The Western Cape High Court will today hear a challenge of the constitutionality of the Regulation of Gatherings Act 205 of 1993 (“Gatherings Act”) in an appeal against the judgment of a magistrates’ court.
The matter arises as a result of a protest by members and supporters of the Social Justice Coalition outside the offices of the City of Cape Town (the City) Mayor, Ms Patricia de Lille, on 11 September 2013. Their grievances related to issues of poor sanitation for communities after lengthy engagements with the City. SERI represents the United Nations Special Rapporteur on the rights to freedom of peaceful assembly and of association in the matter. The Special Rapporteur has been admitted as amicus curiae.
The protesters, among other things, chained themselves to the railings at the City’s Civic Centre. Upon police intervention, 21 protesters were arrested and charged under section 12(1)(a) of the) for unlawfully and intentionally convening a gathering without providing the relevant municipal authority with any notice that the gathering would take place. In the alternative to the main charge, the accused were charged under section 12(1)(e) of the Gatherings Act for unlawfully and intentionally attending a gathering without notice and the required permission from the relevant authority.
The court will consider whether section 12(1)(a) of the Gatherings Act is unconstitutional for criminalizing conveners of an assembly of over 15 people if prior notice was not provided. SERI will urge the court to have regard to international law, standards and principles when considering the constitutionality of section 12(1)(a), and argue that holding organisers criminally liable for not providing notification or an inadequate notification is a restriction to the right to freedom of peaceful assembly, which then must conform to international law, standards and principles. SERI will also argue that the number 16, as the only factor for when notice must be provided, is arbitrary and not proportionate.