On Wednesday 24 January 2018 Judge T.C. Ndita will deliver judgment on the #SJC10 case. The much-anticipated judgment will be delivered at 2pm in the Western Cape High Court seven months after Judge Ndita heard the appeal.
The #SJC10 case challenges the Regulation of Gatherings Act (RGA), an apartheid-era law that we believe has no place in a democratic South Africa where the right to protest peacefully is guaranteed under our constitution.
We are not challenging the RGA in its entirety. We are challenging the the criminalisation of the failure to give notice of a peaceful, unarmed and non-disruptive gathering. Under these circumstances, criminalisation is unjustified and absurd.
We argue that Section 12(1)(a) of the RGA limits the right to freedom of assembly as guaranteed by the Constitution. It criminalises a gathering of more than 15 people simply because no notice was given. This is unconstitutional.
The criminalisation of citizens who are exercising their rights as outlined in the Constitution is deeply worrying. How can it be possible to end up with a criminal record while attempting to peacefully participate in a democratic society? This should not be the norm. Section 12(1)(a) of the RGA is in conflict with the right to freedom of peaceful assembly. It criminalises people who are simply exercising their constitutional rights.
A criminal record is no small thing, which is why we argue that Section (12)(a) of the RGA is a substantial deterrent that severely limits people from participating in peaceful and legitimate protest.
This case is a result of a Social Justice Coalition (SJC) picket outside the Cape Town Civic Centre on 11 September 2013 when 21 SJC members and supporters were arrested and charged with contravening the RGA. They had staged a peaceful and organised act of civil disobedience outside the offices of Cape Town Mayor Patricia de Lille, chaining themselves to the railings of the Civic Centre. This followed more than two years of attempted engagement with the Mayor on the lack of a water and sanitation plan for Cape Town’s informal settlements. These engagements had been met with broken promises, hostility and refusals. The decision to organise and attend the protest outside the offices of Mayor de Lille on 11 September 2013 was not taken lightly.
In February 2015 the 10 elected leaders who identified as the convenors of the protest were convicted; the other 11 were acquitted. We expected the convictions. When the trial began we admitted the facts and did not deny that the gathering took place, but argued that the RGA itself is unconstitutional and a remnant of Apartheid. Our appeal application was lodged at the Western Cape High Court in 2016.
Nolulama Jara, one of the convicted SJC leaders, tragically passed away in August 2015. We deeply mourn the loss of Nolulama and thank her and her family for all their courage. She remains on our appeal.
A number of organisations and institutions agree with our challenge and have now joined the case through amicus applications. These include the Open Society Foundation Justice Initiative, Equal Education, as well as the UN Special Rapporteur on the rights to freedom of assembly and of association represented by the Socio-Economic Rights Institute. The “SJC 10” are represented by the Legal Resources Centre.
The RGA is one of many laws and bills that, worryingly, seeks to clamp down on our constitutionally-mandated right to freedom of assembly. These are often used to quell dissent and intimidate protestors. Our challenge is not simply a challenge on behalf of the #SJC10, but a challenge to repressive laws. Our challenge is on behalf of freedom, democracy and the people of South Africa.
Phumeza Mlungwana - 074 417 8306
Apellent in the SJC10 case
Former SJC General Secretary
Axolile Notywala - 074 386 1584
SJC General Secretary