Gathering on privately owned property: An analysis of the Regulation of Gatherings Act 205 of 1993

[摘要] ENGLISH ABSTRACT : One of the primary reasons for the promulgation of the Regulation of GatheringsAct 205 of 1993 ('Gatherings Act) was to repeal certain statutes that heavily restrictedthe ability of people to protest before and during apartheid. These apartheid-erastatutes granted various state functionaries the power to prohibit gatherings. The endof apartheid indicated a break from the heavily restricted manner in which assemblieswere regulated. The move away from the restrictive regulation of protests towards theconstitutional protection of protests started with the establishment of the GoldstoneCommission, and the protection of the right to assemble and demonstrate in theInterim Constitution of 1993. This was followed by the promulgation of the GatheringsAct and the recognition and protection of the right to assemble and demonstrate in theConstitution of the Republic of South Africa, 1996.The definition of a gathering in section 1 of the Gatherings Act and its relationshipwith privately owned property received renewed attention when student protestsacross the country flared up in 2015. The increase of student protests led to the mainresearch question of this thesis: whether the definition of a gathering in the GatheringsAct extends to privately owned property. If it does, the second question is whether theGatherings Act permits a deprivation of property in conflict with section 25(1) of theConstitution.With regard to the first question, case law and academic commentary indicate thatthe Gatherings Act does indeed extend to privately owned property. The GatheringsAct will, however, only extend to private owned property if it is accessible to the public,and if it is open-air or not confined to the walls of a building. The second questionrequired an extensive analysis of case law and academic commentary on section25(1) of the Constitution. It was found that only private owners may rely on section25(1), and the actions typically associated with gatherings would be sufficient for agathering to amount to a deprivation of their property. It is easier for the deprivationpermitted by the Gatherings Act to comply with two of the three requirements for avalid deprivation: that the deprivation be in terms of law of general application and thatit be procedurally non-arbitrary. The third of these requirements – that the deprivationbe substantively non-arbitrary – was more complicated, because determining thesubstantive non-arbitrariness would depend on the facts of each case. In this regard,courts should determine substantive non-arbitrariness with reference to the complexity of constitutional rights being invoked during a gathering, but more significantly, theimportance of holding a gathering in close proximity to privately owned property.This thesis thus concluded that the need for a new framework for the regulation ofGatherings in the new constitutional dispensation was necessary, especially given themanner in which protests were regulated before and during apartheid. The GatheringsAct serves as this new legislative framework, and extends to gatherings held onprivately owned property in certain circumstances. It was found that while theGatherings Act may permit a deprivation of property, this deprivation may be justified,depending largely on the content of the gathering itself.

[发布机构] Stellenbosch University