Mlungwana and Others v S and Another (CCT32/18) [2018] ZACC 45; 2019 (1) BCLR 88 (CC); 2019 (1) SACR 429 (CC) (19 November 2018)

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[2018] ZACC 45
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Mlungwana and Others v S and Another (CCT32/18) [2018] ZACC 45; 2019 (1) BCLR 88 (CC); 2019 (1) SACR 429 (CC) (19 November 2018)

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CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case
CCT 32/18
In the matter
between:
PHUMEZA
MLUNGWANA
First Applicant
XOLISWA
MBADISA
Second Applicant
LUVO
MANKQA
Third Applicant
NOMHLE
MACI
Fourth Applicant
ZINGISA
MRWEBI
Fifth Applicant
MLONDOLOZI
SINUKU
Sixth Applicant
VUYOLWETHU
SINUKU
Seventh Applicant
EZETHU
SEBEZO
Eighth Applicant
NOLULAMA
JARA
Ninth Applicant
ABDURRAZACK
ACHMAT
Tenth Applicant
and
THE
STATE
First Respondent
MINISTER
OF
POLICE
Second Respondent
and
EQUAL
EDUCATION
First Amicus Curiae
RIGHT2KNOW
CAMPAIGN
Second Amicus Curiae
UNITED
NATIONS SPECIAL RAPPORTEUR ON
THE
RIGHTS TO FREEDOM OF PEACEFUL
ASSEMBLY
AND OF
ASSOCIATION
Third Amicus Curiae
Neutral
citation:
Mlungwana and Others v The
State and Another
[2018] ZACC 45
Coram:
Basson AJ, Cameron
J, Dlodlo AJ, Froneman J, Goliath AJ, Khampepe J,
Mhlanthla J, Petse AJ and Theron J
Judgment:
Petse AJ (unanimous)
Heard
on:
21 August 2018
Decided
on:
19 November 2018
Summary:
Regulation of Gatherings Act 205 of 1993 — section 12(1)(a)
— declaration of constitutional invalidity
ORDER
On appeal from and
in an application for the confirmation of the order of the High Court
of South Africa, Western Cape Division,
Cape Town, the following
order is made:
1. The appeal of the State respondents is dismissed.
2. The declaration by the High Court that section 12(1)(a) of the
Regulation of Gatherings Act 205 of 1993 is constitutionally
invalid
is confirmed to the extent that it makes the failure to give notice
or the giving of inadequate notice by any person who
convened a
gathering a criminal offence.
3. The declaration of invalidity shall not apply with retroactive
effect and shall not affect finalised criminal trials or those
trials
in relation to which review or appeal proceedings have been
concluded.
4. The appeals of the applicants against their convictions in the
Cape Town Magistrates’ Court for contravening section 12(1)(a)

of the Regulation of Gatherings Act 205 of 1993 are upheld and the
resultant convictions and sentences are set aside.
5. The Minister of Police is ordered to pay the costs of the
applicants in this Court, including the costs of two counsel.
JUDGMENT
PETSE AJ (Basson AJ,
Cameron J, Dlodlo AJ, Froneman J, Goliath AJ, Khampepe J, Mhlanthla J
and Theron J concurring):
Introduction
[1]
Is the criminalisation of a convener’s failure,
wittingly or unwittingly, either to give notice or give adequate
notice to
a local municipality when convening a gathering of more
than 15 persons, which is what section 12(1)(a) of the Regulation of
Gatherings
Act
[1]
(Act) does, constitutionally defensible?  This is the central
issue in this application and it rests on two further interrelated

questions.  First, does section 12(1)(a) limit the right
entrenched in section 17 of the Constitution?  Section
17
guarantees that “[e]veryone has the right, peacefully and
unarmed, to assemble, to demonstrate, to picket and to present

petitions”.  Second, if so, is that limitation reasonable
and justifiable in an open and democratic society based on
human
dignity, equality, and freedom?
[2]
The answer to these questions, for reasons that will become
apparent later, is that section 12(1)(a) constitutes an unjustifiable

limitation of the right in section 17.  Accordingly, the
declaration of constitutional invalidity made by the High Court falls

to be confirmed.
[3]
The questions alluded to above, and answers thereto, arise
against the following background.  This is an application for
confirmation
of a declaration of constitutional invalidity in terms
of section 172(2)(d)
[2]
of the Constitution read with rule 16(4) of the Rules of this
Court, and section 15(1)(b) of the Superior Courts Act.
[3]
The High Court of South Africa, Western Cape Division, Cape Town
(High Court) declared section 12(1)(a) of the Act unconstitutional

and invalid.
[4]
The Minister of Police, who is the second respondent in the
application, opposes the confirmation application and both
respondents
seek leave to appeal against the declaration of
constitutional invalidity.
[5]
[4]
The applicants assert that the criminalisation of the failure
to give notice or adequate notice is unconstitutional because section

12(1)(a) criminalises the convening of peaceful gatherings simply by
reason of the fact that either no notice was given or inadequate

notice was given. This, their argument goes, constitutes an
unjustifiable limitation of the right in section 17 of the
Constitution.
[5]
For their part, the respondents contend that section 12(1)(a)
of the Act is constitutionally valid.  Their primary contention

is that the section does not limit any rights in the Bill of Rights
because it amounts to mere regulation.  Alternatively,
to the
extent that this Court finds that there is a limitation, the
respondents argue that the limitation is justifiable for a
variety of
reasons.
[6]
The balance of this judgment accounts for the conclusion
foreshadowed in paragraph 2 above.  First, the general
framework
of the Act is canvassed to place section 12(1)(a) within
its statutory context.  Second, the background to this matter is
explained.  Third, the limitation of the right entrenched in
section 17 of the Constitution by section 12(1)(a) of the Act
is
discussed.  Fourth, the unjustifiable effect of this limitation
is analysed.  Finally, the issue of the just and equitable

remedy is considered.
The statutory
framework
[7]
The object of the Act is to regulate public gatherings and
demonstrations.
[6]
As is manifest from the preamble to the Act, this entails balancing
the right to assemble freely and peacefully against the
need to
ensure that assemblies take proper cognisance of and do not
unjustifiably infringe the rights of others.
[7]
[8]
Central to the Act and to this case are the definitions of a
“gathering”, “demonstration”, and “convener”

in section 1 of the Act.  A demonstration is defined 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”.
[8]
A gathering is defined 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 organisation, whether
or not
that party or organisation is registered in terms of any applicable
law, are discussed, attacked, criticised, promoted or
propagated; or
(b) held to form pressure groups, to hand over petitions to any
person, or to mobilise 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.”
[9]
[9]
The material difference between the two for present purposes
is that a demonstration is an assembly that comprises 15 or fewer
people,
while a gathering is an assembly that comprises more than 15
people.
[10]
In section 3, the Act requires all conveners of gatherings to
give written notice of an intended gathering.
[10]
Written notice is not required for demonstrations,
[11]
and it is the duty of a convener of a gathering to give notice.
Moreover, the duty is only to give written notice.  The
convener
is not obliged to seek approval for the intended gathering.
[11]
The Act provides for three types of conveners.  First,
there are those who, of their own accord, convene a gathering.
[12]
Second, there are those who are appointed as conveners under
section 2(1) of the Act by organisations intending to hold a

gathering.
[13]
Third, there are those who are deemed to be conveners under
section 13(3) where their organisation has not appointed
them as
conveners under section 2(1).  Such a person, in the
absence of a section 2(1) appointment, is deemed a convener—
(a) if they have taken any part in planning or organising or making
preparations for that gathering; or
(b) if they have by themselves or through any other person, either
verbally or in writing, invited the public or any section of
the
public to attend that gathering.
[14]
[12]
It bears mentioning that even on a cursory reading the
definition of a convener, especially under section 13(3), is a broad
one.
This is a relevant factor when it comes to a consideration
of the extent of the limitation brought about by section
12(1)(a).
[15]
[13]
Notice must be given to the responsible officer at a local
municipality within whose jurisdiction the gathering is to take
place.
[16]
A responsible officer is appointed by a local municipality within
whose jurisdiction the protest is meant to take place.
[17]
The notice must be given in writing not later than seven days before
the date on which the gathering is to be held,
[18]
and must include numerous details.
[19]
Notice can be given less than seven days ahead of the protest, but a
reason for the late notice must then be provided.
[20]
If notice is given less than 48 hours before the intended gathering,
then the responsible officer has a discretion to prohibit
the
gathering.
[21]
[14]
After notice is given, the responsible officer can decide if
negotiations under section 4 are necessary.
[22]
These negotiations, if deemed necessary, are intended to agree on the
conditions of the gathering.
[23]
These conditions are “to be imposed in respect of the holding
of the gathering so as to meet the objects of [the Act]”
[24]
following negotiations conducted in good faith.
[25]
In other words, negotiations seek to ensure that the parties agree in
good faith to conditions in respect of the proposed
gathering to
balance the participants’ right to assemble freely with any
other implicated rights.  To this end, the
negotiations take
place between the responsible officer, an authorised member of the
South African Police Service (SAPS),
[26]
the convener, and any other interested party.  If parties cannot
agree on conditions, the officer can impose certain conditions

unilaterally.
[27]
[15]
If no notice is given, section 3(5)(a) directs a policeperson
who has received information about a gathering through other means
to
contact the responsible officer.  If a responsible officer
receives information of a proposed gathering of which no notice
has
been given, then they are obliged to furnish an authorised member
with such information.
[28]
The responsible officer is then given a discretion to request the
convener (if a convener is identified) to comply with the

requirements of the Act, including the giving of notice.
[29]
The responsible officer is not empowered to prohibit the gathering on
account only of a lack of notice.  The responsible
officer can
also consult with an authorised member on whether section 4
negotiations are necessary, notwithstanding the absence
of
notice.
[30]
Presumably then, the responsible officer, if she deems it necessary,
can thereafter call for the section 4 negotiations even
though no
notice was given.
[31]
This would include inviting the identified convener to
negotiations so that the conditions of the gathering can be agreed

on.
[32]
[16]
If a gathering proceeds without a formal notice, then section
12(1)(a) provides that it is a criminal offence to convene a
gathering
without giving the requisite notice as prescribed in the
Act.  It is only a convener who is criminally liable for failure
to give notice of a gathering under section 12(1)(a).  It is
open to a convener to invoke a defence that the gathering concerned

