Mlungwana and Others v S and Another (A431/15) [2018] ZAWCHC 3; [2018] 2 All SA 183 (WCC); 2018 (1) SACR 538 (WCC) (24 January 2018)

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[2018] ZAWCHC 3
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Mlungwana and Others v S and Another (A431/15) [2018] ZAWCHC 3; [2018] 2 All SA 183 (WCC); 2018 (1) SACR 538 (WCC) (24 January 2018)

IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
CASE
NO: A431/15
In
the matter between:
PHUMEZA
MLUNGWANA
First
Appellant
XOLISWA
MBADISA
Second
Appellant
LUVO
MANKQA
Third
Appellant
NOMHLE
MACI
Fourth
Appellant
ZINGISA
MRWEBI
Fifth
Appellant
MLONDOLOZI
SINUKU
Sixth
Appellant
VUYOLWETHU
SINUKU
Seventh
Appellant
EZETHU
SEBEZO
Eighth
Appellant
NOLULAMO
JARA
Ninth
Appellant
ABUDURRAZACK
ACHMAT
Tenth
Appellant
And
THE
STATE
First
Respondent
THE
MINISTER OF
POLICE
Second
Respondent
CORAM:
Ndita J et Magona AJ
DELIVERED: 24
JANUARY 2018
JUDGMENT
NDITA,
J:
Introduction
[1]
This an appeal against the conviction of all the appellants for
contravening section 12 (1) (a) of the Regulation of Gatherings
Act
205 of 1993 (“the RGA”). At the heart of this appeal is a
constitutional challenge to the validity of the
aforesaid provisions
in terms of which it is a crime to convene a gathering without notice
being given as contemplated by section
3 of the RGA.
[2] In order to fully
comprehend the issues in this appeal I deem it prudent to outline
from the outset the provisions of s 12 (1)
(a) and 3 of the RGA.
Section 12 provides as
follows:
“
12 Offences
and penalties
(1) Any person who-
(a) convenes a gathering in respect of
which no notice or no adequate notice was given in accordance with
the provisions of section
3; or
. . .
shall be guilty of an offence and on
conviction liable-
(i) in the case of a contravention
referred to in paragraphs (a) to (j), to a fine or to imprisonment
for a period not exceeding
one year or to both such fine and such
imprisonment; and
Section 3 provides:
“
3
Notice of gatherings
(1) The convener of a gathering shall
give notice in writing signed by him of the intended gathering in
accordance with the provisions
of this section: Provided that if the
convener is not able to reduce a proposed notice to writing the
responsible officer shall
at his request do it for him.
Factual Background
[3]
The factual background that underpins the determination of the issues
in this appeal can be summarised as follows: The appellants
were
arraigned before the magistrate court, Cape Town, on a charge of
contravening section 12 (1) (a) of the Regulation of Gatherings
Act
205 of 1993 (“the RGA”) (the main count), in that on or
about 11 September 2013, they unlawfully and intentionally
convened a
gathering in protest against poor sanitation services without giving
the relevant municipal authority any notice that
such gathering would
take place. In the alternative, they were charged with attending a
gathering for which no notice had not been
given. They all pleaded
not guilty to charges.  After evidence was led, the appellants
were convicted as charge on the main
count. The sentence imposed is
that of a caution and discharge. With the requisite leave of the
trial court, they now appeal against
the conviction.
[4] In the proceedings
before the trial court, the appellants made the following admissions:
1. A “
gathering
” as
defined in terms of RGA was held at the offices of Mayor Patricia de
Lille on 11 September 2013.
2. No notice of the
gathering was given in terms of section 3 of the RGA.
[5] The appellants filed
an explanation of plea in terms of
section 115
of the
Criminal
Procedure Act 51 of 1977
which reads thus:
5.1
Section 12
(1) of the
RGA is not applicable to them as the provision criminalises attending
or a gathering where such gathering is in contravention
of the RGA.
According to the Appellant’s plea explanation,
section 12(1)
(e) does not prohibit attending a gathering for which no notice has
not been given, and attending or convening such a gathering
does not
contravene the RGA in any respect other than the fact that it
constitutes an offence in terms of
section 12
(1) (a).
1.2
5cm; margin-bottom: 0cm; line-height: 150%">
5.2 The criminalisation
of convening a gathering without giving notice is unconstitutional
and invalid.
The Evidence
[6] Mr Noel Desmond Da
Silva (“Mr Da Silva”), an officer employed by the City of
Cape Town in terms of the RGA, gave
evidence to the effect that on 11
September 2015, a gathering without a permit took place in the
vicinity of the Civic Centre,
City of Cape Town. Mr Da Silva outlined
the process that must be followed in order to obtain a permit for a
gathering and explained
that an application must be lodged at least
seven days prior to the intended gathering. But, the applicants may,
on good cause
shown, be granted a permit within a truncated period.
The officer who receives the application must then consult with an
authorised
member of the South African Police Services (“SAPS”).
The person who must give the notice of the intended gathering
is the
convener. According to Mr Da Silva, and as earlier pointed out, no
convener or conveners contacted him in the matter at
hand. The Act
defines a convener as:
(a) Any person who out of
his own accord convenes a gathering and;
(b) in relation to an
organisation or branch of any organisation any person appointed by
such organisation or branch in terms of
2(1)
[7]
Mr Jacob Petersen (“Mr Petersen”), a Warrant Officer in
the Public Order Policing Services stationed at Faure, confirmed
that
he and Captain Prins were on crowd management duties at the Civic
Centre where they found about forty protesters carrying
placards, and
singing and dancing. According to his evidence, next to the entrance
of the Civic Centre, some of the protesters
had chained themselves to
each other using padlocks.  Mr Petersen testified that Captain
Prins warned the protestors that
their actions were illegal. When the
protestors refused to disperse, the officers arrested them and used
bolt cutters to cut the
padlocks.
[8]
All the appellants are members of the Social Justice Coalition
(“SJC”), a membership-based organisation operating
at
Khayelitsha, Western Cape. According to the evidence of the first
appellant, Ms. Phumeza Mlungwana (“Ms. Mlungwana”),
the
general secretary of the SJC, the broad objective of the organisation
is to advance the Constitution, promote accountability
in governance
and to ensure and promote active citizenship. One of SJC’s
primary campaigns is the “
clean
and safe sanitation for all”
.
Its purpose is to ensure that all residents of Khayelitsha have
access to adequate sanitation facilities which are properly
maintained.
According to Ms. Mlungwana’s evidence, lack of
sanitation poses a serious threat to the health, safety and dignity
of Khayelitsha
residents.
[9]
The evidence reveals that the SJC began work on its sanitation
campaign in 2010 through raising awareness to this critical issue.
Ms
Mlungwana said that when Mayor Patricia de Lille was elected in 2011,
the City of Cape Town began to cooperate with the SJC
and even
established a janitorial service to ensure that sanitation facilities
were cleaned and maintained. This service began
to be implemented in
2012. The janitorial system was not without problems. To this end,
the SJC felt that the system was implemented
without proper
consultation with the community and without a policy or operational
plan. Ms Mlungwana alleges that the janitors
lacked the necessary
training and equipment to execute their mandate. Pursuant thereto,
the SJC engaged with the City, and the
latter late in 2012 committed
itself to developing the policy and plan. However, by 2013, there
were according to Ms Mlungwana,
no clear implementation plans on the
part of the City. On 25 June 2013, approximately 300 to 400 members
of the SJC held a march
to the City and delivered a memorandum.
According to Ms Mlungwana, responding to the march Councillor
Sonnenberg, advised them
that the City had developed an operational
plan which was at the time not yet available to the public. The SJC
sent queries to
the City and when that bore no results, the
organisation requested an urgent meeting on 13 August 2013. Much to
the chagrin of
the SJC, representatives of the City advised that the
Mayor could only meet with them in October. After receiving this
information,
members of the SJC held a mass meeting and people
expressed their frustration with the City’s poor communication
and lack
of commitment to the issue of sanitation in Khayelitsha. It
was resolved that a special executive action be held where a decision

