342:strike
328:, the
283:, the
38:Court
712:ISSN
670:ISSN
635:2024
609:2024
583:2024
360:for
351:riot
176:and
704:doi
662:doi
462:.
277:In
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710:.
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140:,
118:–
114:,
718:.
706::
676:.
664::
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637:.
611:.
585:.
347:R
197:.
67:)
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