took place spontaneously.
[33]
[17]
Importantly, all parties agreed that it does not constitute an
offence to attend a gathering for which no notice has been
given.
[34]
But it is an offence to attend a prohibited gathering.
[35]
However, it must be emphasised that an unnotified gathering is not
necessarily a prohibited gathering.  A gathering
can be
prohibited if notice is given less than 48 hours before the gathering
is meant to commence,
[36]
or if it is prohibited under section 5.
[37]
Section 5(1) provides that—
“[w]hen 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 authorised 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”
[18]
Only after this meeting (if possible), and if the responsible
officer is convinced on “reasonable grounds” that no
amendment
to the notice given as contemplated in section 4(2)(b) or
no unilateral imposition of conditions as contemplated in
section 4(4)(b)
would prevent a threat to the rights of others
from the proposed gathering, may the responsible officer prohibit the
gathering.
[38]
Nowhere does the Act expressly provide that the mere failure to give
notice is a ground to prohibit the gathering and render
participation
in it an offence under section 12(1)(e).  Significantly,
section 12(1)(e) requires prohibition to have
occurred “in
terms of this Act” for participation in the prohibited
gathering to be unlawful.  Therefore, attending
an unnotified
gathering is not on its own an offence under section 12(1)(a),
because nowhere does the Act prohibit per se an unnotified
gathering.
[19]
Any ambiguity on this score is vitiated if section 12(1)(e) is
interpreted to promote the spirit, purport and objects of the Bill
of
Rights.
[39]
The nature and impact of the limitation imposed by section 12(1)(a)
on the right to freedom of assembly would proliferate
if a failure to
give notice also entailed criminalisation under section 12(1)(e)
of participation in the unnotified gathering.
This
interpretation would also run contrary to a well-settled canon of
statutory construction that criminal provisions are to be
interpreted
narrowly and in favour of an accused’s liberty.
[40]
To do otherwise, as
Tsoaeli
rightly held, would offend against
the principle of legality in the context of criminal law.
[41]
Quite clearly then, the failure to give notice would not without more
lead to a gathering being liable to be prohibited,
and so attending
an unnotified gathering ought not to be an offence under section
12(1)(e).  Rather, the failure to give notice
only results in
criminal liability for the convener.
[20]
Section 8 of the Act regulates how persons attending a
gathering are to conduct themselves regardless of notice.
[42]
Acting contrary to these provisions is an offence.
[43]
Section 9 then stipulates the powers police have in relation to
gatherings and demonstrations.  These powers are wide
and exist
regardless of whether the gathering was notified.
[44]
These powers include—
(a) where notice is given, preventing people from deviating from the
terms of the notice;
[45]
(b) where notice is not given, restricting the gathering to a place
or guiding the participants’ route to ensure minimal
traffic
impediments, appropriate distances between rival gatherings, access
to property or workplaces, and the prevention of injury
or damage to
property;
[46]
and
(c) taking such steps as are necessary to protect persons from injury
(or property from damage), whether or not they are participating
in
the gathering.
[47]
[21]
Disobeying any lawful instruction of a policeperson, including
an instruction to disperse,
[48]
is an offence.
[49]
[22]
A convener can be held liable for any riot damage caused by a
gathering or demonstration.  This liability is civil in
nature.
[50]
The convener is presumed to have acted unreasonably if riot damage
occurs as a result of the gathering, but this presumption
is
rebuttable.  If the convener can show – in essence –
that the riot damage was not reasonably preventable and
foreseen,
then they can avoid liability.
[51]
[23]
The Act also does not preclude the enforcement of other common
law and legislative provisions that assist in reducing harm to person

and property or proscribe the commission of criminal offences,
including the offence of malicious damage to property and public

violence, and the applicable by-laws regulating the use of roads and
public places.
[52]
[24]
Before moving on to the factual background of this matter, it
is necessary to delineate the ambit of the dispute between the
parties
to promote a better understanding of what this case is not
about.  First, the definitions of a “gathering” and

a “demonstration” are not in issue.  Nor is the
number of persons required to transform a demonstration into a

gathering.  Second, the importance of giving notice when
convening a gathering is not contested.  And neither are the

other requirements that must be complied with once written notice has
been given to a responsible officer in a local municipality.
This
judgment has no bearing on the constitutionality or otherwise of
these aspects of the Act.  What lies at the heart
of the dispute
between the protagonists is the criminalisation of a failure by any
person who convenes a gathering to give written
notice or adequate
notice as required in terms of section 3 of the Act.
Parties
[25]
The applicants are members of the Social Justice Coalition
(SJC), which is a membership-based organisation operating within the
City of Cape Town and its environs, including Khayelitsha.  It
was established as a lobby group for provision of municipal
services
to areas where its members live, and in particular to promote the
provision of clean and safe sanitation.  SJC has
engaged with
the City of Cape Town on numerous occasions since 2011 clamouring for
the provision of sanitation facilities for the
residents of
Khayelitsha.
[26]
The respondents are the State and the Minister of Police
(Minister).  The State prosecuted the applicants in the
Magistrates’
Court on a charge of contravening section 12(1)(a)
of the Act.  Both the State and the Minister opposed the appeal
and the
relief sought by the applicants in the High Court to have
section 12(1)(a) declared constitutionally invalid.  They
persist
with their opposition in this Court.
[27]
Three entities were admitted as amici curiae (friends of the
court) initially in the High Court, and later in this Court.
They are Equal Education, Right2Know Campaign,
[53]
and the United Nations Special Rapporteur on the rights to freedom of
peaceful assembly and of association (Special Rapporteur).

Equal Education is a membership-based democratic movement of
learners, parents, and community members.  Its object is to
promote quality education and equality in South African schools
“through policy analysis, advocacy, and activism”.

Right2Know is a non profit organisation that promotes freedom of
expression, access to information, freedom of assembly and
the right
to protest.  Its object is to advocate for the free flow of
information necessary for the exercise of human rights,
and to ensure
that security legislation and the conduct of security agencies,
including the policing of gatherings, is consistent
with the
Constitution.  The Special Rapporteur was established as part of
the special procedures mechanism of the United Nations
Human Rights
Council.  The incumbent is a human rights expert with the
mandate to report and to advise on the rights to freedom
and peaceful
assembly from a thematic or country-specific perspective.
[28]
Broadly, all three amici curiae supported the applicants’
constitutional challenge.
Background
The protest
[29]
This case is a sequel to the protest that took place on 11
September 2013.  Fifteen members of the SJC travelled from
Khayelitsha
to the Civic Centre
[54]
in Cape Town pursuant to a decision taken to organise a
gathering at the Civic Centre. They chained themselves together in

groups of five persons and walked to the staircase leading to one of
the entrances to the Civic Centre.  There, they chained

themselves to the railings.  Although the SJC decided to limit
the number of participants in the assembly to 15 persons –
in
order not to render the gathering notifiable – the applicants
were cognisant of the existence of a risk that some other
members of
SJC might join the gathering.  Nevertheless, this foresight and
appreciation that this might render them liable
for arrest did not
deter them.  They were joined by other people.
[30]
Despite the increased numbers, the gathering was peaceful.
Members of the public were not denied ingress to or egress from
the
Civic Centre.  The police who were summoned to the Civic Centre
requested the protesters to disperse.  When the protesters

failed to heed the police’s call to disperse, they were
arrested without resistance.
[31]
Subsequently, 21 of the protesters were charged in the
Magistrates’ Court with contravening section 12(1)(a) of the
Act, and
alternatively attending a prohibited gathering in terms of
the Act in contravention of section 12(1)(e).  At the
trial,
the protesters pleaded not guilty to both the main and
alternative charges.  In their plea explanation indicating the
basis
of their defence in terms of section 115 of the Criminal
Procedure Act,
[55]
the applicants relied on two defences.  First, that
section 12(1)(e) of the Act does not make it an offence to
attend
a gathering merely because no prior written notice was given.
Second, they impugned the constitutional validity of section
12(1)(a)
of the Act to the extent that it renders the convening of a gathering
without prior written notice a criminal offence.
At the
conclusion of the trial, all of the accused persons were acquitted on
the alternative count but ten of those who were found
to have been
conveners were convicted on the main count.
[32]
During the sentencing proceedings, the trial Magistrate
observed that the applicants “cause[d] no harm to anyone.
There
were no threats [made].  There was no damage to any
property”.  And that during the protest “emotions
were
running high”.  In dealing with the third element of
the triad
[56]
– the interests of the community – the trial Magistrate
tellingly observed:
“[The applicants] were at all times . . . respectful and
peaceful. . . .  The Court certainly takes into account that
it
is the very community that they wish to help, hence the reason for
their protest action, the various letters and engagements
with the
City and the mayor.”
[33]
Having regard to the cumulative effect of these factors, the
applicants were cautioned and discharged.  Subsequently, the
trial
Magistrate granted the applicants leave to appeal to the High
Court solely for the purpose of enabling the applicants to pursue

their constitutional challenge to section 12(1)(a) as it was not
competent for the Magistrates’ Court to adjudicate on this

challenge.
The High Court
[34]
In the High Court, the applicants predicated their case
squarely on their challenge to section 12(1)(a).  They asserted
that
section 12(1)(a) constitutes a limitation of the right to
freedom of assembly guaranteed in section 17 of the Constitution.

In addition, they argued that the section unjustifiably limits the
right to assemble peacefully and unarmed.  This was because

section 12(1)(a) dissuades those minded to convene gatherings from
venting their frustrations or expressing their views because
of the
chilling effect this section has on the exercise of the right to
assemble.
[35]
Unsurprisingly, the State and the Minister opposed the appeal
and resisted the constitutional challenge.  In essence, they
argued that section 12(1)(a) does not constitute a limitation of the
right entrenched in section 17 of the Constitution.
Alternatively, they submitted that if it does, that limitation is
reasonable and justifiable under section 36 of the Constitution.

In particular, first, the Minister contended that the requirement to
give notice serves a legitimate purpose by ensuring that there
is
proper planning to facilitate the very exercise of the right to
assemble.  Second, the giving of notice does not impose
an
onerous duty on the convener of gatherings.  Third, in any event
section 12(2) of the Act provides for a tenable defence
of
spontaneity to a charge under section 12(1)(a).  Fourth, the
criminalisation of the failure to give prior written notice
or
adequate notice serves as an effective deterrent to the convening of
gatherings without notice.  This, it was contended,
assumes even
greater significance when viewed against the real risk that
unnotified gatherings are more likely to be violent, thereby
exposing
members of the public and property to serious danger.
[36]
The High Court held that section 12(1)(a) constitutes a
limitation of the section 17 constitutional right.  It
reasoned
that this was because of the “chilling” and
deterring effect criminalisation had on the exercise of the right to
assemble.
[57]
The High Court then concluded that this limitation was unjustifiable
under section 36 of the Constitution.  This was
because of the
importance of the right,
[58]
the severity of the limitation occasioned by criminal sanction,
[59]
and the existence of alternative means to incentivise the giving of
notice.
[60]
These factors, the High Court concluded, outweighed the legitimacy of
section 12(1)(a)’s purpose, which is to ensure
that the right
in section 17 is exercised peacefully and with due regard to
others.
[61]
[37]
It bears emphasising that the applicants did not appeal the
trial court’s decision on the grounds that their demonstration

turned into a gathering spontaneously, and therefore that they should
have been acquitted based on section 12(2).  Even before
this
Court, the applicants expressly disavowed any reliance on section
12(2), and only persisted with their constitutional challenge.

