BoR Topic 3-6 Final Exam Study Notes
TOPIC 3 - RIGHT TO FREEDOM OF ASSEMBLY
The Rights to Freedom of Assembly, Demonstration, Picket and Petition
I. Constitutional Foundation: The Right to Protest
1. The Right to Assembly (Section 17 of the Constitution)
• Everyone has the fundamental right, peacefully and unarmed, to assemble, to
demonstrate, to picket, and to present petitions.
• This right is central to constitutional democracy and exists primarily to give a voice
to the powerless, including vulnerable persons and groups without political or
economic power. It is a principal means for ordinary people to advance human rights
and freedoms.
• The content and scope of this right must be interpreted generously.
2. Limitations on the Right to Protest
• The constitutional protection only extends to protests that are peaceful and
unarmed.
• Peaceful means the protest must not involve physical violence against people or
property (such as burning, destroying, vandalizing, or defacing).
• Unarmed means protestors should not carry or use weapons, including dangerous
weapons or even "defensive weapons" like shields.
• An individual does not lose the right to peaceful assembly due to sporadic violence
or other punishable acts committed by others during the demonstration, provided that
the individual remains peaceful in their own conduct and intentions.
• Disruptive protests (e.g., loud, noisy, disturbing activities) are protected by the
Constitution, as disruption is often necessary for communication, provided the
disruption does not involve violence or completely discontinue the event/proceeding.
3. Related Constitutional Rights
The right to protest (S 17) is closely related to other rights, including:
• Freedom of Expression (S 16) and Academic freedom.
• Human Dignity (S 10), which protects individual autonomy and requires people be
treated with care.
• Freedom of Movement and Residence (S 21).
• Right to Further Education (S 29).
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,BoR Topic 3-6 Final Exam Study Notes
• Freedom and Security of the Person (S 12), including the right to be free from all
forms of violence.
II. Regulation of Gatherings Act (RGA) 205 of 1993
The RGA regulates public gatherings and demonstrations to balance the right to
assemble freely and peacefully against the rights of others.
1. Definitions (Section 1) & Notice Requirements (Section 3)
• Demonstration: Assembly of 15 or fewer persons; written notice is not required.
• Gathering: Assembly, concourse, or procession of more than 15 persons in a public
place, concerning political matters or group pressure.
◦ Notice Duty: The convener of a gathering must give written notice to the
responsible officer (local municipality official).
◦ Timeline: Notice should be given no later than seven days before the gathering, or
at the earliest opportunity (if less than 48 hours, the responsible officer may prohibit the
gathering).
◦ The notice must contain numerous details, including the convener's details,
purpose, time, date, place, anticipated number of participants, and marshals [The
responsible officer must consult with the authorized member of the police (SAPS)
regarding the need for negotiations concerning conditions for the gathering. Negotiation
must happen in good faith.
• Prohibition (Section 5): A gathering can only be prohibited in exceptional
circumstances.
◦ A prohibition can occur only if there is credible information on oath that the
gathering threatens: serious disruption of traffic, injury to persons, or extensive
damage to property, and the Police/traffic officers cannot contain this threat through
other steps.
◦ The mere failure to give notice is not expressly a ground to prohibit the gathering.
3. Invalidity of Criminal Sanction (Mlungwana v S)
• Section 12(1)(a), which criminalizes the convener's failure to give notice or adequate
notice, is constitutionally invalid.
• Criminalizing this procedural requirement creates an unjustifiable limitation on the
right to assembly due to the chilling effect, the severity of criminal sanction (including
criminal record), the lack of proportional means to the intended purpose (peaceful
protest), and the existence of less restrictive means.
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,BoR Topic 3-6 Final Exam Study Notes
• Defence of Spontaneity (Section 12(2)): It remains a defence to a charge under S
12(1)(a) that the gathering took place spontaneously.
4. Civil Liability for Riot Damage (Section 11) (Garvas case)
• Liability: Organizations/conveners are jointly and severally liable for "riot damage"
(loss resulting from injury, death, or property damage/destruction).
• Defence (Section 11(2)): The limitation of the right to assemble imposed by Section
11 (strict liability for riot damage) is justifiable. To escape this liability, the organizer
must prove:
1. They did not permit or connive at the act/omission.
2. The act/omission was outside the scope of objectives and not reasonably
foreseeable.
3. They took all reasonable steps within their power to prevent the harm.
• Interpretation: Organizers must continually take reasonable steps to prevent
foreseeable harm. Successfully taking these steps renders the act/omission no longer
reasonably foreseeable, fulfilling both requirements of the defence.
