Chapter 3 FREEDOM OF ASSEMBLY
3.2 Background to assembly jurisprudence
to the dispute. Therefore, the present debate is premised on the indirect application of the Bill of Rights. Should the issue of the development of the crime of public violence come before court, it would require the court to develop the crime so that it is in harmony with the Bill of Rights and this procedure is said to be the indirect application of the Bill of Rights.
Constitution with an entrenched Bill of Rights was rejected by the drafters of the Constitution of the Union in 1910 and again in 1961.
Notwithstanding the decades of the non-existence of an entrenched Bill of Rights, the concept of freedom of assembly has always been a part of the South African history and even enjoys international recognition.336 The South African courts and academics have over the years unequivocally expressed the notion of freedom of assembly as a right of every citizen, though it can be limited in certain circumstances especially for purposes of public safety.337 It is submitted that the source of the right was the common law.338
Extensive statutory regulation of the right to freedom of assembly began in the year 1914 with the enactment of the Riotous Assemblies Act 27 of 1914 in an attempt to deal with white labour unrest.339 It would seem that prior to the enactment of the laws regulating the freedom of assembly, the right was exercised almost without any legal impediments.340 This is informed by the fact that the common-law position at the time was that an individual was entitled to all rights not expressly prohibited or limited by statute or the common law.341 Therefore, the common-law crime of public violence was the primary limitation of the right to freedom of assembly.342
The implementation of repressive laws aimed at frustrating this fundamental freedom gained momentum from the 1920s and peaked at the inception of the official apartheid policy in 1948.343 Thereafter, a number of statutory measures which made significant adverse inroads into freedom of assembly were enacted.344 For black South Africans, however, their right to freedom of assembly did not have to wait until
336See Dlamini op cit (n332) 88; and GE Devenish ‘Constitutional law’ in WA Joubert (2 ed)The Law of South Africa Vol 5, Part 3 (2004) para 87. Freedom of assembly has received recognition in international treaties, notably articles 17, 19 and 20 of the Universal Declaration of Human Rights;
articles 19, 21 and 22 of the International Covenant on Civil and Political Rights; articles 10 and 11 of the African Charter on Human and People Rights; articles 15 and 16 of the American Convention of Human Rights; article 11 of the European Convention; article 5 of the Convention on the Prohibition of All Forms of Racial Discrimination; and article 7 of CEDAW.
337The court inS v Turell and Others1973 (1) SA 248 (C) at 256 and inS v Budlender1973 (1) SA 264 at 272 made it clear that freedom of assembly was a right enjoyed by the citizens of this country.
See also E Kahn ‘Freedom of Assembly’ (1973) 90South African Law Journal18; and Dlamini op cit (n332) 96 citing the cases ofMakwele v Government of Bophuthatswana1994 (1) SA 503 (BA) and Segale v Bophuthatswana1990 (1) SA 434 (BA).
338See Cheadle op cit (329) 241.
339Woolman op cit (n335) 43-5.
340Ibid.
341Ibid.
342Ibid.
343Ibid.
344For a list of these statutory measures see 2.8.1 above.
the coming into effect of the official policy of apartheid in order for it to endure severe suppression. The Black Administration Act 38 of 1927, Development Trust and Land Act 18 of 1936 and Black (Urban Areas) Consolidation Act 25 of 1945 already had an impact on the regulation of assemblies of the Bantus or black South Africans.345
As already stated, unregulated assemblies were short-lived and numerous statutory measures began to emerge from the year 1914 and escalated particularly after the official adoption of the apartheid policy in the year 1948. The trend continued for a number of years until the beginning of the 1990s. A major breakthrough towards democracy in South Africa which set the tone for the adoption of a Constitution with an entrenched Bill of Rights came with the signing of the National Peace Accord in February 1990 by the majority of political parties.346
The year 1992 saw real attempts to reconcile the right to freedom of assembly with the state’s interest in the maintenance of peace and order. This led to the appointment of a Commission of Inquiry known as the Commission of Inquiry Regarding the Prevention of Public Violence and Intimidation (“the Goldstone Commission”)347 whose task was to carve a new and uniquely South African approach to assemblies and demonstrations.348
A major innovation of the Goldstone Commission was the adoption of the Regulation of Gatherings Act (RGA).349 The RGA is lauded for having struck a balance between
345Woolman op cit (n335) 43-5.
346Ibid 43-6.
347On which see Heymann, PBTowards peaceful protest in South Africa: Testimony of multinational panel regarding lawful control of demonstrations in the Republic of South Africa before The
Commission of Inquiry regarding the prevention of public violence and intimidation(1992) (“the Heymann report”).
348Hjul op cit (n40) 458 observes that, unlike other commissions of inquiry which are appointed by the President in terms of the Commissions of Inquiry Act 8 of 1947, the Goldstone Commission was mandated by the Prevention of Public Violence and Intimidation Act 139 of 1991. The Act was never repealed, but its provisions can be argued to have fallen into disuse because, although the Act intended the Goldstone Commission to live beyond the three-year life span that it survived, the presidency never appointed the successor to Goldstone J. Hjul argues further that the collapse of the Commission might have had a role in the resurfacing of violent protests and strikes.
349205 of 1993. The Act lays down the procedural requirements for organising and holding
demonstrations, it stipulates the role and powers of the police, local authorities and interested parties, it provides for the imposition of civil liabilities on organisers or conveners of demonstrations should riot damage occur, and sets out the criminal penalties for the breach of certain provisions of the Act. For a summary of the provisions of the RGA, seeGarvis v SATAWU (Minister for Safety & Security, Third Party)2010 (6) SA 280 (WCC) paras 12 - 18; andSATAWU v Garvis and Others2011 (6) SA 382 (SCA) paras 21 - 28. For an analysis and a critique of the provisions of the RGA, see Woolman op cit (n335) 43-7 – 43-17; De Vos op cit (n23) 556-557; Currie & De Waal op cit (n23) 381-383; Cheadle op cit (n329) 243-245; and Hjul op cit (n40) 456.
the right to assemble freely and the maintenance of peace and order.350 Thereafter, the official demise of the apartheid system came with the Interim Constitution and the Final Constitution, both of which had an entrenched Bill of Rights.