would be made as to which course of action to follow. At the meeting
it was decided that members would picket at the Civic Centre
and that
no notice would be given as only 15 members would attend so that the
gathering did not fall foul of the RGA as they were
already aware of
the fact that the law made provisions for at least 15 people to
picket without a notice.
[10] Ms Mlungwana
testified that it was necessary to embark on this action because the
sanitation campaign began in 2010, and it
was important to them that
the City should see their frustration with the lack of progress.
Furthermore, they were also aware of
the fact that because of the
compromised sanitation system, people were murdered or mugged or
raped as they went to the outside
communal toilets.  Ms
Mlungwana further explained the role of protests in SJC activities in
the following manner:
“
I think for
us it is important to just understand that a protest has a powerful,
has a long history in South Africa and its everyone’s
right to
do it properly and that also it’s a tool, an advocacy tool to
get government accountability, to get people’s
voices to be
heard, but the SJC’s we’ve always felt that if people
need to protest they can protest as long as we do
it non-violently.
As long we do it right within the framework of the law. But for us
just to, for us also a protest it’s
not like an event it’s
a moment of expressing voices and to bring attention to certain
issues.”
According to Ms
Mlungwana, protests have been a very effective tool in pursuing the
goals of the SJC and that their arrest has a
chilling effect on
future protests by the SJC. To this end the witness stated thus:
“
People are
arrested even though they are arrested for raising issues that are
dear to their hearts and issues that are very important,
but
obviously going forward it does affect when people need to protest
again they’re going to think twice: are we going to
be
arrested. Because if you think back we weren’t violent, we
weren’t disrupting anything, but still we were arrested
and so
people are going to think twice even though they feel they’ve
tried every possible avenue to be heard and they’re
not heard,
but they are going to think twice for them to participate in a public
or an action of this sort.”
[11] As earlier alluded
to, Ms Mlungwana confirmed that on 11 September 2015 at 9:00 am,
fifteen people travelled by taxi from Khayelitsha
to the City’s
Civic Centre. The fifteen people chained themselves together in
groups of five and walked to the staircase
leading to one of the
entrances to the Civic Centre, where they chained themselves to the
railings. Ms Mlungwana testified that
although initially fifteen
people were chained together, some people joined the chain and the
number increased to sixteen. She
said that the protesters demanded
that someone from the office of the Mayor come and address them but
were advised that the Mayor’s
office was refusing to see them.
The protest was peaceful, some protesters sang songs, and some had
placards. She further confirmed
that Captain Prins of the South
African Police Services negotiated with the appellants requesting
that the protesters leave, and
when they refused all those who were
part of the chain as well as supporters or members who were unchained
were arrested.
The
judgment of the trial court
[12] The trial court
convicted the appellants of contravening section 12 (1) (a) of the
RGA, having made the following findings:
12.1. By their own
admissions, the appellants had convened the gathering of the day in
question but had decided not to give notice
as the number of people
protesting would be no more than fifteen. Although initially there
indeed were no more than fifteen protesters,
when others joined in,
the conveners failed to stop them whilst knowing full well that they
had exceeded the permissible number
of 15 protesters.
12.2. The appellants made
a conscious decision not to give notice of the intended protest, and
when the number of protesters exceeded
fifteen, the protest
constituted a gathering as defined in section 3 of the RGA.
A detailed affidavit
setting out the SJC’s grievances and frustrations with the
City’s perceived tardy approach to the
sanitation plight of the
Khayelitsha community was handed up to court as an exhibit.
The Leave to appeal
and Rule 16 A Notice
[13] Pursuant to the
conviction and sentence, the appellants filed a notice of appeal
against the conviction. I have already indicated
that the appellants
in their plea explanation in terms of
section 115
of the
Criminal
Procedure Act 51 of 1977
raised a constitutional issue to the effect
that
section 12
(1)(a) of the RGA in that the criminalisation of
merely convening or attending a gathering without giving notice is
unconstitutional.
The relief sought in this application/appeal was
instituted by way of a Rule 16A which provides that:
“
(1) (a) Any
person raising a constitutional issue in an application or action
shall give notice thereof to the registrar at the
time of filing the
relevant affidavit or pleading.
(b) Such notice shall contain a clear
and succinct description of the constitutional issue concerned.
(c) The registrar shall, upon receipt
of such notice, forthwith place it on a notice board designated for
that purpose.
(d) The notice shall be stamped by the
registrar to indicate the date upon which it was placed on the notice
board and shall remain
on the notice board for a period of 20 days.”
In
Shaik v Minister of
Justice and Constitutional Development
[2003] ZACC 24
;
2004 (3) SA 599
(CC) at
para 24 the court explained the purpose of the rule thus:
“
The purpose
of the Rule is to bring to the attention of persons (who may be
affected by or have a legitimate interest in the case)
the
particularity of the Constitutional challenge, in order that they may
take steps to protect their interests. This is especially
important
in those cases where a party may wish to justify a limitation of a
chapter 2 right and adduce evidence in support thereof.”
[14]
As correctly submitted by Ms Pillay, the institution of proceedings
by way of
Rule 16A
notice is quite unconventional and does not appear
to be contemplated by the rules of Court, however, both the State and
the Minister
of Police have not raised any objection in this regard.
For this reason, I find no impediment to the determination of this
appeal/application
on the basis set out in
Rule 16.
[15] The main issue
raised by the Appellants in terms
Rule 16
is that
section 12
(1) (a)
of the RGA violates the right to freedom of assembly in s 17 of the
Constitution of the Republic of South Africa, 1996
(the
Constitution), and is therefore unconstitutional and invalid, to the
extent that it criminalises the convening of a gathering
solely on
the basis that:
15.1  The gathering
consists of 15 or more people; and
15.2
No prior notice was given.
[16] The Appellants
further contend that the criminalisation of a gathering of more than
15 people merely because no notice was
given violates s 17 because:
16.1  It makes it a
crime to convene a peaceful, unarmed gathering merely because the
gathering is attended by 15 or more people
and prior notice was not
given; and
16.2
It deters people from exercising their fundamental constitutional
right to assemble peacefully unarmed.
[17] According to the
Appellants, the limitation of the right to freedom of assembly
further cannot be justified in terms of s 36
(1) of the Constitution
because:
17.1
The limitation of the
right of assembly is severe.
17.2 The application to
gatherings of only 15 people or more is arbitrary and unrelated to
the purpose of the provision;
17.3 Although the goal of
regulating protests is legitimate, there are less restrictive means
to achieve that goal, including:
18.2.1.
Non-criminal sanctions;
18.2.2.
Expanding the number of
people that may be convened without notice; and
18.2.3.
Relying on other
existing criminal sanctions that permit police to deal with protests
that pose risk to public order or safety.
[19] Based on the
aforegoing, the appellants seek the following remedy:
19.1  Upholding the
appeal and setting aside their conviction;
19.2  Declaring that
ss 12 (1) (a), read with s 1, of the RGA is unconstitutional and
invalid to the extent that it criminalises
convening a gathering of
more than 15 people merely because no notice was given.
The Amici Curiae
[20] On 21 February 2017,
by agreement between the parties, the following parties were admitted
as
amici curiae
and were granted leave to make written and
oral submissions:
1. The Open Society
Justice Initiative;
2. The United Nations
Special Rapporteur on the Rights to Freedom of Peaceful Assembly and
of Association; and
3. Equal Education.
Does the criminal
sanction in s 12 (1) (a) limit the right of assembly?
[21] The appellants do
not challenge the requirement that notice be given in terms of
section 3 of the RGA. They, in fact, accept
that it serves a
legitimate purpose. Their concern is the criminalisation of the
actions of a person who convenes a gathering without
giving notice.
The appellant’s main contention is that the effect of the
criminalisation is to deter people from gathering
and if they do,
they may face fines and imprisonment for exercising a
constitutionally guaranteed right and freedom to demonstrate
as
envisaged in section 17 of the Constitution. Section 17 provides as
follows:
“
Everyone has
the right, peacefully and unarmed, to assemble to demonstrate, to
picket and to present petitions.”
The
First Respondent has not opposed this appeal and has elected to abide
by the decision of the court. The Second Respondent, the
Minister of
Police (“the Minister” or the Second Respondent), opposes
the relief sought by the appellants on the basis
that the rights and
interests of the appellants cannot take precedence over another group
of persons. To this end, so goes the
contention, the RGA has struck
the right equilibrium between the two competing rights.
[22] Against this
backdrop, I find it necessary at this point to outline the scheme of
the RGA.
The Statutory
Framework
[23] The purpose of the
RGA is to regulate the holding of public gatherings and
demonstrations at certain places. In line with the
provisions of
section 17 of the Constitution, its preamble reads thus:
“
Whereas
every person has the right to assemble with other persons and to
express his views on any matter freely in public and to
enjoy the
protection of the State while doing so;
And whereas the exercise of such right
shall take place peacefully and with  due regard to the rights
of others.”
[24] The RGA draws a
distinction between “gatherings” and “demonstrations.”
The primary difference between
the two is the number of people
involved. A demonstration consists of 1-15 people and a gathering
consists of more than 15 people.
24.1More specifically, a
“gathering” is defined in section 1 as:
“
any
assembly, concourse or procession of
more
than 15 persons
in or on any public
road as defined in the Road Traffic Act, 1989 (Act 29 of 1989), or
any other public place or premises wholly
or partly open to the air-
(a) at which the principles, policy,
actions or failure to act of any government, political party or
political organization, whether
or not that party or organization is
registered in terms of any applicable law, are discussed, attacked,
criticized, promoted or
propagated; or
(b) held to form pressure groups, to
hand over petitions to any person, or to mobilize or demonstrate
support for or opposition
to the views, principles, policy, actions
or omissions of any person or body of persons or institution,
including any government,
administration or governmental
institution.”
24.2A “demonstration”
is defined in section 1 as including:
“
any
demonstration by one or more persons, but not more than 15 persons,
for or against any person, cause, action or failure to take
action.”
[25] The RGA requires an
organisation or branch of an organisation that intends holding a
gathering to appoint a designated person
to act on its behalf and for
the details of such person to be made available to the responsible
officer in terms of section 2 of
the RGA.  Section 2 provides as
follows:
“
2
Appointment of conveners, authorized members and responsible officers
(1) (a) An organization or any branch
of an organization intending to hold a gathering shall appoint-
(i) a person to be responsible for the
arrangements for that gathering and to be present thereat, to give
notice in terms of section
3 and to act on its behalf at any
consultations or negotiations contemplated in section 4, or in
connection with any other procedure
contemplated in this Act at which
his presence is required; and
(ii) a deputy to a person appointed in
terms of subparagraph (i).
(b) Such organization or branch, as
the case may be, shall forthwith notify the responsible officer
concerned of the names and addresses
of the persons so appointed and
the responsible officer shall notify the authorized member concerned
accordingly.
(c) If a person appointed in terms of
paragraph (a) is or becomes unable to perform or to continue to
perform his functions in terms
of this Act, the organization or
branch, as the case may be, shall forthwith appoint another person in
his stead, and a person
so appointed shall be deemed to have been
appointed in terms of paragraph (a): Provided that after the
appointment of a person
in terms of this paragraph, no further such
appointment shall be made, except with the approval of the
responsible officer concerned.
(2) (a) The Commissioner or a person
authorized thereto by him shall authorize a suitably qualified and
experienced member of the
Police, either in general or in a
particular case, to represent the Police at consultations or
negotiations contemplated in section
4 and to perform such other
functions as are conferred or imposed upon an authorized member by
this Act, and shall notify all local
authorities or any local
authority concerned of every such authorization, and of the name,
rank and address of any authorized member
concerned.
(b) If an authorized member is or
becomes unable to perform or to continue to perform his functions in
terms of this Act, the Commissioner
or a person authorized thereto by
him shall forthwith designate another member of the Police to act in
his stead, either in general
or in a particular case, and the member
so designated shall be deemed to have been authorized in terms of
paragraph (a) for the
purposes contemplated in the said paragraph:
Provided that after the designation of a member of the Police in
terms of this paragraph,
no further such designation shall be made,
except with the approval of the responsible officer concerned.
(3) If any consultations, negotiations
or proceedings in terms of this Act at which the presence of a
convener or an authorized
member is required, are to take place and
such convener or member is not available, such consultations or
negotiations or other
proceedings may be conducted in the absence of
such convener or member, and the organization or Police, as the case
may be, shall
be bound by the result of such consultations,
negotiations or proceedings as if it or they had agreed thereto.
(4) (a) A local authority within whose
area of jurisdiction a gathering is to take place or the management
or executive committee
of such local authority shall appoint a
suitable person, and a deputy to such person, to perform the
functions, exercise the powers
and discharge the duties of a
responsible officer in terms of this Act.
(b) If, for any reason, a local
authority has not made an appointment in terms of paragraph (a) when
a convener is required to give
notice in terms of section 3 (2) or
when a member of the Police is required to submit information in
terms of section 3 (5) (a),
such notice shall be given or such
information shall be submitted to the chief executive officer or, in
his absence, his immediate
junior, who shall thereupon be deemed to
be the responsible officer in regard to the gathering in question for
all the purposes
of this Act.”
[26] The obvious key
purpose to be served by the appointment of a person responsible for
the arrangements for a gathering is to:
(a) give notice of the
intended gathering in terms of section 3 of the Gatherings Act; and
(b) to engage in negotiations and consultations
in respect of the
terms under which the gathering shall take place.
[27] The RGA defines a
convener as: “
(a) any person who, of his own accord,
convenes a gathering; and (b) in relation to any organisation or
branch of any organisation,
any person appointed by such organisation
or branch in terms of section 2(1)”.
If a convener has not
been appointed in terms of s 2(1) –presumably because no notice
was given - then:
“
a person
shall be deemed to have convened a gathering:
(a)
If he has taken any part in the planning or
organising or making preparations for that gathering; or
(b)
I
f he has himself or through any other
person, either verbally or in writing, invited the public or any
section of the public to
attend the gathering.”
[28] In terms of s 3, a
convener of a gathering is required to give formal notification in
writing signed by him or her of the intended
gathering to the
responsible officer.  Section 3 provides as follows:
“
3 Notice of
gatherings
(1) The convener of a gathering shall
give notice in writing signed by him of the intended gathering in
accordance with the provisions
of this section: Provided that if the
convener is not able to reduce a proposed notice to writing the
responsible officer shall
at his request do it for him.
(2) The convener shall not later than
seven days before the date on which the gathering is to be held, give
notice of the gathering
to the responsible officer concerned:
Provided that if it is not reasonably possible for the convener to
give such notice earlier
than seven days before such date, he shall
give such notice at the earliest opportunity: Provided further that
if such notice is
given less than 48 hours before the commencement of
the gathering, the responsible officer may by notice to the convener
prohibit
the gathering.
(3) The notice referred to in
subsection (1) shall contain at least the following information:
(a) The name, address and telephone
and facsimile numbers, if any, of the convener and his deputy;
(b) the name of the organization or
branch on whose behalf the gathering is convened or, if it is not so
convened, a statement that
it is convened by the convener;
(c) the purpose of the gathering;
(d) the time, duration and date of the
gathering;
(e) the place where the gathering is
to be held;
(f) the
anticipated number of
participants
;
(g) the proposed number and, where
possible, the names of the marshals who will be appointed by the
convener, and how the marshals
will be distinguished from the other
participants in the gathering;
(h) in the case of a gathering in the
form of a procession-
(i) the exact and complete route of
the procession;
(ii) the time when and the place at
which participants in the procession are to assemble, and the time
when and the place from which
the procession is to commence;
(iii) the time when and the place
where the procession is to end and the participants are to disperse;
(iv) the manner in which the
participants will be transported to the place of assembly and from
the point of dispersal;
(v) the number and types of vehicles,
if any, which are to form part of the procession;
(i) if notice is given later than
seven days before the date on which the gathering is to be held, the
reason why it was not given
timeously;
(j) if a petition or any other
document is to be handed over to any person, the place where and the
person to whom it is to be handed
over.
(4) If a local authority does not
exist or is not functioning in the area where a gathering is to be
held, the convener shall give
notice as contemplated in this section
to the magistrate of the district within which that gathering is to
be held or to commence,
and such magistrate shall thereafter fulfil
the functions, exercise the powers and discharge the duties conferred
or imposed by
this Act on a responsible officer in respect of such
gathering.
(5) (a) When a member of the Police
receives information regarding a proposed gathering and if he has
reason to believe that notice
in terms of subsection (1) has not yet
been given to the responsible officer concerned, he shall forthwith
furnish such officer
with such information.
(b) When a responsible officer
receives information other than that contemplated in paragraph (a)
regarding a proposed gathering
of which no notice has been given to
him, he shall forthwith furnish the authorized member concerned with
such information.
(c) Without derogating from the duty
imposed on a convener by subsection (1), the responsible officer
shall, on receipt of such
information, take such steps as he may deem
necessary, including the obtaining of assistance from the Police, to
establish the
identity of the convener of such gathering, and may
request the convener to comply with the provisions of this Chapter.”
[29] It is clear from the
wording of s 3 that its primary intent is to ensure that such
gatherings are managed and occur in an orderly
manner, with minimal
disruption and that any risk of violence and/or unruly behaviour is
mitigated to the greatest extent. The
Second Respondent has explained
that the purpose of giving notice in terms of section 3 of the RGA is
to enable proper planning
to ultimately ensure that the rights to
freedom of expression and freedom of assembly may be exercised.
Section 3 of the
RGA also seeks to ensure due and proper regard for
the rights of others.  Furthermore, compliance with the notice
requirements
allows for the proper deployment of police resources in
respect of such a gathering.  If no notice is given, there is,
according
to the Second Respondent, the risk that sufficient police
resources cannot be deployed at the stage when the gathering is
already
in progress, thereby jeopardising the right to freedom of
assembly and the safety and security of persons and property.
[30]
Once the notice has been given, the responsible officer must decide
in consultation with the authorised member whether it is
necessary to
negotiate with the convener on the conduct of the gathering. The
responsible officer may conclude that negotiations
are unnecessary,
if that be the case, he/she may inform the convener. If he/she forms
an opinion that negotiations are necessary,
he/she must then call a
meeting of the relevant parties. The purpose of the s 4 meeting is to
discuss in good faith and seek to
reach an agreement on “the
conditions, if any, to be imposed in respect of the holding of the
gathering so as to meet the
objectives of this Act.”
[1]
If the parties reach an agreement, the gathering will take place in
accordance with the agreed conditions.
[2]
If no agreement is reached, the responsible officer can still impose
conditions relating to traffic, proximity of gathering to
rival
gatherings, access to property and workplaces and prevention of
injury to persons and property.
[3]
It is noteworthy that the s 4 meeting does not entitle the
responsible officer to prohibit a gathering, but he/she may only do

