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[2016] ZAFSHC 217
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Tsoaeli and Others v S (A222/2015) [2016] ZAFSHC 217; 2018 (1) SACR 42 (FB) (17 November 2016)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE STATE DIVISION,
BLOEMFONTEIN
Appeal
No.: A222/2015
In
the appeal between:-
PATRICIA
TSOAELI AND
OTHERS
Appellant
and
THE
STATE
Respondent
CORAM:
MOLEMELA, JP
et
MOLOI, ADJP
et
LEKALE,
J
JUDGMENT
BY:
MOLEMELA, JP
HEARD
ON:
8 AUGUST 2016
DELIVERED
ON:
17 NOVEMBER 2016
Introduction
[1]
This is an appeal against the judgment of the Regional Court sitting
in Bloemfontein in terms of which the ninety four appellants
were
convicted of contravention of section 12(1)(e) of the Regulation of
Gatherings Act, 205 of 1995 (“the RGA”) and
sentenced to
a wholly suspended sentence of a fine of R600,00 or three months’
imprisonment. The appeal is before us
with the leave of the
trial magistrate. The appeal was initially enrolled for a
hearing before two Judges. Subsequent
to a discussion held by
the panel, the court was re-constituted and the matter was argued
before three judges as contemplated in
section 14(3)
of the
Superior
Courts Act 10 of 2013
.
[2]
The record reflects that 105 persons were initially charged with
contravention of
section 12(1)(a)
,
12
(1)(e) and
12
(1)(g) of the RGA
but were subsequently charged only with contravention of
section
12(1)(e)
of the RGA. Further particulars to the charge sheet were
requested and were subsequently supplied. Charges were withdrawn
against
22 accused persons and the trial proceeded only in respect of
the 94 appellants. The appellants objected to the charge sheet as
contemplated in
section 85(1)
of the
Criminal Procedure Act 51 of
1977
on the basis that the charge did not disclose an offence.
It was contended on the appellants’ behalf that attendance
of a
gathering for which no prior notice of the intention to hold such
gathering was given, was not prohibited in terms of the
RGA and was
therefore not an offence. The trial magistrate dismissed this
objection. The appellants all pleaded not guilty to the
charge and
did not disclose the basis of their defence. The State tendered the
evidence of four police officials and one official
from the local
authority. Certain admissions
[1]
were made in terms of
section 220
of the
Criminal Procedure Act 51 of
1977
. None of the appellants testified in their defence. They
were subsequently convicted and sentenced to a fine of R600 or 3
months imprisonment wholly suspended for three years.
[3]
The facts that led to the appellants’ prosecution were related
by police officers serving in the Public Order Policing
Unit.
According to their testimony, the 94 appellants were part of the
staff establishment of the Free State Department of Health.
Pursuant
to being advised of their dismissal, the dismissed employees, most of
whom were volunteers, decided to hold a night vigil
outside the
headquarters of the Department of Health (Bophelo House) in protest
against their dismissal and the generally unsatisfactory
conditions
that prevailed in the provincial healthcare system. The first
group of protestors gathered outside the premises
of Bophelo House on
the night of the 9
th
July 2014. They were singing and chanting. The police were
summoned to the place of the gathering at about 02h00. Upon
arrival at Bophelo House the police demanded to know whether the
local authority had duly been notified about the intention to
have
the gathering as contemplated in the RGA. A few individuals who
identified themselves as the leaders of the group answered
in the
affirmative. When the police demanded to see documentary proof,
none was provided to them. The police officials then
notified the
crowd that the gathering was illegal and ordered them to disperse.
A few protestors left but the majority of
them did not oblige.
The police arrested about 80 protestors and transported them to
various police stations where they were
detained. The police learnt
that the protestors were members of the Treatment Action Campaign
(TAC).
[4]
After sunrise on the same morning, a second group of protestors
gathered outside Bophelo House and started chanting and singing.
The public order police officers were summoned to the scene at about
11h00. They found about thirty people singing and chanting
at the
scene. Two of these people identified themselves as Mohaswa and
Godfrey and claimed to be the leaders of the group.
After
establishing from an official of the local authority that no such
notice had been given by the protestors, the police officials
initially spoke to these leaders separately, informing them that
their gathering was illegal. The police then conveyed the same
information to the crowd and ordered them to disperse. A few of
the protestors left the scene but the rest of them dug their
heels in
and continued singing and chanting, stating that they, too, were
prepared to face arrest like their “comrades”
who had
been arrested earlier.
[5]
It is common cause that even though both groups of protestors were
chanting and singing prior to their arrest, they were not
armed and
were not violent. It is also common cause that no injuries were
sustained by any individuals, nor was any property
damaged. Although
the second group of protestors was at some stage blocking the
entrance of Bophelo House and thus hindering cars
from entering or
leaving the premises, they moved away when one of the police
officials instructed them to clear the path. The
traffic in the
vicinity of Bophelo House was not disrupted. None of the
protestors tried to resist arrest; they voluntarily
boarded the
police vehicles. It was not in dispute that out of the total number
of people arrested, charges were withdrawn against
twenty six of them
and the trial then proceeded in respect of ninety four appellants.
[6]
In her judgment, the trial magistrate mentioned that the State had
not adduced evidence that served to prove beyond reasonable
doubt
that the appellants had convened the gathering in question. She
found that the State had proven beyond reasonable doubt
that all the
appellants had attended a gathering for which no prior notice was
given to the responsible officer
[2]
,
by so doing contravening section 12(1)(e) of the RGA.
The issue to be decided
[7]
The crisp issue is whether the trial court erred i
n
finding that the appellants’ attendance of a gathering for
which no prior notice was given to the responsible officer rendered
them guilty of contravention of section 12(1)(e) read with section 1,
3, 4 and 13 of the RGA. The ancilliary issue is whether the
trial
court correctly interpreted the provisions of section 12(1)(e) of the
RGA.
