Watershed ruling on right to protest

PEACEFUL protests without notice to authorities will now be allowed, the Western Cape High Court ruled.

The groundbreaking ruling followed a Social Justice Coalition (SJC) appeal challenging the criminalisation of the Regulation of Gatherings Act (RGA).

In her ruling yesterday, Judge Thandazwa Ndita said: “The criminalisation of a gathering of more than 15 people on the basis that no notice was given violates the constitution as it deters people from exercising their fundamental constitutional right to assemble peacefully unarmed.

“In my judgment the limitation is not reasonable and justifiable in an open democratic society, based on the values of freedom, dignity and equality.”

Ndita therefore declared Section 12(1) (a) of the RGA unconstitutional. This follows a seven month-long trial where 10 applicants from the SJC went head-tohead 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.

In bringing the appeal, the SJC said it was not challenging the law in its entirety, but the RGA limited the right to freedom of assembly as guaranteed by the constitution. The SJC argued that the distinction between a gathering and a demonstration was irrational as it’s unclear why 16 is an appropriate number to criminalise a gathering. The minister of police’s defence argued there had to be a cut-off number.

The SJC’s Phumeza Mlungwana, the first appellant, said they were happy with the ruling.

“This is victory for all us appellants and other organisations who use protest as a means to get their voices heard. When people protest there is real concern, but instead of the concerns being addressed, people are instead treated like criminals.

In 2013, 21 SJC members and supporters were arrested and charged after they chained themselves to the railings of the Cape Town Civic Centre. The protest was to call for proper sanitation for Khayelitsha residents and those living in other communities in the city. While 11 members were acquitted, 10 SJC leaders were convicted under the RGA.