so if:
“
credible
information on oath is brought to [ther] responsible officer that
there is threat that a proposed gathering will result
in serious
disruption of vehicular or pedestrian traffic, or injury to
participants in the gathering or other extensive damage
to property,
and that the Police and the traffic officers in question will not be
able to contain this threat.”
[4]
In
such a scenario, the responsible officer must then meet and consult,
if possible, with the convener and other relevant people.
[5]
Pursuant to the aforesaid meeting, the responsible officer may
prohibit a gathering if he/she is “on reasonable grounds
convinced” that it is not possible to amend the conditions to
prevent the threat to traffic, persons or property.
[6]
If a gathering is prohibited, or if conditions are imposed at s 4
meeting that the convener disagrees with, he/she may apply urgently

to the magistrate to set aside the condition or prohibition.
[7]
[31] Section 8 of the RGA
regulates conduct at gatherings and demonstrations. The section
applies to all gatherings whether or not
notice was given, It
provides as follows:
8 Conduct of gatherings and
demonstrations
The following provisions shall apply
to the conduct of gatherings and, where so indicated, to the conduct
of demonstrations:
(1) The convener shall appoint the
number of marshals mentioned in the notice or, if it was amended in
terms of section 4, in the
amended notice, to control the
participants in the gathering, and to take the necessary steps to
ensure that the gathering at all
times proceeds peacefully and that
the provisions of this section and the applicable notice and
conditions, if any, are complied
with, and such marshals shall be
clearly distinguishable.
(2) The convener shall take all
reasonable steps to ensure that all marshals of the gathering and
participants in the gathering
or demonstration, as the case may be,
are informed timeously and properly of the conditions to which the
holding of the gathering
or demonstration is subject.
(3) The gathering shall proceed and
take place at the locality or on the route and in the manner and
during the times specified
in the notice or, if it was amended, in
the amended notice, and in accordance with the contents of such
notice and the conditions,
if any, imposed under section 4 (4) (b), 6
(1) or 6 (5).
(4) No participant at a gathering or
demonstration may have in his or her possession-
(a) any airgun, firearm, imitation
firearm or any muzzle loading firearm, as defined in section 1 of the
Firearms Control Act, 2000
(Act 60 of 2000), or any object which
resembles a firearm and that is likely to be mistaken for a firearm;
or
(b) any dangerous weapon, as defined
in the
Dangerous Weapons Act, 2013
and the convener and marshals, if
any, shall take all reasonable steps to ensure that this section is
complied with.
(5) No person present at or
participating in a gathering or demonstration shall by way of a
banner, placard, speech or singing or
in any other manner incite
hatred of other persons or any group of other persons on account of
differences in culture, race, sex,
language or religion.
(6) No person present at or
participating in a gathering or demonstration shall perform any act
or utter any words which are calculated
or likely to cause or
encourage violence against any person or group of persons.
(7) No person shall at any gathering
or demonstration wear a disguise or mask or any other apparel or item
which obscures his facial
features and prevents his identification.
(8) No person shall at any gathering
or demonstration wear any form of apparel that resembles any of the
uniforms worn by members
of the security forces, including the Police
and the South African Defence Force.
(9) The marshals at a gathering shall
take all reasonable steps to ensure that-
(i) no entrance to any building or
premises is so barred by participants that reasonable access to the
said building or premises
is denied to any person;
(ii) no entrance to a building or
premises in or on which is situated any hospital, fire or ambulance
station or any other emergency
services, is barred by the
participants.
(10) No person shall, in any manner
whatsoever, either before or during a gathering or demonstration,
compel or attempt to compel
any person to attend, join or participate
in the gathering or demonstration, and the convener and marshals, if
any, shall take
all reasonable steps to prevent any person from being
so compelled.”
Non-compliance with any of the
obligations outlined above is an offence in terms of
s 12(1)(c)
[32] The Second
Respondent has averred that the role of the convenor and the marshals
appointed by such person is key to the regulation
of a gathering.
Accordingly, if no notice is given, police resources are not
supplemented by marshals.  This is of relevance
because
experience, according to the averment, has shown that members of a
gathering are more inclined to adhere to instructions
from persons
within the gathering, such as marshals as opposed to police.
[33]
Section 9
of the RGA affords the police wide powers to manage any
gathering or demonstration. In the case of a gathering without for
which
no notice at least 48 hours before hand the police have the
power to:
“
restrict the
gathering to a place, or guide the participants along a route, to
ensure that:
(i) that vehicular or pedestrian
traffic, especially during traffic rush hours, is least impeded; or
(ii) an appropriate distance between
the participants in the gathering and rival gatherings, or
(iii) access to property and
workplaces; or
(iv) the prevention
of injury to persons or damage to property”.
[8]
In
a nutshell, it is plain from the provisions of
s 9
that the Act
empowers the police to manage the gathering reasonably to avoid
damage to persons or property, or unjustifiable disruption
to traffic
or access to buildings.
[34] Section 11 provides
for liability arising from riot damage at a gathering or
demonstration. The provisions of the sections
do not strictly apply
to the matter at hand as no damage resulted from the gathering. It
must be mentioned though that s 11 (2)
grants a limited defence to
organisers and convenors if they can show that:
1. they were not
responsible for the act or omission that caused the damage and it was
not part of the objectives of the gathering;
2. the act or omission
was not reasonably foreseeable;
3. they took all
reasonable steps to prevent the act or omission.
[35]
The RGA makes certain conduct an offence and imposes penalties in
respect thereof.  Section 12 provides as follows:
“
12 Offences
and penalties
(1) Any person who-
(a) convenes a gathering in respect of
which no notice or no adequate notice was given in accordance with
the provisions of section
3; or
(b) after giving notice in accordance
with the provisions of section 3, fails to attend a relevant meeting
called in terms of section
4 (2) (b); or
(c) contravenes or fails to comply
with any provision of section 8 in regard to the conduct of a
gathering or demonstration; or
(d) knowingly contravenes or fails to
comply with the contents of a notice or a condition to which the
holding of a gathering or
demonstration is in terms of this Act
subject; or
(e) in contravention of the provisions
of this Act convenes a gathering, or convenes or attends a gathering
or demonstration prohibited
in terms of this Act; or
(f) knowingly contravenes or fails to
comply with a condition imposed in terms of section 4 (4) (b), 6 (1)
or 6 (5); or
(g) fails to comply with an order
issued, or interferes with any steps taken, in terms of section 9 (1)
(b), (c), (d) or (e) or
(2) (a); or
(h) contravenes or fails to comply
with the provisions of section 4 (6); or
(i) supplies or furnishes false
information for the purposes of this Act; or
(j) hinders, interferes with,
obstructs or resists a member of the Police, responsible officer,
convener, marshal or other person
in the exercise of his powers or
the performance of his duties under this Act or a regulation made
under section 10; or
(k) who is in possession of or
carrying any object referred to in section 8 (4) in contravention of
that section,
shall be guilty of an offence and on
conviction liable-
(i) in the case of a contravention
referred to in paragraphs (a) to (j), to a fine or to imprisonment
for a period not exceeding
one year or to both such fine and such
imprisonment; and
(ii) in the case of a contravention
referred to in paragraph (k), to a fine or to imprisonment for a
period not exceeding three
years.
(2) It shall be a defence to a charge
of convening a gathering in contravention of subsection (1) (a) that
the gathering concerned
took place spontaneously.”
[36] It must be
reiterated that a failure to give notice in terms of section 3
constitutes an offence on the part of the person
convening the
gathering; the gathering itself is not criminalised. Furthermore, on
a charge of failure to give notice of a gathering
as envisaged in s 3
of the RGA, it is plain from the provisions of section12(2) that that
the gathering took place spontaneously
constitutes a complete
defence.  Stated differently, unless the gathering took place
spontaneously, the failure of the person
convening the gathering to
give notice, or adequate notice is an offence.
The
Constitutional Challenge
[37] In the determination
of this matter it must be restated that the appellants do not
challenge the notice process envisaged in
s 3 of the RGA. In fact,
they readily concede that it serves a legitimate purpose. They also
do not challenge the definition of
a “gathering” or
“demonstration”.
[38] Where a
constitutional invalidity of the statute is raised, the test to be
applied is set out in
Ferreira v Levin NO And Others; Vryenhoek v
Powell NO And Others
1996 (1) SA 984
(CC), as follows:
“
[44] The
task of determining whether the provisions of s 417(2)(b) of the Act
are invalid because they are inconsistent with the
guaranteed rights
here under discussion involves two stages: first, an enquiry as to
whether there has been an infringement of
the s 11(1) or 13
guaranteed right; if so, a further enquiry as to whether such
infringement is justified under s 33(1), the limitation
clause. The
task of interpreting the chap 3 fundamental rights rests, of course,
with the Courts, but it is for the applicants
to prove the facts upon
which they rely for their claim of infringement of the particular
right in question. Concerning the second
stage, '(it) is for the
Legislature, or the party relying on the legislation, to establish
this justification (in terms of s 33(1)
of the Constitution), and not
for the party challenging it to show that it was not justified'.”
The appellants contend
that by the criminalisation of the conduct that is protected by s 17
of the Constitution, the provision effectively
limits the right to
peaceful and unarmed assembly. The appellants’ sentiments are
echoed by all the
amici,
albeit for different reasons. The
Second Respondent, on the other hand, contends that there is no
infringement of section 17 of
the Constitution, but if this Court
finds that the criminalisation of a failure to comply with the
procedural barrier imposed by
the RGA, constitutes an infringement of
section 17, then limitation of the right is reasonable and
justifiable. I deal with full
contentions tendered on behalf of each
party later in this judgment. I now turn to consider whether there is
an infringement of
section 17 of the Constitution.
Does s 12 (1) (a) of
the RGA limit s 17 of the Constitution?
[39]
Section 17 of the Constitution protects peaceful and unarmed
demonstrations. It guarantees the right of free assembly, to hold