The
parties’ submissions
[8]
Counsel for the appellants argued that the trial magistrate had erred
in finding that the appellants contravened the provisions
of section
12(1)(e) by attending a gathering in respect of which no prior notice
was given to the responsible officer as such attendance
was not
specifically prohibited in terms of the RGA and therefore did not
constitute a crime. He argued that the appellants’
conviction
for the mere attendance of that gathering violated the principle of
legality as expressed in the maxim
nullum
crimen sine lege
,
was accordingly flawed and fell to be set aside. He contended that
arresting the appellants for their mere attendance of the two
gatherings amounted to an infringement of the appellants’
constitutionally protected right to protest.
[9]
Counsel for the State argued that even though the RGA does not define
the word ‘prohibit’ or expressly state that
the
attendance of a gathering for which no prior notice was given is an
offence, this could be inferred from the tenor of the whole
Act. He
reasoned that since the requirement to give notice for gatherings was
couched in peremptory terms in section 3(1)
[3]
of the RGA, failure to give prior notice resulted in such gatherings
being ‘automatically prohibited’. He contended
that
failure to provide prior notice would deny the local authorities and
law enforcers of an opportunity to do a proper risk assessment
that
could serve as a basis for prohibiting a gathering where
circumstances warranted this and this could be to the detriment of
innocent people who may sustain injuries in such gatherings.
Applicable
Law
[10]
It is clear that at the crux of this matter is the interpretation to
be attached to section 12(1)(e) read with section 1, 3,
4 and 13 of
the RGA. As with the interpretation of any other statutory provision,
the starting point is to have regard to the “words
used in the
document”
[4]
,
which entails considering the actual wording used in the
afore-mentioned and related sections of the RGA.
Salient provisions of the RGA
relevant to this case
[11] The purpose of
the RGA is “to regulate the holding of public gatherings and
demonstrations at certain places; and to
provide for matters
connected therewith”. The Preamble to the RGA recognizes the
right of every person 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. It further
states that “the
exercise of such right shall take place peacefully and with regards
to the rights of others”.
[12]
Section
1 of the RGA defines a gathering as
“
any
assembly, concourse or procession of more than 15 persons in or on
any public road or any public place or premises wholly or
partly
open-air at which the principles, policy, actions or failure to act
of any government, political party or political organisation
are
discussed, attacked, criticized, promoted or propagated or 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 or actions or omissions of any person
or
institution
including
any government, administration or governmental institution”.
[13]
Section 3 of the RGA 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.”
[14]
Section 4 provides as follows:-
“4
Consultations,
negotiations, amendment of notices, and conditions
(1) If a
responsible officer receives notice in terms of section 3 (2), or
other information regarding a proposed gathering
comes to his
attention, he shall forthwith consult with the authorized member
regarding the necessity for negotiations on any aspect
of the conduct
of, or any condition with regard to, the proposed gathering.
(2)
(a)
If, after such consultation, the responsible officer is of
the opinion that negotiations are not necessary and that the
gathering
may take place as specified in the notice or with such
amendment of the contents of the notice as may have been agreed upon
by
him and the convener, he shall notify the convener accordingly.
(b)
If,
after such consultation, the responsible officer is of the opinion
that negotiations are necessary, he shall forthwith call
a meeting
between himself and-
(i) the
convener;
(ii)
the authorized member;
(iii) any
other responsible officers concerned, if any; and
(iv)
representatives of such other public bodies, including local
authorities and police community consultative forums,
as in the
opinion of such responsible officer or officers ought to be present
at such meeting, in order to discuss any amendment
of the contents of
the notice and such conditions regarding the conduct of the gathering
as he may deem necessary.
(c)
At the
meeting contemplated in paragraph
(b)
discussions shall be held on the contents of the notice, amendments
thereof or additions thereto and the conditions, if any, to
be
imposed in respect of the holding of the gathering so as to meet the
objects of this Act.
(d)
The
responsible officer shall endeavour to ensure that such discussions
take place in good faith.
(3) If a
convener has been notified in terms of subsection (2)
(a)
or
has not, within 24 hours after giving notice in terms of section 3
(2), been called to a meeting in terms of subsection (2)
(b)
of this section, the gathering may take place in accordance with the
contents of the notice and in accordance with the provisions
of
section 8, but subject to the provisions of sections 5 and 6.
(4)
(a)
If agreement is reached at the meeting contemplated
in subsection (2)
(b)
the gathering may take place in
accordance with the contents of the notice, including amendments, if
any, to such contents, on
which agreement was reached at the meeting,
but subject to the provisions of sections 5 and 6.
(b)
If
at a meeting contemplated in subsection (2)
(b)
agreement is not reached on the contents of the notice or the
conditions regarding the conduct of the gathering, the responsible
officer may, if there are reasonable grounds therefore, of his own
accord or at the request of an authorized member impose conditions
with regard to the holding of the gathering to ensure-
(i)
that vehicular or pedestrian traffic, especially during traffic rush
hours, is least impeded; or
(ii) an
appropriate distance between 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.
(c)
A
responsible officer who imposes any condition or refuses a request in
terms of paragraph
(b)
shall give written reasons therefor.
(5)
(a)
The responsible officer shall ensure as soon as
possible that a written copy of the notice, including any amendment
thereof
and any condition imposed and the reasons therefor, is handed
to the convener and the authorized member who, and to every party
which, attended the meeting referred to in subsection (2)
(b)
:
Provided that if the identity or whereabouts of the convener is
unknown, or if in view of the urgency of the case it is not
practicable
to deliver or tender the said written notice and reasons
to him, the notice shall forthwith, notwithstanding any provision to
the
contrary in any other law contained, be published in one or more
of the following manners:
(i) In
a newspaper circulating where the gathering is to be held; or
(ii) by
means of the radio or television; or
(iii) by the
distribution thereof among the public and the affixing thereof in
public or prominent places where the
gathering is to be held; or
(iv) by the
announcement thereof orally where the gathering is to be held; or
(v) by
affixing it in a prominent place at the address of the convener
specified in the notice.