Before this Court, the respondents, albeit tepidly, submitted that
the applicants should be acquitted solely on the basis that
their
gathering was spontaneous, and that the determination of the
constitutionality of section 12(1)(a) consequently does
not
arise.
[38]
There is no tenable reason to decide this matter on the narrow
basis advanced by the respondents.  This Court has had the
benefit
of hearing full argument on the constitutionality of section
12(1)(a) from both sides, including the amici curiae.  All of

the parties accepted that it was the central issue in this matter.
This is, however, not to say that the defence of spontaneity
is
irrelevant to the determination of this case.  What it means is
that the defence of spontaneity is but one of the relevant
factors
considered when assessing the extent of the limitation imposed by
section 12(1)(a).
[39]
There are also public policy considerations militating against
deciding this matter on such narrow grounds.  In
Van der
Merwe
, this Court held, albeit in a different context, that even
in the absence of a party with proper standing public policy
considerations
may well dictate that a dispute about legislation
which has been declared unconstitutional should be determined to
“save
disputed provisions from the limbo of indeterminate
constitutionality”.
[62]
In
Director of Public Prosecutions
, this Court
elaborated on this theme and explained that this was necessary to
achieve the “constitutional purpose of avoiding
disruptive
legal uncertainty”.
[63]
In my judgement, these considerations apply with equal force in a
case such as the present where section 12(1)(a) of
the Act
targets persons who, in the exercise of their constitutional rights,
convene gatherings without notice by criminalising
non-compliance
with its provisions.
In this Court
[40]
As already indicated, whilst the applicants and the amici
curiae moved for the confirmation of the declaration of
constitutional
invalidity made by the High Court, the respondents
opposed it.  The respondents also sought leave to appeal against
the declaration.
[41]
I now turn to consider whether the High Court’s
declaration of invalidity should be confirmed.  This depends on
whether
the right in section 17 of the Constitution is limited, and
if so, whether that limitation is justified.
The limitation of
the right in section 17
[42]
Determining whether a right is limited entails “examining
(a) the content and scope of the relevant protected right(s) and
(b)
the meaning and effect of the impugned enactment to see whether there
is any limitation of (a) by (b)”.
[64]
[43]
Section 17 guarantees the right to assemble peacefully and
unarmed.  The content and scope of this right must be
interpreted
generously.
[65]
But its meaning is clear and unambiguous.  Everyone has
the right to assemble, demonstrate, picket, and present petitions.

The only internal qualifier is that anyone exercising this right must
do so peacefully and unarmed.
[66]
“Everyone” in section 17 must be interpreted to include
every person or group of persons—young or old,
poor or rich,
educated or illiterate, powerful or voiceless.  Whatever their
station in life, everyone is entitled to exercise
the right in
section 17 to express their frustrations, aspirations, or demands.
Anything that would prevent unarmed persons
from assembling
peacefully would thus limit the right in section 17.
[44]
As already indicated, the applicants and the amici curiae
contend that section 12(1)(a) constitutes a limitation of the
right
to assemble, demonstrate, picket, or present petitions
peacefully and unarmed.  The argument, in a nutshell, is that
the right
is limited because section 12(1)(a) deters – on pain
of a criminal sanction – the exercise of the section 17 right.
[45]
The respondents’ counter is that section 12(1)(a)
amounts to a mere regulation of the right in section 17.  They
rely
on a dictum by this Court in
Garvas
that “[t]he
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 [of the right in
section 17]”.
[67]
[46]
The respondents’ argument is unsustainable.  Section
12(1)(a) goes beyond mere regulation.  In
Garvas
, this
Court considered whether section 11(1) and (2) of the Act –
which provides for the civil liability of a convener for
riot damage
– constituted a limitation of section 17.  This Court held
that “mere regulation” would not
necessarily amount to a
limitation of the section 17 right.  But
the
increased cost of organising protest action and the deterrent effect
of the civil liability did amount to a limitation.
[68]
Thus, this Court found that deterring the
exercise of the right in section 17 limits that right.  The
reason is
obvious.  Deterrence, by its very nature, inhibits the
exercise of the right in section 17.  Deterrence means that the

right in question cannot always be asserted, but will be discouraged
from being exercised in certain instances.
[47]
In
this matter,
the criminal sanction in section 12(1)(a)
deters the exercise of the right in section 17.  The respondents
not only admit
this, but invoke the self-same deterrent effect to
explain section 12(1)(a)’s purpose and justify its
provisions.
[69]
The possibility of a criminal sanction prevents, discourages, and
inhibits freedom of assembly, even if only temporarily.
In this
case, an assembly of 16 like-minded people cannot just be convened in
a public space.  The convener is obliged to
give prior notice to
avoid criminal liability.  This constitutes a limitation of the
right to assemble freely, peacefully,
and unarmed.  And this
limitation not only applies to conveners, but also to all those
wanting to participate in an assembly.
If a convener is
deterred from organising a gathering, then in the ordinary course
(save for the rare spontaneous gathering) a
gathering will not occur.
[48]
This conclusion accords with the findings of several
international legal bodies to the effect that criminalising the
failure to
give notice of an intended assembly limits the right to
freedom of assembly.
[70]
The United Nations Human Rights Committee’s (Committee)
decision in
Kivenmaa
[71]
demonstrates that such criminalisation limits the right in Article 21
of the International Covenant on Civil and Political Rights

(ICCPR).
[72]
Article 21 of the ICCPR provides:
“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 security
or public
safety, public order (ordre public), the protection of public health
or morals or the protection of the rights and freedoms
of others.”
[49]
In that matter, the Finnish government arrested the
complainant for convening a public gathering without notice to
protest against
a visiting foreign Head of State.  When
assessing the impact this had on the right in article 21, the
Committee held
that—
“a 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 ICCPR. . . . [T]he Committee notes that any
restrictions upon the right to assemble must fall within
the
limitation provisions of article 21.  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 and 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
ICCPR.”
[73]
[50]
Quite clearly therefore the Committee considered the notice
requirement to amount to a restriction of the right in article 21,
and
that the reason for the limitation needed to fall within one of
the purposes mentioned in article 21.  In more recent decisions,

the Committee has found that requiring conveners to conclude
contracts with city services for the maintenance of security, medical

assistance and cleaning for gatherings as a precondition for
authorisation limits the right in article 21.
[74]
It has also held that the imposition of an administrative fine
for failure to secure authorisation for a gathering is a limitation

of the right in article 21.
[75]
Its approach to the scope of the right to assemble peacefully is thus
a broad one, with the primary focus being the justification
of the
restriction on the right.
[76]
[51]
Similarly, regarding the right to freedom of assembly under
the European Convention of Human Rights (ECHR),
[77]
the Grand Chamber of the European Court of Human Rights (Grand
Chamber) held that “the right to freedom of assembly is a

fundamental right in a democratic society and, like the right to
freedom of expression, is one of the foundations of such a society.

Thus, it should not be interpreted restrictively”.
[78]
The Grand Chamber went on to find that—
“the interference [with the right in article 11(1)] does not
need to amount to an outright ban, legal or de facto, but can
consist
in various other measures taken by the authorities.  The term
‘restrictions’ in article 11(2) must be
interpreted as
including both measures taken before or during a gathering and those,
such as punitive measures, taken afterwards.
For instance, a
prior ban can have a
chilling effect
on the persons who intend
to participate in a rally and thus amount to an interference, even if
the rally subsequently proceeds
without hindrance on the part of the
authorities.  A refusal to allow an individual to travel for the
purpose of attending
a meeting amounts to an interference as well.
So too do measures taken by the authorities during a rally,
such as dispersal
of the rally or the arrest of participants, and
penalties imposed for having taken part in a rally.”
[79]
[52]
A Chamber of the Court, in
Novikova
, then reiterated
this finding.  It observed that—
“in order to fall within the scope of article 10 or 11 of the
Convention, ‘interference’ with the exercise of
the
freedom of peaceful assembly or the freedom of expression does not
need to amount to an outright ban but can consist in various
other
measures taken by the authorities.”
[80]
On the facts of that case, the applicants were expected to pay an
administrative fine in terms of Russian law for failure to give

notice of a demonstration.  The Court found that the relevant
laws limited the right in article 11, and resultantly needed
to fall
within one of the justifications in article 11(2).
[81]
It reiterated that “a situation of unlawfulness, such as one
arising under Russian law from the staging of a demonstration
without
prior notification, does not necessarily (that is, by itself) justify
an
interference
with a person’s right to freedom of
assembly”.
[82]
[53]
On other occasions, the Court has repeatedly held that the
right in article 11 should be interpreted broadly.
[83]
It has even held that the chilling effect of regulations (in that
case refusal to grant authorisation) constitutes a limitation
of the
right in article 11.
[84]
In one decision, the Court found with reference to the giving
of notice and authorisation:
“While rules governing public assemblies, such as the system of
prior notification, are essential for the smooth conduct
of public
events since they allow the authorities to minimise the disruption to
traffic and take other safety measures, the Court
emphasises that
their enforcement cannot become an end in itself
.  In
particular, where irregular demonstrators do not engage in acts of
violence the Court has required that the public authorities
show a
certain
degree of tolerance
towards peaceful gatherings.
Consequently, the absence of prior authorisation and the ensuing
‘unlawfulness’ of the action do not give carte blanche
to
the authorities;
they are still restricted by the proportionality
requirement of article 11
.  Thus, it should be established
why the demonstration was not authorised in the first place, what was
the public interest
at stake, and what were the risks represented by
the demonstration.  The methods used by the police for
discouraging the protesters,
containing them in a particular place
and dispersing the demonstration are also an important factor in
assessing the proportionality
of
the interference
.”
[85]
[54]
I return to the meaning of the “degree of tolerance”
required by the State when dealing with unlawful, yet peaceful
protests below.  But for now, it suffices to underscore the
point that criminalising the failure to give notice for a peaceful

assembly quite clearly constitutes a limitation of the right to
assemble freely.
[55]
In concluding this part of the limitation analysis, it is
necessary to emphasise one issue of fundamental importance.  It
is
this: what has been said on this topic must in no way be
understood to imply that the right in section 17 must be exercised
otherwise
than peacefully and unarmed.  As this Court noted in
Garvas
, it is only when those convening and participating in a
gathering harbour intentions of acting violently will they forfeit
their
right.
[86]
And so long as they act within the parameters prescribed for the
exercise of this important right they will be assured of

