A landmark high court judgement delivered on Wednesday, 24 January, is likely to have a significant impact on future protest action in South Africa.
In her decision handed in the Western Cape High Court, Judge T.C. Ndita overturned the convictions of 10 Social Justice Coalition (SJC) activists who had been arrested under the Regulation of Gatherings Act in 2013 during a peaceful protest outside the Mayor’s office where they had chained themselves to the railings of the Cape Town Civic Centre.
In her judgement she ruled that Section 12(1)(a) of the Gatherings Act is unconstitutional because it limits and criminalises peaceful protest. As a result any future contraventions of the Act will result in fines rather than arrest and a criminal record.
“The criminalisation of a gathering of more than 15 people on the basis that no notice was given violates the constitution as it deters people from exercising their fundamental constitutional right to assemble peacefully unarmed,” she said.
“The limitation is not reasonable and justifiable in an open and democratic society, based on the values of freedom, dignity and equality…Section 12 (1) (a) of the RGA is hereby declared unconstitutional.”
Phumeza Mlungwana, one of the 10 people convicted and the first appellant, highlighted the importance of the ruling.
“Personally, we feel great that we don’t have a criminal record, but it is a victory for other organisers and communities that use protest as a means of holding government to account to not feel like they are criminalised for participating in a peaceful protest,” Mlungwana said.
“This ruling and its significant consequences for our democracy cannot be overstated,” the SJC said in a statement following the judgement.
“It is more than just a victory for the appellants whose convictions have been set aside and it is more than just a victory for the SJC. It is a victory for the many South Africans whose only way of getting heard by government is through demonstration and gatherings. It is truly a victory for democracy.”