According to section 17 of the Constitution of the Republic of South Africa, 1996; ‘everyone has the right, peacefully and unarmed, to assemble, to demonstrate, to picket and to present petitions’. The words ‘peacefully and unarmed’ are thus internal modifiers, as assemblies that are violent and armed cannot enjoy this right. For this reason the terms of the interdict against the carrying of dangerous weapons, harassment, incitement of unlawful behaviour and damage to property are well within the ambit of the constitution.
With regards to the constitutionality of the provision regarding the right to freedom of way, I refer to the case of Fourways Mall v Saccawu ....
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...nd that the damage was not reasonably foreseeable. In the Satawu case the court held that if an act or ommision was in fact not reasonably foreseeable the organizers would not be liable. With the increase in violence and damage during protests in recent years the damage was in fact reasonably foreseeable. Lastly the organization has to prove that they took all reasonable steps to prevent the act or ommision. This is where the SRC fails in their defense as there were no apparent preventative measures taken according to the scenario. The fact that the SRC president forbade the violent retaliation against police which led to the damage to the windscreens is not enough proof that all reasonable steps were taken to prevent the damage. Thus the likelihood of success is not in the SRC’s favour.
Thus in conclusion it is my legal opinion that the terms of the interdict as
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