Top court to hear case of criminalisation of peaceful protests

The Constitutional Court will on Tuesday hear a legal challenge to the criminalisation of protests under the Regulation of Gatherings Act.

In this case‚ the court will hear an application to confirm an earlier ruling by the High Court in Cape Town which declared part of the 1993 Act unconstitutional and invalid.

The high court said the section was unconstitutional insofar as it made it a criminal offence to convene a gathering of more than 15 people without giving the requisite prior notification to the responsible officer of a municipality.

Any ruling by the lower courts declaring a section unconstitutional has to be confirmed by the Constitutional Court.

The state and the Minister of Police are seeking leave to appeal against the high court’s declaration of constitutional invalidity.

In this case‚ 10 applicants are members of the Social Justice Coalition‚ who on September 11 2015 travelled as a group of 15 members to demonstrate at the Cape Town Civic Centre in response to dangerous and inadequate sanitation facilities in Khayelitsha.

The demonstration was peaceful and unarmed‚ but grew in size at the venue. A police official informed them that their assembly had become unlawful due to its size‚ and eventually arrested them. The 10 activists‚ the convenors of the gathering‚ were criminally charged under section 12(1)(a) of the RGA for convening an illegal gathering because of failing to provide notice.

They were convicted and charged at the Bellville Magistrate’s Court but the magistrate cautioned and discharged them. However‚ the demonstrators appealed against their conviction to the high court and challenged the constitutionality of the section. They argued that the section constituted a limitation of the constitutional right of freedom of assembly.

The minister of police argued in the high court that section 12(1)(a) did not limit the right to freedom of assembly. The high court in January found in favour of the demonstrators.

It overturned the coalition members’ criminal convictions and declared the section unconstitutional because it limited and criminalised a peaceful protest. The coalition said one of the 10 activists charged‚ Nolulama Jara‚ had died in 2015 with a criminal record.

“She remains on our appeal‚” the coalition said in a statement. Equal Education (EE) and the Right2Know Campaign (R2K) are supporting the coalition members as friends of the court.