19 November 2018
The Constitutional Court has ruled that the failure to give notice of a protest should not be made a criminal offense.
The judgement, delivered on Monday morning in a case that has become known as the SJC10, was unanimous. It was handed down by Justice Xola Petse.
In August, civil society organisations argued that failing to give the authorities notice of a peaceful protest should not be a criminal offence. The State opposed this argument saying that making it a criminal offence was the only way to deter people from protesting without giving notice.
The legal battle began after activists from the Social Justice Coalition (SJC) chained themselves to the railings of the Civic Centre in Cape Town as an act of civil disobedience in 2013. They were fighting for better sanitation in Khayelitsha.
According to the Regulation of Gatherings Act 205 of 1993, organisers of gatherings of more than 15 people have to give notice of their protest.
Ten elected leaders, known as the SJC10, were identified as the convenors of the protest and were convicted for contravening the Act by failing to provide notice. The Cape Town Magistrates’ Court referred the matter to the Western Cape High Court where Judge Thandazwa Ndita ruled that the section of the Act was invalid and unconstitutional. The state and the Minister of Police appealed the judgment and the matter was heard in the Constitutional Court.
But the Constitutional Court upheld the High Court judgment saying that the criminalisation of not giving notice for a protest deters the exercise of the right to assemble and “deterrence by its very nature limits the exercise of this right”.
Although the judgment will not apply to previously finalised criminal trials, the court has set aside the convictions and sentences of the SJC10.
One of the SJC10 who was the first applicant in the case, Phumeza Mlungwana, told GroundUp that it was a relief to no longer have a criminal record.
“The first time I laid in a cell was because I was arrested for protesting for fundamental constitutional rights and that shouldn’t be allowed,” said Mlungwana. She said having this judgment from the highest court in South Africa was a victory for social justice movements and communities who use protest as a way to highlight their issues.
Mlungwana said the judgment takes away the fear of criminal records that often stops people from protesting.
Zackie Achmat, also one of the ten, told GroundUp, “The right to protest has been freed from its colonial and apartheid shackles. Protests, demonstrations and sit-ins can be convened anywhere without having to give notice.”
Axolile Notywala, General Secretary of the SJC, said “As much as this is very exciting and we are happy… we are also sad that it had to get to this point where the Minister of Police appealed using taxpayers money to challenge such an absurd piece of legislation that criminalises peaceful protest”.
He said this was something that the public should be angry about because the public funds used in the legal battle over the past five years was wasted.
The Minister of Police was ordered to pay the costs of the application.
CORRECTION: The article originally said the SJC10 protest was in 2015. It was in 2013.