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Concourt judgment on right to peaceful protest contains much eloquence


In real life, Professor Balthazar is one of South Africa’s foremost legal minds. He chooses to remain anonymous, so it doesn’t interfere with his daily duties.

A Constitutional Court judgment has upheld a challenge to the apartheid Regulation of Gatherings Act of 1993, asserting the critical role that the right to assemble and protest peacefully plays in a democracy. The judgment has advanced society further along the way towards democracy and away from our apartheid past.

In September 2013, 15 members of the Social Justice Coalition (SJC) travelled from Khayelitsha to the Civic Centre in Cape Town after deciding to organise a gathering. They chained themselves together in groups of five and walked to the staircase leading to a Civic Centre entrance. There, they chained themselves to the railings.

Although the SJC decided to limit the number of participants in the assembly to 15 people — in order not to render the gathering notifiable — the applicants were aware of the risk that some other members of SJC might join the gathering. Nevertheless, the foresight and appreciation that this might render them liable to arrest did not deter them. They were joined by other people.

Despite the increased numbers, the gathering was peaceful. Members of the public were not denied access to the Civic Centre. The police, who had been summoned to the Civic Centre, requested the protesters to disperse. When the protesters failed to heed the request, they were arrested without offering resistance.

This protest led to a challenge to the Regulation of Gatherings Act of 1993, under which the police acted, and in terms of which they were convicted by the magistrate. As the date implies, this is legislation passed by the apartheid parliament, but more than 20 years into democracy, it has continued to be enforced.

Section 12(1) of the Gatherings Act creates a criminal offence where any person convenes a gathering where no notice or adequate notice is given of the gathering to the relevant local authority in terms of s3 of the act, which notice has to provide a considerable amount of detail including the purpose of the gathering, the time, place and duration thereof, and the anticipated number of participants.

The applicants in this case contended that s12 of the Gatherings Act constituted a violation of section 17 of the Constitution, which in the words of the Constitutional Court “provides for a solemn undertaking to citizens and non citizens alike that everyone has a right, peacefully and unarmed, to assemble, demonstrate, picket and present petitions. The language in section 17 is unambiguous: everyone has a right to engage in any of the activities that it spells out. “‘Everyone’ is a word of wide import. In its ordinary sense it is all-inclusive. The only internal qualifier contained in this constitutional provision is that anyone exercising this fundamental right must do so peacefully and unarmed.”

The Minister of Police raised a number of arguments which were designed to justify the constitutional infringement in terms of the general limitation provision being 36 of the Constitution, the most significant of which were that the requirement to give notice serves a legitimate purpose by ensuring that there is proper planning to facilitate the very exercise of the right to assemble and that the giving of notice does not impose an onerous duty on the convener of gatherings.

These arguments failed before the High Court which held that the criminalisation of gatherings as provided for in s12 of the act represented an unjustifiable breach of s17 of the Constitution. The order of unconstitutionality of legislation requires the confirmation of the Constitutional Court; hence the further hearing and judgment.

The Constitutional Court was equally unimpressed with the argument that the criminal law was needed to regulate gatherings in the manner provided for in the act. Justice Xola Petse, writing for a unanimous Court said:

But the link between the criminalisation of not giving notice and preventing violent protests through police presence is not a ‘tight fit’.”

Someone could be criminalised for failing to give notice, and yet police presence to prevent violence at the gathering was not necessary; sometimes notice may not even be required but police presence to prevent violence will be.

This is because the requirement to give notice turns on there being more than 15 people; but a disruptive protest does not turn on the number 15. There appears to be no intrinsic magic in the number 15, but this is an issue that need not detain us in the context of this case. This is not to say that there is a problem with requiring a prior notice for a gathering of more than 15 people. It is more to say that the limitation in question (the criminalisation of a failure to give notice) is neither sufficient nor necessary for achieving the ultimate purpose of that limitation (peaceful protests through police presence).’’

This is an important judgment in that it asserts the fundamental right to protest so long as it is peaceful. The only criticism of the judgment is the somewhat generous approach to the limitation question, that is, to the case advanced by the applicants. Given some of the forms of political protest experienced recently, the judgment may pose problems as to a new legislative limitation of the right.

However, the judgment contains much of eloquence in its assertion of the critical role that this right to assemble and protest peacefully plays in a democracy. Viewed in this way, the Constitutional Court has advanced society further along the way towards democracy and away from our apartheid past.

For this reason it is appropriate to cite what Justice Petse had to say about the relationship of the past to our future:

It is true that barely a quarter of a century ago we emerged from an era in which a substantial majority of the citizenry was denied their inalienable right to participate in the affairs of their country. They were afforded virtually no avenue through which to express their views and aspirations. Taking to the streets to vent their frustration was the only viable avenue they had. It mattered not during the reign of the apartheid regime that their gatherings were peaceful. They were ruthlessly crushed without any regard for the legitimacy of the grievances underlying their protests.”

With all the gloom which surrounds our country, it is a salutary wake-up call to read this judgment and realise that we have already journeyed a great distance from our awful past. DM


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