Gatherings Act - United Nations Special Rapporteur on the Rights to Freedom of Peaceful Assembly - amicus curiae - Western Cape High Court - Constitutional Court

SERI represents the United Nations Special Rapporteur on the rights to freedom of peaceful assembly and of association in Mlungwana and Others v The State and Others. The Special Rapporteur has been admitted as amicus curiae in an appeal against the judgment of the Cape Town Magistrates’ Court and in the Constitutional Court.

The matter arises as a result of a protest by members and supporters of the Social Justice Coalition (SJC) outside the offices of the City of Cape Town (the City) Mayor 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.

No one was convicted under section 12(1)(e) of the Gatherings Act.  However, those accused, who were regarded as the people who convened the gathering and are the appellants in the appeal, were convicted on the main charge of contravening section 12(1)(a) of the Gatherings Act. In sentencing, the Magistrate cautioned the latter accused and discharged them.

In the Western Cape High Court in Cape Town, the court questioned whether section 12(1)(a) is unconstitutional for criminalising conveners of an assembly of over 15 people if prior notice was not provided. In written submissions, SERI, on behalf of the UN Special Rapporteur provided 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). The Un Special Rapporteur argued that holding organisers criminally liable for not providing notification is a restriction to the right to freedom of peaceful assembly, which then must conform to international law, standards and principles. The UN Special Rapporteur also argued that the number 16, as the only factor for when notice must be provided, is arbitrary and not proportionate.

With regards to the defence provided under section 12(2) of the Gatherings Act, the UN Special Rapporteur argued it does not remove the illegitimate restrictions occasioned by section 12(1)(a) on the right to freedom of assembly.  Having applied the proportionality and necessity test at international law, SERI concluded that section 12(1)(a) of the Gatherings Act, by imposing criminal sanctions for inadequate or complete lack of notification for assemblies only because more than 15 people participated, does not serve a legitimate aim.

On 24 January 2018, the Western Cape 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. 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. Judgement is pending.

• UN Special Rapporteur written submissions in the Constitutional Court (6 July 2018) here.
• Applicants' heads of argument in the Constitutional Court (July 2018) here.
• State's notice of appeal and answering affidavit in the Constitutional Court (8 February 2018) here.
• Applicants' application for confirmation of order of invalidity in the Constitutional Court (7 February 2018) here.
• High Court judgment (24 January 2018) here.
• Equal Education's heads of argument here.
• UN Special Rapporteur's heads of argument here.
• Amicus order here.
• Appellants' heads of argument here.
• Open Society's heads of argument here.
• Equal Education amicus application here.
• Applicant's replying affidavit here.
• Second respondent's answering affidavit here.
• Notice in terms of Rule 16A here.
• Notice in terms of Rule 10A here.
• Application for leave to appeal here.
• Magistrate's Court judgment here.
• Accused's heads of argument here.