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The FXI is disappointed by the judgement of the Constitutional Court yesterday dismissing the appeal made by the South African Transport and Allied Workers Union (“SATAWU”) and Congress of South African Trade Unions (“COSATU”) to declare section 11 of the Regulations of Gatherings Act 205 of 1993 (“RGA”) unconstitutional as it limits the right to freedom of expression and the right to freedom of assembly provided for in sections 16 and 17 of the Constitution.

The Unions made an application to the Constitutional Court, appealing a judgment of the Supreme Court of Appeal, seeking the court to declare section 11 of the RGA unconstitutional. The section states that a convenor of a gathering whether it be an individual or an organisation can be held liable for the damage that may come as a result of riot damage immediately before, during and immediately after the gathering. In this particular instance private citizens were claiming damages from SATAWU as a result of damage which was caused during a strike in 2006 where it is estimated that the overall damage amounted to R1.5 million.

The FXI was admitted as a friend of the court (amicus curiae) in the case and submitted to the Court that the particular phrase in subparagraph 11(2)(b) is an unconstitutional infringement of a number of interrelated rights and principles in the Constitution, namely the right to freedom of assembly, the right to freedom of expression and the principles of the rule of law and democracy. The FXI further submitted that the right to freedom of assembly contributes to the fundamental goal of maximising the opportunity for individuals to participate in the project of creating, and sustaining an open and democratic society. The right is therefore of fundamental importance, particularly in the context of a society in which assemblies, with all their potential for disruption, are often the only way for individuals to give voice to their grievances, and to do so effectively.

The court held that the defence provided for by the law in section 11 is viable and that the limitation on the right to freedom of assembly is reasonable and justifiable, because it serves an important purpose and reasonably balances the conflicting rights of organizers, potential participants and often vulnerable and helpless victims of a gathering or demonstration which degenerates into violence.

The FXI is encouraged that the judgement recognises the importance of the right to assemble by stating that “the right to freedom of assembly is central to our democracy. It exists primarily to give a voice to the powerless. This includes groups that do not have political or economic power, and other vulnerable persons. This right will, in many instances, be the only mechanism available to them to express their legitimate concerns”. Even though the FXI is disappointed that the court did not declare the section constitutionally invalid we remain committed to advancing the right to freedom of expression and always advocate that the right to freedom of assembly is exercised peacefully.