A higher court can now determine the constitutionality of the Gatherings Act.
The ‘SJC10’: Civil disobedience and challenging Apartheid laws
On 11 September 2013, SJC members and supporters staged a peaceful and organized act of civil disobedience outside the o ces 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 that had increasingly been met with broken promises, hostility, and refusals.
21 activists were arrested and charged with contravening the Regulation of Gatherings Act (RGA). In February 2015, the 10 elected leaders who identi ed 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.
Leave to appeal was granted in July 2015 in the Cape Town Magistrate’s Court. This means that a higher court can now determine the constitutionality of the Gatherings Act.
In her judgment Magistrate Fredericks explained that there is a reasonable prospect that a higher court may nd elements of the RGA unconstitutional. Our appeal application is being lodged at the Western Cape High Court in March 2016 following delays with ac cessing the court record.
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 just because no notice was given and is unconstitutional.
A number of civil society organisations with an interest in upholding the right to protest have expressed interest in being admitted as Amicus Curiae (friends of the court). The ‘SJC 10’ are represented by the Legal Resources Centre. The case was heard in the Western Cape High Court in 2017.
On Wednesday 24 January 2018, in the Western Cape High Court, Judge T.C. Ndita delivered a landmark judgment in the #SJC10 case that has major repercussions on the right to protest in South Africa.
Judge 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 picket outside the Mayor’s office where they had chained themselves to the railings of the Cape Town Civic Centre in a peaceful and organised act of civil disobedience. 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.
The historic judgment ruled that section 12 (1) (a) of the Gatherings Act is unconstitutional because it limits and criminalises peaceful protest. The ruling does not affect previous convictions under the Gatherings Act, and any future contraventions of the Act will not arrest and a criminal record.
The judgment stated: “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 their fundamental right to assemble peacefully unarmed…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”.
The ruling comes five years after the SJC protest demanding a plan for water and sanitation in Cape Town’s informal settlements. In our victory we remember Nolulama Jara, one of the convicted SJC leaders, who tragically passed away in August 2015. She remained on our appeal. We deeply mourn the loss of Nolulama and thank her and her family for all their courage. We honour her memory and contribution to the struggle for freedom and democracy.
- Appeal Final Judgment (24 January 2018)
- Application for Leave to Appeal (9 July 2015)
- Magistrates Court Heads of Argument
- Magistrates Court Judgment
- UN Special Rapporteur's Heads of Argument
- Equal Education's Heads of Argument
- Open Society Justice Initiative's Heads of Argument
- Appellants' Heads of Argument