III. Judicial Principles and Remedies
1. Judicial Discretion and Costs
• Role of the Court: The Constitutional Court grants leave to appeal on constitutional
matters and where it is in the interests of justice. Courts possess wide remedial powers
to issue any order that is just and equitable.
• Interference with Discretion: An appellate court may interfere with a cost order (a
discretion in the "true sense") only if the lower court failed to exercise its discretion
judicially (e.g., influenced by wrong principles or failing to apply relevant principles).
2. The Biowatch Principle
• General Rule in Constitutional Litigation: The general rule is that an unsuccessful
litigant in proceedings against the state or a public institution (like a university) ought
not to be ordered to pay costs.
• Rationale: To diminish the "chilling effect" that adverse costs orders can have on
litigants asserting their constitutional rights, especially in a society marked by
inequality.
• Application to Universities: The Biowatch principle applies to universities as public
institutions.
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, BoR Topic 3-6 Final Exam Study Notes
• Exceptions: Departure from this rule is justified only if the litigation is frivolous or
vexatious, or if the litigant acted from improper motives or in bad faith.
IV. Interdicts and University Protests
1. Use of Interdicts
• Universities may apply for interdicts to prohibit specific students from engaging in
clearly defined unlawful or criminal acts.
• Courts examine four conditions for granting an interim interdict, including proving a
prima facie right and a reasonable apprehension of irreparable and imminent harm.
• Overly Broad Interdicts are Unlawful: Interdicts cannot be granted against large,
unspecified groups (like "All Those Persons Participating... in Unlawful Conduct").
• Interdicts must be narrowly tailored; they cannot prevent broad activity or restrict
constitutional rights more than necessary (e.g., blanket exclusions from campus may
infringe the right to freedom of movement).
2. Police and Private Security
• The police (SAPS) have the duty to facilitate protest and create a safe environment.
They must display a "highest degree of tolerance".
• The police may only use force if reasonably necessary to prevent injury or property
destruction, and only as a last resort after using defensive measures and issuing two
clear warnings in appropriate languages. Force must be proportional to the threat.
• Private security guards work for the university and must comply with the
Constitution, but they do not have the same powers as the police. They can only
arrest students under the rules of a citizen's arrest (e.g., witnessing a crime or
reasonable suspicion).
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TOPIC 3 - RIGHT TO FREEDOM OF ASSEMBLY
The Rights to Freedom of Assembly, Demonstration, Picket and Petition
I. Constitutional Foundation: The Right to Protest
1. The Right to Assembly (Section 17 of the Constitution)
• Everyone has the fundamental right, peacefully and unarmed, to assemble, to
demonstrate, to picket, and to present petitions.
• This right is central to constitutional democracy and exists primarily to give a voice
to the powerless, including vulnerable persons and groups without political or
economic power. It is a principal means for ordinary people to advance human rights
and freedoms.
• The content and scope of this right must be interpreted generously.
2. Limitations on the Right to Protest
• The constitutional protection only extends to protests that are peaceful and
unarmed.
• Peaceful means the protest must not involve physical violence against people or
property (such as burning, destroying, vandalizing, or defacing).
• Unarmed means protestors should not carry or use weapons, including dangerous
weapons or even "defensive weapons" like shields.
• An individual does not lose the right to peaceful assembly due to sporadic violence
or other punishable acts committed by others during the demonstration, provided that
the individual remains peaceful in their own conduct and intentions.
• Disruptive protests (e.g., loud, noisy, disturbing activities) are protected by the
Constitution, as disruption is often necessary for communication, provided the
disruption does not involve violence or completely discontinue the event/proceeding.
3. Related Constitutional Rights
The right to protest (S 17) is closely related to other rights, including:
• Freedom of Expression (S 16) and Academic freedom.
• Human Dignity (S 10), which protects individual autonomy and requires people be
treated with care.
• Freedom of Movement and Residence (S 21).
• Right to Further Education (S 29).
1|Page
,BoR Topic 3-6 Final Exam Study Notes
• Freedom and Security of the Person (S 12), including the right to be free from all
forms of violence.
II. Regulation of Gatherings Act (RGA) 205 of 1993
The RGA regulates public gatherings and demonstrations to balance the right to
assemble freely and peacefully against the rights of others.
1. Definitions (Section 1) & Notice Requirements (Section 3)
• Demonstration: Assembly of 15 or fewer persons; written notice is not required.
• Gathering: Assembly, concourse, or procession of more than 15 persons in a public
place, concerning political matters or group pressure.
