S v Mlungwana and Others

• Jurisdiction: South Africa
• Citation: 2019 (1) SACR 429 (CC)

S v Mlungwana and Others
2019 (1) SACR 429 (CC)

2019 (1) SACR p429

Citation	2019 (1) SACR 429 (CC)
Case No	CCT 32/18; [2018] ZACC 45
Court	Constitutional Court
Judge	Basson AJ, Cameron J, Dlodlo AJ, Froneman J, Goliath AJ, Khampepe J, Mhlantla J, Petse AJ and Theron J
Heard	August 21, 2018
Judgment	November 19, 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.

Flynote : Sleutelwoorde

Public order offences — Gatherings and demonstrations — Requirement in s 12(1)(a) of Regulation of Gatherings Act 205 of 1993 of prior notice of gathering — Criminalisation of failure to give notice constituting unjustifiable limitation of right in s 17 of Constitution to assemble, demonstrate, picket and petition. C

Headnote : Kopnota

The applicants had obtained an order in the High Court declaring s 12(1)(a) of the Regulation of Gatherings Act 205 of 1993 (the Act) unconstitutional on the basis that the criminalisation of the failure to give prior notice of a D gathering constituted an unjustifiable limitation of the right in s 17 of the Constitution to assemble, demonstrate, picket and petition. The applicants applied for confirmation of the declaration of constitutional invalidity, whereas the respondents opposed it and sought leave to appeal against the declaration.

Held, that s 12(1)(a), in criminalising the failure to give notice for a peaceful E assembly, clearly constituted a limitation of the right to assemble freely. This did not imply, however, that the right in s 17 ought to be exercised otherwise than peacefully and unarmed. It was only when those convening and participating in a gathering harboured intentions of acting violently, that they forfeited their right. So long as they acted within the parameters prescribed for the exercise of this important right, they would be assured constitutional protection. (See [54] – [55].) F

Held, further, that the limitation on the right to peaceful assembly was severe, in that (1) the definitions of gatherings and conveners were broad; (2) where a convener was not appointed under s 2 of the Act, anyone who had taken any part in planning or organising or making preparations for the gathering, however marginal their participation might be, could be criminally liable; G (3) there was a widespread chilling effect that extended beyond those who convened assemblies without notice — a criminal sanction deterred others from acting similarly to a convicted criminal; and (4) the limitation did not distinguish between adult and minor conveners. (See [83] – [89].)

Held, further, that there was no doubt that criminalising the failure to give notice incentivised the giving of notice to some extent, but there were numerous H ways in which the giving of notice could be incentivised, other than through a criminal sanction. (See [94] – [96].)

Held, accordingly, that it was clear that s 12(1)(a) was not appropriately tailored to facilitate peaceful protests and prevent disruptive assemblies. The right entrenched in s 17 was simply too important to countenance the sort of I limitation introduced by the provision. The nature of the limitation was too severe, and the nexus between the means adopted and any conceivable legitimate purpose too tenuous, to render the section constitutional. This was even more so when regard was had to the existence of less restrictive means to achieve the purpose of the provision, and the court could consequently only conclude that s 12(1)(a) was unconstitutional. (See [101].) J

2019 (1) SACR p430

Cases cited

Southern Africa A

Case and Another v Minister of Safety and Security and Others; Curtis v Minister of Safety and Security and Others 1996 (1) SACR 587 (CC) (1996 (3) SA 617; 1996 (5) BCLR 609; [1996] ZACC 7): referred to

Coetzee v Government of the Republic of South Africa; B Matiso and Others v Commanding Officer, Port Elizabeth Prison, and Others 1995 (4) SA 631 (CC) (1995 (10) BCLR 1382; [1995] ZACC 7): dicta in paras [8] and [66] – [67] applied

Dadoo Ltd v Krugersdorp Municipal Council 1920 AD 530: dicum at 552 applied

Dawood and Another v Minister of Home Affairs and Others; C Shalabi and Another v Minister of Home Affairs and Others; Thomas and Another v Minister of Home Affairs and Others 2000 (3) SA 936 (CC) (2000 (8) BCLR 837; [2000] ZACC 8): referred to

Democratic Alliance v African National Congress and Another 2015 (2) SA 232 (CC) (2015 (3) BCLR 298; [2015] ZACC 1): referred to

Democratic Alliance v Speaker of the National Assembly and Others D 2016 (3) SA 487 (CC) (2016 (5) BCLR 577; [2016] ZACC 8): dictum in para [40] applied

Director of Public Prosecutions, Transvaal v Minister for Justice and Constitutional Development, and Others 2009 (2) SACR 130 (CC) (2009 (4) SA 222; 2009 (7) BCLR 637; [2009] ZACC 8): dictum in para [61] applied

Doctors for Life International v Speaker of the National Assembly and Others E 2006 (6) SA 416 (CC) (2006 (12) BCLR 1399; [2006] ZACC 11): referred to

Electoral Commission v Mhlope and Others 2016 (5) SA 1 (CC) (2016 (8) BCLR 987; [2016] ZACC 15): dictum in para [113] applied

Ex parte Minister of Safety and Security and Others: In re S v Walters and Another F 2002 (2) SACR 105 (CC) (2002 (4) SA 613; 2002 (7) BCLR 663; [2002] ZACC 6): dictum in para [26] applied

Glenister v President of the Republic of South Africa and Others 2011 (3) SA 347 (CC) (2011 (7) BCLR 651; [2011] ZACC 6): dictum in para [178] fn 28 applied

