Protests have long been a part of South Africa’s politics. In the past, gatherings and demonstrations played a significant political role in trying to end apartheid.
Currently protests are mostly used to draw attention to issues such as unemployment, service delivery and the state of the economy.
South Africans’ right to take to the streets to march, demonstrate or present petitions is protected by the Constitution. Section 17 on Assembly, demonstration, picket and petition provides that:
‘Everyone has the right, peacefully and unarmed, to assemble, to demonstrate, to picket and to present petitions.’
This right is linked to the rights of freedom of expression (Section 16) and association (Section 18).
The Regulation of Gatherings Act of 1993 (Act) protects the right to protest, but does prescribe many requirements that have to be met while exercising this right.
The purpose of the Act is to put in place specific procedures that must be followed when organising a legal protest: the steps, in other words, which the Economic Freedom Fighters (EFF) would be obliged to follow. The reason for these measures? To protect the rights of non-participants to go about their business unhindered and to limit the risk that they will be subjected to any criminal action by protesters.
These rules are not unique to South Africa and recognise that protests can become destructive, violent and even fatal.
The Act requires the convenors/organisers to designate a person to negotiate with police about the conditions for the protest, and provide planning information to the government at least a week in advance, or at the earliest opportunity. The government has the option to prohibit a protest if it only receives notice of it less than 48 hours in advance.
If no agreement can be reached, the police can still impose conditions on the gathering to ensure that traffic and property will not be disrupted or damaged.
If the police feel that there is a threat that the protest will result in serious disruption of traffic, injury to persons, or extensive property damage, and that they will not be able to meet the threat, they may prohibit the gathering. Before the police do this, however, they must meet with organisers and determine whether they are able to amend the agreement to prevent such threat.
The appointed convener must complete a notice form and submit it to the local authority, setting out details of the gathering and the convener. It must include details of the marshals and activists who will guide the protest and prevent it from becoming violent and out of control.
This document must be completed and signed.
An invitation to meet with the local authorities, whether the municipality or Metro police, must be sent to the protest organisers 24 hours before the protest.
This meeting is intended to discuss the details in the notice form, and make amendments or alternative arrangements if necessary. The authorities can, for example, change the planned route of a protest if they feel that the proposed route poses a security threat.
If the convener is not invited to a meeting within 24 hours of sending the notice, the gathering is automatically deemed legal and approved, and can proceed without any further formalities.
However, if an invitation is made and there is no reply to the invitation, the protest cannot proceed.
The state official must state in writing why an application has been rejected. The reasons usually include:
- The gathering will result in serious disruption of traffic;
- The gathering will result in injury;
- The gathering will result in extensive damage to property;
- Negotiations for safe protests have failed;
- The SAPS or Traffic Police have provided an affidavit stating that there are reasonable grounds to believe that the protesters’ or the public’s safety is at risk.
The convener, if he feels that the application was unfairly rejected, can approach the relevant Magistrates’ Court or High Court to assess the notice. The Court has the power to approve the gathering.
Protesting without following procedure is illegal, and any person attending an unlawful gathering is breaking the law.
Lawful protests must end when the organisers decide they should or if the SAPS gives an order to desist. It is illegal to disobey the SAPS order and this can lead to arrest.
The police are meant to protect protesters and facilitate safe spaces for protests to occur. Police are also required to engage with protesters to resolve any issues that may arise during the rally.
The police are obliged to intervene if chaos erupts or some form of violence or destruction of property occurs. These are criminal acts and people can be arrested.
Before the police can use force to prevent injury, death, or destruction of property, they must first try to negotiate. They must give at least two warnings in two different languages and give reasonable time for the gathering to disperse.
If the protest is illegal, people can be charged with convening a gathering without notice, attending a prohibited gathering or with public violence, malicious injury to property, and assault.
According to the EFF in KwaZulu-Natal, it doesn’t need any permission to exercise its rights.
EFF provincial chairperson, Mongezi Twala, said that by law, South Africans have the right to protest without permission.
‘There shouldn’t be any red tape in fighting for what is right. This is our black people who are languishing in poverty and we will fight for them.’
Does Twala’s Commander-in-chief, Julius Malema, share his opinion? The Act defines a gathering as:
‘A gathering is defined as ‘any assembly, concourse or procession of more than 15 persons in or on any public road or any other public place or premises wholly or partly open to the air.’
So whether it goes under the name of ‘National Shutdown’ or a protest, the EFF’s action will be a protest/gathering as contemplated by the Act. There is no specific provision in law for a ‘shutdown’, but since the purpose of the shutdown is same as that of a “protest” or “gathering”, it’s just semantics.
The EFF may encourage people to attend its protest action, but any use of force or threat against people if they don’t attend is criminal conduct. We hear through the media that this behaviour has occurred in certain townships.
The right to freedom of assembly, as recognised by the Constitution and regulated by the Act, does not supersede non-participants’ rights to life, dignity, equality and freedom and security of the person.
Imperfect as the Act may be in some regards, it is intended to manage protests such as those that are intended under the EFF’s ‘National Shutdown’.
The gap between the authorities’ obligation to make sure things don’t descend into chaos, and the behaviour of Julius Malema and his supporters before – and possibly during – the action, does not inspire us with much confidence that the authorities will be able to manage the protests.
So we’ll see on Monday. If violence is committed or property is damaged, presumably Julius Malema and the perpetrators will be held to account.
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