demonstrations, to picket and the right to present petitions. In
terms of section 7(2) of the Constitution, the State must respect,

protect, and promote and fulfil the rights in the Bill of Rights. The
rights contained in the Bill of Rights, therefore, impose
an
obligation that requires those bound thereby not to act in any manner
which would infringe or restrict the right; the obligation
is in a
sense a negative one, as it requires that nothing be done to infringe
the rights.
[9]
In
Satawu
and Another v Garvas And Others
[10]
,
the Court interpreted section 17 of the Constitution thus:
“
everyone who
is unarmed has the right to go out and assemble with others to
demonstrate, picket and present petitions to others
for any lawful
purpose. The wording is generous. It would need some particularly
compelling context to interpret this provision
as actually meaning
less than its wording promise. There is, however, nothing, in our own
history or internationally, that justifies
taking away that promise.”
The enquiry into whether
the impugned provision limits the Constitutional rights is
two-pronged. In the first leg, the first question
that must be
answered is whether is 12 (1) (a) is inconsistent with the
Constitution in that it limits the s 17 rights.
[40] It was submitted on
behalf of the appellants that s 12(1) (a) of the RGA, making it a
crime to convene a gathering without
a notice, infringes s 17 of the
Constitution as it goes beyond mere regulation. According to the
argument, this is so because criminalisation
will deter people from
gathering, or will mean that they face fines and/or imprisonment for
exercising a constitutional right.
Therefore, by criminalising
conduct that is protected by the Constitution, the section limits the
right to peaceful and unarmed
protest. However, it must be stressed
that s 12(1) (a) does not criminalise the convening of the gathering,
but only the failure
to give a timely notice.
[41] Mr Budlender, who
presented argument on behalf of the first amicus, the Open Society
Foundation contended that the criminal
sanctions for not complying
with the notice requirement have a chilling effect on the right of
assembly and will inhibit groups
and individuals from convening
gatherings with more than 15 participants. This, according to the
argument, is illustrated by the
fact that the appellants initially
planned the protest to fall within the purview of 15 participants so
as to avoid giving notice,
but more people joined the group and it
resulted in the conveners being arrested, prosecuted and convicted.
Similarly, the rest
of the amici submitted that the criminal
sanctions envisaged in s 12(1)(a) of the RGA flies in the face of the
constitutionally
guaranteed right of assembly and the conviction of
the appellants for failure to give a timeous notice may well deter
others from
exercising their constitutional rights of assembly.
[42] It is plain when
regard is had to the circumstances of the present matter that
criminal sanctions envisaged in s 12 (1) (a)
constitute a limitation
to the exercise of s 17 rights. As can be discerned from the Rule 16
statement, and having regard to the
circumstances of the present
matter, those being that all the appellants acquired criminal
convictions for failure to give notice
of a gathering wherein they
were seeking a response from the City for what appears on these
papers to be an ongoing sanitation
problem in Khayelitsha, the effect
of the s 12(1) (a) sanctions appears to be quite chilling. This is so
because of the well-known
calamitous effects of a previous conviction
recorded against an individual.
[43] A cursory look at
the charge sheet reveals that the ages of the appellants vary from 18
to 51. Most them are young adults who
found themselves at the wrong
side of the law and society for the simple reason that they dared to
convene a gathering to express
their frustration with service
delivery, albeit without the requisite notice. In
Garvas
,
Jafta J, at paragraph 120 emphasised the importance of s 17 rights in
the following manner:
“
In
democracies like ours, which give space to civil society and other
groupings to express collective views common to their members,
these
rights are extremely important. It is through the exercise of each of
these rights that civil society and other similar groups
in our
country are able to influence the political process, labour or
business decisions and even matters of governance and service

delivery. Freedom of assembly, by its nature can only be exercised
collectively and the strength to influence lies in the number
of
participants in the assembly. These rights lie at the heart of
democracy.”
In my view, the factors
relied upon by the appellants in the Rule 16 statement as well as the
evidence of Ms Mlungwana prove that
s 12 (1) (a) does limit the
rights of freedom of assembly. That in my view, constitutes a
limitation to exercise the rights guaranteed
in s 17 of the
Constitution. However, whether that limitation is constitutionally
justifiable is another question.
Justification
[44] To determine whether
the limitation I have already identified is constitutionally
justifiable, regard must be had to the provisions
of section 36 of
the Constitution. This must be done by considering the five basic
constitutional values, namely: freedom, dignity,
equality, openness
and democracy. To this end section 36 provides as follows:
“
36
Limitation of rights
(1) The rights in the Bill of Rights
may be limited only in terms of law of general application to the
extent that the limitation
is reasonable and justifiable in an open
and democratic society based on human dignity, equality and freedom,
taking into account
all relevant factors, including-
(a) the nature of
the right;
(b) the importance
of the purpose of the limitation;
(c) the nature and
extent of the limitation;
(d) the relation
between the limitation and its purpose; and
(e) less
restrictive means to achieve the purpose.
(2) Except as provided in subsection
(1) or in any other provision of the Constitution, no law may limit
any right entrenched in
the Bill of Rights.”
[45] I now turn to the
limitation enquiry with reference to each of its constituent
elements.
The
nature and importance of the right
[46] The nature of the
right to assemble and its importance is encapsulated by the Mogoeng
CJ in
Garvas at paragraph 61 to 63
in the following manner:
“
[61] The
right to freedom of assembly is central to our constitutional
democracy. It exists primarily to give a voice to the powerless.

This   includes groups that do not have political or
economic power and other vulnerable persons. It provides an outlet

for their frustrations. This right will, in many cases, be the only
mechanism available to them to express their legitimate concerns.

Indeed, it is one of the principal means by which ordinary people can
meaningfully contribute to the constitutional objective of
advancing
human rights and freedoms. This is only too evident from the brutal
denial of this right and all the consequences flowing
therefrom under
apartheid. In assessing the nature and importance of the right, we
cannot, therefore, ignore its foundational relevance
to the exercise
and achievement of all other rights.
[62] Under apartheid, the state took
numerous legislative steps to regulate strictly and ban public
assembly and protest.
Despite these measures, total repression
of freedom of expression through protest and demonstration was not
achieved. Spontaneous
and organised protest and demonstration were
important ways in which the excluded and marginalised majority of
this country expressed
themselves against the apartheid system, and
were part and parcel of the fabric of the participatory democracy to
which they aspired
and for which they fought.
[63] So the lessons of our history,
which inform the right to peaceful assembly and demonstration in the
Constitution, are at least
twofold. First, they remind us that ours
is a 'never again' Constitution: never again will we allow the right
of ordinary people
to freedom in all its forms to be taken away.
Second, they tell us something about the inherent power and value of
freedom
of assembly and demonstration, as a tool of democracy often
used by people who do not necessarily have other means of making
their
democratic rights count.  Both these historical
considerations emphasise the importance of the right.”
As can be discerned from
the aforegoing, the right to free assembly was not only pivotal to
the freedom that gave rise to the Constitution,
it remains a vital
tool to the country’s democracy. The Court in
Garvas at
paragraph 66
accordingly concluded thus:
“
[66] ….
Freedom of assembly is no doubt a very important right in any
democratic society. Its exercise may not, therefore,
be limited
without good reason. The purpose sought to be achieved through the
limitation must be sufficiently important to warrant
the limitation.”
[47]
Mr Bishop, who represented the appellants expatiated on the nature
and importance of the right and stated that that the right
of
assembly is part of a cluster of rights – including the rights
to freedom of expression and freedom of assembly –
that
“
operating
together, protect the rights of people not only individually to form
and express opinions, but to establish associations
and groups of
like-minded people to foster and propagate their views”
.
[11]
He further argued that whereas in exercising the right of assembly it
is plain that protesters must act with due regard to the
rights of
others and in a manner that respects the law
[12]
,
the real issue with s 12 (1) (a) is that it makes a crime to assembly
in a way that is at the heart of the right: peaceful, unarmed,

