S v Mlungwana and Others

• Jurisdiction: South Africa
• Judge: Basson AJ, Cameron J, Dlodlo AJ, Froneman J, Goliath AJ, Khampepe J, Mhlantla J, Petse AJ and Theron J
• Judgment Date: 19 November 2018
• Citation: 2019 (1) SACR 429 (CC)
• Docket Number: CCT 32/18 [2018] ZACC 45
• Hearing Date: 21 August 2018
• Counsel: M Bishop (with P Mdakane) for the applicants. K Pillay (with M Mokhaetsi) for the first and second respondents. L Luthuli for the first amicus curiae. G Budlender SC (with M Vassen) for the second amicus curiae. B Lekoktla (with M Mbatha and Adv Matlapeng) for the third amicus curiae.
• Court: Constitutional Court

Petse AJ (Basson AJ, Cameron J, Dlodlo AJ, Froneman J, Goliath AJ, Khampepe J, Mhlantla J and Theron J concurring): C

Introduction

[1] Is the criminalisation of a convener's failure, wittingly or unwittingly, either to give notice or give adequate notice to a local municipality when convening a gathering of more than 15 persons, which is what s 12(1)(a) D of the Regulation of Gatherings Act [1] (the Act) does, constitutionally defensible? This is the central issue in this application and it rests on two further interrelated questions. First, does s 12(1)(a) limit the right entrenched in s 17 of the Constitution? Section 17 guarantees that '(e)veryone has the right, peacefully and unarmed, to assemble, to demonstrate, to picket and to present petitions'. Second, if so, is that E limitation reasonable and justifiable in an open and democratic society based on human dignity, equality, and freedom?

[2] The answer to these questions, for reasons that will become apparent later, is that s 12(1)(a) constitutes an unjustifiable limitation of the right in s 17. Accordingly, the declaration of constitutional invalidity made by F the High Court falls to be confirmed.

[3] The questions alluded to above, and answers thereto, arise against the following background. This is an application for confirmation of a declaration of constitutional invalidity in terms of s 172(2)(d) [2] of the Constitution read with rule 16(4) of the rules of this court, and G s 15(1)(b) of the Superior Courts Act. [3] The High Court of South Africa, Western Cape Division, Cape Town (High Court), declared s 12(1)(a) of the Act unconstitutional and invalid. [4] The Minister of Police, who is the second respondent in the application, opposes the confirmation

Petse AJ (Basson AJ, Cameron J, Dlodlo AJ, Froneman J, Goliath AJ, Khampepe J, Mhlantla J and Theron J concurring)

application A and both respondents seek leave to appeal against the declaration of constitutional invalidity. [5]

[4] The applicants assert that the criminalisation of the failure to give notice or adequate notice is unconstitutional because s 12(1)(a) criminalises the convening of peaceful gatherings simply by reason of the fact B that either no notice was given, or inadequate notice was given. This, their argument goes, constitutes an unjustifiable limitation of the right in s 17 of the Constitution.

[5] For their part, the respondents contend that s 12(1)(a) of the Act is constitutionally valid. Their primary contention is that the section does C not limit any rights in the Bill of Rights because it amounts to mere regulation. Alternatively, to the extent that this court finds that there is a limitation, the respondents argue that the limitation is justifiable for a variety of reasons.

[6] The balance of this judgment accounts for the conclusion foreshadowed D in [2] above. First, the general framework of the Act is canvassed to place s 12(1)(a) within its statutory context. Second, the background to this matter is explained. Third, the limitation of the right entrenched in s 17 of the Constitution by s 12(1)(a) of the Act is discussed. Fourth, the unjustifiable effect of this limitation is analysed. Finally, the issue of the just and equitable remedy is considered.

The statutory framework E

[7] The object of the Act is to regulate public gatherings and demonstrations. [6] As is manifest from the preamble to the Act, this entails balancing the right to assemble freely and peacefully against the need to ensure that assemblies take proper cognisance of and do not unjustifiably F infringe the rights of others. [7]

[8] Central to the Act and to this case are the definitions of a 'gathering', 'demonstration' and 'convener' in s 1 of the Act. A demonstration is G defined as including 'any demonstration by one or more persons, but not

Petse AJ (Basson AJ, Cameron J, Dlodlo AJ, Froneman J, Goliath AJ, Khampepe J, Mhlantla J and Theron J concurring)

more than 15 persons, for or against any person, cause, action or failure A to take action'. [8] A gathering is defined as:

'(A)ny assembly, concourse or procession of more than 15 persons in or on any public road as defined in the Road Traffic Act, 1989 (Act 29 of 1989), or any other public place or premises wholly or partly open to the air — B

(a)

at which the principles, policy, actions or failure to act of any government, political party or political organization, whether or not that party or organization is registered in terms of any applicable law, are discussed, attacked, criticised, promoted or propagated; or

(b)

held to form pressure groups, to hand over petitions to any person, C or to mobilize or demonstrate support for or opposition to the views, principles, policy, actions or omissions of any person or body of persons or institution, including any government, administration or governmental institution . . . .' [9]

[9] The material difference between the two for present purposes is that D a demonstration is an assembly that comprises 15 or fewer people, while a gathering is an assembly that comprises more than 15 people.

