On 19 November 2018, the Constitutional Court (CC) handed down judgment upholding the January 2018 judgment from Judge Ndita of the Western Cape High Court, which declared section 12(1)(a) of the Regulations of Gathering Act unconstitutional.
 
In 2013, activists from the Social Justice Coalition (SJC) chained themselves to the railings of the Civic Centre in Cape Town to protest for better sanitation in Khayelitsha. A legal battle ensued after they were arrested for allegedly contravening the Regulation of Gatherings Act 205 of 1993, which stipulates that organisers of gatherings of more than 15 people have to give notice of their protest.
 
The Cape Town Magistrates’ Court referred the matter to the Western Cape High Court where Judge Thandazwa Ndita ruled that the section of the Act was invalid and unconstitutional. The state and the Minister of Police appealed the judgment, and the matter was heard in the Constitutional Court.

A unanimous judgment of the Constitutional Court handed down by Justice Xola Petse has ruled that the failure to give notice of a protest should not be made a criminal offence.

Facts
The matter was heard in the Constitutional Court ("CC") on 21 August 2018. Judgment was handed down on 19 November 2018. The applicants sought an order from CC confirming the declaration of the High Court that section 12(1)(a) of the Regulation of Gatherings Act, 205 of 1993 ("the Gatherings Act") is constitutionally invalid to the extent that it makes the failure to give notice, or the giving of inadequate notice, by any person who convened a gathering a criminal offence.
 
The agreed facts of the case were the following:

• On 11 September 2013, 15 members of the Social Justice Coalition ("SJC") went to the Cape Town Civic Centre pursuant to a decision taken to organise a gathering.
• The number of participants was limited to fifteen in order to ensure that no notice would have to be given in terms of the Gatherings Act. However, they were aware of the risk that further members of the SJC might join them. Ultimately, the gathering consisted of more than 15 persons.
• The gathering was at all times peaceful.
• Following a request by the police for the participants to disperse, and the failure by the participants to heed such request, they were arrested.

Section 12(1)(a) of the Gatherings Act provides that “any person who – convenes a gathering in respect of which no notice or inadequate notice was given […] shall be guilty of an offence.”

Judgment
In coming to its conclusion, the CC reiterated that the object of the Gatherings Act is to regulate public gatherings, which entails balancing the right to assemble freely and peacefully against the need to ensure that such gatherings do not unjustifiably infringe on the rights of others.
 
The possibility of a criminal sanction discourages and inhibits the freedom of assembly; this constitutes a limitation of the right to assemble freely, peacefully and unarmed.

The CC conceded that the most important question is how best to strike a balance between the exercise of constitutional rights and ensuring a safe environment.

The impact of the judgment on labour law
With section 12(1)(a) of the Regulations of Gathering Act declared unconstitutional, how does this affect employee protest action? Notably, the Labour Relations Act, 66 of 1995 ("LRA") regulates and provides for protest action in the Labour Law sphere.
 
Chapter IV of the LRA was specifically enacted to give effect to the rights of employees to participate in strike or protest action, while simultaneously protecting the interests of all parties involved. To this end, the LRA contains various prescriptive provisions regarding the initiating and implementation of strike action and requires strict adherence thereto.
 
Applying the law of their choosing?
It has become commonplace for trade unions to circumvent the provisions of the LRA, which are extensively prescriptive, in favour of the provisions of the Gatherings Act, as these are considerably less prescriptive and more favourable for striking employees. This practice may become even more enticing as a result of the recent judgment declaring section 12(1)(a) and the criminal sanction related thereto, unconstitutional.

Despite the growing tendency of reliance being placed on the Gatherings Act instead of the LRA, the Labour Appeal Court ("LAC") has unequivocally stated that the Gatherings Act may not be used to circumvent the provisions of the LRA when the subject matter of the dispute relates to employees' rights and interests.

In ADT Security (Pty) Ltd v National Security and Unqualified Workers Union and Others, the LAC favourably quoted the Constitutional Court judgment of Gcaba v Minister of Safety and Security and others:

“The legislature is sometimes specifically mandated to create detailed legislation for a particular area, like equality, just administrative action (PAJA) and labour relations (LRA). Once a set of carefully crafted rules and structures have been created for the effective and speedy resolution of disputes and protection of rights in a particular area of law, it is preferable to use that particular system.”

The implication of the above is that no reliance may be placed on the Gatherings Act if the protest or strike action is undertaken by employees of a certain employer for purposes of their employment-related rights and interests. As such, the unconstitutionality of section 12(1)(a) will have no direct impact on the Labour Law sphere.
 
Written By Aadil Patel, National Practice Head of the Employment practice at Cliffe Dekker Hofmeyr