Magistrate rules that law under which SJC activists were convicted could be unconstitutional
Yesterday in the Cape Town Magistrates Court, Magistrate Fredericks granted leave to appeal for 10 SJC activists convicted earlier this year of contravening the Regulation of Gatherings Act (RGA). In September 2013 SJC activists had chained themselves outside the Civic Centre, the Office of the Mayor of Cape Town, peacefully campaigning for improved sanitation in Cape Town’s informal settlements. This led to the arrest of 21 people.
The 10 SJC leaders were convicted in February 2015 on the charge of convening an illegal gathering. Another 11 were acquitted of all charges.
By granting leave to appeal the matter can now be heard by a higher court to determine the constitutionality of the RGA. The SJC maintains that this is an Apartheid era piece of legislation that stifles the freedom to protest and can be used to criminalise peaceful, civic minded action. We strongly feel that portions of the Act need to change to be brought in line with our Constitution.
WHY WE ARE APPEALING
From the outset the SJC had made clear its intention to challenge the constitutionality of portions of the RGA. In the application for leave to appeal we contend that:
“By criminalising the convening of a gathering merely because no notice was given, section 12(1))(a) of the RGA limits the right to freedom of assembly in section 17 of the Constitution;
That limitation is not reasonable and justifiable in terms of section 36(1) of the Constitution;
Accordingly, the section must be declared unconstitutional and invalid;
If the section is declared invalid, the basis for the conviction falls away.”
The arbitrary nature of the prescribed limit that allows for 15 people to assemble without providing notice to the relevant authorities is a further issue. Absurdly, this means that when 20 people decide to go to the park without giving notice they are technically in violation of the RGA.
LEAVE TO APPEAL
Magistrate Fredericks heard submissions from Sheldon Magardie from the Legal Resources Centre acting on behalf of the SJC, and then from the State. She granted the SJC 10 leave to appeal.
In explaining her judgment, the Magistrate found that there is a reasonable prospect that the Regulation of Gatherings Act may be found to be unconstitutional by the High Court and that the convictions would be set aside. Further the Magistrates Court does not have jurisdiction to hear the constitutional arguments and subsequently a higher court needs to hear the matter.
We are hoping to secure a court date in the Western Cape High Court before the end of the year and for the matter to eventually be heard by the Constitutional Court.
The right to protest is and should be regulated. However when legislation criminalises peaceful protest in such an arbitrary fashion this dilutes our guaranteed rights and the law must be changed.
The SJC is represented in this case by the Legal Resources Centre. Our grounds of appeal can be found here.
For comment please contact:
SJC General Secretary
074 417 8306