Concourt weighs up law on right to protest and constitutional rights

THE constitutionality of the law governing the right to protest in South Africa came under sharp focus at the Constitutional Court yesterday.

The apex court heard the application for confirmation that the Regulation of Gatherings Act (RGA) is invalid in terms of the Constitution, as found by the Western Cape High Court.

The high court upheld an appeal by 10 Social Justice Coalition activists charged and convicted of violating the RGA by organising a protest without a notice, as required by the RGA.

The RGA makes it a criminal offence to convene a gathering of more than 15 people without notifying the municipality.

The case could bring to an end the prosecution of unarmed, harmless protesters who participate in or organise unapproved demonstrations, should the court confirm the invalidity of the RGA.

In 2013, the activists visited the Cape Town Civic Centre as a group of 15 to protest over what they said were hazardous sanitation facilities in Khayelitsha, but the march grew in size at the venue, resulting in the arrest of the 10 activists when they refused to disperse.

The State and minister of police have also sought leave to appeal against the high court’s declaration of constitutional invalidity.

Representing them, advocate Michael Bishop said section 12 (1)a of the RGA violated section 17 of the Bill of Rights which granted everyone the right to peaceful and unarmed assembly and to demonstrate or picket by criminalising it on the basis of not giving notice.

He said the possibility of conviction and being sentenced to up to one year for exercising an enshrined right created a stigma for the poor, whose only voice was sometimes through protest.

“Above and beyond the sentence imposed, a criminal record is a stain on a person’s record that lasts for at least 10 years,” Bishop said.

He said criminalising a gathering without notice simply because there were 16 or more people was also arbitrary and unrealistic.

“There is no magic about the number 16 that suddenly requires police intervention.

“The minister has put up no study of police resource requirements, no study of crowd behaviour, and no comparative practice to support the 15-person threshold.

“The applicants sought to stay within the arbitrary 15-person limit. In the heat of the moment, they failed to do so. Yet the impact of the protest would have been identical if they had remained within the 15-person limit.

“This situation is not unusual – it will often be difficult to ensure that a demonstration does not expand to a gathering and trigger criminal liability,” Bishop said.

Acting Justice Daniel Dlodlo said that by targeting conveners the section “killed” possible protests, to the advantage of those who would be held to account.

“There is a saying that when you want to save yourself from a poisonous snake you must hit it in the head. The section criminalises the actions of a convener. In a way it is killing the possibility of a gathering altogether in order to save a certain person from being seen to be protested against by simple people who possibly have no knowledge whatsoever of how to go about filling in forms which may be complicated,” Justice Dlodlo said.

Advocate Karrisha Pillay, for the minister of police, said the conveners were fully aware of the notice requirements but deliberately ignored them, adding that declaring the RGA unconstitutional would incentivise non-compliance with the requirements of notifying the state before a protest.

Judgment was reserved.