Bill Watch 44/2019
Amendments to the
Maintenance of Peace and Order Bill
12 August 2019
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to give aggrieved persons a right to appeal against a ban to a magistrate,
rather than to the Minister of Home Affairs.
While the amendments improve the clause, it is still too widely phrased. Anyone
who carries a banned weapon in public will be guilty of an offence and liable to
imprisonment for six months, regardless of their justification for having the
weapon.
Clause 7: Notice of processions, public demonstrations and public
meetings
This clause will require convenors of public gatherings to notify the police in
advance of the gatherings; if they fail to do so they will be guilty of an offence and
liable to imprisonment for up to a year. The PLC considered that imprisonment
was too severe a punishment for the offence and that a fine would suffice.
The amendment passed by the Assembly does not meet the PLC’s objection
because it will retain the punishment of imprisonment for failing to give notice of a
gathering. Moreover it will create two further offences ‒ failing to notify the police
if a gathering is postponed or if it is cancelled.
The amendment does not meet more general objections raised by the PLC, that
clauses 5 to 8 of the Bill will unduly stifle freedom of assembly and association,
and that clause 7 in particular will prevent spontaneous gatherings being
held. Judgments of the Constitutional Courts of this country and South Africa
have emphasised the importance of allowing spontaneous demonstrations; the
judgments are referred to in the Bill Watch mentioned at the beginning of this
bulletin.
The amendment is also ineptly drafted. It does not actually say that failing to give
notice of a gathering will be a criminal offence, though by prescribing a heavy fine
and imprisonment it obviously will be. Also, the level of the fine to be imposed for
the two new offences is not specified ‒ something that the Senate will have to
rectify with a further amendment.
Clause 12: Civil liability of convenor of a gathering
This clause will impose civil liability on convenors for damage or injuries caused
at public gatherings which have been held in contravention of the Bill. The PLC
said the clause was too broad and an invasion of freedom of assembly and
association guaranteed by section 58 of the Constitution.
The amendments passed by the National Assembly will make the clause less
oppressive ‒ but only very slightly. They will make convenors responsible for loss
or injury “caused by” the public gathering, not for loss or injury “arising of or
occurring at” the gathering. And they will allow co-convenors to avoid liability if
they show they were not responsible for failing to give notice of the gathering.
The changes made to the clause are insignificant and it remains far too broad.
Clause 13: Powers of Police
This clause will give police officers power to control disorder at gatherings and, in
its original form, the clause would have given them the right to use firearms and