If the Social Justice Coalition (SJC) gets its way in court, it would no longer be a crime for more than 15 demonstrators to gather at a time without obtaining permission.
The criminalisation of the failure to give notice of a peaceful, unarmed and non-disruptive gathering, as mentioned in the Regulation of Gatherings Act, is currently being challenged in the Western Cape High Court. It was brought following the arrest of 21 SJC members and supporters, who staged a peaceful protest outside executive mayor Patricia de Lille’s office in 2013 by chaining themselves to the railings of the Civic Centre.
In February 2015, 10 elected leaders, identified as the conveners of the protest, were convicted and the 11 others were acquitted.
The State and the minister of police have been cited as respondents in the case.
A number of organisations and institutions have joined through amicus applications.
These include the Open Society Foundation Justice Initiative, Equal Education and the UN Special Rapporteur among others. “The effects of criminal sanction are not only severe for those who are convicted, the possibility will undoubtedly chill the exercise of the right to assembly by others, who will never be prosecuted.
"The first appellant testified expressly that the threat of prosecution has deterred members of the SJC from exercising their rights to free assembly and free speech.
“The right at stake is vital for our constitutional democracy; The limitation is severe - it is exceptionally broad and can result in imprisonment flowing from an arbitrary definition that will chill the exercise of the right to free assembly,” the appellant's heads of argument read. The minister’s legal team has argued for the application to be dismissed and if granted, an order of unconstitutionality should to be limited, so as to have no effect on any closed cases where convictions have occurred.
“At the heart of the minister's response to this challenge is an underlying contention that the rights and interests of one group of persons cannot, as a matter of course take precedence over another group of person; a balancing of competing rights must occur as the Gatherings Act has sought to do,” the head of argument read.
Judgment has been reserved.