IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA
CCT CASE NO.
WCHC CASE NO: A431/15
In the matter between:
PHUMEZA MHLUNGWANA First Applicant
XOLISWA MBADISA Second Applicant
LUVO MANKQA Third Applicant
NOMHLE MACI Fourth Applicant
ZINGISA MRWEBI Fifth Applicant
MLONDOLOZI SINUKU Sixth Applicant
VUYOLWETHU SINUKU Seventh Applicant
EZETHU SEBEZO Eighth Applicant
NOLULAMA JARA Ninth Applicant
ABDURRAZACK ACHMAT Tenth Applicant
and
THE STATE First Respondent
THE MINISTER OF POLICE Second Respondent
ANSWERING AFFIDAVIT
| P a g e 2 I, the undersigned
MELVILLE CLOETE
hereby make oath and state the following:
1. I am an adult male Legal Advisor employed by the South African Police Service in the office of the Provincial Commissioner of Police in the Western Cape at 25 Alfred Street, Green Point, Cape Town. I have served in this position for the past twenty-two years and have been in the service of the Police for the last thirty-six years.
2. I am duly authorised to depose to this affidavit and to oppose this application on behalf of the Second Respondent (“the Minister”).
3. The facts contained herein are within my personal knowledge, unless the contrary appears from the text, and are both true and correct. Where I make legal submissions, I do so on the basis of the advice provided by the Minister’s legal representatives. Where I rely on facts conveyed to me by third parties, I verily believe the correctness of such facts.
4. In their application for confirmation, the Applicants seek to have the orders made by the Western Cape High Court on 24 January 2018 (“the High Court Order”) in Mhlungwana and Others v S and Others (A431/15) [2018], confirmed.
| P a g e 3 5. The order of 24 January 2018 provides:
5.1 that the appellants’ appeal against conviction is upheld and the convictions are set aside;
5.2 section 12(1)(a) of the Regulations of Gatherings Act 205 of 1993 is unconstitutional and invalid;
5.3 the declaration of invalidity in paragraph 2 is not retrospective, and shall not affect finalised criminal trials, but will apply to any criminal matters in which, as at the date of this judgment, either an appeal or review is pending or the time for the noting of an appeal has not expired.
6. The Second Respondent is appealing the High Court Order and has filed a notice of appeal against the Order, requesting that it be set aside.
7. The Second Respondent is therefore opposing this application for confirmation and in so doing, is relying on the same grounds expounded in the Second Respondent’s notice of appeal. In what follows, I provide a summary of the grounds of appeal.
INFRINGEMENT OF SECTION 17 OF THE CONSTITUTION
8. Section 12(1)(a) (as read with section 3) is a legislative measure aimed at ensuring that the exercise of the right to assemble with others takes place peacefully and with due regard to the rights of others.
9. As such, it serves a very important purpose as gatherings and demonstrations, by their very nature involve more than one person and that the conduct of such persons together forms a gathering or demonstration that is protected by
| P a g e 4 section 17 of the Constitution. In light thereof, (and in the absence of any challenge to section 3 of the RGA or the definition of “gathering” and/or
“demonstration” on the RGA), the High Court ought to have found that section 12(1)(a) of the RGA does not limit/infringe the right to freedom of assembly in section 17 of the Constitution.
JUSTIFICATION
10. The right to assemble is important and indeed vital to South Africa’s democracy but is not absolute. The measures aimed at giving effect to the right to peaceful and unarmed assembly, such as section 12(1)(a) of the RGA, bear particular significance in recognising the importance of the right.
11. If this Court is to find that the criminalisation of a gathering without notice constitutes an infringement of section 17 of the Constitution, I respectfully aver that such an infringement (if found) is in any event justifiable in terms of section 36 of the Constitution.
12. The notification requirement serves an important purpose of ensuring that proper planning can take place for a sufficient number of police officers to be deployed and to be made available on stand-by should they be required. In light of the scarcity of policing resources, this is a particularly important objective.
13. Section 12(1)(a) deters the occurrence of non-notified gatherings. This deterrence serves an important and legitimate government purpose in that there is a greater risk to non-notified gatherings not being peaceful and
| P a g e 5 unarmed and thereby infringing the section 17 right that vests in all persons.
14. The High Court Order further effectively renders section 12(1) of the RGA irrational in that it will result in a situation of there being no criminal sanction for a failure to give notice for convening a gathering; yet, there will be a sanction for giving notice but failing to adhere to the content of a notice or a condition. The Court ought to have recognised that such a consequence will serve as an incentive for persons not to give notice in the first place, thereby placing an ongoing risk to the infringement of section 17 of the Constitution.
15. The notification requirements only apply to gatherings and not demonstrations. Section 12(1)(a) of the RGA therefore finds application in narrowly circumscribed instances.
16. Section 12(2) is a defence to a charge of convening a gathering in contravention of subsection 12(1)(a), i.e. that the gathering concerned took place spontaneously.
CHILLING EFFECT
17. It is the conduct of the person convening the gathering that is criminalised by the impugned section and not the entire gathering.
18. It is further a defence to a charge of convening a gathering in contravention of subsection 12 (1)(a) that the gathering took place spontaneously.
19. In the circumstances, I ask that the application for confirmation be dismissed with costs, such costs to include the costs of two counsel.
| P a g e 6 _____________________
MELVILLE CLOETE
I certify that:
1. The deponent acknowledged to me that:
1.1 He knows and understands the contents of this declaration;
1.2 He has no objection to taking the prescribed oath;
1.3 He considers the prescribed oath to be binding on his conscience.
2. The deponent thereafter uttered the words: "I swear that the contents of this declaration are true, so help me God".
3. The deponent signed this declaration in my presence at the address set out hereunder on this _____ day of __________________.
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