◦ Notice Duty: The convener of a gathering must give written notice to the
responsible officer (local municipality official).
◦ Timeline: Notice should be given no later than seven days before the gathering, or
at the earliest opportunity (if less than 48 hours, the responsible officer may prohibit the
gathering).
◦ The notice must contain numerous details, including the convener's details,
purpose, time, date, place, anticipated number of participants, and marshals [The
responsible officer must consult with the authorized member of the police (SAPS)
regarding the need for negotiations concerning conditions for the gathering. Negotiation
must happen in good faith.
• Prohibition (Section 5): A gathering can only be prohibited in exceptional
circumstances.
◦ A prohibition can occur only if there is credible information on oath that the
gathering threatens: serious disruption of traffic, injury to persons, or extensive
damage to property, and the Police/traffic officers cannot contain this threat through
other steps.
◦ The mere failure to give notice is not expressly a ground to prohibit the gathering.
3. Invalidity of Criminal Sanction (Mlungwana v S)
• Section 12(1)(a), which criminalizes the convener's failure to give notice or adequate
notice, is constitutionally invalid.
• Criminalizing this procedural requirement creates an unjustifiable limitation on the
right to assembly due to the chilling effect, the severity of criminal sanction (including
criminal record), the lack of proportional means to the intended purpose (peaceful
protest), and the existence of less restrictive means.
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,BoR Topic 3-6 Final Exam Study Notes
• Defence of Spontaneity (Section 12(2)): It remains a defence to a charge under S
12(1)(a) that the gathering took place spontaneously.
4. Civil Liability for Riot Damage (Section 11) (Garvas case)
• Liability: Organizations/conveners are jointly and severally liable for "riot damage"
(loss resulting from injury, death, or property damage/destruction).
• Defence (Section 11(2)): The limitation of the right to assemble imposed by Section
11 (strict liability for riot damage) is justifiable. To escape this liability, the organizer
must prove:
1. They did not permit or connive at the act/omission.
2. The act/omission was outside the scope of objectives and not reasonably
foreseeable.
3. They took all reasonable steps within their power to prevent the harm.
• Interpretation: Organizers must continually take reasonable steps to prevent
foreseeable harm. Successfully taking these steps renders the act/omission no longer
reasonably foreseeable, fulfilling both requirements of the defence.
III. Judicial Principles and Remedies
1. Judicial Discretion and Costs
• Role of the Court: The Constitutional Court grants leave to appeal on constitutional
matters and where it is in the interests of justice. Courts possess wide remedial powers
to issue any order that is just and equitable.
• Interference with Discretion: An appellate court may interfere with a cost order (a
discretion in the "true sense") only if the lower court failed to exercise its discretion
judicially (e.g., influenced by wrong principles or failing to apply relevant principles).
2. The Biowatch Principle
• General Rule in Constitutional Litigation: The general rule is that an unsuccessful
litigant in proceedings against the state or a public institution (like a university) ought
not to be ordered to pay costs.
• Rationale: To diminish the "chilling effect" that adverse costs orders can have on
litigants asserting their constitutional rights, especially in a society marked by
inequality.
• Application to Universities: The Biowatch principle applies to universities as public
institutions.
3|Page
, BoR Topic 3-6 Final Exam Study Notes
• Exceptions: Departure from this rule is justified only if the litigation is frivolous or
vexatious, or if the litigant acted from improper motives or in bad faith.
IV. Interdicts and University Protests
1. Use of Interdicts
• Universities may apply for interdicts to prohibit specific students from engaging in
clearly defined unlawful or criminal acts.
• Courts examine four conditions for granting an interim interdict, including proving a
prima facie right and a reasonable apprehension of irreparable and imminent harm.
• Overly Broad Interdicts are Unlawful: Interdicts cannot be granted against large,
unspecified groups (like "All Those Persons Participating... in Unlawful Conduct").
• Interdicts must be narrowly tailored; they cannot prevent broad activity or restrict
constitutional rights more than necessary (e.g., blanket exclusions from campus may
infringe the right to freedom of movement).
2. Police and Private Security
• The police (SAPS) have the duty to facilitate protest and create a safe environment.
They must display a "highest degree of tolerance".
• The police may only use force if reasonably necessary to prevent injury or property
destruction, and only as a last resort after using defensive measures and issuing two
clear warnings in appropriate languages. Force must be proportional to the threat.
• Private security guards work for the university and must comply with the
Constitution, but they do not have the same powers as the police. They can only
arrest students under the rules of a citizen's arrest (e.g., witnessing a crime or
reasonable suspicion).
4|Page
