People march during the ‘ Zuma Must Fall’ protest in Cape Town on December 16 last year. Picture: THE TIMES
People march during the ‘ Zuma Must Fall’ protest in Cape Town on December 16 last year. Picture: THE TIMES

The Constitutional Court finding that it is unconstitutional to require    notice to be given to a municipality before a gathering of more than 15 people has raised questions on how the local authorities  can plan for protests.

The  court delivered a landmark judgment on Monday, declaring section 12(1)(a) of the Regulation of Gathering Act to be constitutionally invalid in that it made   failure to give a municipality notice or adequate notice of a gathering a criminal offence.  

A gathering in terms of the act is seen as a group of more than 15 people. Before the judgment, only a group of fewer than 15 people did not have to give notice to a municipality.

Johannesburg public safety MMC Michael Sun said the city would have to digest the judgment, but said a clear line would have to be drawn between a peaceful protest and a violent one as this was not protected in the constitution under section 17.

Section 17 deals with the right of assembly, demonstration, picket and petition, and the court held that the right protected in it was unjustifiably limited by the now unconstitutional section of the act.

Sun said the city might have to make procedural adjustments following the judgment. He said the notice period helped with planning, including deployment of officers and route planning.

Sam Mgobozi, Tshwane mayor Solly Msimanga’s spokesman, said the judgment would have to be studied to determine the implications in planning for protests in municipalities.

“Our concerns goes to the allocation of resources and preparation for protests, particularly in Tshwane, which has a very high number of protests, given that this is the seat of government and we are going into an election,” Mgobozi said.  

The court on Monday also set aside the convictions of 10 members of the Social Justice Coalition‚ who were found guilty in the Bellville Magistrate’s Court of contravening that section of the act.

The court challenge to the constitutionality of the section of the act arose after the 10 people were arrested in 2013 when they chained themselves together on the steps of the Cape Town Civic Centre‚ demanding to meet the mayor about sanitation problems in Khayelitsha.

 They had intended to stay within the law by having only 15 protesters‚ but the crowd swelled and the conveners of the gathering were charged.​

The court found that “people who lack political and economic power have only protests as a tool to communicate their legitimate concerns”.

The court recognised that the right to freedom of assembly was central to a constitutional democracy, and that taking away that tool would “frustrate” public participation, which was all the more pertinent, given mounting protests in SA.