Garvis and Others v South African Transport and Allied Workers Union (2580/2007) [2010] ZAWCHC 175; 2010 (6) SA 280 (WCC) ; [2011] 2 All SA 86 (WCC ; (2010) 31 ILJ 2521 (WCC) (9 September 2010)

Garvis and Others v South African Transport and Allied Workers Union (2580/2007) [2010] ZAWCHC 175; 2010 (6) SA 280 (WCC) ; [2011] 2 All SA 86 (WCC ; (2010) 31 ILJ 2521 (WCC) (9 September 2010)

The court held that section 17 of the Constitution does not protect gatherings that result in riot damage, as the right is conditional on peacefulness and being unarmed. The inclusion of the words 'and was not reasonably foreseeable' in section 11(2)(b) of the Regulation of Gatherings Act is not inconsistent with section 17, as the statutory defence is only relevant where the gathering remains peaceful. Even if the provision were found to limit the right to assemble, such limitation is reasonable and justifiable under section 36, given the need to protect the rights of the public to dignity, safety, and property. The evidence showed that the Act has not deterred lawful gatherings, and the...

Citation
[2010] ZAWCHC 175
Parties
Plaintiff: Jacqueline Garvis; Plaintiff: Thuraya Naidoo; Plaintiff: Chinatown (RSA) International Trading CC; Plaintiff: Anees Soeker; Plaintiff: Andrew Njiokwuemgi; Plaintiff: Dolores Rosanne Reitz; Plaintiff: Maurice Robertson; Plaintiff: Harold Burger; Defendant: South African Transport and Allied Workers Union; Respondent: Minister for Safety and Security
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
9 September 2010
Case Number
2580/2007
Procedural Posture
Constitutional Challenge / Judgment on Constitutional Point Prior to Main Action
Outcome
The court declared that the inclusion of the words 'and was not reasonably foreseeable' in section 11(2)(b) of the Regulation of Gatherings Act 205 of 1993 is not inconsistent with section 17 of the Constitution. No order as to costs was made.
Judges
J Hlophe
Legal Topics
Regulation of Gatherings Act, Bill of Rights Limitation, Strict Liability, Peaceful Assembly, Constitutional Interpretation
Constitutional Law Civil Procedure Labour Law Regulation of Gatherings Act Bill of Rights Limitation Strict Liability Peaceful Assembly Constitutional Interpretation

Case Brief

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Parties

Jacqueline Garvis

Plaintiff

Thuraya Naidoo

Plaintiff

Chinatown (RSA) International Trading CC

Plaintiff

Anees Soeker

Plaintiff

Andrew Njiokwuemgi

Plaintiff

Dolores Rosanne Reitz

Plaintiff

Maurice Robertson

Plaintiff

Harold Burger

Plaintiff

South African Transport and Allied Workers Union

Defendant

Minister for Safety and Security

Respondent

Procedural Posture

Constitutional Challenge / Judgment on Constitutional Point Prior to Main Action

Legal Issues

  1. 1 Whether the words 'and was not reasonably foreseeable' in section 11(2)(b) of the Regulation of Gatherings Act 205 of 1993 are inconsistent with section 17 and/or section 23 of the Constitution and thus invalid.
  2. 2 Whether the limitation imposed by section 11(2)(b) is reasonable and justifiable under section 36 of the Constitution.

Ratio Decidendi

The court held that section 17 of the Constitution does not protect gatherings that result in riot damage, as the right is conditional on peacefulness and being unarmed. The inclusion of the words 'and was not reasonably foreseeable' in section 11(2)(b) of the Regulation of Gatherings Act is not inconsistent with section 17, as the statutory defence is only relevant where the gathering remains peaceful. Even if the provision were found to limit the right to assemble, such limitation is reasonable and justifiable under section 36, given the need to protect the rights of the public to dignity, safety, and property. The evidence showed that the Act has not deterred lawful gatherings, and the...

Court Disposition

The court declared that the inclusion of the words 'and was not reasonably foreseeable' in section 11(2)(b) of the Regulation of Gatherings Act 205 of 1993 is not inconsistent with section 17 of the Constitution. No order as to costs was made.

Orders

  • It is declared that the inclusion of the words 'and was not reasonably foreseeable' in section 11(2)(b) of the Regulation of Gatherings Act 205 of 1993 is not inconsistent with section 17 of the Constitution of the Republic of South Africa.
  • No order as to costs.