Bill Watch 39/2019
Parliamentary Legal Committee Adverse Report
on Maintenance of Peace and Order Bill
29 July 2019
and anyone contravening an order will be liable to imprisonment for up to six
months.
The Committee pointed out that people in rural areas might not be able to learn
about prohibition orders, not having access to newspapers or public buildings;
it also considered that the right of appeal to the Minister, rather than to a court,
went against the tenets of justice and violated section 69(3) of the Constitution
which guarantees right of access to the courts for the resolution of disputes.
The Committee’s view is right. There seems no justification for having the
Minister decide appeals: a court will be more likely to give a fair and impartial
decision than the Minister. A further point about the clause, which the
Committee did not mention, is that it makes it a crime for a person to carry
weapons in breach of an order, no matter what reason or excuse the person
may have for carrying them and regardless of whether the person is
brandishing them or, for example, carrying a just-purchased kitchen knife in a
packet. The clause is far too widely phrased.
Clauses 5 to 8 (gatherings in public places)
These clauses require organisers of public gatherings to notify regulating
authorities before the gatherings are held (five days’ notice in the case of public
meetings, seven days in the case of demonstrations and
processions). Organisers will also be obliged to negotiate with regulating
authorities about arrangements for the gatherings and to comply with directives
the regulating authorities may give them. If a regulating authority believes that
a gathering will cause serious disruption, injuries or property damage the
authority will be able to prohibit the gathering. An organiser who fails to give
the requisite notice of a gathering will be guilty of a crime and liable to a year’s
imprisonment.
In the Committee’s view these clauses will unduly limit freedom of assembly
and association guaranteed by section 58 of the Constitution and will debar
citizens from holding spontaneous gatherings. The Committee also objected
to clause 7 making it a crime, punishable by imprisonment, not to give notice
of a gathering. The intention of this provision, the Committee said, was clearly
to curtail freedom of expression and conscience. A fine would serve the
required purpose.
In support of its views the Committee referred to a decision of our Constitutional
Court, DARE & Others v Saunyama & Others [link]. The Committee might have
gone further if it had referred to a South African constitutional court judgment
[link] which emphasised how important it is for citizens to have the right to
demonstrate spontaneously and declared that failure to give notice of a
demonstration could not be made a crime, no matter what penalty was
prescribed.
Clause 10 (Gatherings in vicinity of Parliament)