(b)
The
convener and the authorized member shall, respectively, ensure that
every marshal and every member of the Police at the gathering
know
the contents of the notice, including any amendment or condition, if
any.
(6)
(a)
If a gathering is postponed or delayed, the
convener shall forthwith notify the responsible officer thereof and
the responsible
officer may call a meeting as contemplated in
subsection (2)
(b)
, and thereupon the provisions of
subsections (2)
(c)
and
(d)
, (3), (4) and (5) shall
apply,
mutatis mutandis
, to the gathering in question.
(b)
If
a gathering is cancelled or called off, the convener shall forthwith
notify the responsible officer thereof and the notice given
in terms
of section 3 shall lapse.
(7)
If a responsible officer is notified as contemplated in subsection
(6)
(a)
or
(b)
,
he shall forthwith notify the authorized member accordingly.
[15]
Section 5 is couched as follows:-
“
[5
Prevention and prohibition of gathering
(1) When credible
information on oath is brought to the attention of a responsible
officer that there is a threat that a proposed
gathering will result
in serious disruption of vehicular or pedestrian traffic, injury to
participants in the gathering or other
persons, or extensive damage
to property, and that the Police and the traffic officers in question
will not be able to contain
this threat, he shall forthwith meet or,
if time does not allow it, consult with the convener and the
authorized member, if possible,
and any other person with whom, he
believes, he should meet or consult, including the representatives of
any police community consultative
forum in order to consider the
prohibition of the gathering.
(2) If, after
the meeting or consultation referred to in subsection (1), the
responsible officer is on reasonable grounds
convinced that no
amendment contemplated in section 4 (2) and no condition contemplated
in section 4 (4)
(b)
would prevent the occurrence of any of
the circumstances contemplated in subsection (1), he
may prohibit
the proposed gathering.
(3)
If the responsible officer decides to prohibit the gathering, he
shall in a manner contemplated in section 4 (5)
(a)
,
notify
the convener
,
authorized member and every other person with whom he has so met or
consulted, of the decision and the reasons therefor.”
(My
emphasis).
[16]
Section
12 is set out 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.”
[17]
It is trite law that the purpose of a statute plays an important role
in establishing a context that clarifies the scope and
intended
effect of a law
[5]
. In the
case of
Natal
Joint Municipality Pension Fund v Endumeni Municipality
[6]
the
court stated that in interpreting legislation or other statutory
instrument, regard must be had to its context, taking
into account
“the circumstances attendant upon its coming into existence”.
In order to give full context to the RGA,
it is necessary to first
consider a brief history behind its promulgation
[7]
.
Brief history of the RGA
[18]
In the interests of not over-burdening this judgment, reference will
be made only to salient provisions of the pre-constitution
Acts that
have analogous provisions. In the past, the responsibility to approve
gatherings rested with the magistrates, and the
police played a major
role in this regard.
The
Riotous
Assemblies Act 17 of 1956
and the
Suppression
of Communism Act 44 of 1950, the Internal Security Act
74
of 1982 were the three central pieces of legislation enabling state
authorities to prohibit and criminalise marches, gatherings
and
demonstrations.
[19]
In terms of section 2(1) of the Riotous Assemblies Act
[8]
a magistrate, with the authorisation of the Minister of Justice, had
the power to prohibit a public gathering if he/she was of
the view
that such a gathering was not in the interests of public order. The
Minister of Justice had a wide discretion to prohibit
a particular
public gathering from taking place, or to prohibit a particular
person from attending a particular gathering. Further
sections of
that Act enabled the Minister of Justice to impose blanket bans on
gatherings in any public place for such period as
he specified.
Section
2(4)(b) of the Riotous Assemblies Act provides that “any person
who,
in
contravention of a notice delivered or tendered to him in terms of
sub-section (3),
attends any public gathering, shall be guilty of an offence and
liable on conviction to the penalties prescribed for a contravention
of sub-paragraph (i) of paragraph (a).” (My emphasis)
[20]
Section 46(1) of the Internal Security Act
[9]
gave magistrates the right to prohibit all gatherings in their
district for a period of forty-eight hours if they believed that
the
gathering would endanger public peace. Alternatively the magistrate
could allow a gathering to take place, but impose conditions
on how
it took place. In terms of section 46(3), the Minister of Justice had
the power to prohibit any gathering, if he deemed
it “necessary
or expedient”. The Minister of Justice's view as to the
necessity or expediency of the prohibition was
regarded as
conclusive, and could not be challenged on objective grounds.
[21]
Significantly, section 57(1)(a), (b) and (c) of the Internal Security
Act, stipulated that any person who convened or publicised
or
attended a gathering
after
its prohibition
was guilty of an offence
unless
he could satisfy the court that he had not had any knowledge of the
prohibition
.
Although the Internal Security Act served as the primary legislative
tool to restrict political activity and freedom of assembly,
other
legislation also played a role. Several sections of the Internal
Security Act
[10]
have since been repealed by the RGA.
[22]
The
Demonstrations
In or Near Court Buildings Prohibitions Act 71 of 1982
was introduced to prohibit gatherings and demonstrations in or near
court buildings. It was obviously directed at quelling protests
during political trials and against the treatment of persons held
under security legislation. The
Gatherings
and Demonstrations Act 52 of 1973
preventing gatherings and demonstrations in a specified open area
surrounding Parliament was also still in effect. In addition,
other
pieces of legislation such as the
National
Roads Act 54 of 1971
,
the Trespass Act were all utilised by state authorities to ensure
that protests were as restrictive as possible. Overzealousness
on the
part of police often resulted in unnecessary injuries and loss of
lives as a result of the use of excessive force during
protests
marches and gatherings, as a result of which violence and disruptions
became the order of the day.
