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 Johannesburg, South Africa held that the levying of fees for planned protests was irrational and unjustifiably limited the right to protest. After the convenor of a planned protest was charged a nominal fee of R297 (approx. US$18) by the City of Johannesburg’s police department, two civil society organizations approached the Court, seeking a declaration that the policy governing the levying of these fees was unconstitutional. The Court held that the reason given by the City that the fees contributed to the costs of policing the protests was irrational. It also referred to international jurisprudence in finding that the levying of any fees is an unconstitutional limitation to the right to protest and ignores the State’s positive obligation to provide services to facilitate the enjoyment of the right.
On October 23, 2020, the Right to Know Campaign – a “democratic activist driven organisation” advocating for the right to freedom of expression and access to information – and the Gauteng Housing Crisis Committee – an organization formed by “protesting communities seeking to mobilise, organise and unite black working class communities in the struggle for land, employment and adequate housing” – held a peaceful protest in Johannesburg, South Africa [para. 5]. The organizations had followed all requirements for a planned gathering under the Regulation of Gatherings Act, 205 of 1993 (the Gatherings Act), and the convenor of the protest was directed to a municipal office where he was requested to pay R297 (approx. US$18 in July 2022) to the Johannesburg Metropolitan Police Department (JMPD). The convenor paid the prescribed fee.
The levying of fees to convenors of gatherings is set out in the City of Johannesburg’s Tariff Determination Policy (the Policy) and sets the fee between R170 and R15 000 (approximately US$10 to US$900 in July 2022). The City of Johannesburg states that non-governmental organizations (NGOs) are given a discount of up to 80% of the regular fee.
The organizations approached the High Court in Johannesburg, seeking a declaratory order that requiring a fee for planned protests was unconstitutional, and was ultra vires the Gatherings Act, the “primary legislation governing gatherings in South Africa” [para. 2]. They brought the case against the City of Johannesburg and the Chief of the JMPD (the Municipality).
The Constitution protects the right to protest in section 17, which states that “[e]veryone has the right, peacefully and unarmed, to assemble, to demonstrate, to picket and to present petitions”.
The Gatherings Act governs “the process to be adopted before proceeding with a protest” and requires the appointment of a convenor of a gathering, written notice of a planned gathering, and consultation between the convenor and the municipality [para. 10]. The Act does not provide for the payment of any fee for the gathering.
The South African Human Rights Commission was admitted to the case as amicus curiae.
Judge Victor delivered the judgment of the Court. The central issue for determination was whether the Gatherings Act authorized the levying of fees for a planned protest and whether it was constitutional to impose such a fee.
The organizations argued that the fee of R297 in the present case was “presented as though it was a pre-condition for approval of the protest” as the convenor was told that if he did not pay the fee the protest would be “deemed unlawful and no law enforcement agents would be deployed for the protest” [para. 12]. They submitted that the constitutional right to protest cannot be conditional on the payment of a fee. The organizations argued that only the Gatherings Act can lawfully regulate the proceedings prior to a planned protest, and as the Policy requires the payment of a fee which is not a requirement under the Act, that policy is therefore unlawful. They also submitted that the Policy itself is unconstitutional because it limits the constitutional right by excluding those who cannot pay the fee from exercising their right to protest which “disproportionately disadvantages the most marginalised members of society” [para. 15]. The organizations argued that the threat of the municipality not providing law enforcement for a protest if the fee has not been paid creates a chilling effect as it “gives the impression that the protest is illegal and illegitimate, and places at risk the safety and security of those who participate” [para. 15]. The organizations maintained that the “right to protest necessarily includes the right to protection by the State” and that, because rights are interdependent, the fee infringes “the plethora of other rights” [para. 16-17]. The organizations submitted that as the Policy was a municipal council resolution and not a law the general limitation clause in section 36 of the Constitution does not apply.
