Weekly Summary of South Africa Judgments----Vol 11

CONSTITUTIONAL COURT OF SOUTH AFRICA

 Mlungwana and Others v S and Another (CCT32/18) [2018] ZACC 45 (19 November 2018)

  Heard On: 21August 2018 Delivered on: 18 November 2018

 Summary: Regulation of Gatherings Act 205 of 1993 — section 12(1)(a) — declaration of constitutional invalidity

SUMMARY OF FACTS

This matter is an application for the confirmation of the High Court’s declaration of constitutional invalidity in Mlungwana v S[2018] ZAWCHC 3; 2018 (1) SACR 538 (WCC); [2018] 2 All SA 183 (WCC), and the application was made in terms of the provisions of s.172(2)(d)of the Constitution read with rule 16(4) of the Rules of this Court, and section 15(1)(b) of the Superior Courts Act. The respondents hereby sought leave to appeal against the declaration of the constitutional invalidity.

LEGAL QUESTION

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 205 1993 does, constitutionally defensible?

a)     Does section 12(1)(a) limit the right entrenched in section 17 of the Constitution,which guarantees right to “peacefully and unarmed, to assemble, to demonstrate, to picket and to present petitions”

b) If so, is that limitation reasonable and justifiable in an open and democratic society based on human dignity, equality, and freedom?

RATIO DECIDENDI

The Statutory Framework: The object of the Act, which is expressed by the Long Title of the Act, is to regulate public gatherings and demonstrations. The preamble of the Act emphasizes the need to balance the freedom and peaceful assembly against ensuring the assemblies do not unjustifiably infringe on other people’s rights. The main issues to address here are the definitions of “gathering”, demonstration” & convener”.  S.1 of the Act defines a “demonstration” as involving not more than 15 persons, whilst Road Traffic Act 29 of 1989 defines “gathering” as involving more than 15 persons in or on any public road or any other public places or premises wholly or partly open to the air…The fundamental difference between the two for present purposes number of persons involved

According s.3 of the Act all conveners of gatherings must give written notice of their intended gathering, but this requirement does not apply to demonstrations. Notice of gathering is required and not to seek approval for the intended gathering. There are three types of conveners as contained in the Act, namely;

a)     Those who on their own convenes a gathering;

b)     Those appointed by an organization that intends to hold a gathering (s.2(1))

c)     Those not appointed by an organization as stated in s.2(1), but are deemed to be conveners, by virtue of s.13(3), because:

i.  they partake in planning, organizing and making presentations for that gathering; or

ii. they on their own or through another, verbally or orally, invited the public or any section of the public to partake in a gathering.

 One must consider the broad definition of a convener contained in s.13(3), which becomes a pertinent factor when evaluating the extent of limitation imposed by s.12(1)(a). S.3(1) & (2) requires notice to be given to the responsible local municipality’s officer (appointed by a local municipality-s.2(4)) within the jurisdiction of the gathering, and if no functioning local authority, notice must be given to the Magistrate under whose jurisdiction the gathering falls-s.3(4). This notice must not be later than seven (7) days before the gathering date and, if less than 7 days, adequate reason must be provided. The responsible officer has the discretion to prohibit any gathering whose notice is less than 48hours-s.3(2).

 Once notice is given, the responsible office can establish if negotiations as stated by s.4(1) is required, which is important in agreeing on the conditions of the gathering (s.4(2)(b)), and these conditions are necessary to achieve the objectives of the Act. The negotiation is to ensure parties agree in good faith and balance the rights of freedom of gathering with any other affected rights. The negotiations involve the responsible officer, an authorized member of SAPS (s.2(2)), the convener and any other interested party. If the negotiations did not produce any conditions, the officer can unilaterally impose certain conditions.

 However, if no notice, any police officer who is aware of the gathering from other sources should contact the responsible officer (s.3(5)(a)), the responsible officer is obliged to inform a member about the information (s.3(5)(b), and has the discretion to inform the convener to comply with the provisions of the Act, regarding giving of notice. However, the responsible officer has no power to prevent/stop the gathering as a result of lack of notice but can only seek advice from authorized member on the need for s.4 negotiations despite lack of notice--s.4(1). Despite the lack of notice, the responsible officer, if judged necessary, may request for s s.4 negotiations, and invite the convener to discuss and agree on the conditions of the gathering. S.12(1)(a) stipulates a criminal offence for a convener of gatherings without notice, and the convener could raise a defense that the gathering happened spontaneously-s.12(2).However, its agreed that attending a gathering without notice does not constitute an offence (Tsoaeli v S 2018 (1) SACR 42 (FB) at para 42), but,it’s an offence to attend a prohibited gathering (s.12(1)(e)). The grounds for prohibition of a gathering are:

a)     If notice is less than 48 hours

b)     Prohibition under s.5

 S.5(2) provides grounds for prohibition of a gathering if it’s a threat to the rights of others and cannot be prevented by amending the notice given (s.4(2)(b)) or by unilateral imposition of conditions in terms of s.4(4)(b). However, there is no express provision in the Act that prohibits any gathering or criminalizing attendance of such gathering on the grounds of mere failure to give notice under s.12(1)(e). This provision only makes attending a prohibited gathering unlawful, and if interpreted in the spirit, purport and objects of the Bill of Rights, s.12(1)(e) has no ambiguity. The consequence of s.12(1)(a) as a limitation on right to freedom of assembly would be far reaching if it also includes the criminalization of participation in gathering without notice. This runs against the principle that the accused’s liberty must never be compromised, and as established in Tsoaeli, the line of legality in the context of criminal law would be crossed.

