In response to a claim for damages made by people who claimed that they suffered loss as a result of the gathering, SATAWU challenged the constitutional validity of the law that regulates public gatherings by imposing liability on organisers for riot damage arising out of a gathering. This provision is contained in section 11(2) of the Regulation of Gatherings Act, 1993 (the “Act”). The Union argued that the defence allowed by the law unjustifiably limits the right to freedom of assembly in the Constitution.
In a majority judgment, Mogoeng CJ held that the law in question aims to afford victims effective legal recourse where a gathering becomes destructive and results in injury, loss of property or life. In other words, the said law is there to protect members of society, including those who do not have the resources or capability to identify and pursue the perpetrators of the riot damage for which they seek compensation. When a gathering imperils the physical integrity, the lives and the sources of livelihood of the vulnerable, liability for damages arising therefrom must be borne by the organizers that are responsible for setting in motion the events which gave rise to the suffered loss.
The fact that every right must be exercised with due regard to the rights of others cannot be overemphasised. The organizers always have 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 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 organizers 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.
Mogoeng CJ emphasised that the reasonable steps taken on the one hand and reasonable foreseeability on the other hand were inter-related. Organizers are required to be alive to the possibility of damage and to cater for it from the beginning of the planning of the protest action until the end of the protest action. At every stage in the process of planning, and during the gathering, organizers must always be satisfied of two things: that an act or omission causing damage is not reasonably foreseeable and that reasonable steps are continuously taken to ensure that the act or omission that becomes reasonably foreseeable is prevented.
In terms of the issue of whether the law unjustifiably limits the right to freedom of assembly the Court held that 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.
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.
For these reasons, the majority dismissed the appeal.
In a concurring judgment, Jafta J reasoned that the appeal should be dismissed, on the basis that SATAWU had failed to prove that the law limits the right to freedom of assembly, or that the defence that it creates is irrational.
