South African Constitutional Court decriminalizes peaceful protest

19 November 2018 – South Africa’s Constitutional Court reached an historic ruling in Mlungwana and Others v S and Another, declaring that Section 12(1)(a) of the Regulation of Gatherings Act 205 of 1993 is unconstitutional in its entirety, regardless of whether the gathering is violent. Section 12(1)(a) had made convening an assembly of more than fifteen people, without first notifying the responsible officer of a municipality, a criminal offense.

Advocates Michael Bishop and Phumzile Mdakane of the LRC’s Constitutional Litigation Unit represented the applicants – ten activists who had been arrested five years earlier while protesting peacefully in Cape Town. The applicants are members of the Social Justice Coalition, who had traveled to protest outside the Cape Town Civic Centre against inadequate sanitation facilities in Khayelitsha. The protest was peaceful and unarmed, but it grew in size at the venue as more people joined them. The applicants were then arrested and charged for failing to give notice of an assembly. They were convicted in Magistrate’s Court as charged, cautioned, and discharged.

The applicants appealed their conviction in the Western Cape High Court. The High Court upheld their appeal in January of 2018 and declared Section 12(1)(a) to be constitutionally invalid on the grounds that it deterred individuals from exercising their right to free assembly, which is “a vital tool to the country’s democracy.” The applicants next approached the Constitutional Court to confirm the High Court’s order of constitutional invalidity. The respondents in the case were the South African government and the Minister of Police.

In a unanimous judgment written by Justice Petse, the Constitutional Court confirmed the High Court’s declaration, arguing that criminalizing the failure of the conveners of a gathering to give notice of an assembly of more than fifteen people limits the right to assemble peacefully and unarmed, which is entrenched in Section 17 of the South African Constitution and central to the nation’s constitutional democracy. By deterring assemblies, the Court found that the government was deterring the right to assemble.

The respondents argued that municipalities and police require notice to prepare adequately for large assemblies and to reduce violence at protests. The Court agreed that these purposes are important, but found that the government and police could not unduly limit the right to assemble peacefully and unarmed. In this case, the definitions were so broad that organizers and participants in peaceful assemblies could easily be criminalized for failing to give notice, leaving them with criminal records and exposing them to the penal system.

The Court noted that Section 12(1)(a) also did not distinguish between adult and minor conveners. Children are more likely to exercise their right to assemble peacefully and unarmed without giving the required notice. The right of assembly is a vital means for political participation for children, who cannot vote. The Court noted too that the government and police could encourage organizers to give notice of large assemblies through other means such as civil liability.

The judgment of the Constitutional Court makes plain that the right to assemble can be exercised only peacefully and unarmed.

The Court noted that South Africa under apartheid had attempted to preserve its political order by punishing individuals for assembling “when it did not suit the State.” While the LRC welcomes this victory, it has expressed concern that ordinary people may still face challenges when exercising this democratic right. Most recently, the city of Johannesburg forced poor people to pay “protest fees” before the city would permit protests to go forward.

The full judgment can be found at https://collections.concourt.org.za/handle/20.500.12144/34607.