Reference no: EM133294139
Assignment:
You are approached by the Association of South African Student Representative Councils ("ASSRC"). The ASSRC requests that you provide a written legal opinion (reasoned legal submission) on whether the recent criminalization of student gatherings, processions and demonstrations on any campus of any University in South Africa University, constitutes an unlawful limitation of their Constitutional Rights. Recently, a new law, known as the Restoration of Order in Institutions of Higher Learning Act, 101 of 2022 ("ROIHLA"), came into operation and it criminalizes all forms of student demonstrations. Sections 1 of ROIHLA reads: Prohibition of assembly, gatherings, processions, picketing, demonstration and petitioning 1. No student shall participate in any assembly, gathering, procession, picketing, demonstration, or petitioning, on any premises owned or controlled by any University in South Africa. 1(1) Any student or person who violates section 1 shall be guilty of a criminal offence, and if convicted, the court must impose a sentence of direct imprisonment for a period of not less than 70 (seventy years).
The ROIHLA was enacted by Parliament following many years of violent and destructive demonstrations at many South African Universities. In the past five years, there has been numerous student protests and demonstrations around the country, most of which caused serious damage to infrastructure and assaults. These violent protests and demonstrations were ignited by high education costs and lack of funding for students. The ASSRC is of the view that the students' rights have been limited by the provisions of section 1 of ROIHLA, and that such limitation does not meet the section 36 Constitutional requirement of being reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.
Identify the constitutional right in question, and advise the ASSRC on the two-phase enquiry a court would undertake in applying the Limitations Clause, making appropriate reference to case law where applicable.
Apply this enquiry to the facts in question, and provide a reasoned legal submission on whether this might support a successful challenge to the relevant provisions of ROIHLA. The question must be answered using the IRAC principle.