(FXI/IFEX) – The following is a 5 October 2006 FXI press release: By-Law Relating to Streets, Public Places and the Prevention of Nuisances, 2006 The Freedom of Expression Institute is concerned about the “By-Law relating to streets, public places and the prevention of nuisances” that has been proposed by the City of Cape Town. While […]
(FXI/IFEX) – The following is a 5 October 2006 FXI press release:
By-Law Relating to Streets, Public Places and the Prevention of Nuisances, 2006
The Freedom of Expression Institute is concerned about the “By-Law relating to streets, public places and the prevention of nuisances” that has been proposed by the City of Cape Town. While there are a number of concerns about how the proposed legislation disadvantages poor people, our main focus is its draconian section on gatherings and processions.
The right to gather, protest and march are crucial elements of freedom of expression. This is particularly true for poor people whose access to most forms of media is extremely limited and for whom taking to the streets is the means of expressing their views. We thus believe the proposed by-law is a violation of the right to free expression.
It is also illegal and unconstitutional and we vehemently oppose its promulgation for the following reasons:
1. No municipal by-law can limit the constitutional right to assemble. Such limitation can only be made in terms of a law of general application, pursuant to section 36 of the Bill of Rights (BR). A By-Law is necessarily of limited application; in this case, limited to the City of Cape Town.
2. Section 17 of the Bill of Rights (BR) reads as follows: “Everyone has the right, peacefully and unarmed, to assemble, to demonstrate, to picket and to present petitions.”
Most of section 11 of the By-Law constitutes a limitation of BR section 17, violates BR section 36 and is therefore liable to be struck down as unconstitutional by a high court. According to the By-law, all gatherings and processions in public places are, in the first instance, deemed to be proscribed. It then mentions the mechanism by which such activities might be legalised. This is a violation of BR section 17. The guarantee of permissibility of gatherings is echoed by the preamble to the Regulation of Gatherings Act 205 of 1993 (RGA), which states: “. . . every person has the right to assemble with other persons and to express his views on any matter freely in public and to enjoy the protection of the State while doing so. . .” The RGA remains true to the spirit of the Constitution in holding the notion of a gathering as a right which can be limited only in exceptional circumstances. The RGA therefore deems all gatherings to be legal unless expressly prohibited by the local authority.
3. Section 11 (2) of the By-Law requires the submission of a written application to the City for permission to hold a gathering. This is ‘ultra vires’ the RGA, which requires only notification.
4. Section 11 (3) of the By-Law requires a certificate as a ‘sine qua non’ for any gathering, whether or not such gathering is in fact ” . . . likely to be in conflict with the interests of public peace, order or safety. . .” This places an unreasonable burden on organisers of gatherings to seek written ratification of a pre-existing constitutional right and puts organisers at the mercy of bureaucrats who have the power to withhold such certificates, with or without justification. There is no recourse provided for in the By-Law for aggrieved organisers who do not receive a certificate in due time, if at all.
5. The period of 30 days’ written notice that should be given by organisers of a gathering is so onerous as to make a mockery of the right to gather and protest. Rarely do people plan protests that much in advance. More important, however, is that the RGA requires only seven days’ advance notification and even contemplates notification of 48 hours. Indeed, the Act even contemplates that spontaneous gatherings might take place, without making such gatherings illegal. In contrast, the proposed By-Law, by running foul of the RGA, will make itself the promoter of illegal requirements.
6. Section 11 (2) (a) of the By-Law requires the organiser of a gathering to provide her/his occupation. This is beyond the RGA’s requirements and is unreasonable and unnecessary.
7. Section 11 (3) of the By-Law provides that only if, “in the opinion of the City” any action/s of the gatherers are not “likely to be in conflict with the interests of public peace, good order and safety” will the City issue permission for such a gathering to take place. This violates both the BR section 17 and the RGA. The Act provides only a limited number of circumstances under which a gathering might be prohibited. Such a prohibition can only be valid if the responsible officer is provided “credible information on oath” that “there is a threat that a proposed gathering will result in serious disruption of vehicular or pedestrian traffic, injury to participants in the gathering or other persons, or extensive damage to property, and that the Police and the traffic officers in question will not be able to contain this threat”. The By-Law makes no mention of the need for the City to obtain such information “on oath” and makes the subjective “opinion of the City” the only arbiter.
8. Sections 11 (4) and (5) of the By-Law, explaining when the City might refuse or withdraw permission for a gathering, falls foul of the RGA for the same reasons as explained above.
9. Section 11 (6) of the By-Law creates an arbitrary and unjustifiable distinction between religious, wedding or funeral-related gatherings and ‘other’ gatherings. There is no reason why the categories of gatherings in this section should be exempted from compliance with the entire section 11, while other gatherings related to, for example, protests over service delivery, must overcome the significant administrative hurdles in the section.
10. Section 11 does not reconcile with section 2 (1) (a) of the By-Law, which prohibits the intentional blocking of vehicular or pedestrian traffic. Even the RGA foresees the possibility of serious disruption to such traffic, which is inevitable given that gatherings (as defined in both the RGA and By-Law) necessarily take place in public places and on public roads.
11. Section 11 does not reconcile with section 2 (3) (b) of the By-Law, which prohibits the causing of a disturbance by making noise. The RGA clearly contemplates the making of noise by protesters and does not give authorities the right to interfere with gatherings on this basis. Indeed, chanting and singing is an integral part of the proud toyi-toyi tradition of South African protesters, without which protest action would be silenced, literally and figuratively.
For the above reasons, we believe the entire Section 11 of the proposed by-law should be removed. Rules governing gatherings and processions are adequately covered in the RGA, which is a law of general, national application and which generally passes constitutional muster. It is unnecessary and unlawful for municipalities to draft additional by-laws to regulate gatherings.
While our main focus in this submission has been the issue of gatherings, we find the By-Law in general to be antithetical to notions of freedom of expression of various sectors of Cape Town society. The tone, indeed, is draconian. While some objectives of the By-Law (facilitating traffic, preventing dumping of waste in public places, etc) are laudable, the inclusion of aspects that discriminate against poor people will cause various sections of our society to call for the entire by-law to be scrapped. The FXI urges a complete redrafting of the By-Law in a manner that avoids the problematic points raised here and by others.
The proposed by-law is completely ignorant of the reality of what it means to live and survive in South Africa. The Council seems out of touch with the socio-economic conditions of the majority of South Africans and seems to address the needs of councillors more than those of the majority of the city’s population. Among many Capetonians, the impression has also been created that the proposed By-Law is the first in a series of assaults against the rights of the people of the city as it prepares for the 2010 soccer World Cup. That the issue of beggars and homeless people is lumped into a by-law that deals with the dumping of toxic waste says a lot about the manner in which the Council views the people that make up the city.