constitutional protection.  But not otherwise.
[56]
The question to which I now turn is whether the limitation of
the right in section 17 by section 12(1)(a) is justifiable.
The justification
analysis
[57]
The limitation of a right in the Bill of Rights needs to be
justified under section 36.  This justification analysis
“requires
a weighing-up of the nature and importance of the
right(s) that are limited together with the extent of the limitation
as against
the importance and purpose of the limiting enactment”.
[87]
This weighing-up must give way to a “global judgment on
[the] proportionality” of the limitation.
[88]
It is also well-settled that the onus is on the respondents to
demonstrate that the limitation is justified.
[89]
[58]
Section 36 of the Constitution lists factors that bear on this
proportionality assessment.  These factors include—
(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.
[59]
The word “including” in section 36 implies that
the list is not exhaustive.  Each of these factors is considered

in turn.
The nature of the
right in section 17
[60]
The right to assemble, demonstrate, picket and present
petitions is entrenched in section 17 of the Constitution.  It
provides:
“Everyone has the right, peacefully and unarmed, to assemble,
to demonstrate, to picket and to present petitions.”
[61]
The indisputable value and importance of this right was
underscored by this Court in
Garvas
.  There, Mogoeng CJ,
writing for the majority, said:
“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.”
[90]
[62]
Accordingly, section 17 provides for a solemn undertaking to
citizens and non citizens alike that everyone has a right,
peacefully
and unarmed, to assemble, demonstrate, picket and present
petitions.  The language in section 17 is unambiguous: everyone
has a right to engage in any of the activities that it spells out.
“Everyone” is a word of wide import.  In
its
ordinary sense it is all-inclusive.  The only internal qualifier
contained in this constitutional provision is that anyone
exercising
this fundamental right must do so peacefully and unarmed.
[63]
The observation of Jafta J in
Garvas
has special
resonance in the context of this case.  He said:
“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 exert
influence lies in
the numbers of participants in the assembly.  These rights lie
at the heart of democracy.”
[91]
[64]
It is true that barely a quarter of a century ago we emerged
from an era in which a substantial majority of the citizenry was
denied
their inalienable right to participate in the affairs of their
country.  They were afforded virtually no avenue through which

to express their views and aspirations.  Taking to the streets
to vent their frustration was the only viable avenue they had.

It mattered not during the reign of the apartheid regime that their
gatherings were peaceful.  They were ruthlessly crushed
without
any regard for the legitimacy of the grievances underlying their
protests.
[65]
South Africa’s pre-constitutional era was replete with
draconian legislation that, in an attempt to preserve the apartheid

political order, punished people for assembling when it did not suit
the State.  The High Court in
Tsoaeli
recalls how Acts
such as the
Riotous Assemblies Act,
[92]
the Suppression of Communism Act
[93]
and the Internal Security Act
[94]
were used to suppress anti-apartheid assemblies.
They did so by giving the State sweeping, unchecked powers to
prohibit gatherings
that were contrary to “public order”.
[95]
Yet the history of supressing assembly stretches
even further back.  For example, section 1(12) of the
Riotous
Assemblies and Criminal Law Amendment Act,
[96]
as amended in 1930, provided:
“Whenever the Minister is satisfied that any person is in any
area promoting feelings of hostility between the European inhabitants

of the Union on the one hand and any other section of the inhabitants
of the Union on the other hand, he may by notice under his
hand,
addressed and delivered or tendered to such person prohibit him,
after a period stated in such notice being not less than
seven days
from the date of such delivery or tender, and during a period
likewise stated therein, from being in any area defined
in such
notice.”
[66]
In
Sachs
,
[97]
the applicants had been served with notices prohibiting them from
being present in most of (what was then) the Transvaal for a
period
of 12 months.  The reason for this notice – and the reason
the applicants had been deemed by the Minister to
be “promoting
feelings of hostility between Europeans and Natives” –
was because the applicants were alleged
to have been associated with
“communist” gatherings and activities.  Needless to
say, given the legal policy of
the time, the then Appellate Division
unanimously dismissed the applications to review the Minister’s
decision to ban
the applicants from the area defined.
[67]
These Acts and cases are not recounted for historical nicety.
As the Chief Justice held in
Garvas
:
“
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.
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.
”
[98]
[68]
South Africa has come a long way since
Sachs
.  Towards
the demise of the apartheid era, the then incumbent President
appointed the Goldstone Commission to enquire into
public violence
and the regulation of assemblies.  This Commission spawned the
Act, which was an attempt to relax the constrictive
regulation of
assembly by the apartheid government.
[99]
[69]
Nowadays, progressive constitutional democracies, including
our own, recognise that the right to freedom of assembly “is
central
to . . . constitutional democracy”.
[100]
People who lack political and economic power have only protests
as a tool to communicate their legitimate concerns.  To
take
away that tool would undermine the promise in the Constitution’s
preamble that South Africa belongs to
all
who live in it, and
not only a powerful elite.  It would also frustrate a stanchion
of our democracy: public participation.
[101]
This is all the more pertinent given the increasing rates of
protest in constitutional South Africa lately.
[102]
[70]
Moreover, the right to freedom of assembly enables people to
exercise or realise other rights.  This is borne out by what
this
Court said in
SANDU
, where O’Regan J writing for
the majority, explained this intersection between various rights
afforded by the Constitution
thus:
“[F]reedom of expression is one of a ‘web of mutually
supporting rights’ in the Constitution.  It is closely

related to freedom of religion, belief and opinion (section 15),
the right to dignity (section 10), as well as the right to
freedom of
association (section 18), the right to vote and to stand for public
office (section 19) and the right to assembly (section
17).  These
rights taken together protect the rights of individuals not only
individually to form and express opinions, of
whatever nature, but to
establish associations and groups of like-minded people to foster and
propagate such opinions.  The
rights implicitly recognise the
importance, both for a democratic society and for individuals
personally, of the ability to form
and express opinions, whether
individually or collectively, even where those views are
controversial.”
[103]
[71]
This has been echoed by this Court and the Supreme Court of
Appeal on multiple occasions; freedom of assembly is directly linked

to the rights to freedom of speech, freedom of religion, dignity,
freedom of association, and to stand or vote for public office.
[104]
A most recent example of the intersection between the right in
section 17 and other rights is
Hotz
.
[105]
In that case this Court acknowledged that protest (albeit in
that case a violent protest) was employed by students to assert
their
right to further education.
[106]
In this case, the applicants relied on their right to assemble
peacefully to demonstrate that their other rights regarding
access to
sanitation were not being fulfilled by the City of Cape Town.
To limit the right to freedom of assembly therefore
poses a real risk
of this proliferating into indirect limitations of other rights.
[72]
The first amicus curiae, Equal Education, drew this Court’s
attention to how the right to freedom of assembly has distinct

importance for children.  Courts are required to consider the
effect their orders will have on the interests and rights of

children.
[107]
Ordinarily, the paramountcy of the best interests of children
as entrenched in section 28(2) of the Constitution would

constitute a distinct cause of action for challenging
legislation.
[108]
But in the context of this case, which is primarily pegged on
the right in section 17, the impact of section 12(1)(a) on
children
should form an integral part and focal point of the justification
analysis.  In particular, it must be emphasised
that for
children, who cannot vote, assembling, demonstrating, and picketing
are integral to their involvement in the political
process.  By
virtue of their unique station in life the importance of the section
17 right has special significance for children
who have no other
realistic means of expressing their frustrations.  Indeed, this
is internationally acknowledged in instruments
such as the United
Nations Convention on the Rights of the Child and the African Charter
on the Rights and Welfare of the Child
which specifically protect the
child’s right to express its views and to participate in public
life.
[109]
[73]
As is manifest from the foregoing discussion on international
law, South Africa is not alone in entrenching and placing a high
premium
on the right to freedom of assembly.  The right is
widely regarded as a cornerstone to any democratic society.
The importance of
the purpose of the limitation
[74]
The respondents submitted that the purpose of the limitation
is ultimately to ensure peaceful protests.  They explain that
notice allows for proper planning for the deployment of police, and
that the deployment of police in turn reduces the risk of disruptive

protests.  Not giving notice or giving inadequate notice, it was
argued, undermines the police’s ability for effective

monitoring of gatherings to avert possible violence.
[75]
Salutary though this purpose may be, its importance is
undercut by at least four fundamental considerations.  First,
the respondents
invoke, at least in part, a lack of resources to
justify the need for section 12(1)(a).  Their argument is that
the police
lack resources to such an extent that the risk of
unnotified gatherings must be mitigated through one of the harshest
possible
ways—criminalisation and punishment.
[76]
Ordinarily,
[110]
a lack of resources or an increase in costs on its own cannot justify
a limitation of a constitutional right.
[111]
The reason for attaching less weight to a lack of resources as
a purpose for limiting rights is beyond question.  Respecting,

promoting, and fulfilling human rights comes at a cost, and that cost
is the price the Constitution mandates the State to bear.

Albeit in a different context, this Court in
Tsebe
held:
“We as a nation have chosen to walk the path of the advancement
of human rights. . . .
This path that we, as
a country,
have chosen for ourselves is not an easy one.  Some
of the consequences that may result from our choice are part of the
price
that we must be prepared to pay as a nation for the advancement
of
human rights and the creation of the kind of
society and world that we may ultimately achieve if
we abide
by the constitutional values that now underpin our new society since
the end of apartheid.”
[112]
[77]
This is especially so when, as in this case, the State has not
provided evidence demonstrating exactly to what extent costs will

increase if section 12(1)(a) is declared unconstitutional.
[113]
This Court is left none the wiser as to what would happen if the
incentive for giving notice were removed entirely, or if
other ways
of incentivising notice were adopted by the Legislature.
[114]
There was a paucity of information on the relation between the
incentive to give notice, the actual giving of notice, the
frequency
of violence at unnotified protests, and the attendant costs incurred
by SAPS should the incentivising mechanism of section
12(1)(a) with
its penal condemnation be removed from the Act.  This
significantly deflates the importance of the purpose behind
section
12(1)(a).
[78]
Second, there is a tenuous link between the criminalisation
and the achievement of section 12(1)(a)’s ultimate purpose of
preventing violent protests.  This is discussed fully in
paragraph 93 below.  In this regard, the State conceded that
the
section may be overbroad in criminalising a lack of notice at
peaceful protests.
[79]
Third, section 12(1)(a) apparently seeks to reduce what may
already be high levels of criminal activity during protests.
This
Court cannot ignore the levels of violence witnessed in recent
protests in South Africa.
[115]
Reducing these crime levels, which the respondents argued is what
section 12(1)(a) seeks to achieve, is undoubtedly a legitimate
aim.
Violent protests implicate the rights of those in the vicinity of the
gathering, the police attempting to manage the
protest, and the
participants themselves.  Yet almost two decades ago this Court
warned that—
“[a]lthough the level of criminal activity is clearly a
relevant and important factor in the limitations exercise undertaken