The Municipality argued that the payment of the fee was not a condition for the holding of the protest but was “levied so that the respondents can facilitate the right to protest” [para. 12]. It submitted that it was empowered to levy a fee as the Constitution authorizes municipalities to govern their local affairs under the Systems Act, 32 of 2000 – which includes the power to determine how to finance those affairs through the requirement to adopt “a tariff policy for fees for services provided” [para. 20]. The Municipality also argued that the absence of a fee requirement in the Gatherings Act does not prohibit municipalities from implementing fees for its processes around gatherings. It added that as the payment of the fee is only called for after the authorization for the planned protest is granted it is not a condition to receive that authorization.
The South African Human Rights Commission argued that article 21 of the International Covenant on Civil and Political Rights obliges states to respect the right of peaceful assembly, and that the imposition of a fee does not meet the criteria for a justifiable limitation of the right.
The Court stressed that the judgment refers only to peaceful activities and that “[n]othing in this judgment should be construed to imply that the right in section 17 can be exercised other than peacefully and unarmed” [FN 1]. It noted the historical and current importance of the right, stating that it “has earned its place in our constitutional order, in part because of the role that protests played in our country’s transition from apartheid to democracy, and in part because of the role protest continues to play in holding government accountable” [para. 3]. The Court recognized that the right’s importance meant that it could not be “easily limited” and that any limitation to the right – including by local governments – had to be constitutional [para. 3].
The Court first examined whether the Policy met the constitutional requirement of legality, and so whether the levying of fees was ultra vires the Act and whether it was rational. The Court held that there was “nothing in the Gatherings Act that implies that the Municipality has the power to levy fees in respect of protests” and that as the Systems Act also does not expressly mention protests as a legitimate area for fees, the Court concluded that there was no legislation that conferred the power to levy fees on the Municipality. The Court noted that a municipality acts unconstitutionally if it exercises powers it does not have, and so held that the “decision to levy fees from convenors of protests is contrary to the principle of legality” [para. 43].
In finding that the Municipality had acted irrationally, the Court held that there was no rational reason for charging convenors of protests to facilitate services for the protest. It stressed that the State has a constitutional obligation to provide security services in order for the right to protest to be enjoyed, and quoted the preamble of the Gatherings Act which states that “every person has the right to assemble with other persons and to express his views on any matter freely in public and to enjoy the protection of the State while doing so” [para. 47]. The Court referred to the Office for Democratic Institutions and Human Rights Guidelines on Freedom of Peaceful Assembly which emphasized the positive obligations States have to facilitate the enjoyment of the right, and that “the costs of providing adequate security and safety (including traffic and crowd management) should be fully covered by the public authorities” [para. 48]. The Court added that the idea that the right to protest is conditional on providing security services would mean that “the right to protest becomes a hollow promise” [para. 49]. The Court also referred to the Municipality’s submission that NGOs receive a “discount” in the fees and noted that this argument merely demonstrates the Policy’s irrationality as it is not possible that the “negligible sum” NGOs would pay would cover the costs of the services required [para. 50].
Accordingly, the Court held that “the charging of fees to convenors is irrational” and so was unconstitutional [para. 51].
The Court then examined whether the Policy limited the constitutionally-protected right to protest. It noted that by finding the Policy irrational it need not also conduct this enquiry, but commented that “because the right to protest is a cornerstone of our constitutional democracy, I feel compelled to address this argument for the sake of completeness” [para. 52]. In this analysis it examined whether the right had been limited and then whether that limitation was justifiable under section 36 of the Constitution (the general limitations clause).
With reference to the case of Mlungwana v. S, the Court reiterated the importance of the right, especially given South Africa’s history of resistance to apartheid. However, the Court also noted that “[o]urs is not the only country in which the right to protest holds a particularly notable place in the constitutional order because of the role that protests played in the struggle for independence”, and conducted an overview of international law concerning the protection of the right. It also commended the South African Human Rights Commission for introducing international law into the argument.
The Court quoted article 11 of the African Charter on Human and Peoples’ Rights, article 21 of the International Covenant on Civil and Political Rights, and article 11 of the European Convention on Human Rights. It also referred to the Zimbabwean case of DARE v. Saunyama NO and the South African case of SATAWU v. Garvas in emphasizing that the right is important because “[t]he right to protest unhindered is a crucial tool in the arsenal of citizens of any democracy” [para. 59]. The Court described protest as “an outlet through which citizens can occupy public spaces to voice discontent and have their voices heard” and that as it “enables participatory democracy, … to trammel on the right is to manipulate the path of democracy” [para. 60].
