Cape Times

Change act, or your morning walks make you a criminal, Mr President

- Axolile Notywala Notywala is an activist involved in social justice campaigns with the Social Justice Coalition.

DEAR Mr President,

Your morning walks could get you a criminal record.

Yes, this is absurd. Yes, this is unconstitu­tional. But that is the law. The Regulation of Gatherings Act, which the Social Justice Coalition (SJC) has challenged, states you can be criminalis­ed for your healthy lifestyle morning walks with more than 15 people due to not providing notice to the relevant authoritie­s.

The SJC is a democratic, massbased social movement that campaigns for the advancemen­t of the constituti­onal rights to life, dignity, equality, freedom and safety for all, but especially those in informal settlement­s across South Africa.

In September 2013, 21 of us (SJC members and supporters) were arrested and charged with convening and attending an illegal gathering in terms of the act: arrested for not providing notice to the City of Cape Town.

Our protest was a peaceful act of civil disobedien­ce where we chained ourselves to the railings of the stairs outside the Cape Town Civic Centre.

We were demanding the mayor of Cape Town uphold her commitment to developing a plan for the janitorial service for communal flush toilets in informal settlement­s.

We appeared at the Cape Town Magistrate's Court on numerous occasions. At the trial we all maintained: “We admit to the facts, but we are not criminals.”

On February 11, 2015, 10 SJC leaders were convicted of convening an illegal gathering: Phumeza Mlungwana, Xoliswa Mbadlisa, Luvo Manqku, Nomhle Maci, Zingisa Mrwebi, Mlondolozi Sinuku, Vuyolwethu Sinuku, Ezethu Sebezo, Nolulama Jara and Zackie Achmat. They are known as the #SJC10. Many of these are working-class people whose only crime was to demand clean, safe and dignified sanitation services for informal settlement residents. They currently have criminal records.

Comrade Nolulama Jara died with a criminal record in August 2015. We deeply mourn her.

Mr President, we are bringing this to your attention because we are challenged the constituti­onality of section 12(1)(a) of the Gatherings Act used to criminalis­e us. But the SAPS has defended the act and say people who gather without giving notice must be criminalis­ed.

Section 17 of the constituti­on says: “Everyone has the right, peacefully and unarmed, to assemble, to demonstrat­e, to picket and to present petitions”.

But section 12(1)(a) of the Gatherings Act limits this right by criminalis­ing people who convene a gathering without notice.

How can we have an engaged democracy when our constituti­onally-mandated right to protest is thwarted by apartheid-era laws?

In January 2018, Judge Tandazwa Ndita agreed when she handed down a landmark judgment at the Western Cape High Court. She said:

“… the criminalis­ation of a gathering of more than 15 on the basis that no notice was given violates section 17 of the constituti­on as it deters people from exercising the fundamenta­l constituti­onal right to assemble peacefully unarmed.

“The limitation is not reasonable and justifiabl­e in an open and democratic society based on freedom, dignity and equality.”

Judge Ndita ordered that the appeal against the #SJC10 conviction­s be upheld and the conviction­s thereby set aside. She then declared section 12(1)(a) of the Gatherings Act unconstitu­tional. SAPS have since appealed against this judgment at the Constituti­onal Court.

This means, you Mr President, can be criminalis­ed for your healthy lifestyle morning walks when walking in a group of more than 15.

The Gatherings Act defines a gathering as “any assembly, concourse or procession of more than 15 persons in or on any public road as defined in the Road Traffic Act, or any other public place or premises wholly or partly open to the air (a) at which the principles, policy, actions or failure to act of any government, political party or political organisati­on, whether or not that party or organisati­on is registered in terms of any applicable law, are discussed, attacked, criticised, promoted or propagated”.

Your morning walks fall within this definition. The City of Cape Town has confirmed no notice was given for your walk from Khayelitsh­a to Mitchells Plain on March 6. Thus, you contravene­d the Gatherings Act and must be criminalis­ed.

Of course we do not believe you should be criminalis­ed. That's absurd. We challenged the Gatherings Act because we agree with Judge Ndita, that criminalis­ing a gathering simply because no notice was given is not justifiabl­e in an open and democratic society.

But the SAPS, in challengin­g the High Court judgment at the Constituti­onal Court, supports this criminalis­ation. The SAPS has little chance of succeeding, so this is also another waste of public money.

So we ask you, Mr President, in consultati­on with the Minister of Police, to withdraw the appeal by the SAPS. But more than that, we ask you and your government to review the Gatherings Act as a whole. The section declared unconstitu­tional is just one part of a problemati­c, repressive apartheid-era law.

We hope you will carefully consider this and respond favourably.

 ??  ?? CYRIL RAMAPHOSA
CYRIL RAMAPHOSA

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