Freedom of Association and Assembly / Protests, Political Expression
Microtech Contracting Corp. v. Mason Tenders District Council of Greater New York
Closed Expands Expression
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The High Court in Cape Town, South Africa held that a provision criminalizing the convening of a gathering of more than fifteen people, where no prior notice had been given to the local authority, unjustifiably limited the right to assembly and protest. Ten activists had been convicted in the Magistrates Court after participating in a gathering for which the convener had not provided notice. On appeal, the High Court held that, although a notice procedure served a legitimate purpose by facilitating the policing of protests, the use of criminal sanctions for a failure to provide notice created a disproportionate “chilling effect” on the exercise of the right to assembly and protest. The High Court analyzed international and regional human rights law in its judgment, and recognized the vital role played by organizers and conveners of protests. The High Court held that the provision was unconstitutional and overturned the protesters’ convictions.
On September 11, 2013, a group of activists from the Social Justice Coalition (SJC) gathered at the offices of the Mayor of Cape Town to protest poor sanitation services in Khayelitsha (a township located within the City of Cape Town’s jurisdiction). The convener of the protest, Phumeza Mlungwana, who was the general secretary of the SJC, had not notified the relevant authorities prior to the protest. Notice had not been given because the number of people the SJC had planned on attending the protest was below the threshold required for notification under the Regulation of Gatherings Act, 205 of 1993 (Gatherings Act).
Section 12(1)(a) of the Gatherings Act stated that “[a]ny person who convenes a gathering in respect of which no notice or no adequate notice was given in accordance with the provisions of section 3 shall be guilty of an offence.” (para. 2) The penalty for committing this offence included a fine and/or up to one year in prison. The Gatherings Act distinguished between “demonstrations” and “gatherings”. According to the Gatherings Act, “demonstrations” were defined as demonstrations involving up to fifteen people “for or against any person, cause, action or failure to take action”. “Gatherings”, on the other hand, were defined as “any assembly, concourse or procession of more than 15 persons in or on any … public place”. Accordingly, the offence under section 12(1)(a) of the Gatherings Act only applied to protests involving more than fifteen people.
Section 3 of the Gatherings Act required that the person responsible for arranging the gathering (i.e. the “convener”) give notice to a “responsible officer” at the local authority (or Magistrate if there was no functioning local authority in the area of the “gathering”) at least seven days before the “gathering” was to be held. If there were extenuating circumstances, this notice could be given closer to the event but no later than forty-eight hours before it. Section 3(3) of the Gatherings Act went on to set out specific details that must be included in the relevant notice.
Following a mass meeting of the SJC in August 2013, the organisation had resolved to picket outside the Mayor’s office to protest the slow pace of sanitation reform in Khayelitsha. It had been decided at this meeting to limit the number of protesters to fifteen so as to ensure that the protest constituted a “demonstration” under the Gatherings Act and, therefore, would not require prior notification. Ms. Mlungwana gave evidence that, on the day, fifteen protesters travelled to the Mayor’s office and chained themselves together. However, at least one other person joined the chain later that day. According to Ms. Mlungwana, the protest was peaceful with some protesters singing songs and holding placards. She confirmed that the police asked them to leave, but they refused. This resulted in a number of individuals being arrested.
The police officers claimed that they had seen the gathering of approximately forty protesters with protest signs, and the protesters had chained themselves to each other with padlocks. The police informed them that the protest was illegal. The police said that once the protesters refused to disperse, they arrested ten members of the group. These ten protesters were charged under section 12(1)(a) of the Gatherings Act (i.e. unlawfully and intentionally convening a gathering without giving the relevant municipal authority any notice). The alternative charge was that they had attended a gathering for which no notice had been given.
All ten protesters pleaded not guilty in their criminal trial in the Cape Town Magistrates Court. The Magistrates Court found them all guilty. They were given a caution and subsequently discharged. The protesters – with the support of three amici curiae (the Open Society Justice Initiative, the United Nations Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association, and Equal Education) – appealed their conviction to the High Court in Cape Town on the ground that “criminalisation of merely convening or attending a gathering without giving notice is unconstitutional.” (para. 13) The Minister of Police was the second respondent in the appeal, joining the State as the representative of the criminal prosecution authority of the country.
Ndita J delivered the judgment of a two-judge bench of the High Court of South Africa (Court). The question before the Court was whether the criminal sanction under section 12(1)(a) of the Gatherings Act unjustifiably limited the “right, peacefully and unarmed, to assemble[,] to demonstrate, to picket and to present petitions” as guaranteed by section 17 of the Constitution of the Republic of South Africa (Constitution). Therefore, the question was whether the provision was unconstitutional and invalid.
