Dear Mr President,
Your morning walks could get you a criminal record.
Yes, this is absurd. Yes, this is unconstitutional. But that is the law. According to the Regulation of Gatherings Act, which the Social Justice Coalition (SJC) has challenged, you can be criminalised for your healthy lifestyle morning walks with more than 15 people due to not providing notice to the relevant authorities.
The SJC is a democratic, mass-based social movement that campaigns for the advancement of the constitutional rights to life, dignity, equality, freedom and safety for all people, but especially those living in informal settlements across South Africa.
In September 2013, 21 of us (SJC members and supporters) were arrested and charged with convening and attending an illegal gathering in terms of the Regulation of Gatherings Act. We were arrested for not providing notice to the City of Cape Town. Our protest was a peaceful act of civil disobedience where we chained ourselves to the railings of the stairs outside the Cape Town Civic Centre. We were demanding that the Mayor of Cape Town uphold her commitment to developing a plan for the janitorial service for communal flush toilets in informal settlements.
We appeared at the Cape Town Magistrates Court on numerous occasions. At the trial we all maintained, “We admit to the facts, but we are not criminals”. On 11 February 2015, ten SJC leaders were convicted of convening an illegal gathering. Their names are: Phumeza Mlungwana, Xoliswa Mbadlisa, Luvo Manqku, Nomhle Maci, Zingisa Mrwebi, Mlondolozi Sinuku, Vuyolwethu Sinuku, Ezethu Sebezo, Nolulama Jara and Zackie Achmat. They are known as the #SJC10. Many of these are working-class people whose only crime was to demand clean, safe and dignified sanitation services for informal settlement residents. They currently have criminal records. Comrade Nolulama Jara passed away with a criminal record in August 2015. We deeply mourn the loss of Nolulama and honour her memory and contribution to the struggle for freedom and democracy.
Mr President, we are bringing this to your attention because we are challenged the constitutionality of section 12(1)(a) of the Gatherings Act that was used to criminalise us. But the South African Police Service (SAPS) has defended the Gatherings Act and they say that people who gather without giving notice must be criminalised.
Section 17 of the South African constitution provides, “Everyone has the right, peacefully and unarmed, to assemble, to demonstrate, to picket and to present petitions”. But, section 12(1)(a) of the Gatherings Act limits this right by criminalising people who convene a gathering without providing notice. How can we have a strong, engaged democracy when our Constitutionally-mandated right to protest is thwarted by apartheid-era laws?
In January 2018, Judge Ndita agreed with us when she handed down a landmark judgment at the Western Cape High Court. In her judgment she said the following:
“I have in this judgment held that the criminalisation of a gathering of more than 15 on the basis that no notice was given violates s 17 of the constitution as it deters people from exercising the fundamental constitutional right to assemble peacefully unarmed. In my judgment the limitation is not reasonable and justifiable in an open and democratic society based on the values of freedom, dignity and equality”.
Judge Ndita ordered that the appeal against the #SJC10 convictions be upheld and the convictions thereby set aside. She then declared section 12(1)(a) of the Gatherings Act unconstitutional. SAPS have since appealed this judgment at the Constitutional Court.
This therefore means that, you Mr President, can be criminalised for your healthy lifestyle morning walks when walking in a group of more than 15. The Gatherings Act defines a gathering as follows:
“any assembly, concourse or procession of more than 15 persons in or on any public road as defined in the Road Traffic Act, 1989 (Act 29 of 1989), or any other public place or premises wholly or partly open to the air(a) at which the principles, policy, actions or failure to act of any government, political party or political organization, whether or not that party or organization is registered in terms of any applicable law, are discussed, attacked, criticized, promoted or propagated”.
Your morning walks fall squarely within this definition. The City of Cape Town has confirmed that no notice was provided for your walk from Khayelitsha to Mitchells Plain on the 6th of March 2018. This means that you contravened the Gatherings Act and therefore must be criminalised.
Of course we do not believe that you should be criminalised. That is absurd. We challenged the Gatherings Act because we agree with Judge Ndita, that criminalising a gathering simply because no notice was given is not justifiable in an open and democratic society. But the SAPS, in challenging the High Court judgment at the Constitutional Court, supports this criminalisation. SAPS has little chance of succeeding in its appeal so this is also another huge waste of public money.
So we are asking you, Mr President, in consultation with the Minister of Police, to withdraw the appeal by SAPS. But more than that, we also appeal to you and your government to review the Gatherings Act as a whole. The section that was declared unconstitutional by the Western Cape High Court is just one part of a very problematic and repressive apartheid-era law.
We hope you will take the time to carefully consider this, study the unconstitutional law and respond favorably.
Social Justice Coalition