On 21 August 2018, the United Nations Special Rapporteur on the rights to freedom of peaceful assembly and of association, represented by SERI, presented written and oral submissions as amicus curiae in the Constitutional Court, in a matter to determine whether section 12(1)(a) of the Regulation of Gatherings Act (the Gatherings Act) unjustifiably infringes the constitutional right to peaceful assembly.
The case arose after a small group of community-based activists and members of the Social Justice Coalition (SJC) 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) of the Gathering's Act 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 Cape Town High Court, where they asked the court to declare section 12(1)(a) of the Gathering Act unconstitutional. The protestors argue that criminalising the conveners of a protest simply because they did not notify the relevant authorities that they intended to protest unjustifiably infringes the constitutional right to peacefully assemble. The UN Special Rapporteur was admitted as an amicus curiae in the High Court and made oral and written submissions. The High Court declared section 12(1)(a) of the Gatherings Act unconstitutional. 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.
In the Constitutional Court, during an application brought by the protestors and the SJC to have the High Court's order of invalidity confirmed, the UN Special Rapporteur once again made oral submissions. The UN Special Rapporteur'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. The UN Special Rapporteur argued that holding organisers criminally liable for failing to notify authorities about a protest is a restriction to the right to freedom of peaceful assembly. The Spcial Rapporteur also argued that the number of demonstrators – which is set at 16 – as the only factor for when notice must be provided, is arbitrary and not proportionate. Judgment in the case was reserved.