On 24 January 2018, the Western Cape High Court declared section 12(1)(a) of the Regulation of Gathering Act 205 of 1993 (the Gatherings Act), the primary piece of legislation that governs protests in South Africa, unconstitutional. Section 12(1)(a) made it a criminal offence to intentionally convene a gathering without notifying the municipality that the gathering would take place. In declaring this provision unconstitutional, judge Thandazwa Ndita said that a criminal sanction was "disproportionate to the offence" as it may result in people "carry[ing] with them the stigma" of a criminal conviction. Instead, judge Ndita suggested that civil liability may be a more appropriate penalty for failing to notify the municipality of an intended protest.
The case was brought to court by a small group of community-based activists and members of the Social Justice Coalition (SJC) who participated in a peaceful protest outside the Mayor of the City of Cape Town’s offices in Cape Town on 11 September 2013. During the protest, the protestors chained themselves to the railings of the City’s civic centre. Twenty one protesters were arrested and charged under section 12(1)(a) for unlawfully and intentionally convening a gathering without notifying the municipality that the gathering would take place. During the criminal proceedings that followed in the Magistrates’ Court, the accused protestors were held to have convened the protest and found guilty of the charges laid against them. The protestors appealed to the Western Cape High Court, where they asked the court to declare section 12(1)(a) unconstitutional. The protestors argued that criminalising the conveners of a protest simply because they did not notify the relevant authorities that they intended to protest unjustifiably infringed their constitutional right to peacefully assemble.
The United Nations Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association, represented by SERI, was admitted as amicus curiae in the matter. On 14 and 15 June 2017, SERI made oral submissions on behalf of the Special Rapporteur. SERI’s submission was based on an international law perspective and urges the court to have regard to international law standards and principles when considering the constitutionality of section 12(1)(a) of the Gatherings Act. SERI argues that holding organisers criminally liable for failing to notify authorities about a protest was a restriction of the right to freedom of peaceful assembly.