 Rather than criminalizing attendance of a unnotified gathering, it should the convener of such a gathering that should be criminally held liable, including being held liable in cases of damages caused in the cause of the gathering or demonstration (s.11(1)). The convener can avoid liability if only he/she can proof that damages could not be reasonable foreseen or prevented (s.11(2)). S.8 of the Act clearly specifies conduct at gatherings, either notified or unnotified, and s.9 defines the powers of the police as they relate to either notified or unnotified gatherings and protests. S.9(1)(b)(c) makes it an offence to disobey a lawful order of the police to disperse. Therefore, for any damage caused as a result of a gathering or demonstration, the convener of such gathering or demonstration will be held liable in civil liability, unless he/she proves that the damage was not reasonable preventable.

Therefore, the main issue in contest in this case is not about the definitions of “gathering” or “demonstration, neither is about the number of persons required for a gathering or a demonstration, nor about the importance of giving notice, neither about other requirements, but about the criminalization of a failure by a convener to give written or adequate notice as provided for in s.3 of the Act.

 S.17 of the Act guarantees the freedom of peaceful and unarmed assembly, which is clear and unambiguous, and any attempt to prevent a peaceful and unarmed assembly, limits s.17. The Court disagreed with the respondent’s argument that s.12(1)(a) is a mere regulation of s.17 and not a limitation(SATAWU v Garvas[2012] ZACC 13; 2013 (1) SA 83 (CC); 2012 (8) BCLR 840 (CC) (Garvas)). The criminalization clause contained in s.12(1)(a) amounts to limitation of the provisions of s.17, which then deters the full expression of the right enshrined in s.17, the right to peaceful, free and unarmed assembly. This is also the position of international legal bodies, as seen in the decision of the United Nation in Kivenmaa v Finland Communication No. 412/1990 UN Doc CCPR/C/50/D/412/1990 (1994), where it was held that such criminalization limits the provisions of Article 21 of the International Covenant on Civil and Political Rights (ICCPR) that recognizes the right to peaceful assembly. Similarly, European Convention of Human Rights (ECHR) Article 11 recognizes right to freedom of assembly. This being said, it does not now mean that the rights in s.17 should be exercised beyond the peaceful and unarmed requirement, because the moment the intention is beyond peaceful and unarmed, the conveners forfeit the right contained thereby.

 Is the limitation of rights in s.17 by s.121(a) justifiable in the light of s.36 of the Constitution? The onus to prove this justification is on the respondents. The right in s.17 of the Act is fully enshrined in s.17 of the 1996 Constitution: “Everyone has the right, peacefully and unarmed, to assemble, to demonstrate, to picket and to present petitions.”  This is central to, and the essence of our constitutional democracy, because it’s the only voice the citizens have, and the only opportunity to vent their frustration. Unlike under the apartheid era where several Acts were enacted to deny the majority their rights to freedom of assembly, which is the fundamental essence of the Regulation of Gatherings Act 205 1993. Most especially, the right to freedom of assemble enables the citizens to exercise other linked rights, such as freedom of speech, freedom of religion, dignity, freedom of association, and the right to vote and be voted (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). This position was also affirmed in a recent case Hotz v University of Cape Town [2017] ZACC 10; 2018 (1) SA 369 (CC); 2017 (7) BCLR 815 (CC), where this Court held that despite the violence dimension of the students’ protest, they were simply asserting their right to free education through a peaceful and armless protest. Therefore, to limit this right to assembly could invariably lead to the limitation of other rights.

 The fact that the police lacks resources to monitor unnotified gatherings as a justification to limit the rights to assembly, which is a constitutional right is unacceptable, as was affirmed in 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. This is even so when the state cannot clearly estimate the exact cost required to uphold these rights (Khosa v Minister of Social Development [2004] ZACC 11; 2004 (6) SA 505 (CC); 2004 (6) BCLR 569 (CC) at para 62.), and in the absence of adequate information on the cost incurred by SAPS, and other factors, the purpose of s.12(1)(a) could not be justified.

 Also, attempt to limit the right to freedom of assembly cannot be justified by the high level of violence during peaceful protests, as established by this Court in 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. This Court agrees that there should be a balance between the exercise of rights and the safety and security to the society.

 It must be noted that the more severe a limitation is, the more powerful the justification should be. This severity is demonstrated through it’s impact on the right in question, the social position of those affected by the limitation,and whether the limitation is mitigated at all. With reference to this case, the limitation is severe in the following way:

·        The definitions of gatherings and conveners are broad, which makes the criminal liability extremely broad;

·         The “calamitous effect” of the criminalization on those caught in this broad net;

·        This could have huge impact on freedom of assembly and gatherings, including even attending such, for fear of not being convicted for attending a gathering without notice.

·        The fact that there isno distinguishing between adult and minor conveyers, which could have serious consequence on minors that are not aware of the notice requirements and thus, expose them unnecessarily to the criminal justice system.

 Therefore, s.12(1)(a) does not in any way guarantee peaceful and undisruptive assemblies, and thus, not a enough justification to limit the rights in s.17. In addition, the limitation is too severe and thus, any conceivable legitimate purpose is too tenuous to render section 12(1)(a) constitutional. This Court therefore leaves it in the hands of the Legislature to fix these issues ventilated in this case.

 DECISION

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.