Right to protest is upheld

THE CONSTITUTIONAL Court has upheld a Western Cape High Court ruling that found that the criminalisation of the Regulation of Gatherings Act (RGA) was unconstitutional.

Justice Xola Petse found that failure to give notice of the convening of a gathering did not warrant arrest.

“It becomes clear that section 12 (1) (a) is not ‘appropriately tailored’ to facilitate peaceful protests and prevent disruptive assemblies. The right entrenched in section 17 is simply too important to countenance the short of limitation introduced by section 12 (1) (a). Moreover, the nature of the limitation is too severe…

“This court can only conclude that the section 12 (1) (a) is unconstitutional,” he ruled.

Justice Petse said people who lacked political and economic power had only protests as a tool to communicate their legitimate concerns.

“To take away that tool would undermine the promise in the constitution’s preamble that South Africa belongs to all who live in it, and not only a powerful elite. It would also frustrate a stanchion of our democracy: public participation. This is all the more pertinent given the increasing rates of protest in constitutional South Africa lately.”

The Concourt ruling followed a landmark ruling made by Judge Thandazwa Ndita earlier this year, after the court was approached by the Social Justice Coalition (SJC) challenging the piece of legislation after 10 of its members were convicted under the RGA.

In her ruling Judge 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.”

The general secretary of the SJC, Axolile Notywala, said: “It’s a victory for the poor, the often forgotten and those who hold real power. Now that power must be realised through activating this right to protest.”