Legal guidelines criminalising conduct related with gatherings don’t align with the Structure, and have far-reaching implications for freedom of meeting.
First revealed in GroundUp.
The South African Police Service Modification Invoice, ready by the Civilian Secretariat for the Police Service and just lately revealed for public remark, is a comprehensive revision of the laws governing policing in South Africa to align it with the Structure.
The laws being amended consists of the Regulation of Gatherings Act 205 of 1993. This provides impact to the correct to freedom of meeting.
The Constitutional Courtroom has usually recognised the significance of this proper. The Courtroom, in Garvis, defined that the correct exists to “give a voice to the powerless” and that it’s usually the one mechanism obtainable to weak folks to precise their considerations.
However there are a selection of points within the Gatherings Act that put this necessary proper in danger. The Act was enacted earlier than the adoption of the interim Structure, and the enshrinement of the constitutional proper to freedom of meeting. It’s, subsequently, in want of complete revision to align it with the Structure. However the Invoice falls far in need of this.
Overbroad definition of “gathering”
“Gathering” is a key time period within the Gatherings Act on which the extent of regulation turns. Specifically, the planning of a “gathering” is the set off for the onerous discover necessities prescribed in part three of the Act.
However the definition of “gathering” within the Act is simply too broad – together with inside its ambit each group of 15 or extra folks meant to “mobilise or show assist for or opposition to the views, rules, coverage, actions or omissions of any individual or physique of individuals or establishment”.
The definition of “gathering” must be extra fastidiously tailor-made to the aim of the notification necessities. As defined by the Constitutional Courtroom in Mlungwana, the aim of notification is to make sure peaceable protests. Giving ample discover permits the police to successfully monitor gatherings and correctly plan for the deployment of police to avert disruptive protests.
Nevertheless, the collection of the variety of 15 folks because the set off within the Act for needing to supply discover is totally arbitrary. There isn’t any clear hyperlink between disruptive protest and the quantity 15. Because the Constitutional Courtroom mentioned, “[t]right here seems to be no intrinsic magic within the quantity 15”.
The definition of “gathering” within the Act must be amended in order that discover will solely be required when a protest is prone to be disruptive or when police deployment is prone to be essential. This may be achieved by limiting the definition of “gathering” to an meeting with a a lot bigger variety of individuals – leading to a definition that’s, a minimum of, extra intently related to the aim of averting disruptive protest. It may also be achieved by limiting discover necessities to sure kinds of gatherings, which can must be clearly spelled out within the laws.
In Mlungwana, the Constitutional Courtroom was confronted with a problem to a provision within the Gatherings Act that criminalises the failure by a convenor of a gathering to offer discover of the gathering in accordance with part three of the Act.
The courtroom discovered that the criminalisation of the failure to offer discover unjustifiably restricted the correct to freedom of meeting. The courtroom burdened that criminalisation has a chilling impact on the train of the correct to freedom of meeting:
“[C]riminalisation has a ‘calamitous impact’ on these caught inside its broad web. The potential of arrest and its aftermath, even with out conviction, is an actual ‘spectre’ for these searching for to train their part 17 proper. If convicted, these involved face punishment, ethical stigma, and a legal document for a minimum of ten years.”
The courtroom accordingly discovered that the supply was inconsistent with the Structure and declared it invalid. The Invoice seeks to rectify this defect within the Act by deleting the supply. However the Invoice does not more than what was instantly ordered by the Courtroom.
There are a variety of different provisions within the Act that equally impose legal sanctions for conduct related to gatherings.
Part 12(1)(b) of the Act criminalises the failure to attend a gathering known as for negotiations concerning the modification of notices and the imposition of circumstances on a gathering.
Part 12(1)(c) criminalises the failure by conveners to nominate marshals, and to take steps to tell individuals and marshals of circumstances to which a gathering is topic.
Part 12(1)(d) criminalises the contravention of or failure to adjust to the contents of a discover or the circumstances to which a gathering is topic, if accomplished knowingly.
And part 12(1)(h) criminalises the failure to adjust to the discover necessities in respect of the postponement, delay or cancellation of a gathering.
The criminalisation of this conduct clearly limits the correct to freedom of meeting. Whereas the criminalisation serves the necessary objective of avoiding disruptive protests, it doesn’t seem that the limitation could be justified beneath part 36 of the Structure (the constraints clause). This follows from the reasoning of the Constitutional Courtroom in Mlungwana. Criminalisation can’t be justified if there are much less restrictive methods to avert disruptive protests, together with the imposition of administrative fines or heightened civil legal responsibility for convenors.
There are, subsequently, grave doubts concerning the constitutionality of varied provisions within the Gatherings Act. The Invoice should handle this to align the Act with the Structure.
Catherine Kruyer is an advocate and a authorized researcher on the Helen Suzman Basis.