Damage control

VIOLENCE and damage to property can never be foreseen by the organisers of a protest march and it is therefore impossible to take “reasonable steps” to prevent such occurrences.

This, in essence, is the argument that Cosatu and the SA Transport and Allied Workers’ Union (Satawu) are taking to government to try to get a section of the 1993 Regulation of Gatherings Act changed.

But since the Constitutional Court has ruled that this section of the Act passes constitutional muster, there seems little chance of an amendment being approved.

It was on the basis of this section of the Act that the Western Cape High Court ordered the union to pay for the damage caused when a 2006 march by striking security guards ended in a riot. One factor the court took into account was that the strike had “turned violent” and had “led to the deaths of about 50 people before the protest march”.

Satawu took the issue to the Constitutional Court on the grounds that the defence offered in the Act to avoid financial responsibility for damage, limited the constitutional right to assemble and to demonstrate.

The Act states that if violence or damage was not “reasonably foreseeable”, and if “reasonable steps” were taken to prevent such occurrences and the organisers were not involved and did not encourage such actions, they would have a defence against any damages claim.

The Constitutional Court ruling in support of the High Court judgement is that this “limited defence” does not limit the constitutional right to assemble and demonstrate “peacefully and unarmed”.

The ruling does not imply, as Satawu general secretary Zenzo Mahlangu claimed, that in future, all march organisers will have “sole responsibility” for harm or damage caused. Nor has it opened a way that did not previously exist for injured parties to sue for damages.

But it does pose questions about what can be “reasonably foreseen” and who should take which “reasonable steps”. These requirements should, surely, apply as much to the the authorities who grant permission for such events and to the police as to the organisers.