Judgment No. CCZ 9/18
Civil Appeal No. CCZ 5/18
I venture to hold that by the very manner in which the rights and the admonition
are given not only in the same provision but literally in the same breath, both the rights and the
admonition must be given equal primacy. In other words, the rights and the admonition must
be placed on an equal footing and must be read together as giving the complete content of the
rights. Taking this approach, the rights enshrined in s 59 of the Constitution then, in simple
terms, become the right to demonstrate peacefully and the right to present petitions peacefully.
The approach I have taken to read the rights and the admonition together and as
one is to be contrasted with an alternative approach where I could have given the rights
supremacy over the admonition. Under such an approach, the rights would have been read
separately with the admonition acting as a limitation, presumably an in-built one.
Taking the second approach would have resulted among other things in venerating
the rights without qualification, and prima facie, venerating even violent demonstrations and
the violent presentation of petitions.
It would have also resulted, as indicated above, in subjecting the rights firstly to an
in-built limitation and thereafter, to the general limitation provided for in s 86(2) of the
Constitution.
I have shied away from adopting the alternative approach as, in my view, and, in
the main, one cannot imagine a law that would countenance the holding of violent
demonstrations and the violent presentation of petitions as protected rights. Violence
intrinsically has the effect of violating other persons’ rights, either in their liberty, bodily
integrity or in their property.
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