In February 2015, 10 Social Justice Coalition (SJC) activists were convicted by the Cape Town Magistrates Court for convening a gathering without notice in terms of the Regulation of Gatherings Act (RGA). The convictions followed a protest convened by the SJC, on 11 September 2013, calling on the City of Cape Town to provide clean and safe sanitation in Khayelitsha. The activists’ appeal against their convictions is currently before the Western Cape High Court. The activists are challenging the constitutionality of section 12(1)(a) of the RGA, which criminalises the convening of a gathering of more than 15 people without giving notice to the local authority, because it unjustifiably limits the right to freedom of assembly enshrined in section 17 of the Constitution.
The importance of the right to freedom of assembly is well understood by South Africans, as our history testifies to the devastating consequences of its denial. The Constitutional Court, in South African Transport and Allied Workers Union and Another v Garvas, held that the right to freedom of assembly is central to our constitutional democracy. The right “exists primarily to give a voice to the powerless,” particularly the marginalised and vulnerable, as it is often the only means whereby they can express their concerns. Moreover, the right to freedom of assembly is foundational to the exercise and achievement of all other constitutional rights. It is one of the primary ways in which people can protect and advance their rights.
However, the right to assemble, peacefully and unarmed, is increasingly under threat in South Africa. Government authorities are often hostile towards protesters, employing violence, arrests, detention and criminal charges to intimidate those seeking to exercise their constitutional right to assemble. The effects of criminalisation are severe and act as a deterrent that chills protest. In this context, it is important to consider how the State attempts to justify such criminal sanctions.
Protests which seeks to safeguard the rights of vulnerable and marginalised members of our society, such as the rights to service delivery and education, are increasingly labelled as ‘violent’ and ‘disruptive’. This is a discursive tool employed to justify State violence and criminal sanction. The labels of ‘violent’ and ‘disruptive’ operate as a perlocutionary speech act which is intended to produce certain effects upon our feelings, thoughts or actions. Applying these labels to protesters pre-emptively relaxes the conditions under which the State can employ violence and criminal sanction. It seeks to recast peaceful protesters as legitimate targets of violence, arrest and detention. By mobilizing this discursive tool, the State tries to shift the burden onto protesters to prove that protests are peaceful and non-disruptive. It is particularly pernicious that these labels are often employed along racial lines. A protest where most of the participants are black or coloured is far more likely to be labelled as ‘violent’ or ‘disruptive’. Such labels attempt to justify violence against black bodies.
Attempts by the State to justify violence and criminal sanctions fly in the face of the spirit of the law. Especially, as our Constitution provides that everyone has the right to freedom of assembly and the State has a duty to provide protection to enable the exercise of this freedom. The SJC 10 case comes at a crucial time and is an important strategic legal intervention to protect the right to freedom of assembly. As the Constitutional Court held, in Garvis, one of the lessons we have learnt from our history is that we will never again “allow the right of ordinary people to freedom in all its forms to be taken away”.
 Act 205 of 1993.
  ZACC 13; 2012 (8) BCLR 840 (CC); 2013 (1) SA 83 (CC) at para 61.
 Ibid at para 63.
*Catherine Kruyer is currently completing an LLM in Public International Law at the University of Cape Town. She has previously interned in the Office of the Prosecutor at the International Criminal Court and clerked for the Supreme Court of Malawi. Her interests include International Criminal Justice and Human Rights