LANDMARK RULING BY WESTERN CAPE HIGH COURT

LANDMARK RULING BY WESTERN CAPE HIGH COURT

– 24 JANUARY 2018

The LRC, representing the Social Justice Coalition (“SJC”), won an important case late last month in the Western Cape High Court, which declared Section 12 (1) (a) of the Regulation of Gatherings Act unconstitutional, decriminalizing gatherings where no notice has been given to the relevant government authority. The High Court also withdrew the criminal convictions of the LRC’s clients.

In September 2013, the SJC had organized a protest outside the Mayor’s office in Cape Town, but neglected to give notice to the municipality. Section 12 (1) (a) prohibits any group from convening a “gathering” of 15 people or more without giving notice. The penalty for contravention is one year imprisonment, a fine, or both. After SJC activists were convicted in Magistrate’s Court and released, the SJC decided to challenge the constitutionality of the Act. The South African Police Service (“SAPS”) challenged the appeal, but the South African government said that it would abide by the High Court’s decision.

The Western High Court accepted SAPS arguments that the notice requirement was simple and straight forward and would allow adequate deployment of police to protests. However, the Court found that the criminal sanction, which could result in imprisonment and impact the future study and employment of protesters, was disproportionate, having a chilling effect upon the right to freedom of assembly. The Court noted the central importance of this right to democracy, giving “voice to the voiceless” in society. The Court noted that the SJC had engaged in protest only after a long and unresolved dispute with the city of Cape Town over access to sanitation services for working class communities. The Court noted other less restrictive penalties, such as an administrative fine, that the government could impose instead.

The High Court found that the Act is disproportionate and therefore unconstitutional. The Court set aside the convictions of SJC’s activists and upheld the appeal. The decision must now be confirmed by South Africa’s Constitutional Court.