Democratic Assembly for Restoration and Empowerment and Others v Saunyama N.O. and Others

On 1 September 2016, the first respondent, acting as the regulating authority for the Harare Central Police District, published a statutory instrument banning all public processions and demonstrations in the district for two weeks in terms of section 27 of the Public Order and Security Act (POSA). The applicants challenged this ban in the High Court on grounds including the constitutional validity of section 27 of POSA. The first respondent subsequently issued further bans extending the prohibition for one month. The High Court upheld the constitutionality of section 27 and dismissed the applications. The applicants appealed to the Supreme Court, which referred the constitutional question to the Constitutional Court for determination pursuant to section 175(4) of the Constitution. The respondents justified the ban based on violence that had occurred during previous demonstrations organized by the applicants.

• Whether section 27 of the Public Order and Security Act [Chapter 7.11] is constitutional
• The proper interpretation of section 59 of the Constitution guaranteeing the right to demonstrate and petition peacefully
• Whether the limitation on the rights to demonstrate and petition imposed by section 27 of POSA is fair, reasonable, necessary and justifiable in terms of section 86(2) of the Constitution
• The appropriate test for assessing limitations on fundamental rights under the new Constitution

1. Section 27 of the Public Order and Security Act [Chapter 7.11] is declared unconstitutional. 2. The declaration of constitutional invalidity is suspended for 6 months from the date of judgment. 3. The matter is remitted to the Supreme Court for determination of the appeal. 4. Each party shall bear its own costs.

Section 27 of the Public Order and Security Act is unconstitutional because it permits blanket bans on all demonstrations for up to one month without discriminating between peaceful and potentially violent demonstrations. Such blanket or dragnet prohibitions are unfair, unreasonable, unnecessary and unjustifiable under section 86(2) of the Constitution. A limitation on fundamental rights that stereotypes and condemns all demonstrations in advance, regardless of their nature, purpose or circumstances, is irrational and imposes greater restrictions than necessary to achieve the legitimate purpose of preventing public disorder. The rights guaranteed by section 59 of the Constitution are rights to demonstrate and petition peacefully, with peacefulness forming part of the content of the rights themselves. Any limitation must be assessed holistically against the criteria in section 86(2), including fairness, reasonableness, necessity and justifiability in a democratic society based on openness, justice, human dignity, equality and freedom.

The Court observed that demonstrations and public protests are among the most vivid ways for the public to express opinions and are fundamental to political engagement in democratic societies. The right to demonstrate creates space for individuals to coalesce around issues and speak with a louder collective voice, bringing visibility to issues of public concern. The Court noted that the general approach to constitutional interpretation developed in pre-constitutional case law (presumption of constitutionality, strict construction of limitations) remains valid and is complementary to section 86(2). The Court commented that the Constitution cannot be stretched to accommodate challenged legislation; rather, legislation must fit within the properly interpreted Constitution. The Court noted that violence intrinsically violates other persons' rights in their liberty, bodily integrity or property, and no constitution can grant rights that clearly affront the rights and freedoms of others. The Court observed that section 27 lacks safeguards against perpetual prohibition through repeated back-to-back bans by despotic authorities.

This judgment is of fundamental importance to South African and Zimbabwean constitutional jurisprudence on freedom of assembly and demonstration. It establishes that blanket bans on demonstrations and petitions, even if limited in duration and geographic scope, are unconstitutional where they have a "dragnet effect" that does not discriminate between peaceful and potentially violent demonstrations. The judgment reinforces the primacy of fundamental rights in democratic societies and requires that limitations be narrowly tailored to their legitimate purposes. The Court's interpretation that the requirement of peacefulness in section 59 forms part of the content of the right rather than a limitation is significant. The judgment also provides important guidance on the application of the limitations clause (section 86(2)) and reaffirms pre-constitutional jurisprudence on the approach to constitutional challenges. It demonstrates the courts' role as guardians of constitutional rights against excessive state control.