Freedom of Association and Assembly / Protests
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The South African Constitutional Court (Court) held that a legislative provision that criminalized the failure to notify law enforcement of assemblies of more than fifteen people was an unjustifiable limitation on the right to freedom of assembly. Ten activists had been convicted under the Regulation of Gatherings Act, 1993 (Act) following their involvement in a 2013 protest for improved municipal services for which they had not notified the authorities. It was a requirement under the Act to notify the authorities if a protest included more than fifteen individuals. The activists intended for the protest to include under fifteen members, but more arrived than expected. The Court held that the threat of criminal sanctions created a “chilling effect” on the enjoyment of the right to freedom of assembly and found that the notification requirement in the legislation was not adequately tailored to achieve its purpose of enabling law enforcement to prepare for assemblies and gatherings that required policing. In doing so, the Court relied on its own jurisprudence as well as case law from the UN Human Rights Committee and the European Court of Human Rights.
On September 11, 2013, fifteen members of the Social Justice Coalition (SJC) – a membership-based organization lobbying for improved municipal service provision – protested at the offices of the City of Cape Town municipality. The SJC members chained themselves together in groups of five and then chained themselves to the railings at the offices. The SJC had taken the decision to limit the protest to fifteen people as, under the Regulations of Gatherings Act, 1993 (Act), an assembly of fifteen people or fewer did not require prior notification. However, more SJC members did join the protest and the SJC had been aware at the time that this might have happened and that it could have put them at risk of arrest. [para. 29] The gathering was peaceful, but police were called and requested that the protesters disperse. When they did not, the police arrested the protesters without resistance. [para. 30] Twenty-one of the protesters were charged with contravening section 12(1)(a) of the Act (convening a “gathering” without giving the requisite notice) and, in the alternative, with attending a prohibited “gathering” in contravention of section 12(1)(e) of the Act.
The Act had the aim of regulating public gatherings and demonstrations for the purpose of ensuring that assemblies did not unjustifiably infringe the rights of others. The Act required all “conveners” of “gatherings” to give notice about their intended “gathering” to an officer appointed by a local authority. A “gathering” was defined in the legislation as an assembly of more than fifteen people, whereas a “demonstration” – which did not require prior notice – was an assembly of fifteen or fewer people. The notice had to be given in writing at least seven days prior to the “gathering”, and if notice was given less than 48 hours before the intended “gathering” the officer could prohibit it. In addition, the officer could also prohibit a “gathering” if there was credible information that it would result in serious disruption, injury or extensive damage that could not be prevented by police or traffic officers.
Section 12(1)(a) of the Act made it a criminal offence to convene a “gathering” without giving the requisite notice. The “convener” was the only person who could be found criminally liable for this offence (but they could raise a defense, under section 12(1)(2) of the Act, that the gathering was spontaneous). It was not a criminal offence to attend a “gathering” for which no notice had been given, although it was an offence to attend a “gathering” that had been prohibited by the officer.
At the criminal trial in the Magistrates Court, all the SJC protesters pleaded not guilty both to the main charge and the alternative charge. They argued that the Act does not make it an offence to attend a “gathering” to which notice had not been given, and they argued that section 12(1)(a) of the Act was unconstitutional to the extent that it criminalized the actions of a convener in convening a “gathering” without giving notice. The Magistrates Court did not have jurisdiction to hear constitutional challenges. It convicted the ten protesters it had found were “conveners” of the gathering and acquitted the other eleven. In assessing the sentences to be imposed, the Magistrates Court acknowledged that the “gathering” had caused no harm to any person or damage to any property and said that the protesters “were at all times … respectful and peaceful”. [para. 32] The Magistrate cautioned and discharged the ten “conveners” and granted them leave to appeal to the High Court to challenge the constitutionality of section 12(1)(a) of the Act.
In the High Court, Phumeza Mlungwana and the other SJC members argued that section 12(1)(a) of the Act constituted an unjustifiable limitation on the right to freedom of assembly, protected by section 17 of the Constitution of South Africa as it “dissuades those minded to convene gatherings from venting their frustrations or expressing their views because of the chilling effect this section has on the exercise of the right to assemble”. [para. 34] The High Court accepted the SJC’s argument, holding that the provision limited the right because of “the chilling and deterring effect criminalisation had on the exercise of the right to assemble” and held that the limitation was not justifiable. [para. 36] The analysis of this judgment can be found here.