protest that is respectful of the right of others, otherwise lawful,
and aimed at the fulfilment of other constitutional rights.
[48] All in all, it is
clear from the aforegoing that the nature and importance of the right
of assembly cannot be overemphasised.
The
importance of the purpose of the limitation
[49]
The importance and purpose of the limitation is determined by
enquiring into whether there is a legitimate government purpose
to be
served by the impugned provision.
In
Garvas at paragraph
38 and 55
, the
Court explained that every right must be exercised with due regard to
the rights of others and stated thus:
“
[38] The
somewhat unusual defence created for an organisation facing a claim
for statutory liability appears to have been made deliberately
tight.
Gatherings, by their very nature, do not
always lend themselves to easy management. They call for
extraordinary measures to curb
potential harm
.
The approach adopted by parliament appears to be that, except in the
limited circumstances defined, organisations must live with
the
consequences of their actions, with the result that harm triggered by
their decision to organise a gathering would be placed
at their
doorsteps. This appears to be the broad objective sought to be
achieved by parliament through s 11. The common-law position
was well
known when s 11 was enacted. The limitations of a delictual claim for
gatherings related damage in meeting the policy
objective gave rise
to the need to enact s 11 to make adequate provision for dealing with
the gatherings related challenges of
our times.
[55] The mere legislative regulation
of gatherings to facilitate the enjoyment of the right to assemble
peacefully and unarmed,
demonstrate, picket and petition may not in
itself be a limitation….”
[50] The Second
Respondent explained that the purpose of the notification requirement
is “
to ensure that proper planning can take place . . . for
a sufficient number of police officers to be deployed and to be made
available
on stand-by should they be required.”
The Second
Respondent further explains the purpose served by criminalising the
failure to give notice as follows:
“
The reason
as to why convening a gathering in respect of which no notice has
been given is an offence in terms of section (12) (1)
(a) is the
deterrent effect that the criminalisation of such conduct has. Simply
put, in the absence of a criminal sanction, persons
would be able to
convene gatherings in respect of which no notice was given without
any adverse consequences at all. The criminalisation
of such conduct
undoubtedly has a serious deterrent effect.”
[51] According to the
Second Respondent the importance of the limitation is to protect the
rights of everyone to demonstrate peacefully
by criminalising the
conduct of persons who convene non-notified gatherings.  The
criminalisation, so goes the argument, deters
the occurrence of
non-notified gatherings.  This deterrence, in turn serves an
important and legitimate government purpose
in that there is a
greater risk to non-notified gatherings not being peaceful and
unarmed and thereby infringing the section 17
right that vests in all
person.
[52] The Second
Respondent further explained that the reason for notification is to
ensure that proper planning can take place,
and , depending  on
the nature of the information regarding the gathering, for a
sufficient number of police officers to be
deployed and to be made
available on stand-by should they be so required. According to the
Second Respondent, the failure to provide
any notification therefore
means that the requisite police resources may not be available and
crucial issues, such as planning,
in respect of marshals etc. cannot
occur.  The result of this, according to the Minister, is that
it increases the risk of
the gathering not being peaceful.
According to the Minister, this may lead to an infringement of other
persons’ rights
including posing a risk to their person and
property. Besides, the criminalisation of such conduct undoubtedly
has a serious deterrent
effect.
[53] The Second
Respondent further stated that the fact that a gathering may
subsequently prove to be peaceful does not serve to
excuse the
failure to have complied with the notice requirements.
According to this explanation it would not be known at
the time when
compliance with the notice requirements must take place and further
if a gathering will subsequently prove to be
disruptive, chaotic and
non-peaceful, and there would be little recourse available to persons
who have been adversely affected.
Notably, so explains the Second
Respondent, Section 205(3) of the Constitution, outlines the
constitutionally imposed objects of
the police service as “
to
prevent, combat and investigate crime, to maintain public order, to
protect and secure the inhabitants of the Republic and their

property, and to uphold and enforce the law.”
It is
for this reason that the giving of notice as provided for in section
3 of the Gatherings Act, materially facilitates
the role of the South
African Police Service in vindicating this constitutional imperative.
[54]
Ms Pillay who represented the Second Respondent
submitted
the following considerations as being key to the determination of the
purpose of the limitation:
1. Section 12(1)(a)
serves a legitimate government purpose, namely, facilitating the
realisation of the right protected in section
17 of the
Constitution.  To this end, it meets the prescripts of public
welfare and social value. It prevents society degenerating
into an
uncontrollable abyss of social chaos; it does so by placing the most
elementary notice requirements in place only for gatherings
of over
15 persons.  It also provides a defence in relation to
spontaneous gatherings.
2. The criminal offence
arises from a deliberate and intentional decision not to comply with
the notice requirements. Importantly,
the criminal offence does not
arise as a result of not being able to comply because there was an
element of spontaneity.
[55] Mr Bishop, who
represented the appellants, readily conceded that the criminalising
of gatherings without a notice to incentivise
conveners to give
notice so that the planning of the police is made easier serves a
legitimate purpose. This is particularly so,
according to the
argument, because in some instances notification to allow for
adequate preparations will be vital to enabling
the right to protest.
However, so goes the argument, the scope and purpose of that purpose
is limited in two ways:
1. It is not related to
actual harm. Its purpose is not to prevent actual harm, or even
actual disruption to daily life. The purpose
stated by the Second
Respondent is that it enables the police to be deployed because there
is a possibility that they will be needed.
2. Whilst the Appellants
have acknowledged that the notice is designed to make it easy for the
police to regulate gatherings, a
legitimate state purpose, it is not
a particularly important purpose.  Stated differently, the
notice is not necessary for
the police to do their work as it merely
facilitates their management of gatherings.
[56] It is apparent, and
I so hold that the notice does serve a legitimate purpose as every
right must be exercised with due regard
to the rights of others.
The
nature and extent of the limitation
[57] I have already
stated that the effect of the criminalisation of the failure to give
notice has a chilling effect on the exercise
of the right to freedom
of assembly. As observed by the court in
Garvas
:
“
[69] Whilst
the Act does have a chilling effect on the exercise of the right,
this should not be overstated. The Act does not negate
the right to
freedom of assembly, but merely subjects the exercise of that right
to strict conditions, in a way designed to moderate
or prevent damage
to property or injury to people. Potentially, the exercise of the
right also occasions deterrent consequences.
One of them is the
presumption of liability for riot damage, which can be traced back to
the organisation's decision to exercise
the right to assemble
.
[13]
In
Teddy Bear Clinic for Abused Children And Another v Minister of
Justice & Constitutional Development And Another
2014
(2) SA 168
(CC) at par 87, the Constitutional Court held that when
applying the justification test the State needed to demonstrate that
the
existence and enforcement of the impugned provisions can
reasonably be expected to control the identified risks.
The Court further held at para 88
that:
“
[88] In the
ordinary case it may well be that the state may, without more, rely
on the nominal deterrent effect that the criminalisation
of
particular conduct may have. But where there is expert evidence
indicating that the statute under challenge will not have the
desired
deterrent effect, more is required from the state if the relevant
criminal prohibitions are to survive.”
[58]
Ms Pillay made several submissions as to why the limitation on the
appellant’s right of assembly is justified. These
are: First,
the notification as required by section 3 of the Gatherings Act is a
relatively simple process and there is virtually
no impediment to it
being complied with. Second, the notice requirement and the
consequent criminalisation of conduct under section
12(a)(a) does not
negate the right to freedom of assembly; it merely regulates its
exercise. Third, the Constitutional Court has
accepted that
criminalisation may have a deterrent effect and the Appellants have
not adduced any expert evidence to demonstrate
the contrary.
Fourth, the relief sought by the Appellants effectively renders
section 12(1) of the Gatherings Act irrational.
Accordingly, it will
result in a situation of there being no criminal sanction for a
failure to give notice for convening a gathering;
yet, there will be
a sanction for giving notice but failing to adhere to the content of
a notice or a condition.  According
to the Second Respondent
such a consequence, serve as an incentive for persons not to give
notice in the first place.  This
will result in the right
protected by section 17 running the risk of infringement.
[59] Regarding the nature
and extent of the limitation, Mr Bishop raised the following several
factors which in his opinion render
the limitation to be too severe:
1. The limitation is
exceptionally broad.
2. It is arbitrary.
3. The consequences of
the criminalisation are calamitous.
4. The effect is
chilling.
[60]
The approach adopted by the Amicii in their submissions is largely
based on international law. It therefore makes sense to
now turn to
consider foreign and international law and its relevance to the
present matter. I do so because South Africa belongs
to a comity  of
nations and has signed and ratified most international human rights
covenants relating to demonstrations and
gatherings.
The
relevance of international law
and
jurisprudence from other jurisdictions
[61]
In line with the country’s constitutional dispensation, s 39(1)
of the Constitution provides that when interpreting the
Bill of
Rights, a court, tribunal or forum (a) must promote the values that
underlie an open democratic society based on human
dignity, equality
and freedom, (b) must consider international law and (c ) may
consider foreign law. Section 233 obliges the court
when interpreting
any legislation to prefer any reasonable interpretation that is
consistent with international law, over any alternative

interpretation that is inconsistent with international law.
[62] In
Glenister v
President of the Republic of South Africa and Others
2011
(3) SA 347
(CC) at para 95 to 98, the Constitutional Court explained
the relevance of international law to the South African
constitutional
framework as follows:
“
[95] To
summarise, in our constitutional system, the making of international
agreements falls within the province of the executive,
whereas the
ratification and the incorporation of the international agreement
into our domestic law fall within the province of
Parliament. The
approval of an international agreement by the resolution of
Parliament does not amount to its incorporation into
our domestic
law. Under our Constitution, therefore, the actions of the executive
in negotiating and signing an international agreement
do not result
in a binding agreement. Legislative action is required before an
international agreement can bind the Republic.
[96] This is not to suggest that the
ratification of an international agreement by a resolution of
Parliament is to be dismissed
'as a merely platitudinous or
ineffectual act'. The ratification of an international agreement by
Parliament is a positive statement
by Parliament to the signatories
of that agreement that Parliament, subject to the provisions of the
Constitution, will act in
accordance with the ratified agreement.
International agreements, both those that are binding and those that
are not, have an important
place in our law. While they do not create
rights and obligations in the domestic legal space, international
agreements, particularly
those dealing with human rights, may be used
as interpretive tools to evaluate and understand our Bill of Rights.
[97] Our Constitution reveals a clear
determination to ensure that the Constitution and South African law
are interpreted to comply
with international law, in particular,
international human-rights law. Firstly, s 233 requires legislation
to be interpreted in
compliance with international law; secondly, s
39(1)(b) requires courts, when interpreting the Bill of Rights, to
consider international
law; finally, s 37(4)(b)(i) requires
legislation that derogates from the Bill of Rights to be 'consistent
with the Republic's obligations
under international law applicable to
states of emergency'. These provisions of our Constitution
demonstrate that international
law has a special place in our law
which is carefully defined by the Constitution.
[98] But treating international
conventions as interpretive aids does not entail giving them the
status of domestic law in the Republic.
To treat them as creating
domestic rights and obligations is tantamount to 'incorporat[ing] the
provisions of the unincorporated
convention into our municipal law by
the back door'.”
[63]
That said, the court in
Federal-Mogul
Aftermarket Southern Africa (Pty) Ltd v Competition Commission and
another
[2005]
CPLR
50
(CAC) considered the application of foreign law and explained that:
"There is no
justification for the application of foreign dicta that may not only
be at odds with an express purpose of the
Act but the result of which
would lead to an interpretation which is at war with the express
words of the section."
[64]
As I have earlier stated, South Africa is a State Party to several
international covenants, of note, the International
Covenant on Civil
and Political Rights (ICCPR)
[14]
and the African Charter on Human and People’s Rights
[15]
.
Article
21 of the ICCPR provides as follows:
“
The right of
peaceful assembly shall be recognised.  No restrictions may be
placed on the exercise of this right other than
those imposed in
conformity with the law and which are necessary in a democratic
society in the interests of national society or
public safety, public
order, the protection of public health or morals or the protection of
the rights and freedoms of others.”
Similarly, Article 11 of
the ACHPR stipulates that:-
“
Every
individual shall have the right to assemble freely with others. The
exercise of this right shall be subject only to the necessary

