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CONSTITUTIONAL COURT OF SOUTH AFRICA Mlungwana and Others v State and Another
CCT 32/18 Date of Hearing: 21 August 2018 ________________________________________________________________________
MEDIA SUMMARY
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The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.
On Tuesday, 21 August 2018, at 10h00, the Constitutional Court will hear an application for the confirmation of an order of constitutional invalidity made by the High Court of South Africa, Western Cape Division, Cape Town (High Court). The High Court declared section 12(1)(a) of the Regulation of Gatherings Act 205 of 1993 (RGA) unconstitutional and invalid insofar as it makes it a criminal offence to convene a gathering of more than 15 people without giving the requisite prior notification to the responsible officer of a municipality. The state and the Minister of Police (the respondents) seek leave to appeal against the High Court’s declaration of constitutional invalidity.
The applicants are members of the Social Justice Coalition, who on 11 September 2015 travelled as a group of 15 members to demonstrate at the Cape Town Civic Centre in response to dangerous and inadequate sanitation facilities in Khayelitsha. The demonstration was peaceful and unarmed, but grew in size at the venue. A police official informed them that their assembly had become unlawful due to its size, and eventually arrested the applicants. The applicants were subsequently charged for contravening section 12(1)(a) of the RGA in the Magistrate’s Court, Belville. They were convicted as charged. The Magistrate cautioned and discharged them.
The applicants appealed against their conviction to the High Court and challenged the constitutionality of section 12(1)(a). The applicants argued that section 12(1)(a) constituted a limitation of the rights enshrined in section 17 of the Constitution, which provide for freedom of assembly. They also argued that the limitation is not justifiable under section 36 of the Constitution. The respondents contend that section 12(1)(a) does not limit the right to freedom of assembly, but that if the section does limit the right, the
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limitation is justifiable because of the legitimate aim of section 12(1)(a): to incentivise conveners of gatherings to give notice and assist the state in facilitating the exercise of section 17. Three amici curiae (friends of the court) assisted the High Court with submissions on how section 12(1)(a) will have a particularly negative impact on children’s right to protest and how it is contrary to international standards and best practice in other democratic jurisdictions. The High Court found in favour of the applicants and declared section 12(1)(a) unconstitutional. It cited the chilling and disproportionally negative effect a criminal conviction can have on a person attempting to exercise their freedom of assembly, especially considering that there are other less restrictive measures that could achieve the same legitimate aim.
The applicants now turn to this Court to seek confirmation of the order of the High Court.
The applicants submit that section 12(1)(a) is a limitation of their freedom to assemble and therefore the state has a duty to justify the limitation. The applicants rely on four grounds to show that section 12(1)(a) is unconstitutional. These are: the nature and importance of the right in facilitating the exercise of other rights, the disproportionate response of criminalisation when such notice is not given, the lack of evidence supporting the respondents’ claim that criminalisation adequately achieves any legitimate purpose;
and the availability of less restrictive means to achieve the same aim.
The respondents submit that section 12(1)(a) is not a limitation of the right to freedom of assembly as it forms part of a larger body of positive measures to facilitate the access to freedom of assembly by all. Alternatively, the respondents emphasise the importance of notice to allow the state to deploy adequate police resources to protect both the members of the gathering; and the property and safety of other persons. The respondents also highlight the ease of compliance with the notice procedure, the availability of a defence to the criminal charge provided for in the RGA when an assembly spontaneously occurs or increases in size; and the relatively minor penalties for this contravention of the RGA.
The Constitutional Court admitted three amici curiae: Equal Education, the Right to Know Campaign, and the United Nations Special Rapporteur on the Right to Freedom of Assembly. They will assist the Court by making the following respective submissions:
section 12(1)(a) should be considered in the light of South Africa’s history of student protests, the inaccessibility of the notice procedure for children and the devastating effect a criminal record would have on a child’s future; the relevant international and foreign law prohibiting criminalisation as a mechanism to enforce compliance with a notice requirement; and international and foreign standards for how non-notification is sanctioned and the threshold for imposing a notification requirement.
