On Friday 6 February judgment will be handed down at the Cape Town Magistrates Court in the case of 21 SJC activists arrested for a peaceful protest at the Mayor’s office.
On the day of the arrests, SJC members and supporters chained themselves to the railings outside the office of Mayor De Lille. We were led to this action by the unrelenting denialism and intransigence of the City of Cape Town and the Mayor on sanitation, particularly the failure to develop a plan for the janitorial service for flush toilets in informal settlements.
Twenty-one people face charges of convening and attending an illegal gathering in terms of the Regulation of Gatherings Act. Since the trial began we admitted the facts, but refused to be criminalized for holding a peaceful protest for decent sanitation. We challenge the constitutionality of the Gatherings Act.
Gatherings Act is Unconstitutional
The right to freedom of assembly is central to our democracy. It exists to give a voice to the powerless and most vulnerable. Under apartheid, the state took numerous legislative steps to strictly regulate and ban public assembly and protest. The importance of the right to assembly is borne out in the facts of our protest. We were advocating for one of the most basic requirements for a dignified life: access to safe and secure sanitation. We had tried every available avenue to get the state to address our concerns.
Our challenge is directed at the criminalisation of the failure to give notice of a peaceful, unarmed and non-disruptive gathering. There is no justification for criminalisation in those circumstances.
First, the constitution guarantees everyone the right to assemble peacefully. Receiving a criminal record for ‘attending’ or ‘convening’ a peaceful gathering of more than 15 people is unconstitutional.
It makes criminals of people who, like us, were merely exercising their democratic right to protest. Not only will those who are caught by this provision face a fine or imprisonment, they will also have a criminal record.
The existence of such a severe limitation will inevitably prevent people from engaging in legitimate forms of protest. While the police may not always strictly enforce the law in the manner they did in this case, the existence of the law will have a chilling effect on protest because people will be concerned that they will be arrested.
Second, “gathering” is vaguely defined. It applies to any gathering of more than 15 people in a public space regardless of the circumstances or the actual conduct of the participants.
It is absurd to suggest that every single gathering of more than 15 people requires such notice, failing which all attendees should be found to have committed a crime. There are thousands of such meetings of people every day that proceed without any disruption. It does not matter whether the gathering will impede traffic, create a risk of public violence or whether it actually requires the intervention of law enforcement. If 16 people walk down the pavement to take a petition to their local councillor without giving notice, they commit a crime.
During the trial, Phumeza Mlungwana, the SJC General Secretary, described the years of attempts to engage with the City of Cape Town and Mayor De Lille on the urgency of the sanitation crisis facing poor and working class residents in Cape Town’s informal settlements. Our protest was against the refusal by the City to deal adequately with the daily indignity and injustices facing hundreds of thousands of Cape Town’s residents.
The City must develop a plan for dignified, clean, and safe sanitation in informal settlements in Cape Town.
Government must change the Apartheid laws, which infringe the right to peaceful assembly.
The SJC is represented in this case by the Legal Resources Centre. Our heads of argument can be found here – 2014-11-24 SJC Mag Court Heads
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