Can #NERA or MDC-T be held liable for damage caused during strikes?

The article below was extracted from Norton Rose Fulbright and relates to South Africa, but one wonders if it is the same in Zimbabwe.

In the recent case of SATAWU v Garvas, the Constitutional Court upheld legislation imposing liability for damages caused during gatherings on the organisers of the gatherings.

It has always been difficult for a specific employer to hold trade unions liable for damage which its own employees caused during a strike. However, in the Garvas case, it was general members of the public that instituted claims against the union for damage that occurred during protest action.

SATAWU organised a gathering at which thousands of people were present, to register employment-related concerns within the security industry. The gathering was the culmination of strike action during which 50 people were killed, several people were injured, and 39 people were arrested. Property belonging to private individuals, and to the City of Cape Town, was damaged, amounting to an estimated loss of R1.5 million.

As a result, shop and vehicle owners, who alleged that their property had been damaged during the organised gathering, instituted action for damages against SATAWU in terms of the Regulation of Gatherings Act.

Section 11(1) of the Act provides that any riot damage caused by a gathering shall be claimed from the organisers of the gathering or on whose behalf or under whose auspices the gathering was held together with the participants in the demonstration.

Section 11(2) of the Act provides a possible defence to such a damages claim. If the organisers (in this case a trade union) prove that it did not permit the act (or oversight) which caused the damage, the act did not fall within the scope of objectives of the gathering, it was not reasonably foreseeable and the organisers took all reasonable steps within its power to prevent the act, it may escape liability.

SATAWU argued that the last two requirements of the defence were contradictory ie that it imposed an obligation on an organisation to take all reasonable steps to prevent an act when the act was not reasonably foreseeable in the first place.

The court chose to interpret the last two requirements of the defence to mean that if the union takes steps to prevent the problems which they can foresee at the time when it plans the gathering, the taking of the preventative steps would render the act that then subsequently causes the riot damage not reasonably foreseeable.

SATAWU further alleged that section 11(2) was unconstitutional, as it unjustifiably limited the right to freedom of assembly provided for in the Constitution, by providing a too narrow defence.

The court conceded that the section may cause the costs of organising a protest action to increase and prevent poorly resourced organisations from organising protest action. It therefore limited the constitutional right to picket, present petitions, demonstrate and assemble peacefully and unharmed.

The Constitutional Court however had to determine whether the limitation was justified. It held as follows:

    The exercise of the right to freedom of assembly may not be limited without good reason;
    The purpose sought to be achieved by the limitation should be sufficiently important to warrant the limitation;
    The purpose of the limitation, namely the protection of members of society who might not have the resources to identify the individuals who had caused the damage, was very important;
    The organisers of gatherings are expected to exercise their rights with due regard to the rights of others. This means that they should be conscious of the foreseeable harm that the gathering may have on others; and the limitation does not entirely remove the right to freedom of assembly, but merely imposes strict conditions on it, with the view to preventing damage to property or injury to people.
    The court concluded that the provision succeeded in striking a balance between the right to assemble and the safety of people and property. The limitation on the right to freedom of assembly was thus found to be reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.