Case Watch: South Africa’s Constitutional Court Strikes Down Restrictive Protest Law

In our “Case Watch” reports, lawyers at the Open Society Justice Initiative provide analysis of notable court decisions and cases that relate to their work to advance human rights law around the world.

Do you need permission to protest? International law says no, but most democracies around the world have laws on their books that require protest organizers to notify the proper authorities of planned protests. Many of those laws allow the authorities to impose criminal penalties—fines and imprisonment—for failure to notify even when the protest is peaceful and does not block traffic.

Criminal penalties have increasingly been used to repress protests, in a trend that has gained traction since the mass protests of the Arab Spring of 2010.

Against this background, a ruling from South Africa’s Constitutional Court, delivered on November 19 in the case Mhlunguana and Others v. the State and the Minister of Police, represents a significant step forward in protecting the right to freedom of assembly, not only in South Africa, but around the world—especially because the court references international law to support its conclusions.

In the judgment, the Constitutional Court in Johannesburg ruled against a law dating from South Africa’s apartheid era which permitted criminal penalties, including fines and up to one year’s imprisonment, for failure to give proper notice to the authorities of a planned gathering of 15 or more people.

The criminal provisions of the Regulation of Gatherings Act, passed in 1993, were rarely used until Jacob Zuma became President in 2009. Protesters, many of whom did not even know about the law’s notification requirements, were arrested and let off with no or minor penalties. But in 2013, 10 activists from the Social Justice Coalition decided to challenge the law’s validity, after being arrested during a peaceful protest outside Cape Town’s Civic Centre.

The Constitutional Court’s unanimous judgment emphatically recognized the importance of the right to protest: “People who lack political and economic power have only protests as a tool to communicate their legitimate concerns. To take away that tool would … frustrate a stanchion of our democracy: public participation.”

The judgment notes the chilling effect criminalization has on all people, and children in particular (as urged by amicus curiae Equal Education): “For children, who cannot vote, assembling, demonstrating, and picketing are integral to their involvement in the political process ... exposing children to the criminal justice system—even if diverted under the Child Justice Act—is traumatic and must be a measure of last resort.”

The judgment is only the second reached by a top national court to conclude that criminal sanctions for protests that do not pose a danger to the public are disproportionate and thus unconstitutional. The first, issued by Russia’s Constitutional Court in 2017, invalidated a two-and-a-half-year sentence for repeated failures to notify, even though the protests were peaceful.

The South African Court went further than the Russian Court by suggesting that even administrative fines might be unconstitutional. The Court based its opinion on two international law decisions (by the UN Human Rights Committee and the European Court of Human Rights).

The Court cited laws and cases from other countries in support of its conclusion that “there is no reason to think why the less restrictive incentives identified by the applicants and amici will not work just as well as criminalisation, without the far-reaching consequences flowing from a conviction.”

The Justice Initiative, one of the amici, filed a brief with the High Court which brought the Court’s attention to the international law decisions mentioned above. The Constitutional Court noted the Justice Initiative’s brief in a footnote.

The South African Court’s judgment—carefully reasoned as it is, citing international law in support of key findings, and following on the heels of the Russian Court’s judgment—will reinforce the existing international jurisprudence supporting the right to peaceful protest. We hope it will prove significant in persuading courts and legislatures of other countries to similarly renounce criminal penalties that could chill the exercise of freedom of assembly.

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