On 19 November 2018, the Constitutional Court handed down a ruling upholding the January 2018 judgment from Judge Ndita of the Western Cape High Court, which declared section 12(1)(a) of the Regulations of Gathering Act unconstitutional.
The matter arises as a result of a protest by members and supporters of the Social Justice Coalition outside the offices of the former 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.
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 Regulation of Gatherings Act 205 of 1993 (“Gatherings Act”) 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.
On 24 January 2018, the Western Cape High Court declared section 12(1)(a) of the Gatherings Act unconstitutional. In declaring this provision unconstitutional, the Western Cape High Court 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 matter was referred to the Constitutional Court for confirmation of the order of constitutional invalidity, where the State and the Minister of Police appealed the Western Cape High Court's order.
On 21 August 2018, the matter was heard in the Constitutional Court. SERI, acting on behalf of the UN Special Rapporteur, once again made submissions based on an international law perspective and urged 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 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.