[23]
In 1991 the State President appointed the Goldstone Commission
[11]
to investigate public violence in South Africa, its nature and
causes. The Commission’s functions were
inter
alia
to
report to the State President and to recommend steps to be taken to
avoid the violence. A panel of local and international experts
assisted the Commission and consulted with various interest groups
enquiring into the regulation of gatherings and protest marches
with
a view to curbing violence as far as possible. After these
consultations, the panel produced a report
[12]
,
which culminated in the publishing of a draft Bill. Further drafts
were published after the panel had incorporated comments from
various
bodies.
[24]
The
RGA repealed the Gatherings and Demonstrations in the Vicinity of
Parliament Act, the Demonstrations in or near Court Buildings
Prohibition Act, Gatherings and Demonstrations at or near the Union
Buildings Act, and certain provisions of the Internal Security
Act.
These statutes, having been promulgated in the apartheid era, were
widely regarded as being of a draconian nature.
Application of the law to the facts
[25]
It is now a trite principle of our law that a court interpreting
legislation is bound to read the relevant statute through
the prism
of the constitution in accordance with the prescripts of the
provisions of section 39(2) which demands an interpretation
which
promotes the spirit, purport and objects of the bill of rights.
[13]
[26]
It is evident from the preamble of the RGA that, unlike its
pre-constitution counterparts, the RGA recognises fundamental rights
that are embodied in section 16
[14]
and 17
[15]
of the
Constitution. Unlike its forerunners, the RGA does not provide for a
summary prohibition of a gathering. Instead provides
for a
consultative process through the creation of a so-called “safety
triangle” – the convener of a gathering,
a responsible
officer of the local authority and the authorized member of the South
African Police Service. Unlike its predecessor,
the RGA creates
appeal and review procedures. It is quite evident from these
provisions that the iron-fist approach towards protest
action
manifested in the holding of gatherings and demonstrations in the
past has, by virtue of the RGA, been replaced by a more
amicable and
transparent consultative process.
[16]
The highest court in the country, in the case of SATAWU and Another v
Garvas
[17]
had occasion to
make some pronouncements on the RGA. The pronouncements, although
made in the context of assessing the constitutionality
of section 11
of the RGA, are foundational in the approach that courts should
follow when interpreting the RGA. The Constitutional
Court stated as
follows:
“
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.”
[27]
Turning to the language used in the impugned provision, a reading of
section 12 in its entirety makes it clear that the legislator
intended to create a series of offences. A reading of section
12(1)(e)
[18]
reveals the usage of two different phrases, namely “in
contravention of this Act” in relation to a convenor, and
“prohibited
in terms of this Act” in relation to those
who “convene or attend” the gathering. There was a debate
about the
implication of the usage of the comma to separate the first
part of the provision from the second and about what the legislator
intended by using the phrase “in contravention of this Act”
in the first part of the provision and the phrase “prohibited
in terms of this Act” in the second part of the sentence. The
crux of the matter is the interpretation to be attached
to the phrase
“prohibited in terms of this Act”. In trying to discern
the context and purpose of this provision, it
is necessary to read
the impugned text in the context of the whole Act, including its
historical context. This inevitably takes
us to the provisions of the
RGA which make reference to the word “prohibition”. These
are embodied in sections 3(2),
5 and 7 of the RGA. Section 7
[19]
refers to gatherings in vicinity of courts, parliament and the Union
Buildings and are not applicable to the facts of this case.
It
therefore warrants no further mention.
[28]
Counsel for the State argued that a gathering for which no prior
notice was sought falls foul of section 12(1)(e). According
to
him such a gathering is “automatically prohibited”.
It must be borne in mind that in terms of section 12(1)(a),
a person
who convenes a gathering in respect of which no notice or no adequate
notice was given in terms of section 3 commits an
offence. Notably,
there is no similar provision in respect of an attendee. I find it
perplexing why another clause, (section 12(1)(e)
would still cater
for the same scenario by again including a convener. The
appellants contend that the phrase “prohibited
in terms of this
Act” relates to situations where a prohibition contemplated in
section 3(2), 5 and 7 is extant. They submit
that an interpretation
that seeks to penalise attendees of a gathering
violates
the principle of legality which finds expression in the maxim
nullum
crimen sine lege.
The
nullum crimen sine lege
principle
[29]
The principle of legality is regarded as a grounding value for the
legality of legislative and administrative measures taken
by public
authorities. The principle of legality in criminal law is also known
as the
nullum
crimen sine lege
principle. This principle is now firmly established as part of our
law
[20]
.
Snyman
[21]
posits that its most important facets may be formulated as follows:-
An accused may not
be found guilty of a crime and sentenced unless the type of conduct
with which he is charged (a) has been recognized
by the law as a
crime; (b) in clear terms; (c) before the conduct took place; (d)
without the court having to stretch the meaning
of the words and
concepts in the definition to bring the particular conduct of the
accused within the compass of the definition
and (e) after conviction
the imposition of punishment also complies with the four principles
set out immediately above.”
[30]
The
nullum
crimen sine lege
principle
is consistent with
Article 7(1) of the European Convention for the Protection of Human
Rights and Fundamental Freedoms, which provides
as follows:
“
(1)
No one shall be held guilty of any criminal offence on account of any
act or omission which did not constitute a criminal offence
under
national or international law at the time when it was committed. Nor
shall a heavier penalty be imposed than the one that
was applicable
at the time the criminal offence was committed.”
