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Wrongly Convicted Database Record
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Charge: |
Unlawful assembly |
Sentence: |
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Years Imprisoned: |
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Year Crime: |
2013 |
Year Convicted: |
2015 |
Year Cleared: |
2018 |
U.S. State or Country of Crime: |
South Africa |
County or Region of Crime: |
Western Cape |
City of Crime: |
Cape Town |
Result: |
Judicially Exonerated |
Summary of Case: |
"Ten codefendants were wrongly convicted on February 11, 2015 of violating the Regulation of Gatherings Act on September 11, 2013 in Cape Town, Western Cape, South Africa. The prosecution of the codefendants, who were members of the Social Justice Coalition (SJC), was based on their arrest after a peaceful protest for clean drinking water and sanitation in Cape Town’s informal settlements. The protest was held outside the civic center in Cape Town. The SJC members chained themselves to the railing of the building in an attempt to get the attention of Cape Town Mayor Patricia de Lille. South Africa's Regulation of Gatherings Act requires that for all congregations of more than 15 people a notice to protest is required to be submitted to the city authorities, which the SJC members did not do before protesting. A total of 21 people were arrested, but 11 were acquitted after a trial in the Magistrates' Court. The magistrate ruled that the gathering was "respectful and peaceful" and there had been "no harm to anyone," but the law had clearly been violated. After their convictions the 11 appealed in 2016. On January 24, 2018 the Western Cape High Court ruled that the Regulation of Gatherings Act violated South Africa's Constitution, and set-aside the convictions of the ten codefendants and acquitted them. High Cout Judge Thandazwa Ndita announced the Court's ruling that: “The criminalisation of a gathering of more than 15 on the basis that no notice was given violates Section 17 of the Constitution as it deters people from exercising their fundamental right to assemble peacefully unarmed…the limitation is not reasonable and justifiable in an open and democratic society, based on the values of freedom, dignity and equality…Section 12 (1) (a) of the RGA is hereby declared unconstitutional.” The ruling also noted that the criminal sanction in the Act was "disproportionate to the offence" of failing to provide a notice of protest. Consequently, "Section 12(1)(A) of the [Act] is hereby declared unconstitutional." Judge Ndita suggested a civil liability would be proportionate to persons who fail to give notice. "It was also suggested that the state impose administrative penalties" because these are fines and do not "carry with them the stigma" of a criminal conviction. Jara died in August 2015 so she was posthumously acquitted." |
Conviction Caused By: |
Conviction based on unconstitutional statute. |
Innocence Proved By: |
"On January 24, 2018 the Western Cape High Court ruled that the Regulation of Gatherings Act violated South Africa's Constitution, and set-aside the convictions of the ten codefendants and acquitted them. High Cout Judge Thandazwa Ndita announced the Court's ruling that the criminal sanction in the Act was "disproportionate to the offence" of failing to provide a notice of protest. Consequently, "Section 12(1)(A) of the [Act] is hereby declared unconstitutional."" |
Defendant Aided By: |
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Compensation Awarded: |
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Was Perpetrator Identified? |
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Age When Imprisoned: |
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Age When Released: |
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Sex: |
Female |
Skin/Ethnicity: |
Black |
Information Source 1: |
"Judge declares section of the Regulation of Gatherings Act unconstitutional, By Barbara Maregele, Business Day, January 26, 2018" |
Information Location 1: |
https://www.businesslive.co.za/bd/national/2018-01-26-judge-declares-section-of-the-regulation-of-gatherings-act-unconstitutional/ |
Information Source 2: |
"Phumeza Mlungwana, et al., v. The State & The Minister of Police, No. A431/15 (High Court of South Africa, Western Cape Division, Cape Town) (Written submission on behalf of the Special Rapporteur. United Nations.)" |
Information Location 2: |
http://freeassembly.net/wp-content/uploads/2017/04/UNSR-Mlungwana-Submissions.pdf |
Information Source 3: |
"Phumeza Mlungwana, et al., v. The State & The Minister of Police, No. A431/15 (High Court of South Africa, Western Cape Division, Cape Town) (Submission on behalf of the Amicus Curiae.)" |
Information Location 3: |
https://www.opensocietyfoundations.org/sites/default/files/litigation-brief-mhlungwana-south-africa-20171804.pdf |
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Innocents Database Created and Maintained by Hans Sherrer innocents@forejustice.org