City of Cape Town
Director: Legal Services
for the City Manager
By fax: 012 400 4017
By email: This e-mail address is being protected from spam bots, you need JavaScript enabled to view it

Dear Sir/Madam

‘World Naked Bike Ride’ Gathering at Cape Town on 9 June 2007

1.       We have been advised by Marthinus Pretorius of the above gathering that will take place in Cape Town tomorrow (“the gathering”). We do not purport to act for Mr Pretorius or the World Naked Bike Ride. We are an NGO and law clinic with considerable expertise in the law and practice of gatherings.

2.       We are in possession of a letter from your Mr L Mbandazwayo (who we assume is the Responsible Officer), dated 29 May 2007, addressed to the World Naked Bike Ride, the second paragraph of which bears quoting verbatim:

            “…I have consulted with the South African Police Service (SAPS) when it was noted that the SAPS will not be able to accommodate your group to proceed with your procession as all personnel of the SAPS has been placed on a high alert for the current taxi violence and the labour action from the Civil Service Sector. Please be advised that the City can unfortunately not support your group to hold (sic) your procession on 9 June 2007, as in the absence of the necessary protection to ensure your group’s safety. Kindly note that should your group proceed, it will be considered illegal.

 4.         We believe that if the gathering proceeds tomorrow, it will be legal. Your conclusion and reasoning above are wrong in law, for several reasons:

 4.1            Having duly notified you in terms of section 3 of the Regulation of Gatherings Act, 205 of 1993 (“Gatherings Act” or “RGA”), Mr Pretorius and the World Naked Bike Ride (“the protesters”) were entitled to assume that, pursuant to subsection 4 (3) thereof, the gathering could proceed in accordance with its notice to you, unconditionally;

4.2             The gathering could only have been prohibited after all of the following were fulfilled:

4.2.1   A meeting was called by you in terms of subsection 4 (2) (b); and

4.2.2   If, after agreement was reached at the meeting, in accordance with the agreed amendments to our client’s notice (subsection 4 (4) (a)); or

4.2.3     If no agreement was reached at the meeting (subsection 4 (4) (b)), if there were reasonable grounds for such amendments, conditions were imposed to ensure that vehicular or pedestrian traffic, especially during traffic rush hours, is least impeded; or an appropriate distance between participants in the gathering and rival gatherings; or access to property and workplaces; or the prevention of injury to persons or damage to property;        

4.2.4       that you gave written reasons in terms of subsection 4 (4) (c);

4.2.5       if, pursuant to subsection 5 (1), credible information on oath was brought to your attention that there was a threat that a proposed gathering would 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 would not be able to contain this threat, you had to meet or, if time does not allow it, consult with the convener and the authorized member, if possible, and any other person with whom, you believed, you should meet or consult, including the representatives of any police community consultative forum in order to consider the prohibition of the gathering;

4.2.6       if, pursuant to subsection 5 (2), you were on reasonable grounds convinced that no amendment contemplated in section 4 (2) and no condition contemplated in section 4 (4) (b) would prevent the occurrence of any of the circumstances contemplated in subsection (1), you may have prohibited the proposed gathering; and

4.2.7       if so, ensure as soon as possible that a written copy of the prohibition letter and the reasons therefor, was handed to the convener.

4.3             You failed to comply with any of the above requirements of the Gatherings Act at all. You were therefore not entitled to prohibit the gathering. Your conduct at all material times has been manifestly unlawful, both in terms of the Gatherings Act and in terms of the constitutional rights to assembly contained in section 17 and that of lawful, reasonable and procedurally fair administrative action in section 33, respectively.      

5.         We note furthermore that the ‘Standard By-Law Relating to Streets, dated 2 October 1987’ is without doubt unconstitutional and has possibly already been repealed. Certainly the Internal Security Act, 1982, referred to therein has already been repealed. The By-Law is unlawful for a number of reasons:

5.1       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), which reads as follows:

“36. (1) The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including ­

a.      the nature of the right;

b.      the importance of the purpose of the limitation;

c.      the nature and extent of the limitation;

d.      the relation between the limitation and its purpose; and

e.      less restrictive means to achieve the purpose.

(2) Except as provided in subsection (1) or in any other provision of the Constitution, no law may limit any right entrenched in the Bill of Rights.”

A By-Law is necessarily of limited application, in this case, limited to the City of Cape Town. 

5.2       Section 17 of the Bill of Rights reads as follows:

“Everyone has the right, peacefully and unarmed, to assemble, to demonstrate, to picket and to present petitions.”

Most of the By-Law constitutes a manifest limitation of section      17, in violation of section 36 and is therefore liable to be struck down as unconstitutional by a high court;

5.3       According to section 22 (1) of the By-Law, all gatherings and processions in public places are deemed to be illegal ab initio. Section 22 (2) provides a mechanism by which such activities may be legalised. This is a violation of section 17, which guarantees the right to assembly, demonstration, picket and petition.

5.4       This guarantee is echoed by the preamble to the Gatherings Act, which reads as follows:

“…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…”

5.5       The RGA stays true to the spirit of the Constitution in holding the notion of a gathering as a right, which can only be limited in exceptional circumstances pursuant to section 36 ‘to the extent reasonable and justifiable in an open and democratic society’. The RGA therefore deems all gatherings to be legal unless expressly prohibited (for a very limited number of reasons) by the local authority.

5.6       Section 22 (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 to a local authority, not to apply for permission (see sections 2(1)(a)(i), 2(1)(b) and 3 of the RGA).

5.7       Section 22 (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 certificate, with or without justification. There is no recourse provided for in the By-Law for those aggrieved organisers who do not receive a certificate timeously or at all.

5.8       The period of thirty days’ written notice that should be given by organisers of a gathering in terms of section 22 (2) 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 importantly however is the fact that the RGA requires only seven days’ advance notification (section 3 (2) of the Act) and even contemplates notification of 48 hours (section 3 (2) of the Act). Indeed, the Act even contemplates that spontaneous gatherings might take place (section 9(1)(c) of the Act), without making such gatherings illegal. In contrast, your proposed By-Law, by running foul of the RGA, will make itself the promoter of illegal requirements.

5.9             Section 22 (2) (a) of the By-Law requires the organiser of a gathering to provide her/his occupation. This is beyond what the RGA requires and is both an unreasonable and unnecessary enquiry.

5.10          Section 22 (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 section 17 of the constitution and the RGA. The Act provides only a limited number of circumstances under which a gathering might be prohibited (section 5). Such a prohibition (if the notice is given more than seven days before the proposed gathering) 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 thus makes the very subjective “opinion of the City” the only arbiter.

5.11          Sections 22 (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.

5.12          Section 22 (6) of the By-Law creates an arbitrary and unjustifiable distinction between religious, wedding or funeral-related gatherings and ‘other’ gatherings. There is no apparent reason why the categories of gatherings in this section should be exempted from compliance with the entire section 22, while other gatherings related to, for example, protests over service delivery, must overcome the significant administrative hurdles in the section.

5.13          The By-Law is both unconstitutional and ultra vires the RGA and liable to be struck down as unlawful by a high court.

6.         We are appalled at your use of an unconstitutional By-Law and your violation of the letter and spirit of the constitution and RGA. We intend to bring your unlawful actions as aforesaid to the attention of the relevant authorities. This shall be an open letter, posted to broadcast, print and electronic media.

Yours faithfully

Simon Delaney

Law Clinic Attorney