Government of the Republic of South Africa and Others v Grootboom and Others G 2001 (1) SA 46 (CC) (2000 (11) BCLR 1169; [2000] ZACC 19): dictum in para [26] applied

Hotz and Others v University of Cape Town 2017 (2) SA 485 (SCA) ([2016] 4 All SA 723; [2016] ZASCA 159): referred to

Hotz and Others v University of Cape Town 2018 (1) SA 369 (CC) (2017 (7) BCLR 815; H [2017] ZACC 10): compared

Islamic Unity Convention v Independent Broadcasting Authority and Others 2002 (4) SA 294 (CC) (2002 (5) BCLR 433; [2002] ZACC 3): dictum in para [49] applied

J and Another v Director General, Department of Home Affairs, and Others 2003 (5) SA 621 (CC) (2003 (5) BCLR 463; [2003] ZACC 3): referred I to

Jaftha v Schoeman and Others; Van Rooyen v Stoltz and Others 2005 (2) SA 140 (CC) (2005 (1) BCLR 78; [2004] ZACC 25): dicta in paras [39] and [43] applied

Kaunda and Others v President of the Republic of South Africa and Others 2005 (1) SACR 111 (CC) (2005 (4) SA 235; 2004 (10) BCLR 1009; J [2004] ZACC 5): referred to

2019 (1) SACR p431

Khosa and Others v Minister of Social Development and Others; A Mahlaule and Others v Minister of Social Development and Others 2004 (6) SA 505 (CC) (2004 (6) BCLR 569; [2004] ZACC 11): dictum in para [62] applied

Lawyers for Human Rights v Minister of Home Affairs and Others 2017 (5) SA 480 (CC) (2017 (10) BCLR 1242; [2017] ZACC 22): referred to

Mashavha v President of the Republic of South Africa and Others 2005 (2) SA 476 (CC) (2004 (12) BCLR 1243; [2004] ZACC 6): referred to B

Metcash Trading Ltd v Commissioner, South African Revenue Service, and Another 2001 (1) SA 1109 (CC) (2001 (2) JTLR 37; 2001 (1) BCLR 1; [2000] ZACC 21): referred to

Minister of Home Affairs v National Institute for Crime Prevention and the Reintegration of Offenders (NICRO) and Others 2005 (3) SA 280 (CC) (2004 (5) BCLR 445; [2004] ZACC 10): dictum in para [34] applied C

Minister of Home Affairs and Others v Tsebe and Others 2012 (5) SA 467 (CC) (2012 (10) BCLR 1017; [2012] ZACC 16): dictum in para [67] applied

Moise v Greater Germiston Transitional Local Council: Minister of Justice and Constitutional Development Intervening (Women's Legal Centre as Amicus Curiae) 2001 (4) SA 491 (CC) (2001 (8) BCLR 765; [2001] ZACC 21): dictum in para [19] applied D

Mpofu v Minister for Justice and Constitutional Development 2013 (2) SACR 407 (CC) (2013 (9) BCLR 1072; [2013] ZACC 15): dictum in para [1] applied

R v Sachs 1953 (1) SA 392 (A): dictum at 399H applied

S v Bhulwana; S v Gwadiso 1995 (2) SACR 748 (CC) (1996 (1) SA 388; 1995 (12) BCLR 1579; [1996] 1 All SA 11; [1995] ZACC 11): E referred to

S v Dlamini; S v Dladla and Others; S v Joubert; S v Schietekat 1999 (2) SACR 51 (CC) (1999 (4) SA 623; 1999 (7) BCLR 771; [1999] ZACC 8): referred to

S v M (Centre for Child Law as Amicus Curiae)2007 (2) SACR 539 (CC) (2008 (3) SA 232; 2007 (12) BCLR 1312; [2007] ZACC 18): dictum in F fn 20 applied

S v Makwanyane and Another 1995 (2) SACR 1 (CC) (1995 (3) SA 391; 1995 (6) BCLR 665; [1995] ZACC 3): dicta in para [100] applied

S v Mamabolo (E TV and Others Intervening) 2001 (1) SACR 686 (CC) (2001 (3) SA 409; 2001 (5) BCLR 449; [2001] ZACC 17): dictum in para [49] applied G

S v Manamela and Another (Director-General of Justice Intervening) 2000 (1) SACR 414 (CC) (2000 (3) SA 1; 2000 (5) BCLR 491; [2000] ZACC 5): dictum in para [32] applied

S v Mlungwana and Others 2018 (1) SACR 538 (WCC) ([2018] 2 All SA 183; [2018] ZAWCHC 3): declaration of constitutional invalidity confirmed H

S v Ntuli 1996 (1) SACR 94 (CC) (1996 (1) SA 1207; 1996 (1) BCLR 141; [1995] ZACC 14): referred to

S v Tsoaeli 2018 (1) SACR 42 (FB): referred to

S v Zinn 1969 (2) SA 537 (A): dictum at 540G – H applied I

S v Weinberg 1979 (3) SA 89 (A): dictum at 105C – E applied

Sachs v Minister of Justice; Diamond v Minister of Justice 1934 AD 11: referred to

Sarrahwitz v Maritz NO and Another 2015 (4) SA 491 (CC) (2015 (8) BCLR 925; [2015] ZACC 14): dicta in paras [46] and [63] applied

SATAWU and Another v Garvas and Others 2013 (1) SA 83 (CC) (2012 (8) BCLR 840; [2012] ZACC 13): dicta in paras [52] – [53]...