As is required, Ms. Mlungwana then approached the Constitutional Court for confirmation of the finding of unconstitutionality. Three amici curiae – the non-governmental organizations Equal Education and the Right2Know Campaign, and the United Nations Special Rapporteur on the rights to freedom of peaceful assembly and association – were admitted. The State opposed the application and sought leave to appeal the finding of unconstitutionality before the Constitutional Court.
Petse AJ delivered the judgment of the unanimous Constitutional Court of South Africa (Court). The central issue for the Court was whether section 12(1)(a) of the Regulation of Gatherings Act (Act) was a justifiable limitation on the right to freedom of assembly. Petse AJ characterized the issue as whether 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 … [was] constitutionally defensible”. [para. 1]
Ms. Mlungwana argued that the criminalization of the failure to give notice was “unconstitutional because section 12(1)(a) [of the Act] criminalises the convening of peaceful gatherings simply by reason of the fact that either no notice was given or inadequate notice was given”. [para. 4]
The State argued that section 12(1)(a) of the Act was “mere regulation” and there was no limitation to any right. In the alternative, the State argued that if a limitation of a right was found to exist that limitation would be justifiable. The State’s central argument focused on the way in which crime and punishment served as a deterrent and so was a way to incentivize the giving of notice – which in turn lowered the risk of violence and criminality occurring at the “gathering”.
Although all three amici aligned themselves with Ms. Mlungwana’s arguments, one of them, Equal Education, specifically emphasized that “the right to freedom of assembly has distinct importance for children” because they cannot vote and so “assembly, demonstrating, and picketing are integral to their involvement in the political process.” [para. 72]
Section 17 of the Constitution of South Africa (Constitution) stipulated that “[e]veryone has the right to assemble, demonstrate, picket, and present petitions” and Petse AJ highlighted that the “only internal qualifier is that anyone exercising this right must do so peacefully and unarmed”. [para. 43] The Judge clarified that the right under section 17 of the Constitution is to assemble peacefully and so “it is only when those convening and participating in a gathering harbour intentions of acting violently will they forfeit the right”. [para. 55]
Petse AJ rejected the State’s argument that section 12(1)(a) of the Act was mere regulation and therefore not a limitation on the right. The Judge noted that, in the case of Satawu v. Garvas (Garvas), the Court had held that “deterring the exercise of the right in section 17 limits that right”. [para. 46-47] In light of this, Petse AJ held that section 12(1)(a) of the Act could not be mere regulation because the criminal sanction acted as a deterrent. He added that even though only the convenor of a gathering faced the criminal sanction if no notice was given, the rights of all participants were affected because “[i]f a convener is deterred from organising a gathering, then in the ordinary course (save for the rare spontaneous gathering) a gathering will not occur”. [para. 47] Petse AJ undertook a further analysis of international jurisprudence on the right to freedom of assembly and referred to jurisprudence from the UN Human Rights Committee and the European Court of Human Rights to support his conclusion that “criminalising the failure to give notice for a peaceful assembly quite clearly constitutes a limitation of the right to assemble freely”. [para. 54]
Having found that there was a limitation on the right, Petse AJ undertook an analysis under section 36 of the Constitution – the general limitations clause – to determine whether the limitation was justifiable. Section 36 of the Constitution required the Court to assess (i) the nature of the right that was being limited, (ii) the importance of the purpose of the limitation, (iii) the nature and extent of the limitation, (iv) the relationship between the limitation and its purpose, and (v) whether there were less restrictive ways through which to achieve the limitation’s purpose.
Petse AJ quoted at length from the Garvas case, in which Chief Justice Mogoeng noted the historical context of the apartheid-era suppression of the right to assemble and then the importance of the right to freedom of assembly being recognized in the post-apartheid Constitution. Petse AJ added that “[p]eople who lack political and economic power have only protests as a tool to communicate their legitimate concerns [and] [t]o take away that tool would undermine the promise in the Constitution’s preamble that South Africa belongs to all who live in it, and not only a powerful elite”. [para. 69]
He then went on to examine the purpose of the limitation in section 12(1)(a) of the Act. He noted that the State cited insufficient resources as one of the reasons for why notice was required, and he characterized this argument as being “that the police lack resources to such an extent that the risk of unnotified gatherings must be mitigated through one of the harshest possible ways – criminalisation and punishment”. [para. 75] Petse AJ rejected this argument, stressing that “a lack of resources or an increase in costs on its own cannot justify a limitation of a constitutional right”. [para. 76] He also noted that the State had not provided any evidence for how costs would increase if section 21(1)(a) of the Act was declared unconstitutional.
