Browsing by Author "Moses, Liam Nicolas"

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    Gathering on privately owned property: An analysis of the Regulation of Gatherings Act 205 of 1993
    (Stellenbosch : Stellenbosch University, 2018-03) Moses, Liam Nicolas; Slade, B. V.; Stellenbosch University. Faculty of Law. Dept. of Public Law.
    ENGLISH ABSTRACT : One of the primary reasons for the promulgation of the Regulation of Gatherings Act 205 of 1993 (“Gatherings Act”) was to repeal certain statutes that heavily restricted the ability of people to protest before and during apartheid. These apartheid-era statutes granted various state functionaries the power to prohibit gatherings. The end of apartheid indicated a break from the heavily restricted manner in which assemblies were regulated. The move away from the restrictive regulation of protests towards the constitutional protection of protests started with the establishment of the Goldstone Commission, and the protection of the right to assemble and demonstrate in the Interim Constitution of 1993. This was followed by the promulgation of the Gatherings Act and the recognition and protection of the right to assemble and demonstrate in the Constitution of the Republic of South Africa, 1996. The definition of a gathering in section 1 of the Gatherings Act and its relationship with privately owned property received renewed attention when student protests across the country flared up in 2015. The increase of student protests led to the main research question of this thesis: whether the definition of a gathering in the Gatherings Act extends to privately owned property. If it does, the second question is whether the Gatherings Act permits a deprivation of property in conflict with section 25(1) of the Constitution. With regard to the first question, case law and academic commentary indicate that the Gatherings Act does indeed extend to privately owned property. The Gatherings Act 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 question required an extensive analysis of case law and academic commentary on section 25(1) of the Constitution. It was found that only private owners may rely on section 25(1), and the actions typically associated with gatherings would be sufficient for a gathering to amount to a deprivation of their property. It is easier for the deprivation permitted by the Gatherings Act to comply with two of the three requirements for a valid deprivation: that the deprivation be in terms of law of general application and that it be procedurally non-arbitrary. The third of these requirements – that the deprivation be substantively non-arbitrary – was more complicated, because determining the substantive 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, the importance 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 of Gatherings in the new constitutional dispensation was necessary, especially given the manner in which protests were regulated before and during apartheid. The Gatherings Act serves as this new legislative framework, and extends to gatherings held on privately owned property in certain circumstances. It was found that while the Gatherings Act may permit a deprivation of property, this deprivation may be justified, depending largely on the content of the gathering itself.