Quote of the week

Although judicial proceedings will generally be bound by the requirements of natural justice to a greater degree than will hearings before administrative tribunals, judicial decision-makers, by virtue of their positions, have nonetheless been granted considerable deference by appellate courts inquiring into the apprehension of bias. This is because judges ‘are assumed to be [people] of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances’: The presumption of impartiality carries considerable weight, for as Blackstone opined at p. 361 in Commentaries on the Laws of England III . . . ‘[t]he law will not suppose possibility of bias in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea’. Thus, reviewing courts have been hesitant to make a finding of bias or to perceive a reasonable apprehension of bias on the part of a judge, in the absence of convincing evidence to that effect.

L'Heureux-Dube and McLachlin JJ
Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
18 March 2010

On freedom of assembly

One could say all is well that ends well. But news that the Presidency has distanced itself from an earlier missive which purported to ban all protests around the Union Buildings still leaves one with a worry about the Presidency’s commitment to free speech and concerns that it has an eccentric view about its own power.

The Presidency’s move comes in the wake of an urgent court challenge by Equal Education (EE) in the North Gauteng High Court. Equal Eduaction was upset because in a letter dated 24 November 2009, Mr Dumisani Mahlasela, Head: Public Participation and Public Relations, The Presidency, stated: “Mr Vusi Mavimbela, Director-General in The Presidency, has directed that all marches to the Union Buildings and the Presidency be suspended until further notice.”

There have been two responses from the Presidency: Firstly, The Presidency has issued a media statement saying: “The Presidency wishes to place on record that it has not instituted any ban on marches to the Union Buildings.” But this statement directly contradicts the letter of Mr Mahlasela referred to above. 

After the Court challenge The Presidency wrote a letter to EE saying: “I am happy to inform you that The Presidency has no objection to your march scheduled for March 26 at the Lawns.” (The ‘Lawns’ refers to the gardens below the Union Buildings.)

It appears that the Presidency has misconstrued its power in this regard, first denied the existence of a letter which shows that it did and then, when it was caught out, retracted. Better late than never, I guess. If one looks at the relevant legislation it is clear that the Presidency does not have the power to ban all marches to the Union Bulding.

The Regulations of gatherings Act of 1993, passed by the apartheid parliament, deals with protests at the Union Buildings. Section 7(1) states that  all demonstrations and gatherings are prohibited in certain areas of the Union Buildings immediately around the office of the President (but this does not include the lawns of the Union Buildings).

In other words, while demonstrations immediately around the Union Buildings are generally banned, demonstrations on the Lawns are not banned and must be dealt with by the relevant authorities.

However – and this is important – section  7(2) of that same Act states that the ban on demonstrations in the immediate vicinity of the Union Building is not absolute. One may apply to the Director-General: Office of the State President, who can grant permission for such a gathering.

The Act does not state when permission may be granted and when not. The Act was passed before the advent of the Constitution so its unclear whether this provisions is Constitutional as it may unjustifiably infringe on the right to freedom of assembly guaranteed in section 17 of the Constitution.

If it is Constitutional, it will have to be applied by the DG to conform to the Constitution and the DG will have to take into account the right of freedom of assembly when making a decision to grant permission for a gathering or not. This means that a blanket ban on all gatherings at all times at the Union Buildings – even hose in the vicinity of the President’s office – will probably be unconstitutional. Even in that limited sense the Presidency misconstrued its powers in this regard.

The DG will only be able to deny permission to gather when he or she has good reason to do so (for example, when he fears that the working of the government will be threatened or that violence will ensue if permission is granted for a gathering).

The fact that the Presidency wrote a letter in which it purported to ban all gatherings around the Union Buildings while it had no legal authority to do so, is worrying. In a country based on the Rule of Law the Presidency has a special duty to act in terms of the law and not to Act as if it is a law unto itself. Writing letters purporting to ban all demonstrations around the Union Buildings when it has no legal authority to do so, suggests the Presidency is not too familiar with these basic tenets of the Rule of Law.

It is to be welcomed that when it was challenged the Presidency immediately realized that it had acted outside the scope of its powers when it purported to ban all gatherings around the Union Buildings. The Union Buildings holds a symbolic place in our political landscape and the right to freedom of expression and the right to gather must surely include the right to demonstrate outside the Union Buildings – as long as the correct legal steps have been taken.

One does not want to see the chaos that erupted last year when soldiers marched to the Union Buildings, but the Gatherings Act allows for such contingencies and the relevant authorities – not the Presidency – may well refuse to grant permission for a demonstration if there are valid fears that violence might ensue. The last time I checked Equal Education is quite a peaceful organization, so their demonstration could not possibly be said to fall within this category.

2015 Constitutionally Speaking | website created by Idea in a Forest