in respect of section 36, it is not the only factor relevant to that
exercise.  One must be careful to ensure that the alarming
level
of crime is not used to justify extensive and inappropriate invasions
of individual rights.”
[116]
[80]
This warning resounds against a backdrop of increased
incidents at protests, often where there are high numbers of civilian
casualties
and rights’ violations.
[117]
Nevertheless, it cannot be right for the State, in responding to this
regrettable phenomenon, to employ heavy-handed countermeasures
that
unduly limit the right in section 17 and other rights.  The
critical question always is how best to strike a balance
between the
exercise of the entrenched rights and ensuring a safe and secure
environment.
[81]
Finally, it also means that the respondents have not argued
that the failure to give notice is indefensible in a constitutional
democracy and should therefore be punished for that reason.  The
respondents submitted that failure to give notice increases
the risk
of violence, and so notice should be incentivised.  They did not
attempt to argue that this escalation of risk is
culpable to the
extent that it should be criminalised.  To do so would have been
difficult because, as explained above, there
was a paucity of
information about the relation between failure to give notice and the
increased risk of violence.  Instead,
crime and punishment are
resorted to solely for their deterrent effect, so that a legitimate
procedural requirement (the giving
of notice) is complied with.
The nature and
extent of the limitation
[82]
It is by now well-settled that the more severe a limitation
is, the more powerful the justification for that limitation needs to

be.
[118]
The severity of a limitation is established by considering the impact
the limitation has on the right in question, the social
position of
those affected by the limitation,
[119]
and whether the limitation is mitigated at all.
[120]
[83]
The limitation in issue in this application is severe for four
reasons.  The first reason is that the definitions of gatherings

and conveners are broad.
[121]
These broad definitions expand the scope of criminal liability
for contravening section 12(1)(a) in two respects.
[84]
Firstly, convening innocuous assemblies without notice will be
a crime because of how broadly a gathering is defined.  Convening

any assembly of more than 15 people in a public space to discuss
“principles, policies, actions or failure to act of
any
government, political party, or political organisation” without
notice is a crime.  This could extend, as Woolman
notes, to
“every convenor of a church convocation in a public park—during
which issues of moment may be debated and
the considered opinion of
the community canvassed”.
[122]
[85]
This breadth and, by all accounts, legislative overreach,
point to how section 12(1)(a) results in criminalisation without
regard to the effect of the protest on public order.  This
exacerbates the severity of the limitation.  Multiple
international
legal bodies have condemned the categorical
criminalisation of the failure to comply with notice requirements.
Instead, the
apparent standard required under international law is
that every infringement of the right to freedom of assembly must be
linked
on the facts
to a legitimate purpose.
[123]
Thus, restrictions that are blanket in nature – that
criminalise gatherings “as an end in itself” –

invariably fall foul of being legitimate.
[124]
Such restrictions will encroach on the right without linking the
restriction to a legitimate purpose in every instance of

encroachment.  To avoid this, restrictions need to be context
and fact-sensitive.  That section 12(1)(a) does not do
so speaks
to its unconstitutionality.
[86]
Secondly, where a convener is not appointed under section 2,
anyone who “has taken
any
part in planning or organising
or making preparations for that gathering”, however marginal
their participation might be,
could be criminally liable.
[125]
The same applies to anyone who by themselves “or through
any other person, either verbally or in writing, invited the
public
or any section of the public to attend that gathering”.
[126]
The reach of criminal liability under section 12(1)(a) is thus
exceedingly broad, which aggravates the extent of the limitation
of
section 17.
[87]
The second reason why section 12(1)(a) imposes a severe
limitation is that criminalisation has a “calamitous effect”

on those caught within its wide net.
[127]
The possibility of arrest and its aftermath, even without
conviction, is a real “spectre” for those seeking to

exercise their section 17 right.
[128]
If convicted, those concerned face punishment, moral
stigma,
[129]
and a criminal record for at least ten years.  All of these
deleterious consequences of criminalisation severely discourage
–
and thus limit – the exercise of the section 17 right.
[88]
Third, there is a widespread chilling effect that extends
beyond those who convene assemblies without notice.  A criminal
sanction
deters others from acting similarly to a convicted criminal.
So people may be deterred from convening a gathering and
prospective
attendees might be dissuaded lest they too be deemed to
have convened the gathering without notice.
[89]
Finally, the limitation does not distinguish between adult and
minor conveners.  This means that children – who may not

even know about the notice requirements in the Act or have the
resources to adhere to the notice requirement – are
indiscriminately
held criminally liable if they fail to give notice
before convening a gathering.  This Court has acknowledged how
exposing
children to the criminal justice system – even if
diverted under the Child Justice Act
[130]
– is traumatic and must be a measure of last resort.
[131]
To expose children to criminal liability, as section 12(1)(a)
does, therefore severely exacerbates the extent of the
limitation.
Accordingly, to subject children to the full rigour of the penal
sanction for which section 12(1)(a) provides,
given their
vulnerability and lack of self-restraint in comparison to adults,
cannot be justified on any rational basis.
[90]
The respondents argued that the defence afforded in section
12(2) and the ease of giving notice mitigate the severity of the
limitation.
True, the severity of the limitation is mitigated
by the defence of spontaneity and the relative ease of giving notice.
But
the viability of this mitigation must not be exaggerated.
First, the defence of spontaneity will be unavailable to most
conveners,
because convening entails an element of planning.  It
will only avail a limited class of conveners who arranged a
demonstration,
when that demonstration turned into a gathering
without any reasonable foresight on their part.  In any event,
it will not
be available to people who planned a peaceful, unarmed
gathering without prior notice.  Such conveners’
section 17
right will still be severely limited.  In a
sense therefore, the defence of spontaneity is more illusory than
real.
[91]
Second, section 3(2), by default, requires notice to be given
a week in advance.  Section 3(3) requires a long list of details

to be provided in the notice.
[132]
For a notice to be adequate would thus require considerable
effort on the part of the convener, first to familiarise herself
with
the provisions of the Act, and to satisfy the requirements of section
3.  And even if they give notice, if their notice
is inadequate,
then the convener is still criminally liable under section 12(1)(a).
The fact that on conviction, the sentencing
court may take the
attempt to give adequate notice as a strong mitigating factor
warranting the most lenient sentence available
does not detract from
the fact that the convener will have to live with a criminal record
and its attendant dire consequences.
The relation
between the limitation and the purpose
[92]
This factor entails assessing whether the limiting means
employed are rationally related to, or reasonably capable of
achieving
the purpose of the limitation.
[133]
[93]
As explained above, the respondents argued that the ultimate
purpose behind section 12(1)(a) is to ensure police presence in
sufficient
numbers to manage the gathering and prevent violence.
But the link between the criminalisation of not giving notice and
preventing
violent protests through police presence is not a “tight
fit”.
[134]
Someone could be criminalised for failing to give notice, and
yet police presence to prevent violence at the gathering was
not
necessary; sometimes notice may not even be required but police
presence to prevent violence will be.  This is because
the
requirement to give notice turns on there being more than 15 people;
but a disruptive protest does not turn on the number 15.
There
appears to be no intrinsic magic in the number 15, but this is an
issue that need not detain us in the context of this
case.
[135]
This is not to say that there is a problem with requiring a prior
notice for a gathering of more than 15 people.  It
is more to
say that the limitation in question (the criminalisation of a failure
to give notice) is neither sufficient nor necessary
for achieving the
ultimate purpose of that limitation (peaceful protests through police
presence).
[94]
As to section 12(1)(a)’s more immediate purpose –
incentivising the giving of notice through the threat of punishment
–
there is no doubt that criminalising the failure to give notice
incentivises the giving of notice to some extent.
[136]
But criminalisation is not necessary to incentivise the giving of
notice.  It is to this latter factor that I now turn.
Less restrictive
means
[95]
A limiting means is unlikely to be proportional if less
restrictive means could be used to achieve the same purpose.
[137]
The existence of less restrictive means does not necessarily
render a provision unconstitutional, but it is an important

consideration to be weighed up in the proportionality analysis.
[138]
[96]
The applicants and amici curiae identified various less
restrictive means to incentivise the giving of notice under the Act.
These
are—
(a) notice assures the conveners that the police cannot restrict the
protest under section 9(1)(c);
(b) civil liability for riot damage under section 11 that follows
from a failure to take reasonable steps to prevent the damage
(which
includes giving notice);
(c) existing common law and statutory crimes regarding public
disruption and violence;
(d) enhanced civil liability for conveners who fail to give notice;
(e) administrative fines; and
(f) amending the definition of gathering such that notice is only
required when police presence will be necessary.
[97]
The respondents advance two responses to these less
restrictive means.  First, that none of these place criminal
liability
at the foot of the convener for failing to give notice.  It
may be true that there is no other way of punishing a convener
for
failing to give notice other than criminalising such a failure.
But this was not the mainstay of the respondents’
case.
As explained above, the argument was not that failure to give notice
should be criminalised regardless of whether it
deters the failure to
give notice.  Instead, the argument is that the purpose behind
section 12(1)(a) is to criminalise failure
to give notice precisely
because it incentivises the giving of notice.  Thus to argue
that no other means can punish the convener
is to change the purpose
of section 12(1)(a) to a purpose that was not substantiated on
the papers before us.  No argument
was made as to why failure to
give notice should be criminalised independently of encouraging
conveners to give notice.
[98]
In any event, the argument loses sight of how conveners who
form a common purpose with or are accomplices to crimes committed in

a protest would also incur criminal liability.
[99]
The respondents’ second response is that the applicants
have failed to provide evidence of how these less restrictive means

incentivise notice as effectively as the criminal sanction does.
This argument is misplaced.  The onus is on the
respondents
to prove that the limitation created by section 12(1)(a)
is justified.
[139]
In that event, there is no reason to think why the less
restrictive incentives identified by the applicants and amici will

not work just as well as criminalisation, without the far reaching
consequences flowing from a conviction.
[100]
On the contrary, the applicants and amici curiae have referred
the Court to foreign jurisprudence and law where these less
restrictive
means – particularly administrative fines –
are effectively employed.
[140]
For present purposes, I find it unnecessary to consider the
question whether administrative fines in particular, depending
on the
scheme within which they are enforced, could be unconstitutional.
This was not part of the applicants’ case.
Conclusion
[101]
In balancing the above factors, it becomes clear that section
12(1)(a) is not “appropriately tailored” to facilitate

peaceful protests and prevent disruptive assemblies.
[141]
The right entrenched in section 17 is simply too important to
countenance the sort of limitation introduced by section 12(1)(a).

