Offences rising from the right to gather : a legal comparative study

Abstract

To gather together is a natural human activity shared by all people. The majority of these activities take place without the involvement of the government, and is of no interest to the law. In South Africa, the right to assemble peacefully, to demonstrate, to picket or to present petitions, is protected in the Constitution of the Republic of South Africa, 1996. When people gather, be it peaceful or violent, participants run the risk of being arrested for committing offences. The way the government of the day reacts to gatherings influence the policing, prosecution and adjudication of offences arising from the right to gather. Current legislation and common-law offences utilised to curb disorder in South Africa are measured against international and regional case law and guidelines. Most of these case law and guidelines linked to international and regional instruments are similar in many respects, and can be deemed as universally acceptable. It is proposed that the government revisits the mixture of current offences utilised by the prosecution during dissent, public violence or protest action, and that specific public order offences are created, providing for specific unlawful conduct with corroborating sentences. Police powers must furthermore be clearly defined to strengthen the hand of the police to secure law and order, serve as guarantee for the rights and freedoms of everyone, and to create legal certainty. The government must organise applicable public order offences in a single public order act. Legislation applicable to public order must be accessible and easily understandable since protest may be the only avenue for a member of the public to bring his or her plight under the attention of the government. Existing guidelines from applicable international and regional instruments which guide and monitor executive conduct must be included since these guidelines qualify as public order offences.