Ms. Mlungwana submitted that protests have a long history in South Africa, and indicated that the arrests would have “a chilling effect on future protests by the SJC [because] we weren’t violent, we weren’t disrupting anything, but still we were arrested and so people are going to think twice … to participate in a public or an action of this sort.” (para. 10) Ms. Mlungwana argued that the offence under section 12(1)(a) of the Gatherings Act was not a justifiable limitation on the right to freedom of assembly because it was severe, the number of fifteen participants was arbitrary and unrelated to the purpose of the offence, and there were less restrictive means by which the goal of the offence could be achieved (including non-criminal sanctions, using existing criminal sanctions which address threats to public safety, and increasing the number of participants in a “gathering” before prior notice must be given). Ms. Mlungwana submitted that it was the criminalization of a failure to give notice, and not the requirement that notice be given, that was unconstitutional and so did not challenge the constitutionality of a notice procedure. Ms. Mlungwana accepted that the notice requirement did incentivize conveners to inform the police of the proposed gathering (and allowed the police to plan their response), and therefore did serve a legitimate purpose. However, she maintained that this is “not a particularly important purpose” as the “notice is not necessary for the police to do their work as it merely facilitates their management of gatherings.” (para. 55)
The State argued that the notice requirement was to “protect the rights of everyone to demonstrate peacefully by criminalising the conduct of persons who convene non-notified gatherings”, and that, as non-notified gatherings have a greater risk of not being peaceful, the criminalization served as a deterrent and lessened the risk of non-peaceful gatherings (para 51). The State also argued that it allowed for proper planning so the rights of others could be protected against potentially non-peaceful protests. The State argued that the right to freedom of assembly was unaffected by the provision because it was only aimed at the conduct of the convener (not the entire gathering). It added that the sanction of a fine or imprisonment of up to one year was “very modest”, and the notice procedure itself was not onerous. (para. 89)
The amici curiae made submissions that were largely based on international law. For instance, the United Nations Special Rapporteur on the Right to Freedom of Peaceful Assembly and Association argued, among other things, that “when no other punishable behaviour is involved, sanctioning the mere non-notification of a peaceful assembly means de facto that the exercise of the right of assembly is penalised.” (para. 75) The Open Society Justice Initiative argued that the “criminal sanctions for not complying with the notice requirement had a chilling effect on the right of assembly and will inhibit groups and individuals from convening gatherings with more than 15 participants.” (para. 41) Equal Education argued that, as their members were high school learners who may engage in protest action in furtherance of their advocacy for the right to education, the criminalization of gatherings without notice hindered the exercise of their right to protest. They also noted the negative consequences for children’s rights that are posed by the criminal sanctions under the provision.
The first question the Court had to answer was whether section 12(1)(a) of the Gatherings Act limited the right to peaceful and unarmed demonstrations under section 17 of the Constitution. Ndita J stated that “the 12(1)(a) sanctions appears to be quite chilling … [t]his is so because of the well-known calamitous effects of a previous conviction recorded against an individual.” (para 42) She also commented on the ages of the participants in the gathering in this case and said that “[m]ost of them are young adults who found themselves at the wrong side of the law and society for the simple reason that they dared to convene a gathering to express their frustration with service delivery, albeit without the requisite notice.” (para. 43) Ndita J quoted South African Constitutional Court in Satawu v. Garvas 2013 (1) SA 83 (CC) (the Garvas case) which had held that “[i]t is through the exercise of each of these rights [under section 17 of the Constitution] 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.” (para 43) Ndita J concluded that section 12(1)(a) did constitute a limitation on the rights guaranteed by section 17 of the Constitution.
