Union 'not liable' for all protest damage
Johannesburg - If the necessary steps were taken to prevent harm during public protests, the organisers should not be held solely liable for damage, the Constitutional Court heard on Thursday.
Arguing an application by the SA Transport and Allied Workers' Union (Satawu), for leave to appeal an earlier judgment on damages, Wim Trengove said the law set out that liability was premised on reasonable steps being taken to avoid unforeseeable harm.
He told the court that "reasonable" by its nature, could never be inclusive of all the risk attached to a protest. The nature of a protest was to air grievances, and it was a confrontational and often explosive act.
Cape Town march
Satawu went to the Constitutional Court to challenge a recent ruling that held it responsible for damages caused during a march in Cape Town. The ruling was upheld by the Supreme Court of Appeal.
Satawu contends that parts of the legislation regarding the wording regarding freedom of assembly is unconstitutional.
Trengove questioned whether a protest against racism through the town of Ventersdorp should be cancelled - a violation of the right to protest - if there was a direct physical threat from members of rightwing organisations.
He said a union could bring in more people to maintain calm and also rely on police support, but it could not absolutely promise that the march would remain peaceful.
"Sometimes... despite reasonable steps... the threat of harm remains," Trengove asserted.
He conceded that a union was liable in some instances where it acted unlawfully, however this could not be the case where it did not "knowingly cause" harm.
"The union is not at fault, the perpetrators are... the legislation is poorly and sloppily drafted," he said.
Undue responsibility on organisers
The union, being supported by the Congress of SA Trade Unions, feels the legislation imposes undue responsibility on the organisers of a gathering. It holds that this is undemocratic in that it limits protest, which is often the only way people can make their voices heard. It argues that organisers will be too afraid to organise a gathering for fear of consequences over which they have no control.
The City of Cape Town joined the matter as an intervening party. It supports the eight respondents, who include street vendors, shop owners and car owners.
The Freedom of Expression Institute was admitted as a friend of the Court.