Challenge to law limiting protests
‘Criminalisation’ of small gatherings ‘unconstitutional’
ADVOCACY group the Social Justice Coalition (SJC) is challenging the Regulation of Gatherings Act in the Western Cape High Court.
Ten applicants from the coalition have gone head-to-head in a legal dispute with the minister of police, challenging the criminalisation of conveners who have failed to give notice of a peaceful, unarmed and non-disruptive gathering.
Convening a gathering of more than 15 people without notice is a crime, in terms of the act.
Yesterday, the legal representative of the justice coalition argued that sections in the act limited the right to freedom of assembly as guaranteed by the constitution. They argued that the criminalisation of a gathering of more than 15 people because no notice was given was “unconstitutional”.
Legal representative Michael Bishop said his clients relied heavily on protests. “Protesting is an advocacy tool to get voices heard, as long as it is done non-violently. But the arrest of conveners deters people from engaging in protests,” he said.
“The problem with the act is that it doesn’t capture the real concern. It says if you want to exercise your right, you have to risk going to jail.”
In its submissions, the coalition asked that the act be made more realistic in terms of the number of people it limited.
“While any number requires a cutoff that may appear arbitrary, a limit of 50 people is far more closely related to the actual purpose of the limitation than a limit of 15 people.
“Indeed, the 15-person limit creates an additional administrative burden not only for protesters, but for municipalities and police who are required to comply with all the requirements of the act, even for very small gatherings that are unlikely to require any police presence.”
The justice coalition suggested alternative measures that the legislature could use which included imposing enhanced civil liability for those conveners who did not give notice. This would would create strict liability for damage if no notice was given and provide an even greater incentive to give notice where there was a real risk of harm.
It also suggested administrative fines rather than criminal penalties and a “better” definition of “gathering”.
Outside court, scores of coalition supporters and members sang and held demonstrations.
The SJC’s appeal follows the arrest of 10 coalition members and supporters who were arrested and charged with contravening the act in 2013.
The group had staged a peaceful and organised act of civil disobedience outside the offices of Cape Town mayor Patricia de Lille, chaining themselves to the railings of the civic centre.
In 2015, the group was convicted.
IN South Africa today, everyone has the constitutional right to assemble peacefully and unarmed, and protest about any issue of concern. But no matter how peaceful your protest is, a mere failure to notify the authorities is enough for the police to round you up and throw you in jail.
In the month in which we commemorate the 41st anniversary of the Soweto Uprising of 1976, Equal Education is joining the Social Justice Coalition (SJC) in court to challenge the criminalisation of peaceful protest.
In 2013, 10 SJC activists chained themselves to the steps of the Cape Town Civic Centre in protest, demanding better sanitation in Khayelitsha and other poor communities around the city. Although they were subsequently joined by 11 other supporters, the protest was both peaceful and unarmed, and did not disrupt access to the Civic Centre. Regardless of this, the metro police arrested them. Their crime? Failing to notify the city authorities prior to the protest.
All 21 members of SJC were charged with contravening the Regulation of Gatherings Act 205 of 1993. The Gatherings Act states that it is a crime if more than 15 people convene or attend a gathering without providing notice to the authorities. The Cape Town Magistrate’s Court therefore found that the 10 were guilty of contravening the Gatherings Act for convening a gathering without notice.
The 11 supporters were cautioned and discharged without criminal records. They are now appealing their guilty convictions to the Western Cape High Court. They are also challenging the constitutionality of the Gatherings Act on the grounds that it unreasonably and unjustifiably limits the right to assemble, as contained in section 17 of the constitution. The appeal was heard yesterday and is set to continue today.
Equal Education (EE) has been admitted as a friend of the court in this appeal. EE’s high school members regularly organise marches and other public demonstrations to advocate for improvements in their schools. They have led campaigns for school libraries, for scholar transport, school safety and also a national campaign to have a law introduced (and complied with) that stipulates infrastructure features and standards for all public schools in South Africa (Minimum Norms and Standards). EE will therefore ask that the court keep EE members and other children in mind when considering the constitutionality of the Gatherings Act. EE argues that criminalising the right to participate in peaceful and necessary protests fails to take into account the importance of the right to protest for children and also their best interests.
Since children are unable to vote, protest is a vital avenue available to them to participate in the political life of the country. Protest is an important means by which children can express their ideas, advocate for their own causes and meaningfully participate in decision-making processes. Protest is also inextricably linked to children’s freedom of expression and dignity. EE therefore argues that criminalisation of protest is likely to stifle this avenue of expression for children and silence their voices.
Members of EE and SJC will this week pay tribute to the pupils and youth of 1976, who sacrificed their lives fighting for education and social justice. They will remember that protest in 1976 was met by an armed police force of the apartheid state and the threat of arrest. It is precisely why they will be outside the Western Cape High Court, in support of the constitutional challenge and against the criminalisation of peaceful protest in a democratic South Africa.
THE CRIMINALISATION OF PROTEST BY THE GOVERNMENT IS LIKELY TO STIFLE THIS AVENUE OF EXPRESSION FOR CHILDREN AND SILENCE THEIR VOICES THE GATHERINGS ACT STATES IT IS A CRIME IF MORE THAN 15 PEOPLE CONVENE OR ATTEND A GATHERING WITHOUT PROVIDING NOTICE TO THE AUTHORITIES
Ndzomo is the deputy general secretary of Equal Education, a social movement striving for equality in the South African education system.