Ndita J then examined whether that limitation was constitutionally justifiable. To do this, she applied the limitation analysis as set out in section 36 of the Constitution. This general limitations clause stipulates that the rights enshrined in the Bill of Rights can only be limited in terms of a “law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.” (para 44) In determining whether a limitation is justifiable, the Court must take into account the “nature of the right”, the “importance of the purpose of the limitation”, the “nature and extent of the limitation”, the “relation between the limitation and its purpose”, and “less restrictive means to achieve the purpose.” (para 44)
In examining the “nature and importance of the right”, Ndita J again referred to the Garvas case. In that case, Chief Justice Moegeng had stated: “The right to freedom of assembly is central to our constitutional democracy. It exists primarily to give a voice to the powerless …This right will, in many cases, be the only mechanism available to them to express their legitimate concerns.” Ndita J stated that “the right to free assembly was not only pivotal to the freedom that gave rise to the Constitution, it remains a vital tool to the country’s democracy.” (para 46) Accordingly, she concluded that “the nature and importance of the right of assembly cannot be overemphasised.” (para 48)
Ndita J assessed the “importance of the purpose of the limitation” and referred to the State’s argument that notice is required to facilitate necessary police planning, which ensures that the proposed gathering remains peaceful. Ndita J held that the notice requirement did serve a legitimate purpose “as every right must be exercised with due regard to the rights of others.” (para. 56)
Ndita J then examined the “nature and extent of the limitation”, and noted that the “effect of the criminalisation of the failure to give notice has a chilling effect on the exercise of the right to freedom of assembly.” (para. 60). Under this heading, Ndita J undertook an analysis of international jurisprudence “because South Africa belongs to a comity of nations and has signed and ratified most international human rights covenants relating to demonstrations and gatherings.” (para. 60) Among other things, she referred to article 21 of the ICCPR, article 11 of the ACHPR and discussed the Human Rights Committee case of Kivenmaa v. Finland Com. No. 412/1990 and the African Commission on Human and Peoples’ Rights case of Malawi African Association v. Mauritania Comms. No 54/91-61/94. While acknowledging that it was not directly applicable in South Africa, Ndita J also examined the European Court of Human Rights case of Frumkim v. Russia App No. 74568/12 (2016). (para. 71)
Ndita J concluded that the international and regional jurisprudence could be summarized as generally accepting that (i) the “State may impose a requirement of prior notification of assemblies in order to meet their obligation to facilitate the gathering and manage[ment]”, (ii) that “[f]ailure to give notice does not justify sanctions against organisers of or participants in the protest”, and (iii) that the “sanctions must be necessary in a democratic society.” (para. 72) She went on to note the deleterious consequences of a criminal sanction, including the loss of liberty as well as negative effects on employment, travel and study. She concluded that “[t]hese consequences are in my view enough to deter people from exercising their rights of assembly and gathering.” (para. 81)
Ndita J rejected the State’s argument that the effect of the criminalization of the failure to seek notice is felt only by the convener. She stated that “as a matter of logic and common sense, if criminal sanctions are imposed on the very members or leaders of the organisation or person/s who convened the gathering, the purpose of the gathering is likely to be disrupted.” (para. 83) Ndita J added that, as a protest or gathering depends on someone convening it, “the impact of the arrest and/or incarceration of a convener for failing to file a notice as well as a subsequent conviction will, without a doubt, filter through to those who had gathered, as well as to the community.” (para. 83) Accordingly, Ndita J held that “the criminal sanction does chill free speech” and deterred individuals from exercising their right to freedom of assembly. (para. 85)
Ndita J then examined the balance between the limitation and its purpose, and whether there were any less restrictive means by which to achieve the same goal. Ndita J stated that “the call to mobilise and organise a demonstration is pivotal” to people’s exercise of the right of assembly. (para. 93) She observed that as the right gave “a voice to the voiceless, it follows that the role of conveners is fundamental to the strength and number of participants to exert influence in pursuance of social justice change.” (para. 93) Accordingly, Ndita held that “because of the disastrous impact of a criminal conviction and the lifelong impact it has on the lives of those convicted of contravening s 12(1)(a), the criminal sanction is disproportionate to the offence of merely failing to comply with the notice requirement.” (para. 93) She dismissed the argument that a modest sentence mitigates the effect of a criminal conviction, and stressed that a conviction remains on record for ten years – irrespective of the sentence. (para. 93)
Ndita J emphasised that the social and economic reality in South Africa meant that those most affected by section 12(1)(a) of the Gatherings Act will be previously disadvantaged communities who are voiceless, and accepted Equal Education’s argument that children affected by the provision will also be from these communities. She stated that “[i]t seems to me that our ‘never again’ constitutional principle may well ring hollow if provisions of s12(1)(a) remain valid.” (para. 93)
Ndita J also noted the submissions from the appellants that enhanced civil liberty, administrative fines, or a re-definition of “gathering” may be a less restrictive means of achieving the goals of section 12(1)(a) of the Gatherings Act.
In light of the above, the Court declared section 12(1)(a) of the Gatherings Act unconstitutional, and set aside the protesters’ convictions and sentences. (para. 95)
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision of the High Court in Cape Town expands expression. Although the case did not examine the relevant provision under the right to freedom of expression per se, it expands expression by providing strong protections for the right to protest. In its judgment, the High Court warned against the use of criminal sanctions in the context of protests, and some of this language could also be useful in future cases concerning the criminalizing of speech. For instance, the High Court noted that even where a sentence is imposed that is moderate or not very harsh, the negative consequences that can flow from a criminal record cannot be ignored. The High Court noted that one of these negative consequences would be people being deterred from exercising their rights of assembly and protest. Also of particular note is the High Court’s recognition of the vital role played by conveners of public protests, who were described as “fundamental to the strength and number of participants to exert influence in pursuance of social justice change.” (para. 93)
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