South Africa Constitutional Court invalidates protest law
November 20, 2018
The Constitutional Court of South Africa ruled Monday that a law that criminalized failure to give notice to a municipality of a gathering of more than 15 people is unconstitutional.
The court found that the law violated the guarantee of Section 17 of the Constitution that “[e]veryone has the right, peacefully and unarmed, to assemble, to demonstrate, to picket and to present petitions.”
The court’s ruling confirmed the decision of the High Court of South Africa.
The Minister of Police argued that the law did not limit rights because it was a mere regulation, and that any limitations were justifiable.
The law defined a gathering as an assembly or procession of more than 15 people in a public place partially or wholly open to the air where “principles, policy, actions or failure to act of any government, political party or political organisation” are “discussed, attacked, criticized, promoted or propagated” or where people “hand over petitions to any person, or to mobilize or demonstrate support for or opposition to the views, principles, policy, actions or omissions of any person or body of persons or institution.” The law required that written notice be given at least seven days in advance, although approval to have the gathering was not necessary.
The court ruled that the law was a deterrent to gathering of groups of 16 or more people. It also stated that “[d]eterrence, by its very nature, inhibits the exercise of the right in section 17.” The limitations specified by the law were determined to be severe because it did not distinguish between children and adults, the definition of gathering is broad, the reach of the criminal liability was exceedingly broad, and the law had a chilling effect on convening assemblies. The law was found to not have appropriate justification for its severity.