restrictions provided for by the law, in particular those enacted in
the interest of national security, the safety, health, ethnic
and
rights and freedoms of others.”
[65]
The Open Society Justice Initiative, the first Amicus in this matter,
duly represented by Mr Budlender SC, submitted that the
right of
peaceful assembly is one of the core civil and political rights
protected by international law. To this end, international
precedents
support the view that the criminalisation of the failure to give
notice constitutes a limitation on freedom and peaceful
assembly.
Relying on the ruling of the Human Rights Committee (HRC) in
Kivenmaa
v Finland
,
[16]
wherein the HRC found Finland had violated
Kivenmaa
’s
rights when it gave her an administrative fine under Finland’s
Act on Public Meetings for convening a small protest.
[66] It is necessary to
provide a concise context for the decision of the HRC. In this
matter, the complainant
Kivenmaa
, together with 25 members of
her organisation distributed pamphlets and raised a banner critical
of a visiting head of state.
The police immediately took down
the banner and asked who was responsible.  The complainant took
full responsibility for the
action and was subsequently charged with
violating the Act on Public Meetings by holding a public meeting
without prior notification.
The Act made it an offence to call
a public meeting without notification to the police at least six
hours before the meeting.
[67] Although the HRC
found that Finland had violated Articles 19 and 20 of the ICCPR, it
also noted, as correctly submitted by
Ms Pillay, that:
67.1The requirement to
notify the police of an intended demonstration in a public place six
hours before its commencement “
may be compatible with the
permitted limitations laid down in Article 21 of the Covenant.”
67.2 A requirement to
pre-notify a demonstration would normally be for reasons of national
security or public safety, public order,
the protection of public
health or morals or the protection of the rights or freedoms of
others
.  “Consequently, the application of Finnish
legislation on demonstrations to such a gathering cannot be
considered as
an application of a restriction permitted by article 21
of the Covenant.”
67.3The complainant had
exercised the right protected by article 19 by raising a banner.
While article 19 authorises a restriction
on freedom of expression in
certain circumstances, on the facts of this matter, the Finland had
not made reference to any allowing
this freedom to be restricted or
established how the restriction which applied to the complainant was
necessary to safeguard the
rights and natural imperatives of article
19 of the Covenant.
[68]
Regarding African regional mechanisms, South Africa has ratified
ACHPR.  Counsel referred the court to the case of
Malawi
African Association and Others v Mauritania
[17]
wherein
approximately 30 people were arrested for distributing a document
providing evidence of racial discrimination against black

Mauritanians government employees suspected to be aligned with the
opposition political party. The Mauritanian government did not

contest the allegations that massive human rights violations had been
committed.
The
Commission held that the imprisonment of presumed political activists
on charges of
holding
unauthorized meetings constituted a violation of the right to
assemble, as
–
“
The
government did not come up with any element to show that these
accusations had any foundation “in the interests of national

security, the safety health, ethics, and rights and freedoms of
others, as specified in article 11.”
The following background
underpinned the Commission’s ultimate findings:
4.1
“
The government did not contest the
facts adduced by the complainants, the Commission, therefore based
its arguments on the elements
provided by the complainants.
4.2
The government did not come up with any
element to show that these accusations had any foundation “in
the interests of national
security, the safety, health, ethics, and
rights and freedoms of others, as specified in article 11,
consequently, the Commission
considers there was violation of article
11 in the cases in question.”
Although the Mauritania
case does not stand on all fours with the matter at hand, it appears
from the reasoning of the Commission,
like the HRC, that a State
Party must show that the enforcement of a notice requirement pursues
a legitimate aim.
[69]
The Open Society Amicus referred the court to a report compiled by a
Study Group on Freedom of Association and Freedom of Assembly,

commissioned by the ACHPR wherein the findings emphasised that the
proper purpose of the notification regime is not to control
the
exercise of the right to freedom of assembly, but to enable the State
to meet its obligations to facilitate the gathering.
[18]
The
Study Group concluded thus:
“
in the case
of small public gatherings or gatherings leading to no disruption to
others, no notification should be necessary.”
[19]
The Study Group
considered that the failure to notify may only be sanctioned if
coupled with demonstrable harm-
“
[C]ore to
the idea of a notification regime [is] that no sanctions be imposed
merely for failure to notify, as to do so would be
to punish people
for exercising their right. Rather, sanctions may be imposed only
when lack of notification is combined with demonstrable
harms.
Similarly, no assembly should be dispersed for failure to
notify.”
[20]
[70]
Most Amicus have referred to the European Regional mechanisms’
approach to gatherings, notably, the European Convention
on Human
Rights. It must be said upfront that South Africa is not bound by
jurisprudence emanating therefrom but courts may, in
interpreting
legislation have recourse to it though. Article 11 of the European
Convention on Human Rights (which does not bind
South Africa at all)
provides as follows:
“
1. Everyone
has the right to freedom of peaceful assembly and to freedom of
association with others, including the right to form
and to join
trade unions for the protection of his interests.
2. No restrictions shall be placed on
the exercise of these rights other than such as are prescribed by law
and are necessary in
a democratic society in the interests of
national security or public safety, for the prevention of disorder or
crime, for the protection
of health or morals or for the protection
of the rights and freedoms of others.  This Article shall not
prevent the imposition
of lawful restrictions on the exercise on
these rights by members of the armed force, of the police or of the
administration of
the State.”
[71] The general
principles relating to gatherings that emerge from the European
jurisprudence are set out in
Frumkin v. Russia, application
No. 74568/12, 5 January 2016. These principles are in step with those
already set out by our Constitutional Court in
Garvas
and can
be summarised thus:
71.1 The right to freedom
of assembly, one of the foundations of a democratic society, is
subject to several exceptions which must
be narrowly interpreted and
the necessity for any restrictions must be convincingly established.
71.2 When examining
whether restrictions on the rights and freedoms guaranteed by the
Convention can be considered “necessary
in a democratic
society” the Contracting States enjoy a certain but not
unlimited margin of appreciation.
71.3 When the Court
carries out its scrutiny, its task is not to substitute its own view
for that of the relevant national authorities
but rather to review
under Article 11 the decisions they took. This does not mean that it
has to confine itself to ascertaining
whether the State exercised its
discretion reasonably, carefully and in good faith; it must look at
the interference complained
of in the light of the case as a whole
and determine, after having established that it pursued a “legitimate
aim”,
whether it answered a “pressing social need”
and, in particular, whether it was proportionate to that aim and
whether
the reasons adduced by the national authorities to justify it
were “relevant and sufficient”.
71.4The States have a
duty to take reasonable and appropriate measures with regard to
lawful demonstrations to ensure their peaceful
conduct and the safety
of all citizens, although they cannot guarantee this absolutely and
they have a wide discretion in the choice
of the means to be used.
71.5
It is incumbent on the State to take the appropriate preventive
security measures to guarantee the smooth conduct of a public
event,
such as ensuring the presence of first aid services at the site
of demonstrations and regulating traffic so as to minimise
its
disruption.
71.6 Where demonstrators
engage in acts of violence, interferences with the right to freedom
of assembly is in principle justified
for the prevention of disorder
or crime and for the protection of the rights and freedoms of others.
[72]
Reference was also made to decisions in other jurisdictions, such as
Malaysia, the United Kingdom, Australia, Brazil as well
as the
Inter-American Commission on Human Rights. The following conclusions
emerge from the international and comparative jurisprudence.
72.1.
It is generally accepted that State may impose a requirement of prior
notification of assemblies in order to meet their obligation
to
facilitate the gathering and manage.
72.2
Failure to give notice does not justify sanctions against organisers
of or participants in the protest, they must serve a legitimate

purpose.
72.3
The sanctions must be necessary in a democratic society.
[73]
The Second Amicus, the United Nations Special Rapporteur on the Right
to Freedom of Peaceful Assembly and Association, duly
represented by
Mr. Thobakgale, argued that gatherings notifications serve the
positive obligation of the State where a degree of
disruption is
anticipated.  Support for this contention is based on the case
of
Ashughyan
v America
[21]
,
the European Court of Human Rights held that:
“
any
demonstration in a public place may cause a certain level of
disruption to ordinary life, including disruption to traffic, and

where demonstrators do not engage in acts of violence, it is
important for the public authorities to show a certain degree of
tolerance towards peaceful gatherings if the freedom of assembly is
not to be deprived of all substance.”
[74]
The arguments presented by the Amicus on the scope and application of
international law overlaps, and therefore, for the purpose
of this
judgment, I outline only the points of divergence.
[75]
The upshot of Mr Thobakgale’s submissions is that using
criminal sanctions against individuals solely for having organised
or
participated in a peaceful assembly, is, in principle, not a
legitimate response available to States when persons concerned
have
not themselves engaged in other criminal acts. Furthermore, so goes
the argument, when no other punishable behaviour is involved,

sanctioning the mere non-notification of a peaceful assembly means de
facto that the exercise of the right of assembly is penalised.
[76]
The Third Amici, the Equal Education, represented by Mr Sidaki made
the following submissions:
76.1
The Equal Education’s primary contention is that because its
core membership base consists of high school learners who
often
engage in advocacy programmes to advance their right to education,
inclusive of protest action, the criminalisation of convening
a
gathering without a notice inhibits their ability to picket,
demonstrate or engage in a variety of activity in furthering their

rights to basic education.
76.2
Some of the learners, who may engage in protest, picketing and
demonstrating activities, are minors. According to Mr Sidaki,
this
assertion is borne out by the history of protests in South Africa,
dating back to the student protests of the 1920s under
the banner of
Amafelandawonye
(the Die-hards/ we will die fighting together) where learners and
parents protested and boycotted mission schools in the former

