Cape Town - Groups of 15 or more people will, in future, be allowed to assemble in a peaceful gathering without notice, the Western Cape High Court ruled on Wednesday.
The groundbreaking ruling followed a Social Justice Coalition (SJC) appeal challenging the criminalisation of the Regulation of Gatherings Act (RGA).
In her ruling Judge Thandazwa Ndita said: “The criminalisation of a gathering of more than 15 people on the basis that no notice was given violates the Constitution as it deters people from exercising their fundamental constitutional right to assemble peacefully unarmed.
“In my judgment the limitation is not reasonable and justifiable in an open democratic society, based on the values of freedom, dignity and equality.”
Ndita therefore declared Section 12(1)(a) of the RGA unconstitutional.
The ruling was seen by human rights activists outside the Western Cape High Court as a victory. Video: Zodidi Dano/Cape Argus
This follows a seven month long trial where ten applicants from the SJC went head-to-head in a legal dispute with the Minister of Police challenging the criminalisation of convenors who have failed to give notice of a peaceful, unarmed and non-disruptive gathering.
In bringing in the appeal the SJC said it was not challenging the law in its entirety, but the RGA limited the right to freedom of assembly as enshrined in the Constitution.
The SJC argued that the distinction between a gathering and a demonstration was irrational as it was unclear why 16 is an appropriate number to criminalise a gathering.
The Minister of Police’s defence argued that there had to be a cut-off number.
First appellant Phumeza Mlungwana from the SJC said they were happy with the ruling.
The SJC's Phumeza Mlungwana. Video: Zodidi Dano/Cape Argus
“This is victory for all us appellants and other organisations who use protest as means to get their voices heard. When people protest there is real concern, but instead of the concerns being addressed people are instead treated like criminals.
“Protests are a last resort used by us activists to show our frustrations,” she said.
In 2013, 21 SJC members and supporters were arrested and charged after they chained themselves to the railings of the Cape Town Civic Centre. The demonstration was in support of proper sanitation for Khayelitsha residents and those living in other communities in the city.
While 11 members were acquitted, ten SJC leaders were convicted under the RGA.
Ntuthuzelo Vika, who was among those acquitted, rejoiced in song and dance with a group of SJC and Equal Education (EE) activists outside the court.
SJC leaders who were arrested for illegal gathering, in 2013, celebrated their victory #RGAjudgment. @TheCapeArgus pic.twitter.com/3TScANdqHm
— Zodidi Dano (@Zoey_dano) January 24, 2018
“What is important to note is the unfair treatment of people who are activists. This shows that justice is lacking and how people's dignities are compromised when fighting for their basic human rights,” he said.
The SJC plans to challenge the RGA at the Constitutional Court.