Chapter 3 FREEDOM OF ASSEMBLY
3.3 The importance of free assemblies
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.
The subsequent cases of S v Budlender,355and Seeiso v Minister of Home Affairs and Others356also advance the preservation of the fundamental right to freedom of assembly. These cases call for the courts to exercise restraint in interpreting the statutory provisions which have the effect of curtailing the right to freedom of assembly and not readily uphold the laws and conduct that restrict the right to freedom of assembly.357
In Seeiso358 the court held that “[i]n view of the provisions of the Constitution articulating this fundamental freedom, the Court should be loath to give a strained or extended meaning to a statute which would through such an interpretative process seek to confer power to abridge or curtail the right to free assembly”. Therefore, in the absence of compelling evidence to sustain the limitation of the right to freedom of assembly, it was found to be insufficient that the right to freedom of assembly be limited in favour of the maintenance of state security, the protection of the public interest and the maintenance of law and order.
The court in Budlender359also made some crucial findings. First, it noted that the Riotous Assemblies Act created a “political offence”. Having done so, it further took into account a crucial consideration of the nature of the South African society, and that is South Africa comprises various racial, cultural, tribal and linguistic communities. With that in mind, the court then reasoned that all these communities possess different beliefs and ideologies and they do not view the “political offence”
created in the Act with the same degree of condemnation, if any. In fact, in some communities the commission of what is deemed to be a political offence even carries approval. It was then held that the courts have a duty to approach such an offence with an open mind so to ensure that people are not severely punished for upholding their beliefs.
No doubt the Budlender case holds relevance for the offences and civil remedies provided for in the RGA as well as the crime of public violence. The RGA and the crime of public violence operate in a societal setting that is no longer defined mainly
3551973 (1) SA 264 (C).
3561998 (6) BCLR 765 (LesCA).
357Other leading cases where the importance of the right to freedom of assembly is emphasised includeIn Re Manhumeso and Others1995 (1) SA 551 (ZS);South African National Defence Union v Minister of Defence and Another1999 (4) SA 469 (CC); andS v Mamabolo (Etv and Others
intervening)2001 (3) SA 409 (CC).
358Seeiso1998 (6) BCLR 765 (LesCA) 777. In this case the Minister of Home Affairs had relied on the provisions of the Chieftainship Act of 1968 to prohibit a meeting of the Chiefs convened by the King to discuss matters of succession on the ground that it would threaten public safety and the maintenance of law and order.
359Budlender1973 (1) SA 264 (C) 268.
by race but by economic disparities. Therefore, the breach of the RGA or the commission of public violence carries different degrees of condemnation for the privileged and less privileged communities and the court must bear this in mind when enforcing the statutory offences in the RGA or the crime of public violence. This also ties in with the Constitutional Court’s view on the importance of the right to freedom of assembly expressed inSATAWU and Another v Garvas and Others.360
“The right to freedom of assembly is central to our constitutional democracy. It exists primarily to give a voice to the powerless.
This includes groups that do not have a political or economic power, and other vulnerable persons. It provides an outlet for their frustrations. This right will, in many cases, be the only mechanism available to them to express their legitimate concerns. Indeed, it is one of the principal means by which ordinary people can meaningfully contribute to the constitutional objective of advancing human rights and freedoms. This is only too evident from the brutal denial of this right and all the consequences flowing therefrom under apartheid. In assessing the nature and importance of the right, we cannot therefore ignore its foundational relevance to the exercise and achievement of all other rights”.
To further elaborate on the importance of free assemblies, it is noteworthy that resort to protest action is a potent tool used by vulnerable groups in South Africa to communicate their concerns. Unlike in western countries where communities have an option communicate their concerns electronically through computers, televisions and newspapers, the vulnerable groups in South Africa do not have access to the media, thus leaving demonstrations their only available avenue to vent out their frustrations.361
Woolman362 submits further that by allowing minorities to protest and signal their dissatisfaction with the ruling majority, that helps to quench the feeling of marginalisation, helplessness and isolation for these vulnerable groups, and it provides for democracy to be seen to also work in their favour, thereby legitimising the exercise of power by the majority. It goes without saying that the demonstrations envisaged are peaceful demonstrations only.363
3602013 (1) SA 83 (CC) at para 61. For a discussion and analysis of this case, see 3.4 below.
361Woolman op cit (n335) 43-3.
362Ibid.
363Section 17 of the Constitution provides for the right to freedom of assembly, but also incorporates its own internal modifiers to the effect that the gathering must be peaceful and the participants in the gathering must be unarmed. See furtherFourways Mall (Pty) Ltd and Another v South African
Furthermore, the exercise of the right to assemble also assists the government to identify pressing issues in society in-between elections, thereby promoting government accountability and responsiveness.364 It has also been observed that free assemblies contribute to a participatory democracy in terms of which the citizens are actively involved in public affairs.365 Therefore, free assemblies “create space for large, vocal social formations that service representative democracies; act as catalyst for debate; and enhances the legitimacy of the political processes by allowing for the articulation of minority views”.366
Even though South Africa is a democratic state and all segments of society are allowed an opportunity to express their views in matters of governance, one cannot be naïve to assume that individuals and organised formations would have an equal voice and equal bargaining power. Free assemblies become more crucial in the event that dialogue dies down and the balance of power is skewed or abused to the detriment of the minority.367 Assemblies and demonstrations thus provide a voice for the minority to communicate their views with a sufficient degree of force for them to get attention.