Transkei.
[22]
Similarly, the
Soweto Uprising, and its catalytic students’ protests that took
place during June 1976, was a critical moment
where learners, many of
whom were minor children, brought the attention of the international
community to an unjust system of education
and unjust society at
large.
76.3
The exposure of children to criminal prosecution and or subsequent
conviction for failure to provide the requisite notice is
incongruent
with s 17 of the Constitution.
In
a nutshell, the Equal Education foundation further argued that
by creating, indiscriminately, a criminal for failure to
give notice,
s 12 (1) (a) of the RGA not only violated s 17, it also affronts the
principle of the “best interest”
or “paramountcy”
of the children due to the heavy- handedness of criminal sanctions.
[77]
In summary, all the Amici submitted that s 12 (1) (a) is
unconstitutional as it limits the s 17 rights, and that such
limitation
is  not justifiable in an open society and neither
does it serve a legitimate purpose.
[78] I now turn to
consider each of the several factors. In so doing, it is well to
recall the caution sounded by Jafta J, in the
minority judgment in
Garvas
to the following effect:
“
[117]
A court called upon to determine the validity of the legislation may
not base its decision on the mere say-so of the
parties regarding
whether or not a particular limitation is justified. This is so
because s 36, when read with s 172, obliges courts
themselves to
determine whether a limitation is ‘reasonable and justifiable
in an open and democratic society based on human
dignity, equality,
and freedom, taking into account all relevant factors’,
including those listed in the section.”
[79] That said, the first
appellant expressly testified that the threat of prosecution has
deterred members of the SJC from exercising
their rights to free
assembly and speech.
[80] Insofar as the
breadth of the limitation, it is so that s 12 (1) (a) applies to all
forms of protest where the number exceeds
15-, meetings, marches,
pickets, etc, and the breadth relates to place, purpose and number.
According to the appellants, this limitation
is exceptionally broad.
In addition, notwithstanding the fact that the appellants have not
raised any constitutional challenge
to the definition of the
gathering, they (the appellants) contend that the arbitrariness of
the definition exacerbates its impact.
[81]
It will be recalled that the sole constitutional challenge mounted by
the appellants is the criminalisation of the failure
to give notice
of a gathering. Of importance is the contention by the appellants
that the criminalisation of the failure to give
notice and the
resultant conviction impact negatively on the s 17 rights. Mr. Bishop
argued that criminalisation is the most severe
approach when regard
is had to its effect on the appellants, yet it is not the only way to
regulate conduct or incentivise or disincentivise.
He referred to the
Teddy
Bear Clinic
[23]
case where Skweyiya J, rejected the argument that it was not the
criminalisation of the conduct that created the stigma but the
act
itself and stated that:
“
An
individual’s human dignity comprises not only how he or she
values herself, but also includes how others value him or her.
When
that individual is publicly exposed to criminal investigation and
prosecution, it is almost invariable that doubt will be
thrown upon
the good opinion his or her peers may have of him or her.”
Whilst the above
statement was made in the context of a criminal prosecution, it,
according to Mr. Bishop is true of criminal prosecution
for peaceful,
unarmed protest. Furthermore, so goes the argument, the effects of a
criminal sanction are not only severe for those
who are convicted,
the possibility is strong that it will undoubtedly chill the exercise
of the right of assembly by others who
will not be prosecuted.
Moreover, the Constitutional Court has most recently re-affirmed that
the threat of criminal sanction has
a chilling effect on free speech
when it said the following:
“…
the
spectre of not only an arrest, but everything that may follow it, is
real, I am here talking of being detained in police or
prison cells
and charged with and possibly convicted of a criminal offence. That
may have a chilling effect on robust debate. If
so, that does limit
free speech
.”
[24]
Similarly,
the Court in
S v
Tsoaeli
2018 (1)
SACR 42
(FB)
in
holding that the RGA did not criminalise the attendance of a
gathering where no notice had been given in the context of s 12(1)

(e) stated that:
“
41 I echo
the sentiments expressed by the court in the
Garvas
case. Indeed the right to freedom of assembly is central to our
constitutional democracy and exists primarily to give a voice to
the
powerless. Given the constitutionally protected right to peaceful
assembly, a provision which allows for unarmed and peaceful
attendees
of protest gatherings to run the risk of losing their liberty for up
to a period of one year and to be slapped with criminal
records that
will, in the case of the appellants, further reduce their chances of
gaining new employment for merely participating
in peaceful protest
action, undermines the spirit of the Constitution.”
Although
the above remarks were made in the context of those who had attended
a gathering in respect of which no notice was issued,
I align myself
with the court’s recognition of the effects of a criminal
record.  This is so largely because criminalisation
may at times
come with the loss of liberty, and the effect of a previous
conviction impacts very negatively on one’s future
employment,
travel, or study prospects. The stigma of a criminal conviction has a
long-lasting calamitous effect. These consequences
are in my view
enough to deter people from exercising their rights of assembly and
gathering.
[82]
The Second Respondent
in trying to justify the limitation averred that
it
is the conduct of the person convening the gathering that is
criminalised by the impugned section and not the entire gathering

that is criminalised by the RGA.  The Second Respondent further
denies that the criminalisation has any chilling effect, and
if the
court finds that it does, it is limited to a chilling effect on
persons who would otherwise convene a gathering without
notice; it
will not and cannot have a bearing on the general right of freedom to
demonstrate – which general right remains
unaffected by the
criminal sanction of section 12(1) (a).
[83]
It is indeed so that there is no criminal sanction for simply
attending a gathering in respect of which no notice has been
given.
But, it seems to me that the argument loses sight of the fact that,
as a matter of logic and common sense, if criminal sanctions
are
imposed on the very members or leaders of the organisation or
person/s who convened the gathering, the purpose of the gathering
is
likely to be disrupted. I have a difficulty with the contention that
it is not the entire gathering that is criminalised by
the RGA. At
the heart of any demonstration or gathering is a convener, who after
having identified certain conduct which requires
the members of the
community to gather and express their frustration or displeasure. In
other words, it is difficult to imagine
a gathering and or
demonstration which did not commence with someone convening it. If
sanctions are aimed at the convener, and
not the gatherers, it goes
without saying that the impact of the arrest and or incarceration of
a convener for failing to file
a notice as well as a subsequent
conviction will, without a doubt, filter through to those who had
gathered, as well as to the
community. It must be accepted that the
conveners are, after all, those who would have identified the social
misnomer requiring
a gathering or protest. Stated more aptly in
IsiXhosa “
ngabo
abahlabe ikhwelo
[25]
” (they are the ones who made the clarion call for action). In
bygone times they would have been referred to as ‘
ringleaders
’.
[84] One of the arguments
raised by the Respondent in justifying the limitation is that in
terms of section 12(2) it is a defence
to a charge of convening a
gathering in contravention of subsection (1) (a) that the gathering
concerned took place spontaneously.
Accordingly, on its plain
wording, it responds to a situation whether the entire gathering was
unanticipated, unprompted and occurred
on the spur of the moment; it
also responds to a situation whether, at inception, it was
anticipated that the gathering would not
exceed the threshold of 15
persons, but that more than 15 persons did ultimately form part of
the gathering. I understand this
submission to suggest that because
spontaneity is a complete defence, the impact of the criminal
sanction is limited and therefore
justified. In other words, it
spontaneously developed from a demonstration to a gathering. Again,
it must be emphasised that even
if spontaneity is a defence, it does
not exempt an accused person from the necessity to prove it. A court
may well find that on
the facts, no spontaneity was established.
Furthermore, as correctly pointed out by Mr Bishop, when regard is
had to the fact that
a convener is defined as a person who (a) “
has
taken any part in planning or organising or making preparations for
that gathering
”; (b) or “
has himself through any
other person, either verbally or in writing, invited the public or
any section of the public to attend the
gathering”
, it is
difficult to understand how the gathering could be said to be
spontaneous.
[85]
I therefore find that the criminal sanction does chill free speech.
The effect of the limitation therefore is not only to punish
the
conveners for failing to serve a notice, it is also to deter people
from exercising their right to free assembly. That much
is clear from
the fact that deterrence is one of the purposes of criminal
punishment. It is well established that
deterrence
is the use of punishment to prevent the offender from repeating his
offence and to demonstrate to other potential offenders
what will
happen to them if they follow the wrongdoer's example.
The
balance between the limitation,  the purpose and the less
restrictive means.
[86] The express purpose
of the RGA as can be discerned from the preamble is to ensure that
all people “
have the protection of the state
” to
exercise their right to protest – a right that is not limited
by a notice requirement. The objective sought to
be achieved by the
provision of s 12 (1) (a) therefore is deterrence and the ultimate
facilitation of the rights protection afforded
by section 17 of the
Constitution. The question that must be answered is whether there are
less restrictive means to achieve that
objective.
[87] It was argued on
behalf of the appellants that there are both existing and alternative
measures that could be introduced that
are less severe than
criminalisation. More specifically, the Appellants rely on the fact
that the existing offences under the RGA,
the common law and other
statutes serve the purpose of deterring harm to person or property
and preventing disruption to traffic
and access.  According to
the appellants, the limitation is over-inclusive because it deters
people from protesting even when
there is no possibility that police
resources will be needed to regulate the gathering or ensuring public
safety. It is under-inclusive
because it does not require notice for
protests that do require a police presence. Mr. Bishop gave an
example of a situation where
10 people decide to protest by lying in
the middle of a busy road; the police would be required to address
the situation, acting
in accordance with provisions of s 9 of the
RGA, yet those conveners were not required to give notice under the
RGA. In this scenario,
the limitation, according to the appellants
would then have failed to serve its purpose. The Appellants further
proposed alternative
measures to the criminal sanction envisaged in s
12 (1) (a) in the form of enhanced civil liability or administrative
fines.
[88] The appellants made
much of the fact that the protest was peaceful and respectful and did
not prevent people from accessing
the Civic Centre. It must be stated
from the outset that the way the protest was conducted is immaterial
to the determination of
this appeal.
[89] The Second
Respondent retorted by stating that the notification requirement is
quite easy to comply with and that there is
nothing onerous about it
at all.  In addition, while it is correct that section 9 of the
RGA provides for the adoption of
a range of measures by the police in
order to regulate a gathering and section 12(1)(g) makes it an
offence of  a failure
to comply with an order issued, or if a
person interferes with any steps taken in terms of section 9(1)(b),
(c), (d)or (e) or 2(a),
it must be emphasised that none of those
provisions deal with the position of a person who has convened a
gathering without giving
notice. Ms. Pillay argued that s 12 (1) (a)
strikes an appropriate balance between the right to assemble on the
one hand and the
need to regulate the gathering to ensure the safety
of people and property. This is particularly so because the sanction
imposed
for an offence under section 12(1) (a) is very modest as the
sentence that may be imposed ranges from a fine to imprisonment of
up
to one year or a combination thereof.  Accordingly, so goes the
submission, notwithstanding the fact that that there is
an element of
seriousness attached to the question of a person convening a
gathering without complying with the notice requirements,
the
harshness of that consequence is mitigated by the sentence that may
be imposed for a contravention. Furthermore, the appellants
have
failed to demonstrate: (a) that the deterrent effect that the Second
Respondent relies on in support of criminalisation is
unjustified or
incorrect, neither did they produce any evidence to show otherwise,
or that the alternative measures that they propose
will, “
achieve
the same ends”
as the criminal sanction that the Minister
has opted for.
[90] I now turn to
consider the approach of the courts when
balancing
between the limitation and the purpose and the less restrictive
means.
[91]
In
Teddy
Bear Clinic for Abused Children v Minister of Justice &
Constitutional Development
2014 (2) SA 168
(CC) the Constitutional Court held:
“
[95] A
limitation will not be proportional if other, less restrictive means
could have been used to achieve the same ends. And if
it is
disproportionate, it is unlikely that the limitation will meet the
standard set by the Constitution, for s 36 'does not permit
a
sledgehammer to be used to crack a nut'.  A provision which
limits fundamental rights must, if it is to withstand constitutional