Moreover, the nature of the limitation is too severe and the
nexus between the means adopted in section 12(1)(a) and any

conceivable legitimate purpose is too tenuous to render section
12(1)(a) constitutional.  This is even more so when regard
is
had to the existence of less restrictive means to achieve section
12(1)(a)’s purpose.  Consequently, this Court can
only
conclude that section 12(1)(a) is unconstitutional.  In these
circumstances, the underlying reasoning in the judgment
of the High
Court is correct.  It therefore follows that the High Court’s
declaration of constitutional invalidity must
be confirmed subject to
some semantic and yet consequential variations to be reflected in the
order below.
Remedy
[102]
The applicants asked this Court to declare section 12(1)(a)
unconstitutional with immediate and retrospective effect.  In
their
answering papers, the respondents did not specifically oppose
this remedy or suggest an alternative remedy should this Court find

that the section is unconstitutional.  But at the hearing, the
respondents sought to persuade this Court to suspend its declaration

of invalidity and craft an interim order if it finds that the section
is unconstitutional.  Pursuant to this, this Court afforded
the
parties an opportunity to file further written submissions on the
issue of remedy.
[103]
The respondents’ submissions on remedy rest on three
legs.  First, they submit that section 12(1)(a), on the
applicant’s
case, would only be unconstitutional insofar as the
gathering convened is peaceful and unarmed.  Therefore, to
criminalise
the convening of violent or armed gatherings would be
constitutional, as such gatherings fall outside the ambit of the
right in
section 17.  Accordingly, this Court’s declarator
of unconstitutionality must be limited to the criminalisation of
convening
a peaceful and unarmed gathering.
[142]
Second, this Court’s declaration of invalidity should be
suspended for 24 months to allow Parliament to amend the Act.

Third, in the interim, this Court must read two new elements into
section 12(1)(a).  The first is that section 12(1)(a)
must
have a caveat read into it so that only the convening of gatherings
that are violent or armed is criminalised.  The respondents

argue that this would then give effect to the declaratory order made
by this Court that section 12(1)(a) is only unconstitutional
to
the extent that it criminalises the convening of peaceful and unarmed
assemblies.  The second element would be to read
in liability
for failure to give notice in the form of an administrative fine.
They explain that this is to ensure that there
is sufficient
incentive for conveners to give notice, notwithstanding whether their
gatherings are peaceful.
[104]
As the applicants and the first amicus curiae submitted each
of these legs cannot be sustained.  The first leg, regarding the

scope of the declaratory order, does not account for what this Court
held in
Garvas
.  In that matter, this Court held that the
right in section 17 is limited where conveners with peaceful
intentions are deterred
from convening gatherings because of the risk
that the gathering may turn violent, and that they in turn, as
conveners, are sanctioned.
[143]
This means that section 12(1)(a), even if it contains a caveat that
conveners whose gatherings are peaceful and unarmed are
not
criminalised, will still limit the right in section 17.
Conveners with peaceful intentions will be deterred from
exercising
their right in section 17 lest the gathering turns violent and they
(as conveners) are held criminally liable.  The
respondents have
not then explained why or how this limitation would be
justifiable.
[144]
On the contrary, many of the reasons traversed above,
especially regarding the breadth of the definitions of “convener”

and “gathering”, suggest that this limitation would still
severely limit the right in section 17.  The further

problem with the submission is how “peaceful” would be
defined in the criminal context.  There are also complex

questions that come to the fore as to whether liability should be
strict, and whether there needs to be an element of causation
between
the failure to give notice and the ensuing violence.  For these
reasons, this Court will not limit its declaratory
order as sought
for by the applicants.  It declares below that section 12(1)(a)
is unconstitutional in its entirety, because,
on the case before this
Court, the criminalisation of convening gatherings is
unconstitutional—regardless of whether the
subsequent gathering
is violent.
[105]
The respondents’ second leg similarly falls to be
rejected.  On the facts of this case there is no need to suspend
the
declaration of constitutional invalidity.  Ordinarily, an
order declaring legislation invalid is suspended only if: (a) the

declaration of invalidity would result in a legal lacuna that would
create uncertainty, administrative confusion or potential hardship;

(b) there are multiple ways in which the Legislature could cure the
unconstitutionality of the legislation; and (c) the right in
question
will not be undermined by suspending the declaration of
invalidity.
[145]
In the context of the facts of this case, no lacuna would
result if the declaration took immediate effect.  As explained

above, there is a variety of existing incentives in the Act for the
giving of notice.  There are also multiple ways in which

Parliament could cure the defect in the Act and regulate gatherings
in a constitutionally compliant manner.  Furthermore,
the right
to assemble peacefully and unarmed, as explained above, is too
important, and the violation of the right by section 12(1)(a)
is too
severe, for section 12(1)(a) to be countenanced in light of its
invalidity.
[106]
Nor, apropos the third leg, is a reading down of section
12(1)(a) an option that commends itself for adoption, which also
speaks
against suspending the declaratory order made by this Court.
The respondents’ suggestion that this Court reads in liability

for administrative fines if a convener fails to give notice is not a
just and equitable remedy.  As explained above, it may
be that
administrative fines are also unconstitutional.  This would
depend on the finer details of the administrative fining
system,
including most obviously the magnitude of fines and the consequences
of failing to pay the fine.  As already indicated,
this is a
matter best left to the Legislature.  It is also unclear why in
this case, as submitted by the respondents, this
Court should
delegate to the Minister the duty to construct those finer details in
regulations.  All of these factors underscore
one thing: a
decision of the kind suggested by the respondents is intrinsically
polycentric and must be left to Parliament to take.
[107]
In addition, there are two fundamental reasons as to why this
Court ought to decline the respondents’ invitation to suspend

the declaration of constitutional invalidity coupled with some
reading in of certain words to section 12(1)(a) to align it with

constitutional imperatives.  First, the respondents’
argument is premised on an unproven assumption.  The assumption

is that unnotified gatherings are inherently prone to becoming
violent.  The implication of this submission is that gatherings

that have been notified would necessarily be peaceful.  There
was scant evidence put forward by the respondents to underpin
this
assertion.  Second, were this Court inclined to substitute
administrative fines for a criminal sanction it would be encroaching

on the pre-ordained constitutional province – and exclusive
domain – of the Legislature.  The sort of decision

required of this Court by the respondents is laden with policy
considerations that call for judicial deference.
[108]
It will be up to the Legislature to revisit the Act, if so
minded, in whatever manner it sees fit.  As this Court
acknowledged
for good reasons in
Dawood
, it is ordinarily
appropriate “to leave the Legislature to determine in the first
instance how the unconstitutionality should
be cured.  This
Court should be slow to make those choices which are primarily
choices suitable for the Legislature”.
[146]
What is more, there is also an imponderable factor at play here.
It is this.  If administrative fines are the
way to go, should
the process adopted to address the defect in the Act involve public
participation? If so, how should the public
views be canvassed and
collated? What form should public participation take?  Bearing
these in mind, it becomes manifest that
this Court is ill-equipped to
address those questions.  Accordingly, this issue deserves to be
“subjected to critical
debate” by public representatives
and the citizenry rather than being left to this Court for
determination.  Thus, all
of these imponderables ineluctably
mean that it is proper for this Court to show deference to the
Legislature.
[109]
And, even more, as Mogoeng CJ pointed out in
Mhlope
:
“Separation of powers requires that courts should be cautious
not to intrude into the otherwise exclusive domain of other
arms of
the State unless it is constitutionally permissible to do so.”
[147]
As already explained
above, this is not a case that would justify encroachment into the
domain of the Legislature.
[110]
In these circumstances, I can conceive of no reason why this
Court’s disinclination to suspend the declaration of invalidity

could result in any administrative dislocation.
[148]
Nor of any other considerations that militate against granting an
order with retrospective effect.
[149]
But the operation of the order will be limited to cases that have not
been finalised or in relation to which review or appeal
avenues are
still open in terms of the applicable legislation or court rules.
Costs
[111]
There is no reason why the general rule that costs should
follow the event ought not to apply in this matter.  Thus, the
applicants
– but not the amici curiae – are entitled to
their costs.  Costs of two counsel will be allowed.
Order
[112]
In the result, the following order is made:
1. The appeal of the State respondents is dismissed.
2. The declaration by the High Court that section 12(1)(a) of the
Regulation of Gatherings Act 205 of 1993 is constitutionally
invalid
is confirmed to the extent that it makes the failure to give notice
or the giving of inadequate notice by any person who
convened a
gathering a criminal offence.
3. The declaration of invalidity shall not apply with retroactive
effect and shall not affect finalised criminal trials or those
trials
in relation to which review or appeal proceedings have been
concluded.
4. The appeals of the applicants against their convictions in the
Cape Town Magistrates’ Court for contravening section

12(1)(a) of the Regulation of Gatherings Act 205 of 1993 are upheld
and the resultant convictions and sentences are set aside.
5. The Minister of Police is ordered to pay the costs of the
applicants in this Court, including the costs of two counsel.
For
the Applicants:

M Bishop and P Mdakane instructed by Legal Resources Centre.
For
the First and Second Respondent:

K Pillay and M Mokhoaetsi instructed by State Attorney.
For
the First Amicus Curiae:

N Luthuli instructed by Equal Education Law Centre.
For
the Second Amicus Curiae:

G Budlender SC and M Vassen instructed by Webber Wentzel.
For
the Third Amicus Curiae:

B Lekokotla, M Mbatha and M Matlapeng instructed by Seri Law
Clinic.
[1]
205 of 1993.
[2]
The section reads: “Any person or organ of state with a
sufficient interest may appeal, or apply, directly to the
Constitutional
Court to confirm or vary an order of constitutional
invalidity by a court in terms of this subsection”.
[3]
10 of 2013.
[4]
This being an application for confirmation of the High Court’s
order of constitutional invalidity, this Court’s jurisdiction

is engaged.  The High Court’s decision is reported as
Mlungwana v S
[2018] ZAWCHC 3
;
2018 (1) SACR 538
(WCC);
[2018] 2 All SA 183
(WCC) (High Court judgment).  The order of
the High Court reads:
“1. The appellants’ appeal against conviction is upheld
and the convictions are hereby set aside.
2. Section 12(1)(a) of the Act is hereby declared unconstitutional.
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.”
[5]
See section 172(2)(d) of the Constitution.
[6]
Long title of the Act.
[7]
The preamble reads:
“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.”
[8]
Section 1 definition of “demonstration”.
[9]
Section 1 definition of “gathering”.
[10]
Note however that section 3(1) provides that if a convener is not
able to reduce a proposed notice to writing, then the responsible

officer at her request shall do it for her.
[11]
The only exception is if the demonstration is near certain
government buildings in terms of section 7.
[12]
Para (a) of the section 1 definition of “convener”.
[13]
Para (b) of the section 1 definition of “convener”.
Section 2(1)(a) imposes a general duty on an organisation
intending
to hold a gathering to appoint a convener and a deputy convener.
After such appointment, the organisation is
obliged under section
2(1)(b) to notify the responsible officer of the relevant local
authority of the convener’s name
and address.
[14]
Id.
[15]
This is discussed below at [83].
[16]
Section 3(1) and 3(2).  If there is no functioning local
authority, then notice must be given to a Magistrate within whose