[31]
An analogous provision in the
Universal
Declaration of Human Rights is Article 11(2) which provides as
follows:-
“
No
one shall be held guilty of any penal offence on account of any act
or omission which did not constitute a penal offence, under
national
or international law, at the time when it was committed. Nor shall a
heavier penalty be imposed than the one that was
applicable at the
time the penal offence was committed.”
[32]
The European Courts have repeatedly considered the effects of this
article. In the
English case of
R
v Rimmington
[22]
Lord Bingham eloquently
summarised the application of the
nullum
crimen sine lege
principle
as follows
:-
"34 These common
law principles are entirely consistent with article 7(1) of the
European Convention, which provides:
'No punishment without
law
(1) No one shall be
held guilty of any criminal offence on account of any act or omission
which did not constitute a criminal offence
under national or
international law at the time when it was committed. Nor shall a
heavier penalty be imposed than the one that
was applicable at the
time the criminal offence was committed.'
The European Court has
repeatedly considered the effect of this article, as also the
reference in article 8(2) to "in accordance
with the law"
and that in article 10(2) to "prescribed by law".
35 The
effect of the Strasbourg jurisprudence on this topic has been clear
and consistent. The starting point is the
old rule nullum crimen,
nulla poena sine lege (Kokkinakis v Greece
[1993]
ECHR 20
;
(1993)
17 EHRR 397
,
para 52; SW and CR v
United Kingdom
[1995]
ECHR 52
;
(1995)
21 EHRR 363
,
para 35/33): only the law can define a crime and prescribe a penalty.
An offence must be clearly defined in law (SW and CR v United
Kingdom), and a norm cannot be regarded as a law unless it is
formulated with sufficient precision to enable the citizen to
foresee,
if need be with appropriate advice, the consequences which a
given course of conduct may entail (Sunday Times v United Kingdom
(1979) 2 EHRR 245,
(1979) 2 EHRR 245,
para 49; G v Federal
Republic of Germany (1989) 60 DR 256, 261, para 1; SW and CR v United
Kingdom, para 34/32).”
[33]
The principles summarised by Lord Bingham have been applied in
decisions of the European Court of Human Rights. In
Scoppola
v Italy (No 2)
[23]
stated that:
"92. The
guarantee enshrined in Article 7, which is an essential element of
the rule of law, occupies a prominent place in
the Convention system
of protection, as is underlined by the fact that no derogation from
it is permissible under Article 15 of
the Convention in time of war
or other public emergency. It should be construed and applied, as
follows from its object and purpose,
in such a way as to provide
effective safeguards against arbitrary prosecution, conviction and
punishment (see S W v the United
Kingdom and C R v the United
Kingdom, 22 November 1995, para 34 and 32 respectively, Series A nos
335-B and 335-C, and Kafkaris,
cited above, para 137).
[34]
In Kononov v Latvia
[24]
the European Court of Human Rights, sitting as a Grand Chamber stated
as follows:-
“
1.
The guarantee enshrined in Article 7, an essential element of the
rule of law, occupies a prominent place in the Convention system
of
protection, as is underlined by the fact that no derogation from it
is permissible under Article 15 in time of war or other
public
emergency. It should be construed and applied, as follows from its
object and purpose, so as to provide effective safeguards
against
arbitrary prosecution, conviction and punishment. Accordingly,
Article 7 is not confined to prohibiting the retrospective
application of the criminal law to an accused's disadvantage: it also
embodies, more generally, the principle that only the law
can define
a crime and prescribe a penalty (
nullum
crimen, nulla poena sine lege
)
and the principle that the criminal law must not be extensively
construed to an accused's detriment, for instance by analogy.
It
follows that an offence must be clearly defined in law. This
requirement is satisfied where the individual can know from the
wording of the relevant provision – and, if need be, with the
assistance of the courts' interpretation of it and with informed
legal advice – what acts and omissions will make him criminally
liable.”
[35]
As previously alluded to, the nub of this matter is whether section
12(1)(e) as it
stands,
creates an offence.
The
afore-mentioned authorities
in
relation to Article 7 of the European Convention have persuaded me to
find that section 12(1)(e) is not couched in a language
that
unequivocally proclaims that a gathering for which no prior notice
was given is automatically prohibited. I do not imagine
that such a
result, with grave consequences of imprisonment up to a period of a
year, ought to be inferred from this provision
when it is capable of
a meaning that recognizes the right to peaceful demonstrations and
gatherings and therefore passes constitutional
muster. The
interpretation that counsel for the State urges us to follow indeed
offends against the principle of legality
as expressed in the maxim
nullum crimen sine lege.
[36]
Counsel for
the State criticised the appellants’ contention that the RGA
specifically prohibits the convening of a gathering
without prior
notice but purposefully does not do so in respect of an attendee. He
submitted that such a proposition amounts to
a narrow interpretation
of section 12(1)(e) and cannot be countenanced. Counsel for the
appellants reasoned that penal legislation
requires a narrow
interpretation. The remarks made by the Supreme Court of India
[25]
are apposite. That court stated that:-
“
It
is a basic principle of criminal jurisprudence that a penal statute
is to be construed strictly. If the act alleged against the
accused
does not fall within the parameters of the offence described in the
statute the accused cannot be held liable. There is
no scope for
intendment based on the general purpose or object of law. If the
Legislature has left a lacuna, it is not open to
the Court to paper
it over on some presumed intention of the Legislature”.
[37]
It is also prudent to take note of the following remarks made by the
European
Court of Human Rights
in
the case of Kononov v Latvia
[26]
:-
“
Accordingly,
Article 7 is not confined to prohibiting the retrospective
application of the criminal law to an accused's disadvantage:
it also
embodies, more generally, the principle that only the law can define
a crime and prescribe a penalty (
nullum
crimen, nulla poena sine lege
)
and
the
principle that the criminal law must not be extensively construed to
an accused's detriment, for instance by analogy.