scrutiny, be appropriately tailored and narrowly focused.
However, this court has held that the state ought to be given a

margin of appreciation in relation to whether there are less
restrictive means available to achieve the stated purpose.”
In assessing whether less
restrictive means exist to achieve the purpose of the Act, the
Constitutional Court stated as follows
in
S v Mamabolo (E TV
Intervening)
[2001] ZACC 17
;
2001 (3) SA 409
(CC) at para 49:
“
[49] Where s
36(1) (e) speaks of less restrictive means it does not postulate an
unattainable norm of perfection. The standard is
reasonableness. And,
in any event, in theory less restrictive means can almost invariably
be imagined without necessarily precluding
a finding of justification
under the section. It is but one of the enumerated considerations
which have to be weighed in conjunction
with one another, and with
any others that may be relevant.”
In
engaging in this exercise, the Court in
Garvas
stated the
following:
“
[80] The
purpose of the section is to ensure that a gathering that becomes
destructive and results in loss to others does not leave
its victims
without recourse. It is thus to protect the rights of individuals who
may be affected detrimentally by riot damage
that takes place in the
course of the exercise of the right to assemble.
[81] There is a tight fit between the
limitation and its purpose. The purpose is to achieve an appropriate
balance between the right
to assemble on the one hand and the safety
of people and property on the other. That balance has been struck.”
[92]
It is well to remind oneself that the narrow issue before this court
is whether the s 12 (1) (a) of the RGA criminalising failure
to give
notice is justifiable in the light of the fact that I have already
found the aforesaid section to constitute a limitation
of s 17 of the
Constitution.  It may well be, as contended by counsel for the
First Respondent, that the compliance with the
s 12 (1) (a) notice
requirement is not onerous, or that the prescribed punishment is
moderate. Whether the correct balance is struck,
is to my mind
questionable. I have in this judgment outlined the calamitous effects
of a previous conviction. In
Garvas
,
the Court said that the lessons which inform the right of assembly
remind us that never again will we allow the right of ordinary
people
to freedom in all its forms to be taken away and that the inherent
power and value of freedom of assembly and demonstration,
as a tool
of democracy is often used by people who do not necessarily have
other means of making their democratic rights count.
It is necessary
to interrogate how the voiceless people exercise their s 17 rights.
This process is outlined in the evidence of
the first appellant, Ms.
Mlungwana.
[93]
Ms. Mlungwana’s evidence establishes that the Khayelitsha
community had for several years bemoaned and decried the state
of
ablution facilities without getting a satisfactory response from the
City of Cape Town. According to her evidence, the current
facilities
have resulted in opportunistic criminal elements taking advantage of
those using the outside toilets, more especially
during the night.
The gathering which forms the subject matter of this appeal was
organised to draw attention to their plight.
It appears from the
charge sheet that most of the appellants, (also the conveners) are
residents of Khayelitsha. From the aforegoing,
it is easy to discern
that central to the people’s exercise of the s 17 rights the
call to mobilise and organise a demonstration
is pivotal. It can be
accepted that those who make the clarion call for people to come
together in order to demonstrate their dissatisfaction
must, in
addition to being members of SJC, be leaders in their communities,
otherwise they would not, in my view, have the clout
to make the
call. Bearing in mind that the right of assembly enables people to
access their other constitutional rights, the role
played by the
conveners cannot be over-emphasised. All in all, as was said by the
Court in
Garvas,
in considering whether less restrictive means exist to achieve the
purpose of the RGA it must first be recognised that the ‘
freedom
of assembly by its nature can only be exercised collectively and the
strength to exert influence lies in the number of participants
in the
assembly’
[26]
.
Furthermore, recognising that s 17 gives a voice to the voiceless, it
follows that the role of conveners is fundamental to the
strength and
number of participants to exert influence in pursuance of social
justice change. As testified to by the First Appellant,
the criminal
convictions have had the effect of silencing the already voiceless
people. I find it necessary to quote her uncontroverted
evidence
again:
“
[P]eople are
arrested even though they are arrested for raising issues that are
dear to their hearts and issues that are important,
but obviously
going forward it does affect when people need to protest again
they’re going to think twice, are we going to
be arrested.
Because if you think back we weren’t violent, we weren’t
disrupting anything, but still we were arrested
and so people are
going to think twice even though they feel they’ve tried every
possible avenue to be heard and they are
not heard, but they are
going to think twice for them to participate in a public or an action
of this sort.”
In this case, I find that
because of the disastrous impact of a criminal conviction and the
lifelong impact it has on the lives
of those convicted of
contravening s 12 (1) (a), the criminal sanction is disproportionate
to the offence of merely failing to
comply with the notice
requirement. It is a well-known fact that a criminal conviction
endures for ten (10) years after which it
may be expunged on
application. It matters not that the sentence imposed may be just or
lenient, as is the case in the matter at
hand. By then an indelible
mark would have been recorded against the appellants, hampering
almost every aspect of their lives.
Furthermore, it cannot be
seriously contested that in the context of the South African society,
those most likely to fall foul
of s 12 (1) (a) are the very
previously disadvantaged communities as they, to a certain extent,
remain the voiceless. Although
this is quite inadvertent, it also
flies in the face of the foundational values of our Constitution,
namely, freedom, dignity and
equality. Similarly, in the context of
the submissions presented by the Equal Education, children who are
most likely fall foul
of s 12 (1) (a) in pursuance of equal rights to
education are those who come from the previously disadvantaged sector
of the community.
It seems to me that our ‘never again’
constitutional principle may well ring hollow if provisions of s 12
(1) (a) can
remain valid.
[94] Although it falls
outside the scope and purview of this judgment to decide on the
appropriate remedy, it remains to be said
that the following were put
forward as less restrictive alternatives to s 12 (1) (a):
94.1
Enhanced civil
liability
According to Counsel for
the Appellants, the State could, instead of the defence currently
available in terms of s 11(2) if a convenor
fails to give notice,
impose civil liability. This, according to the submission is in line
with the approach in several countries
where reliance to incentivise
compliance with the notice requirement.
94.2 Administrative
fines
As a
further alternative, it was suggested that the State could impose
administrative penalties. Because the administrative fines
are civil
and do not carry with them the sting and stigma attached to a
criminal conviction, and that there is furthermore no threat
to the
deprivation of civil liberties, they are more suited to the
circumstances of the present matter.
[27]
In
Federal-Mogul
,
the Competition Appeal Court set out the difference between fines in
criminal matters and fines in administrative matters in the
following
manner:
“
In criminal
matters where fines are usually imposed, as opposed to civil matters
an administrative penalty may be imposed, the fine
which is imposed
has an alternative sentence usually, a term of imprisonment. The term
of imprisonment comes into force in the
event of an accused paying
the fine, which has been imposed. In civil matters, similar to the
matter before the tribunal, in the
event of a party failing to pay
the administrative penalty, there is no alternative term of
imprisonment which can be imposed by
the tribunal. Consequently, in
the event of the party failing to pay the administrative penalty, the
remedy for the tribunal to
the affected party may be to proceed with
an application for contempt of court or seek conviction or judgment
in terms of section
73 and 74 read together with section 75 of the
Act. This procedure is totally different to the one referred to
above, as applicable
to criminal matters. Thus, there is a clear
distinction in the nature of the sanction, which is imposed. At this
stage of the proceedings,
the appellants do not “carry the keys
of their own imprisonment in their pockets”.
94.3 Re-definition of
“gathering”
I have earlier on in this
judgment indicated that the appellants allege that the distinction
between a gathering and a demonstration
is arbitrary and irrational
as it is unclear why 16 is an appropriate number to criminalise
gatherings.  According to the
argument, the need for the notice
could be limited to cases where a substantial number of participants
are expected or for only
certain types of assembly. The explanation
proffered by the Second Respondent for the number 16 is simply that
there had to be
a cut-off number.  However, to my mind, the
redefinition of gatherings may not be the most appropriate remedy as
it would
not address most of the pertinent challenges to s 12 (1)
(a).
Conclusion
[95] I have in this
judgment held that the criminalisation of a gathering of more than 15
on the basis that no notice was given
violates s 17 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 and democratic society,
based on the values
of freedom, dignity and equality. In the
circumstances, the following order is issued:
95.1  The
appellants’ appeal against conviction is upheld and the
convictions are hereby set aside.
95.2  Section 12 (1)
(a) of the RGA is hereby declared unconstitutional.
95.3  The
declaration of invalidity is not retrospective, and shall not affect
finalised criminal trials, but will apply to
any criminal matters in
which, as at the date of this judgment, either an appeal or review is
pending or the time for the noting
of an appeal has not expired.
_____________________
Ndita,J
I agree
_____________________
Magona, AJ
[1]
RGA s
4(2)(c ), read with s 4 (2)(d)
[2]
RGA S 4(4)
(a)
[3]
RGA s 4
(4)(b)
[4]
RGA s 5(1)
[5]
Ibid
[6]
RGA 5 (2)
[7]
RGA s 6
[8]
RGA s9(!)
(c)
[9]
See Rail Commuters Action Group and Others v Transnet Ltd t/a
Metrorail and Others
[2004] ZACC 20
;
2005 (2) SA 359
CC at par 69.
[10]
2013 (1) SA 83
(CC) at para 52
[11]
See
Democratic Alliance v African National Congress
[2015] ZACC 1
,
2015
(2) SA 232
(CC); 2015 (3) BCLR  298 (CC) at para 25
[12]
See Hotz
and Others v University of Cape Town
[2016] ZASCA 159
at para 62
[13]
Garvas para
69
[14]
International
Covenant on Civil and Political Rights, G.A res 2200 A (XX1), 21 UN
GAOR Supp. (No.16) at 52, UN Doc. A/6316 (1996),
999 UNT.S. 171,
entered into force 23 Marc 1976.
[15]
African
Charter on Human and People’s Rights, O.A.U. Doc CAB/LEG/673
rev. 5.21 ILM58 (1982), entered into force 21 October
1986.
[16]
Kivenmaa v
Finland, UNHRC, Views of 9 June 1994, UN Doc. CCPR/C/50/D/412/1990.
[17]
ACHPR,
Comm. Nos 54/91, 61/91,98/93,164/97, à 196/97 and 210/98
(2000)
[18]
ACHPR,
Report of the Sudy Group on Freedom of Association and Assembly in
Africa, 2014ACHPR, Report of the Sudy Group on Freedom
of
Association and Assembly in Africa, 2014, p, 60, para 5, available
at
http://www.achpr.org/mechanisms/human-rights-defenders/FreedomofAssociation

.
[19]
Ibid., p 61
para 61
[20]
Ibid., p.
62, para 10
[21]
Ashughyan v Armenia, ECItHR, Application No. 33268/03
(2008
)(“Ashughyan v
Armenia”)
at para
90.
[22]
Robert
Edgar,
“
The
American School Movement” in Apartheid Education: The
Education of Black South Africans, Peter Kallaway (ed),
1984pp184-191
[23]
supra
[24]
Democratic
Alliance v Speaker of the National Assembly and Others
2016 (3) SA
487
(CC) at para 40
[25]
Ukuhlaba
ikhwelo is an appeal to people to do something
[26]
Garvas
para120
[27]
Supra at
631