jurisdiction the gathering falls.  See section 3(4).
[17]
Section 2(4).
[18]
Section 3(1).  If the convener cannot give notice in writing,
the responsible officer shall do so on request.
[19]
Section 3(3).  These details are:
“(a) The name, address and telephone and facsimile numbers, if
any, of the convener and his deputy;
(b) the name of the organisation 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.”
[20]
Section 3(3)(i).
[21]
Section 3(2).
[22]
Section 4(1).  This decision is taken after consultation with
an authorised member of the police.
[23]
Section 4(2)(b).
[24]
Section 4(2)(c).
[25]
Section 4(2)(d).
[26]
Section 2(2) of the Act which states that an authorised member of
SAPS is a suitably qualified policeperson who is appointed
to
represent the police at negotiations under the Act.
[27]
But these conditions can only pertain to ensure the following: that
vehicular or pedestrian traffic, especially during traffic
rush
hours, is least impeded; an appropriate distance between
participants in the gathering and rival gatherings; access to
property and workplaces; or the prevention of injury to persons or
damage to property.  See section 4(4)(b).  Contravention

of such conditions is an offence under section 12(1)(d).
[28]
Section 3(5)(b).
[29]
Section 3(5)(c).  The responsible officer can also take
whatever steps they deem necessary, including obtaining the
assistance
of the police, to identify the convener.
[30]
Section 4(1) provides that:
“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 authorised
member regarding the necessity for negotiations on any aspect of the
conduct
of, or any condition with regard to, the proposed
gathering.”  (Emphasis added.)
[31]
Section 4(2)(b).
[32]
It is unclear whether the convener could still be guilty of the
offence in section 12(1)(a) if the convener at this stage agrees
to
participate in the negotiations and the gathering goes ahead under
those conditions.  But it is unnecessary for this
Court to make
a definitive determination in this regard.
[33]
Section 12(2).
[34]
A Full High Court has found so in
Tsoaeli v S
2018 (1) SACR
42
(FB) at para 42.
[35]
Section 12(1)(e).
[36]
Section 3(2).
[37]
It can also be prohibited under section 7, but section 7 is
irrelevant for the purposes of this case.
[38]
Section 5(2).  The decision to prohibit a gathering or impose
conditions on a gathering can be taken on review to a Magistrates’

Court by the convener of the gathering.  See section 6(1).
[39]
As courts are required to do under section 39(2) of the
Constitution.
[40]
S v Weinberg
1979 (3) SA 89
(A); All SA 137 (A) at
105C–E;
R v Sachs
1953 (1) SA 392
(A) at 399H;
Dadoo
Ltd v Krugersdorp Municipal Council
1920 AD 530
at 552
[41]
Tsoaeli
above n 34 at para 35.
[42]
The section regulates, among other things, the appointment of
marshals at the gathering, the prohibition of possessing dangerous

weapons at the gathering, and the prohibition of hate speech or
incitement at the gathering.
[43]
Section 12(1)(c).
[44]
Section 9(1) provides that “[i]f a gathering or demonstration
is to take place,
whether or not in compliance with the
provisions of this Act
, a member of the Police” may invoke
various powers.
[45]
Section 9(1)(b).
[46]
Section 9(1)(c).
[47]
Section 9(1)(f).
[48]
Police can only order a gathering to disperse, regardless of notice
being given, in circumscribed instances. Section 9(2)(a)
requires a
member of  SAPS of or above the rank of warrant officer to have
reasonable grounds to believe that danger to
persons and property,
as a result of the gathering or demonstration, cannot be averted by
the steps referred to in subsection
(1) (which range from
negotiation to diversion) before they can order a crowd to disperse.
[49]
Section 12(1)(j).
[50]
Section 11(1).
[51]
Section 11(2).
[52]
Sections 9(3), 11(4) and 13(1).
[53]
Open Society was admitted as amicus curiae in the High Court.
Right2Know were admitted in their stead before this Court.
[54]
The Civic Centre houses the offices of the City of Cape Town.
[55]
51 of 1977.
[56]
See
S v Zinn
1969 (2) SA 537
(AD) at 540G-H.
[57]
High Court judgment above n 4 at para 42.
[58]
Id at paras 46-7.
[59]
Id at para 82.
[60]
Id at para 93.
[61]
Id at para 56.
[62]
Van der Merwe v Road Accident Fund
[2006] ZACC 4
;
2006 (4) SA
230
(CC);
2006 (6) BCLR 682
(CC) at para 21.
[63]
Director of Public Prosecutions, Transvaal v Minister for Justice
and Constitutional Development
[2009] ZACC 8
;
2009 (4) SA 222
(CC);
2009 (7) BCLR 637
(CC) at para 61.
[64]
S v Walters, In re: Ex parte Minister of Safety and Security
[2002] ZACC 6
;
2002 (4) SA 613
(CC);
2002 (7) BCLR 663
(CC)
(
Walters
) at para 26.
[65]
SATAWU v Garvas
[2012] ZACC 13
;
2013 (1) SA 83
(CC);
2012 (8)
BCLR 840
(CC) (
Garvas
) at paras 52-3.  This accords with
the general approach in South African constitutional law
jurisprudence to interpret the
scope of rights broadly.  See
S
v Makwanyane
[1995] ZACC 3
;
1995 (3) SA 391
(CC);
1995 (6) BCLR
665
(CC) (
Makwanyane
) at para 100.
[66]
Garvas
id at para 52.
[67]
Id at para 55.
[68]
Id at paras 57 and 59.
[69]
This is considered in more detail below from [74].
[70]
It is trite that international law must be considered when
interpreting the Bill of Rights, including (albeit with less weight)