Petse AJ recognized that “[t]his Court cannot ignore the levels of violence witnessed in recent protests in South Africa” and that section 12(1)(a) of the Act pursued a legitimate aim by trying to ensure that criminality did not occur at protests. [para. 79] However, he went on to say that “it cannot be right for the State, in responding to this regrettable phenomenon [of high crime], to employ high-handed countermeasures that unduly limit the right” and that a balance between protecting rights and ensuring safety must be struck. [para. 80]
In examining the effects of section 12(1)(a) of the Act on the enjoyment of the right, Petse AJ characterized these effects as “severe” because of the breadth of the legislative definition of “gathering”. He further observed that the criminalization of conduct is “calamitous” to those charged. He highlighted the “chilling effect” that criminalization has on individuals contemplating convening or participating in gatherings. Petse AJ also noted that the provision makes no distinction between adult and children participants and held that “[t]o expose children to criminal liability, as section 12(1)(a) [of the Act] does, therefore severely exacerbates the extent of the limitation” and “cannot be justified on any rational basis”. [para. 89]
Petse AJ highlighted that the requirement of giving notice created onerous responsibilities on a convenor as they would have to be familiar with the provisions of the Act, ensure that the notice meets the criteria set out in the provision and ensure that the notice is given at least a week before the intended gathering. A notice that did not meet the requirements would still lead to criminal liability for the convener, and Petse noted that even though this may be seen as a mitigating factor in sentencing it “does not detract from the fact that the convener will have to live with a criminal record and its attendant dire consequences” (para. 91).
Petse AJ held that there was no rational connection between section 12(1)(a) of the Act and the purpose – to enable the police to prepare for a gathering adequately – for which it was adopted. He gave the example of a convener facing criminal sanction for not giving notice when no police presence was even necessary and noted that the converse was also true as “sometimes notice may not even be required but police presence to prevent violence will be”. [para. 93] Accordingly, he held that “the limitation in question (the criminalisation of a failure to give notice) is neither sufficient nor necessary for achieving the ultimate purpose of that limitation (peaceful protests through police presence)”. [para. 93]
In finding that there were less restrictive means through which to achieve the purpose, Petse AJ noted that, although criminalization of failure to give notice may incentivize the giving of notice, this was not necessary. Ms. Mlungwana and the amici had provided various options available to the legislature to incentivize the giving of notice to assist law enforcement in policing assemblies. These included enhanced civil liability for damages caused by a failure to take reasonable steps to prevent damage during a protest (which would include a failure to give notice), reliance on existing common law and statutory crimes which govern public disruption and violence, imposition of administrative fines or an amendment of the provision so that notice is required only if police presence is also required. [para. 96] Petse AJ held that there was no evidence that the purpose of section 12(1)(a) of the Act could not be achieved through these less restrictive means.
Accordingly, Petse AJ held that “section 12(1)(a) [of the Act] is not ‘appropriately tailored’ to facilitate peaceful protests and prevent disruptive assemblies”. [para. 101] He found that “[t]he right entrenched in section 17 [of the Constitution] is simply too important to countenance the sort of limitation introduced by section 12(1)(a) [of the Act]” and that the “nature of the limitation is too severe and the nexus between the means adopted in section 12(1)(a) [of the Act] and any conceivable legitimate purpose is too tenuous to render section 12(1)(a) [of the Act] constitutional”. [para. 101] The Constitutional Court therefore confirmed the High Court’s finding of unconstitutionality.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This decision expands expression. The Constitutional Court of South Africa (Court) confirmed that the criminalization of a failure to adequately notify law enforcement officers of a planned gathering of fifteen or more people cannot be a reasonable limitation on the right to freedom of assembly. The Court stressed the “chilling effect” the threat of criminal sanctions can have on individuals planning to hold a protest and noted that, as the purpose of the notification requirement was to allow law enforcement to make adequate preparations, there were many less restrictive measures that could achieve the intended purpose.
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