In September 2013, 21 SJC members and supporters were arrested and charged with convening and attending an illegal gathering in terms of the Regulation of Gatherings Act. On that day, we chained ourselves to the railings outside the office of Mayor De Lille to protest against the City’s failure and at times, refusal to uphold its commitments on the janitorial service sanitation programme.

This case is about the struggle for decent sanitation and the constitutional right to peaceful protest. When the trial began earlier this year we explained that we admit the facts but are not criminals. We challenge the constitutionality of the Regulation of Gatherings Act.

The trial continues tomorrow, Tuesday 7 October and is scheduled to continue on Wednesday 8. Phumeza Mlungwana, the SJC’s General Secretary, will be giving evidence.

In Phumeza Mlungwana’s founding affidavit (to be found here), she describes 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. It describes a history made up of countless letters, emails, phonecalls, submissions, meetings, and protests.

The decision to organise and attend the protest outside the offices of Mayor de Lille on 11 September 2013 was not taken lightly. The urgent need of the residents of Khayelitsha for the janitorial service to be implemented effectively – which had been delayed by two years of broken promises from the City – prompted our actions. Our memorandum of 25 June 2013, details the litany of commitments made and broken by the Mayor.

Sanitation crisis remains dire

On 1 October 2014, the Social Justice Coalition (SJC) and Ndifuna Ukwazi (NU) released the report of the social audit on janitorial services for shared communal flush toilets in Khayelitsha.

The social audit findings are dire. Despite costing the public almost R60 million, and having the potential for a major impact on the lives of informal settlement residents, the City of Cape Town is failing on the janitorial service. Those living in informal settlements are being left without access to safe and dignified toilets, workers face life threatening risks, and public money is being wasted.

Due to the lack of an implementation plan, the service has been haphazard, poorly implemented, and regularly ineffective. Janitors are often forced to clean toilets without inoculation against disease, protective clothing, equipment or training. Communities have not been consulted and believe that the service is not operating effectively, and residents who rely on these communal toilets are left with broken and unusable facilities.

Hundreds of thousands of people make use of communal flush toilets on a daily basis. Every day the rights to life, equality, dignity, and safety of informal settlement residents and workers are being violated. The City must urgently uphold its commitments and meet its obligations.

Regulation of Gatherings Act is unconstitutional

The right to freedom of assembly is central to our democracy. It exists primarily to give a voice to the powerless and most vulnerable. Under apartheid, the state took numerous legislative steps to regulate strictly and ban public assembly and protest. The importance of the right 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.  If 20 people gather in a public park to sing songs protesting government policy, or gather for a religious ceremony or wedding, they commit a crime.

We demand that the Mayor now develops a plan for dignified, clean, and secure sanitation.

We believe government must change the Apartheid laws, which infringe the right to peaceful assembly.


For comment please contact:

Axolile Notywala

074 386 1584

Dustin Kramer

083 674 0552

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