Author: Charissa Chengalroyen – Candidate Attorney *Supervised by Candice Pillay – Director.
South Africa celebrates Human Rights Day on 21 March annually, in remembrance of 21 March 1960 when police in Sharpeville opened fire on a peaceful protest against the pass laws. The incident resulted in 69 deaths and 180 people were injured. Sixty years later, in a post-apartheid South Africa, the right, “peacefully and unarmed, to assemble, to demonstrate, to picket and to present petitions” is one of the fundamental human rights enshrined in the Constitution (s 17).
The Regulation of Gatherings Act 205 of 1993 was enacted to give effect to this right and provides the regulations that govern peaceful gatherings. The Act creates the requirement that authorisation must be sought first and imposes limitations on the right to protest.
In section 3(2) it states that: “The convener shall not later than seven days before the date on which the gathering is to be held, give notice of the gathering to the responsible officer concerned: Provided that if it is not reasonably possible for the convener to give such notice earlier than seven days before such date, he shall give such notice at the earliest opportunity: Provided further that if such notice is given less than 48 hours before the commencement of the gathering, the responsible officer may by notice to the convener prohibit the gathering.”
The problem arises where no authorisation is sought, or a protest arises organically without a convener. This then raises the question of the lawfulness of the protest action. Does failure to obtain authorization render the protest unlawful? Or is the requirement for authorization merely a mechanism to ensure that the authorities can prepare adequately for the protest action?
The concerns raised from time to time relate to the unfettered discretion of the authorities to not provide such authorisation or to ban a protest, especially in regard to the 48-hour notice period. It would appear that the provision implies that all assemblies are banned unless the notice requirements are complied with. However, this would defeat the purpose of the right to protest, as these actions are only on rare occasions planned weeks in advance. When faced with this set of factual circumstances, the authorities can ban an assembly without the order having to go through a review or reversal process by the courts.[1] Additionally, in Mlungwana and Others v The State and Another [2018] ZACC 45, the Constitutional court upheld the High Court’s declaration that section 12(1)(a) of the Act is constitutionally invalid to the extent that it makes the failure to give notice or the giving of inadequate notice by any person who convened a gathering a criminal offence.
The effect of this judgment is such that it effectively renders the notice requirements ineffective and implies that a protest convened in contravention of section 3(2) of the Act is not unlawful as no consequences or punishments are attached to the section.
For the Act to give real and meaningful effect to the right to protest, the following should be considered:
As a starting point, all protests should be deemed legal.
Refusal to authorize a protest must be based on bona fide and ascertainable factors and/or circumstances and be subject to judicial review.
For the right to protest to hold its value and place in society, the act of balancing the rights of the protestor and the State is of the utmost importance. Failure to justifiably limit and balance the rights of each respective party can lead to an authoritarian state or a vigilante public, neither of which are conducive to promoting an open and democratic society based on dignity, freedom and equality.
While there is a perspective that protests are a sign of dissent between the public and the government, the more constructive perspective is that the right to protest speaks to a society which actively values and promotes democracy, change, improvement, unity, and the right to freedom of expression, movement and association. This is the essence and spirit of Human Rights Day.
“The rights of every man are diminished when the rights of one man are threatened.” – John F. Kennedy
[1] Bill of Rights Handbook, Iain Currie & Johan De Wall (2014), Assembly, Demonstrations and Petitions, Stuart Woolman at 395.
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