Gatherings Act - United Nations Special Rapporteur on the Rights to Freedom of Peaceful Assembly - amicus curiae - Western Cape High Court
SERI represents the United Nations Special Rapporteur on the rights to freedom of peaceful assembly and of association in Mlungwana and Others v The State and Others. The Special Rapporteur has been admitted as amicus curiae in an appeal against the judgment of a magistrates’ court.
The matter arises as a result of a protest by members and supporters of the Social Justice Coalition outside the offices of the City of Cape Town (the City) Mayor, Ms Patricia de Lille, on 11 September 2013. Their grievances related to issues of poor sanitation for communities after lengthy engagements with the City.
The protesters, among other things, chained themselves to the railings at the City’s Civic Centre. Upon police intervention, 21 protesters were arrested and charged under section 12(1)(a) of the Regulation of Gatherings Act 205 of 1993 (“Gatherings Act”) for unlawfully and intentionally convening a gathering without providing the relevant municipal authority with any notice that the gathering would take place. In the alternative to the main charge, the accused were charged under section 12(1)(e) of the Gatherings Act for unlawfully and intentionally attending a gathering without notice and the required permission from the relevant authority.
No one was convicted under section 12(1)(e) of the Gatherings Act. However, those accused, who were regarded as the people who convened the gathering and are the appellants in the appeal, were convicted on the main charge of contravening section 12(1)(a) of the Gatherings Act. In sentencing, the Magistrate cautioned the latter accused and discharged them.
The matter is currently before the Western Cape High Court. The question before the court is whether section 12(1)(a) is unconstitutional for criminalizing conveners of an assembly of over 15 people if prior notice was not provided.
In written submissions, SERI provides an international law perspective and urges the court to have regard to international law, standards and principles when considering the constitutionality of section 12(1)(a). SERI argues that holding organisers criminally liable for not providing notification or an inadequate notification is a restriction to the right to freedom of peaceful assembly, which then must conform to international law, standards and principles.
SERI also argues that the number 16, as the only factor for when notice must be provided, is arbitrary and not proportionate.
With regards to the defence provided under section 12(2) of the Gatherings Act, SERI argues it does not remove the illegitimate restrictions occasioned by section 12(1)(a) on the right to freedom of assembly. Having applied the proportionality and necessity test at international law, SERI concludes that section 12(1)(a) of the Gatherings Act, by imposing criminal sanctions for inadequate or complete lack of notification for assemblies only because more than 15 people participated, does not serve a legitimate aim.
On 24 January 2018, the Western Cape High Court declared section 12(1)(a) of the Gatherings Act unconstitutional. In declaring this provision unconstitutional, judge Thandazwa Ndita said that a criminal sanction was "disproportionate to the offence" as it may result in people "carry[ing] with them the stigma" of a criminal conviction. Instead, judge Ndita suggested that civil liability may be a more appropriate penalty for failing to notify the municipality of an intended protest.