Mlungwana v The State  ZAWHC 3
The High Court of South Africa decided that a statutory provision criminalising the convening of more than 15 people without notice was inconsistent with the constitutional right to freedom of assembly, as the limitation contained within the provision was not reasonable or justifiable in an open and democratic society.
The appellants were members of the Social Justice Coalition (SJC) which staged a peaceful protest in Khayelitsha, Western Cape to object to inadequate sanitation and the threat this poses to the health, safety and dignity of residents. On 11 September 2015, 15 SJC members chained themselves together and then to the staircase leading to the entrance of the city's Civic Centre. More people joined the protest, increasing the number of protestors to more than 15 people.
When the protestors refused to leave, they were arrested and charged with contravening section 12(1)(a) of the Regulation of Gatherings Act 1993 (RGA or the Act), which criminalises convening a gathering without giving notice in accordance with the Act. The defining feature of a "gathering" under the Act is that it consists of more than 15 people. The SJC elected not to give notice prior to the protest as it was only planned that 15 members would attend, and it would therefore not contravene the Act.
The appellants were convicted at first instance. They appealed the decision on the basis that section 12(1)(a) violates the right to freedom of assembly enshrined in section 17 of the South African Constitution (the Constitution), and this limitation was not justified. Section 17 states: "[e]veryone has the right, peacefully and unarmed, to assemble to demonstrate, to picket and to present petitions". The appellants accepted that the notice requirements served a legitimate purpose but opposed the criminalisation of non-compliance.
In response, the Minister for Police argued that the RGA struck the appropriate balance between individuals' right to freedom of assembly and the necessity for proper planning to ensure minimal disruption and the safety of other people and property. As section 12(1)(a) deterred people from convening gatherings without a notice, it facilitated the latter and was justified.
The Court applied a two-stage test for determining the constitutional invalidity of a statute, asking whether:
- there had been an infringement of a constitutionally guaranteed right; and
- that infringement was justified.
As to the first element, the Court found that the criminal sanctions contained in section 12(1)(a) limited the right to freedom of assembly, a conclusion which is "plain when regard is had to the circumstances of the present matter". Further, the criminal sanctions could deter people from exercising their constitutional right and that may have a chilling effect on the right to freedom of assembly. "This is so", the Court said, "because of the well-known calamitous effects of a previous conviction recorded against an individual".
In assessing the second element, the Court considered the provisions of section 36(1)(a)-(e) of the Constitution to determine if the limitation was justified in an open and democratic society based on human dignity, equality and freedom, including:
a) the nature and importance of the right;
b) the importance and purpose of the limitation;
c) the nature and extent of the limitation;
d) the relation between the limitation and its purpose; and
e) less restrictive means to achieve the purpose.
The Court found that the limitation was not justified under section 36, and in relation to each of the elements it:
a) stated that "the nature and importance of the right of assembly cannot be overemphasised", taking into account that the right is a tool of democracy.
b) stated that the importance and purpose of the limitation is determined by whether "there is a legitimate government purpose served by the impugned provision". The purpose of the notice provision was to allow for the deployment of resources to facilitate peaceful gatherings and deter non-notified gatherings with a greater risk of not being peaceful and unarmed. It was deemed a legitimate government purpose "as every right must be exercise with due regard to the rights of others".
c) assessed whether the State could "demonstrate that the existence and enforcement of the impugned provisions (could) reasonably be expected to control the identified risks". The Court reiterated that criminal sanctions have long-lasting impacts and a chilling effect on free speech, with the punishment of conveners under the RGA deterring others from exercising their right to free assembly. It was therefore not justified to control the alleged risk.
d) addressed elements (d) and (e) together, asking whether there were less restrictive means available to achieve the purpose of the Act. This is a question of proportionality and the standard is one of reasonableness. Recalling the importance of the right throughout South Africa's history and as demonstrated in this case, the Court found that the sanctions were disproportionate to "the offence of merely failing to comply with the notice requirement".
The Court also noted that other less restrictive alternatives suggested to the criminal sanctions included enhanced civil liability, administrative fines and re-defining the term "gathering" in the Act.
The limitation contained in section 12(1) of the RGA was therefore not justified and violated the guaranteed right under section 17 of the Constitution to unarmed peaceful assembly.
This case contributes to the existing body of jurisprudence upholding the right to freedom of assembly as a fundamental freedom. The Court's consideration of international and comparative law is particularly useful, as it summarises key principles relating to the freedom of assembly and limitations on rights. The Court's comment on less restrictive alternatives could also assist other nations going forward in implementing sanctions for non-notification of public gatherings.
Like South Africa, Australia also has laws under which notice is given to a public authority before a protest. For example, section 23 of the Summary Offences Act 1998 (NSW) provides that an authorised public assembly is one where a notice has been given in accordance with the section. Under section 24, an authorised public assembly held substantially in accordance with the notice will not result in a person participating in the assembly being found guilty of any offence relating to participating in an unlawful public assembly or the obstruction of any person, vehicle or vessel in a public place.
Unlike the notice provision in the RGA, the NSW provision does not criminalise the failure to provide notice. Instead, participants will simply be subject to the regular operation of the law. The aim of the provision is not deterrence, but to encourage cooperation between protestors and authorities seeking to manage protests. However, the scope of protection under section 24 is not as broad as the scope of freedom of assembly.
It is also worth noting that a general right to the freedom of assembly is not guaranteed by Australia's Constitution or Commonwealth legislation. The right has instead been recognised in the legislation of certain Australian states, such as Queensland's Peaceful Assembly Act 1992, and the courts have recognised the right as being "integral to a democratic system of government and way of life" (Commissioner of Police v Rintoul  NSWSC 662). It is also safeguarded by the implied right of political communication in the Australian Constitution, as was seen when the High Court struck down Tasmania's anti-protest laws.
The full decision can be found here.
Francesca Arciuli is a Graduate at Ashurst.