The Demonstrations in or near Court Buildings Prohibition Act, 1982 (the “Act”) passed during the South African occupation of Namibia, as the nation was working towards establishing independence through the armed efforts of South West Africa People’s Organization’s (SWAPO). During this time of upheaval, the Act addressed demonstrations and violence that may inhibit judicial proceedings or intimidate judicial officials.
Summary of act
The act begins by defining only two terms in Section 1: “demonstration” and “gathering.” Demonstration is defined as any demonstration by at least one person which is connected to or coincides with court proceedings or investigations into unnatural deaths under the Inquests Act of 1993. Gathering means any grouping of people relating to or resulting from a demonstration.
The second section moves on to outright prohibit demonstrations and gatherings within a fixed distance of certain buildings. It prohibits demonstrations and gatherings in any building where there is a court room or any open-air place within a 500-meter radius of a building containing a court room. This prohibition applies every day except Saturdays, Sundays, and public holidays. Further, Section 2 carves out an exception wherein demonstrations or gatherings have been approved of (in writing) by the magistrate of the district where the demonstration or gathering is occurring. Finally, Section 2 references language from Riotous Assemblies Act (1956), which permits officers of a certain rank to tell people at gatherings or demonstrations to disperse when the people who are part of the demonstration or gathering kill, seriously injure, or manifest intent to kill or seriously injure anyone or if they destroy, do serious damage to, or manifest intent to destroy or do serious damage to any valuable property. Anyone who does not disperse after being ordered to do so is guilty of an offense in violation of the act, and force (to the degree necessary to disperse the demonstration or gathering) may be used if the people do not disperse in the time specified by the officer.
Section 3 specifies the offenses and penalties under the act. A person is guilty of an offense and upon conviction may be subject to a fine up to one thousand rand, to imprisonment for at most one year, or to both the fine and imprisonment if they: convene, organize, encourage, promote, cause by threats or force, preside, or address a demonstration prohibited by Section 2(1); print, publish, distribute, advertise, or otherwise circulate notice or make known the demonstration or gathering; attend or take part in the prohibited demonstration or gathering; or demonstrate as against Section 2(1).
Section 4 gives the short title (Demonstrations in or near Court Buildings Prohibition Act, 1982) and specifies when the act is effective or “commences.”
Substantively, the Act does seem to speak directly to its purpose of preventing the intimidation or threatening of judicial officials. Admittedly, it does so through the narrow lens of demonstrations near court buildings and not any of the other (presumably criminalized) ways a judicial official could be threatened or intimidated in connection with performing their duties. Facially, the Act seems overbroad, but limiting the demonstrations to those concerning judicial proceedings or inquests curtails that concern, though the “connected with or coincides with” language for relation to a court proceeding is ill-defined and could be easy to twist to fit any circumstance, not just ones legitimately stemming from a court proceeding. However, the Act could narrow that restriction further to only prohibiting demonstrations or gatherings concerning or related to court or inquest proceedings actually being conducted in the district where the demonstration or gathering is occurring. As it stands now, the Act prohibits demonstrations or gatherings whose subjects are related to any court proceeding regardless of the subject’s relevance to the court building in proximity to the demonstration or gathering. Additionally, imprisoning someone in violation of Section 2(1) for up to one year seems excessive unless there is a proven intent to intimidate or threaten an official. Without such a finding, there is no reason to imprison someone who demonstrates or is part of a gathering for an entire year because that person has not acted against the intent of the Act.
In terms of drafting, there are a few redundancies and points of confusion. To begin, demonstration is defined with the word itself, which does not entirely help clarify what exactly a demonstration is for the purposes of the Act. Additionally, “demonstrate” is defined in the context of demonstrations at the end of the first definition, but stylistically it would be more sensible to give “demonstrate” its own definition. Further, demonstrations are prohibited explicitly on every day except weekends and public holidays, but specifying that the prohibition applies when courts are operating would seem to be a more straightforward way to address when demonstrations and gatherings should not be occurring in or near court buildings. The Act could also give guidelines for how magistrate approval for gatherings is sought and granted. There would seem to be greater risk of people’s liberties being violated if the decision to allow or not allow a demonstration or gathering is contingent on the arbitrary whims of a single official.
One of the biggest points in need of clarity is whether Section 2(3) still applies. The referenced section of the Riotous Assemblies Act was repealed in 1989 (four years after the Act commenced). Section 2(3) specifies that the referenced section applies mutatis mutandis, but that would seem to implicate the situations in which officers can act to disperse crowds not whether a repealed provision can still be relied on in the law. The Act would benefit from explicitly drafting language that parallels the referenced language (or improving on the language, depending on why the section of the Riotous Assemblies Act was repealed). This would eliminate the confusion of relying on a repealed section and would make it easier for someone to apply the Act since they would not then have to seek out the old, repealed language. Additionally, the application of the section of the Riotous Assemblies Act mutatis mutandis seems like an overbroad grant of power, particularly if police brutality or corruption or abuse of power by authority generally are concerns. It also makes the Act ambiguous because a person trying to remain in compliance with the Act would not necessarily know in what situations Section 2(3) would apply, even disregarding the confusion of the Section referring to something that has been repealed.