The Failure to Provide Notice of an Intended Gathering ‒ Mlungwana v The State (CCT32/18) 2018 ZACC 45 (CC)

Abstract

Section 3 of the Regulation of Gatherings Act 205 of 1993 (RGA) requires the local authority within a municipal area to be notified of an intended gathering by the convener of such gathering. This notice is only required when the gathering will be attended by more than 15 people (s 1 of the RGA). The notice must contain all the important information pertaining to the protest (s 3(3)). Failure by the conveners of the gathering to provide such notice was regarded as a criminal offence in terms of section 12(1)(a) of the RGA. The Western Cape High Court in Mlungwana v The State (2018 (1) SACR 538 (WCC)) declared section 12(1)(a) of the RGA to be unconstitutional. The court found that the criminalisation of the failure of a convener to provide notice in terms of section 3 of the intended protest infringed the right to assemble as provided for in section 17 of the Constitution (Mlungwana v The State (WCC) supra par 95). The matter was referred to the Constitutional Court for confirmation of the Western Cape High Court judgment. The State further appealed the Western Cape High Court’s judgment. The Constitutional Court confirmed the judgment of the Western Cape High Court (Mlungwana v The State (CCT32/18) 2018 ZACC 45 (CC) par 112). The judgment of the Constitutional Court may have unintended consequences. The purpose of this case note is to discuss the unconstitutionality of section 12(1)(a) of the RGA.