Mlungwana and Others v S and Another (CCT32/18) [2018] ZACC 45; 2019 (1) BCLR 88 (CC); 2019 (1) SACR 429 (CC) (19 November 2018)

Mlungwana and Others v S and Another (CCT32/18) [2018] ZACC 45; 2019 (1) BCLR 88 (CC); 2019 (1) SACR 429 (CC) (19 November 2018)

Section 12(1)(a) of the Regulation of Gatherings Act 205 of 1993 imposes a criminal sanction on conveners who fail to give notice or give inadequate notice of gatherings, regardless of whether the gathering is peaceful and unarmed. This criminalisation constitutes a severe limitation of the right to freedom of assembly under section 17 of the Constitution, with a broad and chilling effect that deters the exercise of the right by both adults and children. The respondents failed to demonstrate that this limitation is justified under section 36, as the link between criminalisation and the prevention of violent protests is tenuous, and less restrictive means exist to incentivise notice. The...

Citation
[2018] ZACC 45
Parties
Applicant: Phumeza Mlungwana; Applicant: Xoliswa Mbadisa; Applicant: Luvo Mankqa; Applicant: Nomhle Maci; Applicant: Zingisa Mrwebi; Applicant: Mlondolozi Sinuku; Applicant: Vuyolwethu Sinuku; Applicant: Ezethu Sebezo; Applicant: Nolulama Jara; Applicant: Abdurrazaack Achmat; Respondent: The State; Respondent: Minister of Police
Court
Constitutional Court
Jurisdiction
South Africa
Judgment Date
19 November 2018
Case Number
CCT 32/18
Procedural Posture
Constitutional Confirmation / Appeal and Confirmation of High Court Order of Constitutional Invalidity
Outcome
The appeal of the State respondents is dismissed. The declaration of constitutional invalidity of section 12(1)(a) of the Regulation of Gatherings Act is confirmed. The applicants’ convictions and sentences are set aside.
Judges
Basson AJ, Cameron J, Dlodlo AJ, Froneman J, Goliath AJ, Khampepe J, Mhlanthla J, Petse AJ, Theron J
Legal Topics
Freedom of Assembly, Regulation of Gatherings Act, Bill of Rights Limitation, Criminalisation of Peaceful Protest, Constitutional Invalidity, Remedies for Unconstitutional Legislation
Constitutional Law Criminal Law Civil Procedure Freedom of Assembly Regulation of Gatherings Act Bill of Rights Limitation Criminalisation of Peaceful Protest Constitutional Invalidity +1 more

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Parties

Phumeza Mlungwana

Applicant

Xoliswa Mbadisa

Applicant

Luvo Mankqa

Applicant

Nomhle Maci

Applicant

Zingisa Mrwebi

Applicant

Mlondolozi Sinuku

Applicant

Vuyolwethu Sinuku

Applicant

Ezethu Sebezo

Applicant

Nolulama Jara

Applicant

Abdurrazaack Achmat

Applicant

The State

Respondent

Minister of Police

Respondent

Procedural Posture

Constitutional Confirmation / Appeal and Confirmation of High Court Order of Constitutional Invalidity

Legal Issues

  1. 1 Does section 12(1)(a) of the Regulation of Gatherings Act 205 of 1993 unjustifiably limit the right to peaceful assembly under section 17 of the Constitution?
  2. 2 Is the criminalisation of convening a gathering without notice constitutionally valid?
  3. 3 Are there less restrictive means to incentivise notice for gatherings than criminal sanctions?

Ratio Decidendi

Section 12(1)(a) of the Regulation of Gatherings Act 205 of 1993 imposes a criminal sanction on conveners who fail to give notice or give inadequate notice of gatherings, regardless of whether the gathering is peaceful and unarmed. This criminalisation constitutes a severe limitation of the right to freedom of assembly under section 17 of the Constitution, with a broad and chilling effect that deters the exercise of the right by both adults and children. The respondents failed to demonstrate that this limitation is justified under section 36, as the link between criminalisation and the prevention of violent protests is tenuous, and less restrictive means exist to incentivise notice. The...

Court Disposition

The appeal of the State respondents is dismissed. The declaration of constitutional invalidity of section 12(1)(a) of the Regulation of Gatherings Act is confirmed. The applicants’ convictions and sentences are set aside.

Orders

  • The appeal of the State respondents is dismissed.
  • The High Court’s declaration that section 12(1)(a) of the Regulation of Gatherings Act 205 of 1993 is constitutionally invalid is confirmed to the extent that it makes failure to give notice or inadequate notice by any person who convened a gathering a criminal offence.