Earlier today, the Freedom of Expression Institute (FXI) wrote to the Mayor of Cape Town , Helen Zille, about the prohibition of gatherings in Cape Town during the public sector strike. The FXI also wrote to the City Manager's office to protest against the banning of the Cape Town leg of the 'World Naked Bike Ride'. 

In its letter to Zille, the FXI expressed its extreme disquiet about the fact that the City of Cape Town is banning gatherings illegally, and in a manner that flagrantly denies the rights of people to gather and protest, in violation of their right to freedom of expression.

In the past few days, the so-called 'Naked Bike Ride' and the proposed ANC Youth League march have both been banned by the City, with the excuse that the City does not have sufficient human resources to police these gatherings. Last month, the organisation Animal Activist Network News, which wanted to protest Japan’s whaling activities in the Cape, was denied the right to hold a gathering for the same reason.

The City has blamed the lack of adequate resources on the public sector strike and taxi violence, claiming that the police have been placed on high alert to respond to these events. Therefore, they could not guarantee the safety of the marchers.

The FXI pointed out to Zille that the reason that there were not enough human resources is simply unconstitutional and violates the Regulation of Gatherings Act (RGA).

According to the Act, a gathering can be prohibited only if credible information is provided on oath that the proposed gathering will result in serious disruption of traffic, injury or damage to property, and the police will not be able to contain this threat. In such a case, the responsible officer also has to consider whether conditions can be imposed on the march to contain these threats, short of prohibition.

The FXI also noted that the City does not have the discretion to decide whether it 'supports' particular marches or not (to use its phrasing in its prohibition letter to the organisers of the 'Naked Bike Ride'). It is duty bound to allow them to go ahead. The City clearly misunderstands the notification by the above mentioned organisations as a permission seeking exercise, where it has the right to 'grant' or 'refuse' permission. This is not the case, and is a misreading of the Act by the City. Once the organisations notified the City of their intention to hold a gathering, the City has to let them go ahead, unless they have the sort of information mentioned above.

In the letter, the FXI also expressed its disquiet at media reports that the City’s permit office wants a moratorium on all gatherings for as long as the public sector strike lasts. Some organisations which have sent in protest notifications in the past week have also been told that the City is currently not processing any notifications under the RGA. The FXI noted that such a moratorium was illegal.

While on the surface of things, it may seem that marches are not being prohibited because of their content - a precondition for a ban to be considered a freedom of expression violation - in reality, the technical ground of a 'lack of human resources' could be seen as a smokescreen.

In fact, the FXI argued, these prohibitions amount to a lockdown on freedom of expression during the security guard strike, which creates the impression that the City is using the argument about a lack of human resources as an excuse to shield the Department of Public Service and Administration from criticism in Cape Town. If it doing so - the FXI noted - then it is engaging in censorship on a massive scale.

The FXI pointed out that it is the responsibility of the City to ensure that the rights of its citizens are realised and reasons such as the one cited to the above organisations cannot be used to deny citizens their Constitutional rights. This is especially so as in the current context, where a large strike is taking place and emotions are running high. In such a context, the space for activities such as gatherings should, in fact, be expanded to allow for greater freedom of expression, rather than forcing such expression to be suppressed.

The FXI called on Zille to lift the unconstitutional and illegal proscription on the banned gatherings and clarify to the responsible officers of the City that such proscriptions are, in fact, unconstitutional and illegal. The FXI also called on Zille publicly to clarify that the City of Cape Town will not support the denial of basic civil and political rights and will not support the undermining of the Regulation of Gatherings Act.

See the FXI's media comment on the banning of the Naked Bike Ride. 

See the FXI's letter to the City's Legal Department .

Read the Legal Department's response .

See the FXI's letter to Mayor Zille .