[10] In s 3 the Act requires all conveners of gatherings to give written notice of an intended gathering. [10] Written notice is not required for demonstrations, [11] and it is the duty of a convener of a gathering to give E notice. Moreover, the duty is only to give written notice. The convener is not obliged to seek approval for the intended gathering.

[11] The Act provides for three types of convener. First, there are those F who, of their own accord, convene a gathering. [12] Second, there are those who are appointed as conveners under s 2(1) of the Act by organisations intending to hold a gathering. [13] Third, there are those who are deemed to be conveners under s 13(3) where their organisation has not appointed them as conveners under s 2(1). Such a person, in the absence of a s 2(1) appointment, is deemed a convener —

'(a)

if [they have] taken any part in planning or organising or making G preparations for that gathering; or

Petse AJ (Basson AJ, Cameron J, Dlodlo AJ, Froneman J, Goliath AJ, Khampepe J, Mhlantla J and Theron J concurring)

(b)

A if [they have by themselves] or through any other person, either verbally or in writing, invited the public or any section of the public to attend that gathering'. [14]

[12] It bears mentioning that even on a cursory reading the definition of a convener, especially under s 13(3), is a broad one. This is a relevant B factor when it comes to a consideration of the extent of the limitation brought about by s 12(1)(a). [15]

[13] Notice must be given to the responsible officer at a local municipality within whose jurisdiction the gathering is to take place. [16] C A responsible officer is appointed by a local municipality within whose jurisdiction the protest is meant to take place. [17] The notice must be given in writing not later than seven days before the date on which the gathering is to be held, [18] and must include numerous details. [19] Notice D can be given less than seven days ahead of the protest, but a reason for

Petse AJ (Basson AJ, Cameron J, Dlodlo AJ, Froneman J, Goliath AJ, Khampepe J, Mhlantla J and Theron J concurring)

the late notice must then be provided. [20] If notice is given less than A 48 hours before the intended gathering, then the responsible officer has a discretion to prohibit the gathering. [21]

[14] After notice is given, the responsible officer can decide if negotiations under s 4 are necessary. [22] These negotiations, if deemed necessary, are intended to agree on the conditions of the gathering. [23] These B conditions are 'to be imposed in respect of the holding of the gathering so as to meet the objects of [the] Act' [24] following negotiations conducted in good faith. [25] In other words, negotiations seek to ensure that the parties agree in good faith to conditions in respect of the proposed gathering, to balance the participants' right to assemble freely with any C other implicated rights. To this end, the negotiations take place between the responsible officer, an authorised member of the South African Police Service (SAPS), [26] the convener and any other interested party. If parties cannot agree on conditions, the officer can impose certain conditions unilaterally. [27]

[15] If no notice is given, s 3(5)(a) directs a policeperson who has D received information about a gathering through other means to contact the responsible officer. If a responsible officer receives information of a proposed gathering of which no notice has been given, then they are obliged to furnish an authorised member with such information. [28] The responsible officer is then given a discretion to request the convener E (if a convener is identified) to comply with the requirements of the Act, including the giving of notice. [29] The responsible officer is not empowered to prohibit the gathering on account only of a lack of notice.

Petse AJ (Basson AJ, Cameron J, Dlodlo AJ, Froneman J, Goliath AJ, Khampepe J, Mhlantla J and Theron J concurring)

The A responsible officer can also consult with an authorised member on whether s 4 negotiations are necessary, notwithstanding the absence of notice. [30] Presumably then, the responsible officer, if they deems it necessary, can thereafter call for the s 4 negotiations even though no notice was given. [31] This would include inviting the identified convener to negotiations so that the conditions of the gathering can be agreed B on. [32]

[16] If a gathering proceeds without a formal notice, then s 12(1)(a) provides that it is a criminal offence to convene a gathering without giving the requisite notice as prescribed in the Act. It is only a convener who is criminally liable for failure to give notice of a...