S v Tsoaeli and Others

• Jurisdiction: South Africa
• Citation: 2018 (1) SACR 42 (FB)

S v Tsoaeli and Others
2018 (1) SACR 42 (FB)

2018 (1) SACR p42

Citation	2018 (1) SACR 42 (FB)
Case No	A 222/2015
Court	Free State Division, Bloemfontein
Judge	Molemela JP, Moloi ADJP and Lekale J
Heard	August 8, 2016
Judgment	November 17, 2016
Counsel	R Mastenbroek (with M Morris) for the appellants.; KG Mashamaite for the state.

Flynote : Sleutelwoorde

Gatherings G and demonstrations — Public gathering — Attendance at — Mere attendance at gathering for which no prior notice given insufficient for criminal liability in terms of s 12(1)(e) of Regulation of Gatherings Act 205 of 1993.

Headnote : Kopnota

The H appellants appealed against their conviction in a magistrates' court of a contravention of s 12(1)(e) of the Regulation of Gatherings Act 205 of 1993, in that they had attended a gathering for which no prior notice had been given. They contended that they were mere attendees of the gathering, and not the organisers thereof, and the provision did not visit them with criminal liability in such circumstances.

Held I

Section 12(1)(e) was not couched in a language that unequivocally proclaimed that a gathering for which no prior notice was given was automatically prohibited. Such a result, with grave consequences of imprisonment up to a period of a year, ought not to be inferred from the provision when it was also capable of a meaning that recognised the right to peaceful demonstrations J and gatherings, and therefore passed constitutional muster.

2018 (1) SACR p43

The converse interpretation, suggested by the state, offended against the A principle of legality as expressed in the maxim nullum crimen sine lege. (See [35].) Appeal upheld.

Cases cited

Southern Africa

Bertie van Zyl (Pty) Ltd and Another v Minister for Safety and Security and B Others 2010 (2) SA 181 (CC) (2009 (10) BCLR 978; [2009] ZACC 11): referred to

Director of Public Prosecutions, Western Cape v Prins and Others 2012 (2) SACR 183 (SCA) ([2012] ZASCA 106): referred to

Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA) ([2012] 2 All SA 262; [2012] ZASCA 13): dictum in para [18] applied C

SATAWU and Another v Garvas and Others 2013 (1) SA 83 (CC) (2012 (8) BCLR 840; [2012] ZACC 13): dictum in para [61] applied

Tshwane City v Link Africa and Others 2015 (6) SA 440 (CC) (2015 (11) BCLR 1265; [2015] ZACC 29): dictum in para [115] applied.

England D

R v Rimmington [2005] UKHL 63 (HL): considered.

European Court of Human Rights

Kononov v Latvia [2010] ECHR 667: considered

Scoppola v Italy (No 2) [2009] ECHR 1297: considered.

India E

Assistant Commissioner v Velliappa Textiles Ltd and Another (2003) 11 SCC 405: considered.

Legislation cited

The Regulation of Gatherings Act 205 of 1993, s 12(1)(e): see Juta's Statutes of South Africa 2016/17 vol 1 at 2-478. F

Case Information

R Mastenbroek (with M Morris) for the appellants.

KG Mashamaite for the state.

An appeal from convictions in a magistrates' court for a contravention of s 12(1)(e) of the Regulation of Gatherings Act 205 of 1993. G

Order

1.

The appeal against the appellants' conviction succeeds.

2.

The appellants' conviction is set aside.

3.

The sentence imposed on the appellants by the court a quo is set aside. H

4.

The Minister of Police is ordered to pay the wasted costs occasioned by the postponement of the matter on 20 June 2016.

Judgment

Molemela JP (Moloi ADJP and Lekale J concurring):

Introduction I

[1] This is an appeal against the judgment of the regional court sitting in Bloemfontein in terms of which the 94 appellants were convicted of contravention of s 12(1)(e) of the Regulation of Gatherings Act 205 of 1993 (the RGA) and sentenced to a wholly suspended sentence of J

2018 (1) SACR p44

Molemela JP (Moloi ADJP and Lekale J concurring)

a A fine of R600 or three months' imprisonment. The appeal is before us with the leave of the trial magistrate. The appeal was initially enrolled for a hearing before two judges. Subsequent to a discussion held by the panel, the court was reconstituted and the matter was argued before three judges as contemplated in s 14(3) of the Superior Courts Act 10 of 2013.