It
follows that an offence must be clearly defined in law.
This requirement is satisfied where the individual can know from the
wording of the relevant provision – and, if need be,
with the
assistance of the courts' interpretation of it and with informed
legal advice – what acts and omissions will make
him criminally
liable.
(My
emphasis)
[38]
Counsel for the State argued that an interpretation that concludes
that section 12(1)(e) does not create an offence in respect
of
attendees of a gathering which was held without prior notice would
undermine the objects of the RGA and would render the requirements
for the giving of notice nugatory.
It
needs to be borne in mind that section 12(1)(a) of the RGA states in
unequivocal terms that any person who
convenes
a gathering in respect of which no notice or no adequate notice was
given in accordance with the provisions of section 3 shall
be guilty
of an offence. This provision confirms that there are grave
consequences for leaders who convene gatherings without having
provided prior notice of the intended gathering
.
Where a gathering is not peaceful, the police retain their statutory
and common law powers to arrest the culprits
[27]
.
There
is therefore no basis for concluding that an interpretation which is
proposed by the appellants would emasculate the RGA.
[39]
Furthermore, if one were to agree with the State counsel’s
submission that section 12(1)(e) of the RGA constitutes an
automatic
prohibition, that would beg the question why the legislator would,
having unequivocally set out the position regarding
the convener in
section 12(1)(a) of the RGA, again in section 12(1)(e) seek to repeat
the same offence in relation to a convener
.
It is undisputable
that the only sections of the RGA that make reference to a
prohibition are section 3(2), section 5 and section
7 of the RGA,
respectively. In my view, section 12(1)(e) relates to situations
where the gathering has specifically been prohibited
in terms of
section 3(2), 5 or 7 of the RGA. It follows then that the attendance
that is proscribed and criminalised is that of
a gathering for which
a prohibition has already been issued and communicated to the
convener as contemplated in section 3(2), section
5 or section 7 of
the RGA. I am of the view that the correct interpretation is the one
that accepts that there is a distinction
of circumstances in section
12(1)(a) and (e) of the RGA and that accepts that the phrase
“prohibited in terms of this Act”
cannot be taken out of
the equation when interpreting section 12(1)(e).
[40]
The provisions of section 12(2) also warrant mention. Section 12(2)
provides that “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.” This
provision obviously
recognizes that some protest gatherings happen spontaneously thus
thwarting the giving of prior notice. This
defence obviously speaks
to the
mens rea
element of the offence.
The
interpretation contended for by the State, which propounds that
attendance of a gathering for which no prior notice was given
to
authorities is
automatically
prohibited
clearly has no merit and is inconsistent with the objects of the RGA
and the spirit and purport of our Constitution. As elucidated
in the
paragraphs of this judgment dealing with the history of the RGA, even
‘draconian’ pre-constitutional legislation
proscribed
only the attendance of a gathering for which a prohibition had been
issued and communicated to the convener. The historical
context of
the RGA also favours an interpretation in terms of which the phrase
“prohibited in terms of this Act” must
be considered to
refer to a prohibition that had been issued by the authorities and
communicated to the convener and other stakeholders
as contemplated
in section 4(5)
[28]
of the RGA.
[41]
I echo the sentiments expressed by the court in the
Garvas
[29]
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.
[42]
On the basis of all the reasons I have canvassed above, I find that
section 12(1)(e) as it currently stands, does not create
an offence
for attendees who participate in a gathering for which no prior
notice was given to the authorities mentioned in the
RGA. The appeal
must therefore succeed.
[43]
I now venture into an aspect that was not canvassed by the appellants
in the appeal but which is evident from the record and
is
foreshadowed in the standard of proof in criminal trials. It seems to
me that even on the acceptance of the trial magistrate’s
interpretation of section 12(1)(e) of the RGA, not all the elements
of the alleged offence were proven. The police officers that
testified averred that the self-proclaimed leaders of the first group
informed them that they had given prior notice of their intended
gathering and even claimed to have documentary proof. This was said
in the presence of the protestors. Significantly, the RGA only
requires the giving of prior notice; it does not require that consent
be granted
[30]
.
It is clear that at the time of the protest gathering, the protestors
had been led to believe that prior notice was given.
Yet, this
critical piece of evidence, which has a bearing on the appellants’
mens
rea
,
was not explored by the trial magistrate. With regards to the second
gathering, Captain Lesimola repeatedly stated in his
examination-in-chief,
under cross-examination and during
re-examination that he considered the second gathering to be
spontaneous and said that he considered
a spontaneous gathering to be
one that was “not arranged or authorised”. Section 12(2)
expressly gives a convener a
defence if a gathering occurred
spontaneously. There is no reason why the same defence would not be
available to the attendees.
In so far as the state did not prove all
the elements of the offence, it failed to discharge the onus of
proving its case beyond
reasonable doubt. This is another reason why
this appeal ought to succeed.
[44]
Given the conclusion that this court has reached,
it is not necessary to adjudicate on the appellants’
conditional application
in respect of the constitutionality of
section 12(1)(e) of RGA.
