On Wednesday 24 January 2018, in the Western Cape High Court, Judge T.C. Ndita delivered a landmark judgment in the #SJC10 case that has major repercussions on the right to protest in South Africa.
Judge Ndita overturned the convictions of 10 Social Justice Coalition (SJC) activists who had been arrested under the Regulation of Gatherings Act in 2013 during a picket outside the Mayor’s office where they had chained themselves to the railings of the Cape Town Civic Centre in a peaceful and organised act of civil disobedience. This followed more than two years of attempted engagement with the Mayor on the lack of a water and sanitation plan for Cape Town’s informal settlements.
The historic judgment ruled that section 12 (1) (a) of the Gatherings Act is unconstitutional because it limits and criminalises peaceful protest. The ruling does not affect previous convictions under the Gatherings Act, and any future contraventions of the Act will result in fines rather than arrest and a criminal record.
The judgment stated: “The criminalisation of a gathering of more than 15 on the basis that no notice was given violates s 17 of the Constitution as it deters people from exercising their fundamental right to assemble peacefully unarmed…the limitation is not reasonable and justifiable in an open and democratic society, based on the values of freedom, dignity and equality…Section 12 (1) (a) of the RGA is hereby declared unconstitutional”.
Phumeza Mlungwana, one of the #SJC10 and the first appellant, highlighted the importance of the ruling, “Personally, we feel great that we don’t have a criminal record, but it is a victory for other organisers and communities that use protest as a means of holding government to account to not feel like they are criminalised for participating in a peaceful protest”.
Mlungwana said that the issue the 2013 protest focused on, water and sanitation, was ignored by Mayor Patricia de Lille, and is now a major issue due to the Western Cape drought.
The ruling comes five years after the SJC protest demanding a plan for water and sanitation in Cape Town’s informal settlements. In our victory we remember Nolulama Jara, one of the convicted SJC leaders, who tragically passed away in August 2015. We deeply mourn the loss of Nolulama and thank her and her family for all their courage. We honour her memory and contribution to the struggle for freedom and democracy.
This ruling and its significant consequences for our democracy cannot be overstated. It is more than just a victory for the appellants whose convictions have been set aside and it is more than just a victory for the SJC. It is a victory for the many South Africans whose only way of getting heard by government is through demonstration and gatherings. It is truly a victory for democracy.
Mlungwana noted the significance of the ruling, “This is history because a law will be changed”.
Axolile Notywala – 074 386 1584
Social Justice Coalition