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8 June 2007 The Mayor City of Cape Town Helen Zille Fax: 021 400 1313 Email: mayor.mayor@capetown.gov.za
Dear Ms Zille Re: Prohibitions of gatherings in Cape Town The Freedom of Expression Institute is extremely concerned that, in the recent past, the City of Cape Town has acted in a manner that has flagrantly denied the rights of people to gather and protest, essentially preventing them from exercising their right to free expression as enshrined in Section 16 of the South African Constitution. In the past few days, the so-called “Naked Bike Ride” and the proposed ANC Youth League march have both been proscribed by your 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. This reason that there are not enough human resources is simply unconstitutional and ultra vires the Regulation of Gatherings Act (RGA) and we want to urge you, as the Mayor of the City, to review and revoke these and other such proscriptions. We are also extremely perturbed to learn from media reports that the City’s permit office wants to apply for a moratorium on all gatherings for as long as the civil servants’ 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. Such a moratorium too would be unconstitutional and ultra vires the RGA. The reason is not a recognised ground for prohibition of gatherings in terms of the Regulation of Gatherings Act. If the City and the South African Police Service are concerned about overstretched police during the strike, then they must make plans to deploy additional people. It is the responsibility of the City to ensure that the rights of its citizens are realised and reasons such as this cannot be used to deny citizens their Constitutional rights. This is especially so as in the current context, with a large strike taking place and emotions 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, leading to potentially dangerous situations. Section 5 (1) of the RGA, under the heading “Prevention and Prohibition of Gatherings” states: When credible information on oath is brought to the attention of a responsible officer 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, he shall forthwith meet or, if time does not allow it, consult with the convener and the authorized member, if possible, and any other person with whom, he believes, he should meet or consult, including the representatives of any peace committee or police community consultative forum in order to consider the prohibition of the gathering. Clearly, this procedure has not been followed in respect of any of the abovementioned examples. Neither the city not the police provided the organisers of these events with statements under oath to back up claim “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”. Indeed, no such claims have even been made by the police. Neither the Constitution nor the RGA grants the City the discretion to decide whether it “supports” any proposed gatherings or not; we state this in reference to the report that the City of Cape Town said it did not support the Naked Bike Ride. The City is duty bound to allow a gathering to go ahead. The City clearly misunderstands the notifications submitted by the organisers of the above events (and other such notifications of gatherings) as permission-seeking exercises, 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. In fact, the word “permission” is never used in the RGA in respect of the powers of local authorities or the police. In terms of the Act, once organisers of a gathering have notified the City of their intention to hold a gathering, the City has to facilitate its occurring, unless the City has the sort of information mentioned above. It is difficult to imagine that you have any such information in respect of any of the above instances. Further, the kind of moratorium being considered by the Permit Office is not permissible in terms of the Act. Such a moratorium would amount to a lockdown on freedom of expression during the 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 is doing so, then it is engaging in censorship on a massive scale. Further, Section 16, 17 and 18 of the Constitution, which sections are relevant to gatherings cannot be limited by factors such as the occurrence of a strike or the lack of human resources. It is necessary to add, Mayor Zille, that the City of Cape Town does not have the best reputation in the country in terms of its respect for the above sections of the constitution and the RGA. Indeed, in an ironic twist, a march on Human Rights Day – to call for the full implementation of all human rights contained in our constitution – was illegally proscribed by the South African Police Services in Cape Town, with the support of the Cape Town Metro Police. Further, the proposed Cape Town Nuisances by-law also sought to promulgate unconstitutional provisions with respect to gatherings. Fortunately, in this latter case, the committee dealing with the proposed by-law recognised the validity of the FXI’s submission on the issue and decided to remove the entire section in the by-law dealing with gatherings, agreeing with us that the regulation of gatherings was adequately covered in the RGA. We urge you, Mayor Zille, to also recognise the problems posed by the actions of the City and to: - lift the unconstitutional and illegal proscription on the gatherings we have mentioned above;
- clarify to the responsible officers of the City of Cape Town (as designated by the RGA) that such proscriptions are, in fact, unconstitutional and illegal; and
- publicly clarify that the City of Cape Town will not support the denial of basic civil and political rights as per the Constitution and will not support the undermining of various pieces of legislation such as the Regulation of Gatherings Act.
Attached, please find a letter sent to your Director for Legal Services from our Law Clinic attorney, Simon Delaney. The letter explains in detail why the actions of the City are unconstitutional and illegal. The response to Mr Delaney’s letter from your Nomava Nobatana, PA to the Director of Legal Services, is as follows: Dear Delaney The contents of your e-mail addressed to my office are noted. We have no intention of debating this issue and interpretation of the provision of the Gathering Act with you, but if you and your organisation are conversant with the Gatherings Act, any party agrieved by the refusal can approach the Magistrates Court to set aside the prohibition. We will only then deal with any issues regarding the interpretation of the provision of the Gathering Act. Yours sincerely Nomava Nobatana PA to the Director Legal Services Clearly, the Director of Legal Services is not willing to engage the public regarding the actions of the City as evidenced by this arrogant response. We hope that you, as Mayor, are more willing to listen and engage. Yours faithfully Na’eem Jeenah Director: Operations One person has commented on this article. 1. EPUkOSjzIDMoQ
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