Costs
[45]
With regards to costs pertaining to a previous postponement of the
matter, this court notes that in the case of
DPP
v Prins
[31]
,
the Supreme Court of Appeal held that if a question of the
constitutionality of a statutory offence arises in the course of a
criminal trial in the magistrates’ court, the proper approach
is to conduct the trial, subject to a reservation of rights
in
relation to the point of unconstitutionality, and then to raise that
point in an appeal. The appellants were therefore well
within their
rights in applying for the application for leave to appeal to be
argued in the same proceedings as the application
for an order of
constitutional invalidity. The Acting Deputy Judge President acceded
to this request and his directions in that
regard were duly
communicated to the respondents. Despite t
he
fact that the Acting Deputy Judge President issued a directive
ordering that the appeal and the conditional application be heard
simultaneously, the Minister of Police, who was a party in the
conditional application, did not file any papers. Both the
appeal and conditional application had to be postponed in order to
allow the Minister to file papers so as to ensure that the court
would have the benefit of all arguments in case the court were to
conclude that the said provision was interpreted correctly by
the
trial court, thus, triggering consideration and determination of the
conditional application. As the Minister’s
failure to
file any papers led to the postponement of the matter, the Minister
must therefore pay the wasted costs occasioned by
that postponement.
[46]
In the result, the following order is made:
1.
The
appeal against the appellants’ conviction succeeds.
2.
The
appellants’ conviction is set aside.
3.
The
sentence imposed on the appellants by the court
a
quo
is set aside.
4.
The
Minister of Police is ordered to pay the wasted costs occasioned by
the postponement of the matter on 20 June 2016.
__________________
M.B. MOLEMELA,
JP
I concur.
_________________
K.
J. MOLOI, ADJP
I
concur.
_______________
L. J. LEKALE, J
On behalf of
appellant:
Adv. R. Mastenbroek
With Adv. M. Morris
Instructed by:
Webbers Attorneys
BLOEMFONTEIN
On behalf of respondent:
Adv. K. G. Mashamaite
Instructed by:
The Director:
Public Prosecutions
BLOEMFONTEIN
[1]
The
following admissions were read into the record:- “
(1) We have attended a
demonstration or gathering on 10 July 2014 outside Bophelo House,
Bloemfontein in the Free State.
(2)
We attended the
demonstration or gathering to protest our summary dismissal from our
jobs as community health workers to demand
the MEC of Health to meet
us as undertaken on 27 June 2014 to further our campaign to fix the
corrupts of health services that
is the responsibility of the Free
State Health Department under the watch of the MEC.
(3)
The demonstration or
gathering was not prohibited by the local authority in terms of the
provisions of section 3(2) , section
5 or section 7 of the Act where
there is not an offence in terms of section 12(1)(e) of the Act to
attend a demonstration for
which no notice has been given. We
conducted ourselves in a peaceful manner throughout the
demonstration and gathering
and we co-operated and we were
peacefully arrested by the South African Police Serve at
approximately [there is becomes slightly
technical] at approximately
02:00 in the morning and at approximately 13:00 of the same day on
10 July as set out in the annexures
attached hereto.” (See
p391-392 of the record.)
[2]
In
terms of section 1 of the RGA, a ‘responsible officer’
is a person appointed by the local authority to perform
functions in
terms of the RGA. An ‘authorized member’ is a police
official who represents the police at consultations
or negotiations
contemplated in section 4 of the RGA. In terms of section 3(1) of
the RGA, a convener must give notice of his
/ her intention to have
a gathering to the responsible officer. Once a responsible officer
receives notice of a proposed gathering,
he/she shall forthwith
consult with the authorized member regarding the necessity for
negotiations on any aspect of the proposed
gathering.
[3]
Section 3(1) provides that “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.”
[4]
Natal
Joint Municipality Pension Fund v Endumeni Municipality
2012 (4 SA 593
(SCA) at para [18].
[5]
Bertie
van Zyl (Pty) Ltd & Another v Minister of Safety and Security
and Another
2010 (2) SA 181
(CC).
at
para [21].
[6]
2012
(4) SA 593 (SCA).
[7]
In
Natal
Joint Municipality Pension Fund v Endumeni Municipality,
the
court stated that in interpreting legislation or other statutory
instrument, regard must be had to its context, taking into
account
“the
circumstances attendant upon its coming into existence”.
[8]
Act
17 of 1956.
[9]
Act
74 of 1982.
[10]
Section 46(1) and (2), 47, 48, 49, 51, 53, 57 and 62 of the
Internal Security Act 74 of 1982 have been repealed.
[11]
T
he
Commission was appointed in terms of the Prevention of Public
Violence Act 139 of 1991.
[12]
The report of the panel was published in 1992 in Heyman (Ed)
Towards Peaceful Protest in
South Africa: Testimony of multinational panel regarding lawful
control of demonstrations in the Republic
of South Africa.
[13]
In
the case of City of Tshwane Metropolitan Municipality v Link Africa
(Pty) Ltd & Others (Dark Fibre Africa (RF) (Pty) Ltd
and others
as Intervening Parties) 2015 (11) BCLR1265 (CC) par [115] the court
stated as follows:-
“
It
is by now commonplace in our constitutional jurisprudence that all
statutes must be interpreted through the prism of the Bill
of
Rights. Approached on this footing, the general rule is that a
statute must be given its ordinary grammatical meaning,
unless to do
so would result in absurdity or create discord with the
Constitution. And, most importantly, in following these
interpretive
prescripts, where it is reasonably possible, legislation must be
given a meaning that preserves its constitutional
validity”
[14]
“
Freedom
of expression
16.
(1) Everyone has the right to freedom of expression, which includes—
(a)
freedom of the press and other media;
(b)
freedom to receive or impart information or ideas;
(c)
freedom of artistic creativity; and
(d)
academic freedom and freedom of scientific research.
(2)
………………”.
[15]
Section 17
of the Constitution Act provides:-
“
Assembly,
demonstration, picket and petition
17.
Everyone has the right, peacefully and unarmed, to assemble, to
demonstrate, to picket and to present petitions”
[16]
This
consultative process is encapsulated in section 4 of the RGA.
“
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.”
[17]
SATAWU
and Others v Garvas and Others [
2012]
ZACC 13
at
para
[61]
[18]
“
[Any
person who]
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 [shall be guilty of an offence and on conviction liable-
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”.
