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