[2] B The record reflects that 116 persons were initially charged with contraventions of ss 12(1)(a), 12(1)(e) and 12(1)(g) of the RGA, but were subsequently charged only with contravention of s 12(1)(e) of the RGA. Further particulars to the charge-sheet were requested and were subsequently supplied. Charges were withdrawn against 22 accused C persons and the trial proceeded only in respect of the 94 appellants. The appellants objected to the charge-sheet as contemplated in s 85(1) of the Criminal Procedure Act 51 of 1977 (the CPA) on the basis that the charge did not disclose an offence. It was contended on the appellants' behalf that attendance of a gathering for which no prior notice of the D intention to hold such gathering was given, was not prohibited in terms of the RGA and was therefore not an offence. The trial magistrate dismissed this objection. The appellants all pleaded not guilty to the charge and did not disclose the basis of their defence. The state tendered the evidence of four police officials and one official from the local E authority. Certain admissions [1] were made in terms of s 220 of the CPA. None of the appellants testified in their defence. They were subsequently convicted and sentenced to a fine of R600 or three months' imprisonment wholly suspended for three years.

[3] F The facts that led to the appellants' prosecution were related by police officers serving in the Public Order Policing Unit. According to their testimony, the 94 appellants were part of the staff establishment of

2018 (1) SACR p45

Molemela JP (Moloi ADJP and Lekale J concurring)

the Free State Department of Health. Pursuant to being advised of their A dismissal, the dismissed employees, most of whom were volunteers, decided to hold a night vigil outside the headquarters of the Department of Health (Bophelo House) in protest against their dismissal and the generally unsatisfactory conditions that prevailed in the provincial healthcare system. The first group of protestors gathered outside the B premises of Bophelo House on the night of 9 July 2014. They were singing and chanting. The police were summoned to the place of the gathering at about 02h00. Upon arrival at Bophelo House the police demanded to know whether the local authority had duly been notified about the intention to have the gathering as contemplated in the RGA. A few individuals who identified themselves as the leaders of the group C answered in the affirmative. When the police demanded to see documentary proof, none was provided to them. The police officials then notified the crowd that the gathering was illegal and ordered them to disperse. A few protestors left, but the majority of them did not oblige. The police arrested about 80 protestors and transported them to various D police stations where they were detained. The police learnt that the protestors were members of the Treatment Action Campaign (the TAC).

[4] After sunrise on the same morning, a second group of protestors gathered outside Bophelo House and started chanting and singing. The public-order police officers were summoned to the scene at about E 11h00. They found about 30 people singing and chanting at the scene. Two of these people identified themselves as Mohaswa and Godfrey and claimed to be the leaders of the group. After establishing from an official of the local authority that no such notice had been given by the protestors, the police officials initially spoke to these leaders separately, F informing them that their gathering was illegal. The police then conveyed the same information to the crowd and ordered them to disperse. A few of the protestors left the scene, but the rest of them dug their heels in and continued singing and chanting, stating that they, too, were prepared to face arrest like their 'comrades' who had been arrested earlier. G

[5] It is common cause that, even though both groups of protestors were chanting and singing prior to their arrest, they were not armed and were not violent. It is also common cause that no injuries were sustained by any individuals, nor was any property damaged. Although the second H group of protestors was at some stage blocking the entrance to Bophelo House and thus hindering cars from entering or leaving the premises, they moved away when one of the police officials instructed them to clear the path. The traffic in the vicinity of Bophelo House was not disrupted. None of the protestors tried to resist arrest; they voluntarily boarded the police vehicles. It was not in dispute that out of the total number of I people arrested, charges were withdrawn against 26 of them and the trial then proceeded in respect of 94 appellants.

[6] In her judgment, the trial magistrate mentioned that the state had not adduced evidence that served to prove beyond reasonable doubt that the appellants had convened the gathering in question. She found J

2018 (1) SACR p46

Molemela JP (Moloi ADJP and Lekale J concurring)

that A the state had proven beyond reasonable doubt that all the appellants had attended a gathering for which no prior notice was given to the responsible officer, [2] by so doing contravening s 12(1)(e) of the RGA.

The issue to be decided

[7] B The crisp issue is whether the trial court erred in finding that the appellants' attendance of a gathering for which no prior notice was given to the responsible officer rendered them guilty of contravention of s 12(1)(e) read with ss 1, 3, 4 and 13 of the RGA. The ancilliary issue is whether the trial court correctly interpreted the provisions of s 12(1)(e) C of the RGA.

The parties' submissions

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