United Democratic Front and Another v Acting Chief Magistrate, Johannesburg

• Jurisdiction: South Africa
• Judge: Leveson J
• Judgment Date: 10 January 1986
• Citation: 1987 (1) SA 413 (W)
• Hearing Date: 16 December 1984
• Court: Witwatersrand Local Division

Leveson J:

This matter came before me by way of an urgent application on 16 December 1984. There was full argument and at the conclusion thereof, because the application concerned a meeting which was to have taken place at 14h00 that day and the relief sought was extremely urgent, I delivered an oral judgment allowing certain relief. No shorthand writer was present and no recording apparatus was available so no record B was made of my judgment. However, I undertook to furnish written reasons, to be amplified if necessary. These were dictated subsequently on recording apparatus but I have since been informed that before they were typed the tape was erased inadvertently. This history has caused undue delay and resulted in my dictating this further judgment.

C The first applicant is a voluntary association and alleges that it has been constituted in order to advance certain political and social objectives. The principle objective of the applicant is stated to be the opposing of the Constitution Act 110 of 1983, the Black Local Authorities Act 102 of 1982 and D the Orderly Movement and Settlement of Black Persons Bill. The second applicant is a general secretary of the first applicant. The respondent, for reasons which will appear shortly, is described as the Acting Magistrate of Johannesburg.

Some three weeks before the date of the hearing, the first applicant resolved to hold a meeting at 14h00 on 16 December 1984 at the Regina Mundi Church, Soweto. The matters on the E agenda were of a political nature and included the commemoration of persons who had lost their lives in the social unrest in this country during the preceding months as well as a call for abstention from the usual festivities associated with the Christmas period. On 13 December 1984 there was issued a notice captioned 'Prohibition of Gatherings in terms of s 46(1) F of the Internal Security Act 74 of 1982' in the name of the acting magistrate for the district of Johannesburg. In argument before me it was common cause that the person who had signed the document was the acting chief magistrate for the district of Johannesburg. For present purposes it will be sufficient to record that the respondent states therein that he has

'reason to apprehend that the public peace will be seriously G endangered by a gathering organised or purported to be organised by the United Democratic Front to be held on Sunday, 16 December 1984, at the Regina Mundi Church, Moroka, Soweto...'

and he therefore prohibited the gathering from taking place.

In the founding affidavit the second applicant alleges that a number of meetings and rallies had been held by the first H applicant and other groups of the same or similar political persuasion in the Transvaal and elsewhere over several months preceding this application. All these meetings, at some of which the attendance had run to thousands, were held in an orderly and peaceful fashion and had been free of incident or violence. In particular a meeting had taken place under the auspices of the first applicant at the Regina Mundi Church on I 21 October 1984 and more than 1 000 people attended. This meeting, too, was conducted in an orderly and peaceful manner. As regards the meeting to have been held on 16 December, the respondent had been informed that marshalls were to have been posted at various points both inside and outside the hall of the Church to control the movement of crowds and the chairman J of the meeting planned to take steps to ensure that the crowd departed in an

Leveson J

orderly and expeditious manner. The notice issued by the A respondent refers to the then proposed meeting as a gathering to commemorate or discuss the detention of persons related to the first applicant and other matters set out in a pamphlet attached thereto. The pamphlet is captioned:

B 'Black Christmas

Nothing to Celebrate.'

Then follow the words

'Remember

Those detained. Those without jobs. Those dying of hunger in the homelands. Those being killed by police and soldiers.'

I do not propose to set out the full text of the pamphlet. It C will suffice to mention a few features. The pamphlet describes the year of 1984 as 'a year of heroic struggles against apartheid'. It refers to opposition to the Tri-cameral Parliament, to the fact that students had not written their examinations and to the fact that rents, bus fares and electricity 'are going up'. In the light of these and other D matters the pamphlet poses the question - 'How can we celebrate during this Christmas and New Year?'

I do not propose to involve myself in the exercise of determining whether the statements of fact contained in the pamphlet are true or not. There was no evidence anyway. Perhaps the point need only be made that, whether true or not, people are entitled to discuss them. Some of the statements may well E have been true. It was common knowledge for example that people had been detained under the provisions of the Internal Security Act. There were people without jobs. Whether people were dying of hunger in the homelands is a matter on which I can pass no comment. But there had been a drought in the country and it had frequently been said that there was a F shortage of food and work in the homelands. The necessary implication of the words 'those being killed by police and soldiers' is that they were being killed without justification. I must express the gravest doubt in the truth of this statement. However, the only point to be made is that the matters raised could reasonably form part of any agenda of a meeting of any political party.

In his answering affidavit the respondent says that when G approached to impose the prohibition

'het ek al die feite sorgvuldig oorweeg en behoorlik en versigtig aandag aan alle relevante feite gegee en was ek oortuig dat daar rede sou wees om te vrees dat die openbare rus ernstig in gevaar gestel sou word.........'.

None of the facts before the respondent are set out in his H affidavit. However there is annexed thereto an affidavit by Lieutenant Kritzinger of the South African Police, Security Branch, Soweto. He refers to the fact that a number of organisations had indicated that they would send representatives to the meeting. The organisations are listed. They are described by implication as 'vyandelik'. No evidence is given in support of this sweeping statement. I have no means I of determining whether the organisations are inimical or not and, if so, to whom. He says that the contents of the pamphlet show that the meeting would be inflammatory. I have already dealt with that point. He adds that it is the object of the people who are to attend the meeting to incite a breach of the peace and that the purpose is to promote a revolutionary J climate. No evidence is

Leveson J

A furnished in support of these sweeping statements save that it is said that it is known that meetings held at the Regina Mundi Church are frequently accompanied by violence. No single instance of violence is cited in the affidavit. Objectively, in my opinion, it cannot be said that the affidavit contains material justifying the issue of the notice of prohibition by the respondent.

B These being review proceedings, the question is whether a Court is entitled to intervene. Section 46(1) of the Internal Security Act, in terms of which the respondent imposed the prohibition, is one which severely curtails the fundamental right of individuals to assemble together. Before considering the language of the section, it might be advisable to give some C thought to the rights of freedom of speech and freedom of assembly. In Publications Control Board v William Heinemann Ltd and Others 1965 (4) SA 137 (A) Rumpff JA (as he then was), in a matter concerning the banning of a book under the censorship legislation, said at 160:

'The freedom of speech - which then includes the freedom to D print -...