Mlungwana and others v S and another  2 All SA 183 (WCC)
Criminal law and procedure – Conviction of contravening section 12(1)(a) of the Regulation of Gatherings Act 205 of 1993 for unlawfully and intentionally convened a gathering in protest against poor service delivery – Appeal against conviction and application for order of constitutional invalidity of section 12(1)(a) – Criminal sanctions envisaged in section 12(1)(a) constituting an unjustifiable limitation on the exercise of rights conferred by section 17 of the Constitution.
Words and phrases – “demonstration” – Regulation of Gatherings Act 205 of 1993 – Includes any demonstration by one or more persons, but not more than 15 persons, for or against any person, cause, action or failure to take action.
Words and phrases – “gathering” – Regulation of Gatherings Act 205 of 1993 – Refers to any assembly, concourse or procession of more than 15 persons in or on any public road or space at which the principles, policy, actions or failure to act of any government, political party or political organisation, whether or not that party or organisation is registered in terms of any applicable law, are discussed, attacked, criticised, promoted or propagated; or held to form pressure groups, to hand over petitions to any person, or to mobilise or demonstrate support for or opposition to the views, principles, policy, actions or omissions of any person or body of persons or institution, including any government, administration or governmental institution.
The appellants were charged with contravening section 12(1)(a) of the Regulation of Gatherings Act 205 of 1993, in that they had unlawfully and intentionally convened a gathering in protest against poor sanitation services without giving the relevant municipal authority any notice that such gathering would take place. In the alternative, they were charged with attending a gathering for which no notice had been given. They pleaded not guilty to charges, but after evidence was led, they were convicted on the main count. The sentence imposed was that of a caution and discharge. With the requisite leave of the trial court, they now appealed against the conviction.
In their plea explanation, the appellants stated that section 12(1)(a) was not applicable to them as the provision criminalises attending or a gathering where such gathering is in contravention of the Act, and that section 12(1)(e) does not prohibit attending a gathering for which no notice has not been given, and attending or convening such a gathering does not contravene the Act in any respect other than the fact that it constitutes an offence in terms of section 12(1)(a). It was contended that the criminalisation of convening a gathering without giving notice was unconstitutional and invalid.
Consequently, the applicants sought the upholding of their appeal and the setting aside of their convictions, as well as a declaration that section 12(1)(a) was unconstitutional.
Held – In terms of rule 16A, any person raising a constitutional issue in an application or action shall give notice thereof to the Registrar at the time of filing the relevant affidavit or pleading, setting out a clear and succinct description of the constitutional issue concerned. The main issue raised by the appellants in terms rule 16 was that section 12(1)(a) violated the right to freedom of assembly in section 17 of the Constitution, and was therefore unconstitutional and invalid, to the extent that it criminalised the convening of a gathering solely on the basis that the gathering consists of 15 or more people; and no prior notice was given. The further contention was that the criminalisation of a gathering of more than 15 people merely because no notice was given violated section 17 because it made it a crime to convene a peaceful, unarmed gathering merely because the gathering is attended by 15 or more people and prior notice was not given; and it deterred people from exercising their fundamental constitutional right to assemble peacefully and unarmed.
The Regulation of Gatherings Act draws a distinction between “gatherings” and “demonstrations.” The primary difference between the two is the number of people involved. A demonstration consists of 1–15 people and a gathering consists of more than 15 people. The appellants did not challenge the notice process envisaged in section 3 of the Act, conceding that it served a legitimate purpose. They also did not challenge the definition of a “gathering” or “demonstration”. Instead, they contended that by the criminalisation of the conduct that was protected by section 17of the Constitution, the provision effectively limited the right to peaceful and unarmed assembly.
Section 17 of the Constitution protects peaceful and unarmed demonstrations. It guarantees the right of free assembly, to hold demonstrations, to picket and the right to present petitions. The Court accepted that criminal sanctions envisaged in section 12(1)(a) constituted a limitation to the exercise of section 17 rights. It then had to determine whether that limitation was constitutionally justifiable in terms of the provisions of section 36 of the Constitution. The Court undertook that determination by having regard to the established factors of the nature and importance of the right in question; the importance of the purpose of the limitation; the nature and extent of the limitation; international jurisprudence on the subject; and the balance between the limitation, the purpose and the existence of less restrictive means. It concluded that the limitation was not reasonable and justifiable in an open and democratic society, based on the values of freedom, dignity and equality. In the premises appellants’ appeal against conviction was upheld and the convictions were set aside, and section 12(1)(a) was declared unconstitutional.