Parties could also be liable for damage

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It is not just trade unions that will be liable for damage if their supporters run amok: political parties will also face similar penalties if their members misbehave.

This is the effect of the precedent-setting riot ruling from the Constitutional Court this week that found that the SA Transport and Allied Workers Union was liable for damage to public and private property during the 2006 gathering of thousands of striking security guards in Cape Town.

The march degenerated into chaos, with cars damaged and shops vandalised and looted.

Now, in light of the judgment, the union, an affiliate of Cosatu, will have to foot the bill for all the damage.

Cosatu spokesman Patrick Craven said the decision was regretted and Cosatu still maintained that if unions took every precaution to ensure that demonstrations were peaceful and disciplined, they should not be held liable for damage committed by others.

He said the ruling also applied to sporting events, and that organisers would be held liable for damage caused by unruly fans.

Not so, said the DA’s Ian Ollis, who is pushing for an amendment to the Labour Relations Act to stop violent strikes “once and for all”.

He said the ruling did not apply to sporting events, as various sporting codes already held organisers responsible for their fans’ behaviour at sporting venues.

The court had set a precedent, with the key finding being that the collective was responsible for the actions of its members. And this would also apply to political parties that organised marches that got out of hand, Ollis said.

Organisers would be liable for damages unless they could demonstrate that they had taken every reasonable precaution to prevent violence.

There was nothing in detail in law that specified what reasonable steps the unions had to take, and he was therefore pushing for an amendment to the Labour Relations Act to spell that out.

Hailing the ruling, Ollis said it would force unions to maintain better discipline during strikes, marches and pickets.

Constitutional expert Pierre de Vos wrote in his blog, Constitutionally Speaking, that the judgment meant that in future, “organisers of protest marches will not always be able to wash their hands off the violence and destruction flowing from a march”.

When a march turns ugly, organisers can be sued for the damage that ensued, and unless they can show that they did not reasonably foresee that damage would ensue, or that they foresaw it but took all reasonable steps to prevent it, they would be held liable for it.

“Only time will tell whether this will alter the behaviour of organisations holding large demonstrations,” De Vos said.

The judgment attempted to strike a balance between protecting the important right to assemble, on the one hand, and the interests of the wider society and individuals, who may be affected by violent or destructive protest action, on the other, he added.

The ruling has been welcomed by various business bodies, including the Durban Chamber of Commerce and Industry, which said its members had experienced the consequences of inappropriate behaviour during strike action.

“In the current economic circumstances, restoration of property damaged by protest action is a cost that neither the public nor the private sector can afford,” a statement said.

The Freedom of Expression Institute expressed disappointment at the ruling, but said it was encouraged it recognised the importance of the right to assemble by stating the right to freedom of assembly was central to democracy.