Association for Free Research and International Cooperation

South African Constitutional Court delivers powerful judgement in favour of peaceful protest

The Constitutional Court in South Africa has unanimously handed down a landmark judgment to decriminalize protests that take place without prior permission from local authorities. The move will signal a victory for civil society organizations, who have been arguing that failing to give the authorities notice of a peaceful protest should never be a criminal offence.

The longstanding legal battle began after ten elected leaders, known as the #SJC10 from the Social Justice Coalition (SJC) chained themselves in 2015 to the railings of the Civic Centre in Cape Town as part of an act of civil disobedience.

They were subsequently arrested, tried and later found guilty in a magistrate’s court for contravening section 12(1)(a) of the Regulations of Gatherings Act 205 0f 199 3 (RGA). The act made it unlawful for more than 15 people to convene a public protest gathering without giving prior notice to local authorities. The SJC argued that some sections of the ACT are regressive because the RGA was passed in the apartheid era.

They were fighting for better sanitation in one of the townships in Cape Town, Khayelitsha. The judgment has therefore set aside their convictions and will signal a victory for social justice movements and political parties alike who often use protests as a means to advance their courses.

The ConCourt held that the severe limitation to the right to assemble was unjustifiable.

“Criminalizing the failure of a gathering to give notice of an assembly of more than 15 people limits the right to assemble peacefully and unarmed, which is entrenched in Section 17 of the Constitution,” said Justice Xola Petse who handed down the judgment.

“The right to assemble peacefully and unarmed is central to South Africa’s constitutional democracy,” he added.

The state had initially argued that the purpose of “criminalizing the failure to give notice was to ensure that municipalities and the police can adequately prepare for large assemblies and in doing so reduce violence. However, the ConCourt remarked that these “heavy-handed countermeasures” have far-reaching consequences and “unduly limit the right to assemble peacefully and unarmed”, especially for children, who do not enjoy the right to vote but can only participate in their civic duty by protesting.

The ConCourt held the view that there are less restrictive means and ways of incentivizing conveners to give notice of large protests than a criminal prosecution of citizens enjoying their constitutional rights.

“As much as this is very exciting and we are happy, we are also sad that it had to get to this point where the Minister of Police appealed using taxpayers money to challenge such an absurd piece of legislation that criminalizes peaceful protest,” said Axolile Notywala, general secretary of the SJC.

“This judgment now guarantees, practically, the right to protest, for people who have been criminalized and targeted for peaceful protesting, especially the poor and working class communities,” he added.

Zackie Achmat, also one of the #SJC10 said: “The right to protest has been freed from its colonial and apartheid shackles. Protests, demonstrations and sit-ins can be convened anywhere without having to give notice.”

AFRIC Editorial Article.

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