[19]
7
Demonstrations and gatherings in vicinity of courts, buildings of
Parliament and Union Buildings
(1) Subject to the
provisions of subsection (2) all demonstrations and gatherings-
(a)
in any building in which a
courtroom is situated, or at any place in the open air within a
radius of 100 metres
from such building, on every day of the week,
except Saturdays, Sundays and public holidays; and
(b)
in
the areas defined in- (i) Schedule
1; and (ii) Schedule
2, are
hereby prohibited.
(2)
The provisions of subsection (1) shall not apply-
(a)
to
any demonstration or gathering referred to in subsection (1)
(a)
for which permission has, on application to the magistrate of the
district concerned, been granted by him in writing; or
(b)
within the area
contemplated in subsection (1)
(b)
(i), to any demonstration or gathering within such area for which
permission has, on application to the Chief Magistrate of Cape
Town,
been granted by him in writing; or
(c)
within
the area contemplated in subsection (1)
(b)
(ii), to a demonstration or gathering within such area for which
permission has, on application to the Director-General: Office
of
the State President, been granted by him in writing.
(3) Any application for
permission contemplated in subsection (2) shall be made to the
person empowered to grant such permission,
within a reasonable time
before such demonstration or gathering is to take place.
(4)
When credible information on oath that there is a threat as
contemplated in section 5 (1), is brought to the attention of
a
person who has already granted permission in terms of subsection
(2), he may, subject to the application,
mutatis
mutandis
, of the
provisions of section 5, revoke such permission, and thereupon the
provisions of section 6 (6) shall,
mutatis
mutandis
, apply to
the demonstration or gathering in question.
[20]
DPP v Prins
2012 (2) SACR (SCA) 183 at para [7].
[21]
CR
Snyman Criminal Law (5
th
ed, 2008) at 36.
[22]
[2005]
UKHL 63
at para
[33]
.
[23]
[2009]
ECHR 1297
at
para
[92
].
[24]
(Application
no. 36376/04), judgment delivered on 17 May 2010.
[25]
The
Assistant Commissioner, ... vs M/S. Velliappa Textiles Ltd. &
Anr on 16 September, 2003
[26]
Fn
20
at para 85.
[27]
Section 13
of the RGA provides as follows:-
“
13
Interpretation
(1)
The provisions of this
Act shall not be so construed as to detract from-
(a)
the
provisions of the-
(i)
Control of Access to Public Premises and Vehicles Act, 1985 (Act 53
of 1985); or
(ii)
Dangerous Weapons Act, 2013
; or
(iii) Arms
and Ammunition Act, 1969 (Act 75 of 1969); or
(iv) Trespass
Act, 1959 (
Act
6 of 1959
);
or
(v)
Criminal Procedure Act, 1977
(
Act
51 of 1977
);
or
(b)
the rights of any person regarding
self-defence, necessity and protection of property; or
(c)
any power conferred or duty imposed
on the Minister or any member of the Police or the public under any
law or the common law.
(2) The
provisions of section 111 of the Road Traffic Act, 1989 (Act 29 of
1989), shall not apply in respect of a gathering
or demonstration
held in accordance with the provisions of this Act.
(3) For the
purpose of this Act, where a convener has not been appointed in
terms of section 2 (1), a person shall be deemed
to have convened a
gathering-
(a)
if he has taken
any part in planning or organizing or making preparations for that
gathering; or
(b)
if he has himself
or through any other person, either verbally or in writing, invited
the public or any section of the public
to attend that gathering.
[28]
Section
4(5) provides:-
(5)
(a)
The responsible officer shall ensure as soon as possible that
a written copy of the notice, including any amendment thereof
and
any condition imposed and the reasons therefor, is handed to the
convener and the authorized member who, and to every party
which,
attended the meeting referred to in subsection (2)
(b)
:
Provided that if the identity or whereabouts of the convener is
unknown, or if in view of the urgency of the case it is not
practicable to deliver or tender the said written notice and reasons
to him, the notice shall forthwith, notwithstanding any
provision to
the contrary in any other law contained, be published in one or more
of the following manners:
(i)
In a newspaper
circulating where the gathering is to be held; or
(ii)
by means of the radio
or television; or
(iii)
by the distribution
thereof among the public and the affixing thereof in public or
prominent places where the gathering is to
be held; or
(iv)
by the announcement
thereof orally where the gathering is to be held; or
(v) by
affixing it in a prominent place at the address of the convener
specified in the notice.
(b)
The convener and the
authorized member shall, respectively, ensure that every marshal and
every member of the Police at the gathering
know the contents of the
notice, including any amendment or condition, if any.
(6)
(a)
If a gathering is postponed or delayed, the convener shall
forthwith notify the responsible officer thereof and the responsible
officer may call a meeting as contemplated in subsection (2)
(b)
,
and thereupon the provisions of subsections (2)
(c)
and
(d)
,
(3), (4) and (5) shall apply,
mutatis mutandis
, to the
gathering in question.
(b)
If a gathering is cancelled
or called off, the convener shall forthwith notify the responsible
officer thereof and the notice
given in terms of section 3 shall
lapse.
(7) If a responsible
officer is notified as contemplated in subsection (6)
(a)
or
(b)
, he shall forthwith notify the authorized member
accordingly.
[29]
Supra,
2013 (1) SA 83 (CC).
[30]
Section
4(3) provides:- “
4(3)
If a convener has been notified in terms of subsection (2)
(a)
or has not, within 24 hours after giving notice in terms of section
3 (2), been called to a meeting in terms of subsection (2)
(b)
of this section, the gathering may take place in accordance with the
contents of the notice and in accordance with the provisions
of
section 8, but subject to the provisions of sections 5 and 6.”
[31]
Fn 17 at para [23].