The Court highlighted that the importance of the right means it “cannot be limited without good reason” but that this does not mean that there can be no regulation of protests [para. 61]. It stressed that the existence of the Gatherings Act is in itself not a limitation to the right but stated that “it is incontrovertible that any regulation which dissuades protestors from exercising their rights goes beyond mere regulation”, and so regulation is permissible while action which prevents a peaceful assembly is not [para. 62]. Here again the Court referred to foreign jurisprudence, mentioned the Ugandan case of Human Rights Network Uganda v. Attorney General, the DARE case, and the UN Human Rights Committee (the UNHR Committee) decision in Kivenmaa v. Finland , and concluded that the UNHR Committee has found that “contracts with municipalities as well as fines for failure to give notice are undue restrictions” [para. 67]. It also referred to the UNHR Committees’s General Comment 37, and its judgment in Popova v. Russian Federation, as well as the European Court of Human Rights case, Novikova v. Russia, in stressing that regulation cannot be “misused to stifle peaceful assemblies” [para. 68].
The Court rejected the Municipality’s argument that the levying of fees facilitated the enjoyment of the right by enabling the provision of services, and held that charging that fee “goes beyond mere regulation because it objectively deters people from freely exercising their rights” [para. 70]. The Court referred to international jurisprudence in Kuznetsov v. Russia and Kudrevičius v Lithuania which had held that the imposition of a fine – irrespective of the amount – constituted a limitation of the right. Accordingly, it held that the Policy did limit the right to protest – in that it economically and socially increases the costs of the protest and creates a chilling effect, even if it is not, “strictly speaking, mandatory” [para. 71].
In assessing the disproportionate effect of the Policy, the Court underlined a number of aspects it considered concerning. It commented that it “cannot be tolerated that a situation arises whereby the most marginalised members of our society might be deterred from publicly voicing their grievances” and that “[t]o the extent that the respondents have attempted to argue that charging fees give a platform to those voices, they have pitifully missed the point” [para. 74]. It added that “[t]he irony is that those who are the most disenfranchised, are precisely those who most rely on exercising the section 17 rights to make their voices heard” [para. 75]. The Court stressed that marginalized communities were less likely to be able to pay any fees levied, and so were at risk of exclusion from participatory democracy, and that “[i]t is integral to the development of our society that these communities can exercise their rights to assemble without being inhibited from doing so” [para. 76]. It also expressed concern that the Policy only applied in Johannesburg, and so disproportionately affected residents of that city and that the Municipality’s statement that the lack of payment of a fee meant only that there would be “a minimal deployment of JMPD services … suggests that those who are most vulnerable will be rendered susceptible to further vulnerability” [para. 80]. In this respect the Court referred to the Ugandan cases Human Rights Network Uganda and Kivumbi v. Attorney General, in holding that “the supervision of gatherings to ensure public safety and adequate traffic control constitutes one of the core services that South African should be entitled to rely upon” [para. 81]. The Court commented that “[o]urs is a constitutional democracy that has chosen to advance the project of human rights. This comes at a cost, and not one that should fall upon the shoulders of the most marginalised among us” [para. 83]. The Court, therefore, held that in addition to limiting the right, the Policy limited it disproportionately.
In examining whether the limitation meets the section 36 requirements, the Court stated that the Policy does not constitute a “law of general application” and so cannot limit a constitutional right under the section 36 framework.
Accordingly, the Court held that the levying of fees for protests in terms of the Policy was unconstitutional. It concluded, noting that “[t]he commitment required to fully protect the right to protest, stave off arbitrary municipal regulation of gatherings, and promote democracy is certainly one with which the Judiciary should concern itself” and added that “[a]s a constitutional democracy, it is imperative that we move towards a position of facilitating rather than repressing those who seek to exercise their constitutional rights to protest” [para. 99].
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
In holding that authorities cannot impose fees – irrespective of the amount – on convenors of protests, the Court strengthened the right to protest and emphasized that the State has a positive obligation to provide safety services to enable the full enjoyment of the right to peaceful protest.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
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