non-binding international law.  See section 39(1)(b) of the
Constitution;
Glenister v President of the Republic of South
Africa
[2011] ZACC 6
;
2011 (3) SA 347
(CC);
2011 (7) BCLR 651
(CC) at para 178 fn 28;
Government of the Republic of South
Africa v Grootboom
[2000] ZACC 19
;
2001 (1) SA 46
(CC);
2000
(11) BCLR 1169
(CC) at para 26; and
Makwanyane
above n 65 at
paras 34-5.
[71]
Kivenmaa v Finland
Communication No. 412/1990 UN Doc
CCPR/C/50/D/412/1990 (1994) at para 9.2.
The
United Nations Human Rights Committee
is
the body of
independent
experts
that
monitors implementation of the
International
Covenant on Civil and Political Rights
(ICCPR)
by its State parties.  The Committee can also
consider inter-state complaints and examine
individual
complaints
with
regard to alleged violations of the ICCPR by State parties.
Individual complaints can only be considered if a
State party has
ratified the First Optional Protocol to the ICCPR, as is the
case with South Africa.  The Committee’s
decisions are
deemed “
judicial decisions and the teachings of
the most highly qualified publicists of the various nations, as
subsidiary means for the
determination of rules of law.”  See
article 38(1)(d) of the Statute of the International Court of
Justice and the
Committee’s
General comment no 33,
Obligations of States parties under the Optional Protocol to the
International Covenant on Civil and Political
Rights
, 25 June
2009, UN Doc CCPR/C/GC/33.
[72]
South Africa has ratified the ICCPR.  See
Kaunda v President
of the Republic of South Africa
[2004] ZACC 5
;
2005 (4) SA 235
(CC);
2004 (10) BCLR 1009
(CC) at para 158.
[73]
Kivenmaa
above n 71 at para 9.2.
[74]
Pavel Levinov v Belarus
Communication No 2082/2011 UN Doc
CCPR/C/117/D/2082/2011 (2016) at para 8.3;
Zinaida Shumilina
v Belarus
Communication No 2142/2012 UN Doc
CCPR/C/120/D/2142/2012 (2017) at paras 6.5-6.6;
Anatoly Poplavny
and Leonid Sudalenko
v Belarus
Communication No 2139/2012
UN Doc CCPR/C/118/D/2139/2012 (2016) at paras 8.4-8.6;
Leonid
Sudalenko v Belarus
Communication No 2016/2010 UN Doc
CCPR/C/115/D/2016/2010 (2015) at paras 8.5-8.6;
Sergey Praded v
Belarus
Communication No. 2029/2011 UN Doc
CCPR/C/112/D/2029/2011 (2014) at paras 7.7-7.8.
[75]
Sergei Androsenko v Belarus
Communication No 2092/2011 UN Doc
CCPR/C/116/D/2092/2011 (2016) at para 7.6;
Margarita Korol v
Belarus
Communication No 2089/2011 UN Doc CCPR/C/117/D/2089/2011
(2016) at para 7.6;
Bakhytzhan Toregozhina v Kazakhstan
Communication No 2137/2012 UN Doc CCPR/C/112/D/2137/2012 (2014) at
para 7.6.
[76]
In one decision, the Committee goes so far as to say that “as
the State party has imposed a procedure for organizing mass
events,
it has effectively established restrictions on the exercise of the
rights to freedom of expression and assembly”.
See
Marina Statkevich and Oleg Matskevich v Belarus
Communication
No 2133/2012 UN Doc CCPR/C/115/D/2133/2012 (2015) at para 9.3.
[77]
The right is contained in article 11, which provides:
“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 of these rights by members of
the armed forces, of the police or of the
administration of the
State.”
[78]
Kudrevičius
v Lithuania
[GC], no 37553/05, §
91, ECHR 2015.
The Grand Chamber of the Court (which comprises
17 judges) is the appellate chamber of the Court.  Its
decisions trump
decisions of chamber decisions (which comprise seven
judges).  See articles 26 and 31 of the ECHR.
[79]
Id at § 100.  References omitted.
[80]
Novikova v Russia
, nos 25501/07, 57569/11, 80153/12, 5790/13
and 35015/13, § 106, ECHR 2016.
[81]
Id at § 110.
[82]
Id at § 163.
[83]
Chumak v Ukraine
,  no 44529/09, §
36, ECHR 2018
;
Lashmankin v Russia
, nos 57818/09 and 14 others,
§
404, ECHR 2017
;
Kasparov v Russia
, no 21613/07, §
84, ECHR 2014
;
Nemtsov v Russia
,
no 1774/11, §
72, ECHR 2014
;
Primov v Russia
, no 17391/06, §
116. ECHR
2014
;
Taranenko v Russia
, no 19554/05, §
65, ECHR
2014
;
Shwabe and M.G. v Germany
, nos
8080/08
and
8577/08,
§
103,
ECHR 2012
;
Barraco v France
, no 31684/05,
§
41, ECHR 2009
;
Djavit An v Turkey
, no 20652/92, §
56, ECHR 2003.
[84]
Bączkowski v Poland
,
no 1543/06, § 67,
ECHR 2007.
[85]
Primov
above n 83 at § 118-9.  References omitted.
This was then endorsed by the Grand Chamber in
Kudrevičius
above
n 78 at § 150.
[86]
Garvas
above n 65 at para 53.
[87]
Walters
above n 64 at para 27.
[88]
S v Manamela (Director-General of Justice Intervening)
[2000]
ZACC 5
;
2000 (1) SACR 414
(CC);
2000 (5) BCLR 491
(CC) (
Manamela
)
at para 32. See also
S v Bhulwana; S v Gwadiso
[1995] ZACC
11
;
1996 (1) SA 388
(CC);
1995 (12) BCLR 1579
(CC) (
Bhulwana
)
at para 18.
[89]
Minister of Home Affairs v National Institute for Crime
Prevention and the Reintegration of Offenders (NICRO)
[2004]
ZACC 10
;
2005 (3) SA 280
(CC);
2004 (5) BCLR 445
(CC) at para 34;
Moise v Greater Germiston Transitional Local Council
[2001]
ZACC 21
;
2001 (4) SA 491
(CC);
2001 (8) BCLR 765
(CC) at para 19.
[90]
Garvas
above 65 at para 61.
[91]
Id at para 120.
[92]
17 of 1956.
[93]
44 of 1950.
[94]
74 of 1982.
[95]
Tsoaeli
above n 34 at paras 18-20.
[96]
27 of 1914.
[97]
Sachs v Minister of Justice; Diamond v Minister of Justice
1934
AD 11.
[98]
Garvas
above n 65 at paras 12-3.
[99]
Tsoaeli
above n 34 at paras 23-4.
[100]
Garvas
above n 65 at para 61.
[101]
Doctors for Life International v Speaker of the National Assembly
[2006] ZACC 11
;
2006 (6) SA 416
(CC);
2006 (12) BCLR 1399
(CC)
at para 115.
[102]
Mbazira “Service delivery protests, struggle for rights and
the failure of local democracy in South Africa and Uganda:
Parallels
and divergences”
2013
SAJHR
251
at 266; Omar “A
legal analysis in context: The Regulation of Gatherings Act—a
hindrance to the right to protest?”
2017
SA Crime Quarterly
21 at 22.
[103]
South African National Defence Union v Minister of Defence
[1999] ZACC 7
;
1999 (4) SA 469
(CC);
1999 (6) BCLR 615
(CC) (
SANDU
)
at para 8.  O’Regan J was quoting from
Case v Minister
of Safety and Security, Curtis v Minister of Safety and Security
[1996] ZACC 7
;
1996 (3) SA 617
(CC);
1996 (5) BCLR 608
(CC) at
para 27.
[104]
Democratic Alliance v African National Congress
[2015] ZACC
1
;
2015 (2) SA 232
(CC);
2015 (3) BCLR 298
(CC) (
African National
Congress
) at paras 124-5;
Hotz v University of Cape Town
[2016] ZASCA 159
;
2017 (2) SA 485
(SCA) at para 62.
[105]
Hotz v University of Cape Town
[2017] ZACC 10; 2018 (1) SA
369 (CC); 2017 (7) BCLR 815 (CC).
[106]
Id at para 1.
[107]
Director of Public Prosecutions, Transvaal v Minister for Justice
and Constitutional Development
[2009] ZACC 8
;
2009 (4) SA 222
(CC);
2009 (7) BCLR 637
(CC) at para 74.
[108]
See
Teddy Bear Clinic for Abused Children v Minister of Justice
and Constitutional Development
[2013] ZACC 35
;
2014 (2) SA 168
(CC);
2013 (12) BCLR 1429
(CC) (
TBC
) at para 69.
[109]
Both instruments guarantee the right of the child to protest.
Additionally, article 12(1) of the United Nations Convention
on the
Rights of the Child provides:
“States Parties shall assure
to the child who is capable of forming his or her own views the
right to express those views
freely in all matters affecting the
child, the views of the child being given due weight in accordance
with the age and maturity
of the child.”
[110]
There may of course be exceptions, particularly in the context of
socio-economic rights.
[111]
Lawyers for Human Rights v Minister of Home Affairs
[2017]
ZACC 22
;
2017 (5) SA 480
(CC);
2017 (10) BCLR 1242
(CC) at para 61.
[112]
Minister of Home Affairs v Tsebe, Minister of Justice and
Constitutional Development v Tsebe
[2012] ZACC 16
;
2012 (5) SA
467
(CC);
2012 (10) BCLR 1017
(CC) (
Tsebe
) at para 67.
[113]
Khosa v Minister of Social Development
[2004] ZACC 11
;
2004
(6) SA 505
(CC);
2004 (6) BCLR 569
(CC) at para 62.
[114]
These are considered below from [95].
[115]
See Mbazira and Omar above n 102. See also Marks and Bruce
“Groundhog Day? Public order policing twenty years into
democracy”
2014
SACJ
346
at 351.
[116]
S v Dlamini; S v Dladla; S v Joubert; S v Schietekat
[1999]
ZACC 8
;
1999 (4) SA 623
(CC);
1999 (7) BCLR 771
(CC) at para 68.
[117]
For a fuller account of protest incidents, see Marks and Bruce above
n 115.
[118]
Manamela
above n 88 at para 49.
[119]
Sarrahwitz v Maritz N.O.
[2015] ZACC 14
;
2015 (4) SA 491
(CC);
2015 (8) BCLR 925
(CC) at paras 46 and 63;
Jaftha v
Schoeman; Van Rooyen v Stoltz
[2004] ZACC 25
;
2005 (2) SA 140
(CC);
2005 (1) BCLR 78
(CC) at paras 39 and 43;
Manamela
above n 88 at para 44;
Coetzee v Government of the Republic of
South Africa; Matiso v Commanding Officer, Port Elizabeth Prison
[1995] ZACC 7
;
1995 (4) SA 631
(CC);
1995 (10) BCLR 1382
(CC) at
paras 8, 66 and 67.
[120]
For example, in
Metcash Trading Ltd v Commissioner for the South
African Revenue Service
[2000] ZACC 21
;
2001 (1) SA 1109
(CC);
2001 (1) BCLR 1
(CC) at paras 38, 51 and 58, this Court held that
the temporary nature of the limitation in a provision in the Value
Added Tax
Act 89 of 1991 on the right to access courts mitigated the
severity of the limitation.
[121]
See above at paras 8 and 11 for these definitions.
[122]
Woolman “Assembly” in Woolman and Bishop
Constitutional
Law of South Africa
2 ed (Juta & Co, Cape Town 2003) at 23
fn 81.
[123]
Kivenmaa
above n 71 at § 9.2;
Praded v Belarus
above n 74 at para 7.8;
Malawi African Association v Mauritania
Communication nos 54/91, 61/91, 98/93, 164/97 to 196/97 and 210/98
ACHPR (11 May 2000) at para 111; African Commission on Human
and
Peoples’ Rights Report of the Study Group on Freedom of
Association and Assembly in Africa (2014) at 62 para 10;
Oya
Ataman v Turkey
, no 74552/01, §
42, ECHR 2006
;
Akgol and
Gol v Turkey
nos 28495/06 and 28516/06, §
43, ECHR 2011
;
Novikova
above n 80 at § 136.
[124]
Primov
above n 83 at § 118.
[125]
Section 13(3)(a).
[126]
Section 13(3)(b).
[127]
African National Congress
above n 104 at para 129.
[128]
Democratic Alliance v Speaker of the National
Assembly
[2016]
ZACC 8
;
2016
(3) SA 487
(CC);
2016
(5) BCLR 577
(CC)
at para 40.
[129]
TBC
above n 108 at para 56.
[130]
75 of 2008.
[131]
S v M
[2007] ZACC 18
;
2008 (3) SA 232
(CC);
2007 (12) BCLR
1312
(CC) at fn 20;
Mpofu v Minister for Justice and
Constitutional Development
[2013] ZACC 15
;
2013 (2) SACR 407
(CC);
2013 (9) BCLR 1072
(CC) at para 1;
TBC
above n 108
at para 74.
[132]
These are reproduced above at n 19.
[133]
Bhulwana
above n 88 at paras 20, 22 and 23.
[134]
Contrast
Garvas
above n 65 at para 81.
[135]
As I explained at [24], the applicants have not challenged the
number 15 in the definition of a gathering.
[136]
This Court has acknowledged that criminalisation has a nominal
deterrent effect.  See
TBC
above n 108 at para 88.
[137]
Id at para 95.
[138]
S v Mamabolo
[2001] ZACC 17
;
2001 (3) SA 409
(CC);
2001 (5)
BCLR 449
(CC) at para 49.
[139]
See [57].
[140]
For example Australia: Peaceful Assembly Act, 1992 (Queensland),
Public Assemblies Act, 1972 (South Australia), Public Assemblies
and
Processions Act, 1984 (Western Australia);  Malaysia: Peaceful
Assembly Act, 2012;  Russia: Russian Constitutional
Court
Judgment of 10 February 2017 No. 2-П/2017 in the case
concerning the review of constitutionality of the provisions
of
Article 2121 of the Criminal Code of the Russian Federation; The
United Kingdom: Public Order Act, 1986;  See also
Lashmankin
above n 83 at § 318 for a survey of 27 European countries,
all of which employ a range of measures and procedures regarding

protests.
[141]
Islamic Unity Convention v Independent Broadcasting Authority
[2002] ZACC 3
;
2002 (4) SA 294
(CC);
2002 (5) BCLR 433
(CC) at para 49.
[142]
This declaratory order must be made under section 172(1)(b) of the
Constitution.
[143]
Garvas
above n 65 at paras 56-7.
[144]
And it is their onus to discharge.  See [57].
[145]
Bishop “Remedies” in Woolman and Bishop
Constitutional
Law of South Africa
2 ed (Juta & Co, Cape Town 2003) at
116-123, citing
S v Ntuli
[1995] ZACC 14
;
1996 (1) SA 1207
(CC);
1996 (1) BCLR 141
(CC),
Mashavha v President of the Republic
of South Africa
[2004] ZACC 6
;
2005 (2) SA 476
(CC);
2004 (12)
BCLR 1243
(CC), and
Bhulwana
above n 88 in support of each
factor.
[146]
Dawood v Minister of Home Affairs; Shalabi v Minister of Home
Affairs; Thomas v Minister of Home Affairs
[2000] ZACC 8
;
2000
(3) SA 936
(CC);
2000 (8) BCLR 837
(CC) at para 64.  See also
J
v Director General, Department of Home Affairs
[2003] ZACC 3
;
2003 (5) SA 621
(CC);
2003 (5) BCLR 463
(CC) at para 21.
[147]
Electoral Commission v Mhlope
[2016] ZACC 15
;
2016 (5) SA 1
(CC);
2016 (8) BCLR 987
(CC) (
Mhlope
) at para 113.
[148]
Bhulwana
above n 88.
[149]
Id at para 32.