The right to protest

IURI 122 -3.3

2023
Introduction
• SA dubbed the “protest nation”
• Various reasons for protesting – unequal distribution of land, service delivery,
crime corruption etc
• Protest / suppression of protest has a long history in South Africa
• Important to note – protests take place globally
Pre 1948
• Free Burghers at the Cape protested against the low prices of their products
• French Hugenots protested against unfair treatment
• Marie Koopmans-De Wet – Anglo Boer War
• Ghandi – Poll tax against Indians
• World War II – protest by women in South Africa
• Anti-pass campaign (1944)
Post 1948
• The nature of protest and resistance changed
• Non-white communities started to actively resist the Apartheid
regime
• 9 August 1956 – Women’s march to union buildings
Laws to suppress political action

• Proclamations under the Native Administration Act No. 38 of 1927

-Permission from a native commissioner or magistrate was required
before ten or more Africans could assemble in an area (exceptions for
church services, weddings, funerals and sports events)

• the Native Laws Amendment Act No 36 of 1957

-A meeting assembly or gathering could be prohibited if not held in an
area specifically zoned for Africans
• Riotous Assemblies Act 17 of 1956
-Public gatherings could be prohibited if they could endanger public
peace or cause hostility between whites and blacks

• Riotous Assemblies and Suppression of Communism Amendment Act

No. 15 of I954
1960s-1970s
• Increased black resistance
• 21 March 1960 – Sharpeville massacre
• Unlawful Organisations Act 34 of 1960 – banning of PAC and ANC
• The Gatherings and Demonstrations Act 52 of 1973 – no
demonstrations and open-air gatherings near Parliament in Cape
Town
1980s

• Internal Security Act No. 74 – extensive powers to magistrates to

prohibit gatherings

• The Court Buildings Prohibition Act No. 71 of 1982

• State of Emergency – 1985-1986, 1986-1990
• Funerals started to take on the form of political gatherings
Specific provisions from the Constitution:
Right to protest

• Post Apartheid era – Interim

and 1996 Constitution
• Section 17
• Applicable legislation -
Regulation of Gatherings Act
205 Of 1993
Post apartheid era (1993)- current
• What is the right to protest?

dispensation
• Regarded as one of the most powerful ways in which individuals can
express their views on political and social issues. This is achieved by
coming together and protesting peacefully.
• This is an integral part of a democratic society and is a form of
participatory democracy.
- Assemblies, demonstrations, pickets and petitions allow citizens to
enforce their rights outside the formal legal process by placing pressure
on the legislature and the executive not to infringe on the rights of
individuals.
- In addition, such events also help civil society groups build support for
their causes and mobilise voters in order to ensure more responsive and
accountable government from those who were elected to serve the
people. Often, such activities precede or go hand-in-hand with court
action.
- The right to protest under the Constitution (post- apartheid era)
• The Interim Constitution gave all South Africans the right to protest inter
alia the right to assemble, demonstrate and petition. Similarly, section 17
of the final 1996 Constitution effectively guarantees the right to protest. It
distinguishes between assemblies, demonstrations and pickets. Please
note that there is no right to protest but it is derived from other rights.
• Section 17 of the Constitution states that that ‘Everyone has the right,
peacefully and unarmed, to assemble, to demonstrate, to picket and to
present petitions’.
 The right to protest with regard to the right to freedom of
assembly and the right to assemble, demonstrate and petition
• Scope of section 17
• It is important to highlight that that there is no explicit provision that gives
effect to the right to protest. It is argued that the right to protest is derived
from other rights i.e the freedom of assembly; the right to assemble,
demonstrate and petition. Hence, these rights should be interpreted
expansively.
• The Constitutional court refers to the link between freedom of expression,
freedom of association, the right to demonstrate and protest and the proper
exercise of democratic rights as being interconnected and complementary.
(South African National Defence Union v Minister of Defence and Another)
• NB: section 17 is not only restricted to activities that are aimed only at
promoting political participation. Its scope also includes assemblies that are
aimed at promoting cultural, economic and social activities such as
educational, recreational, religious and sports gatherings.
• SATAWU v Garvas - It was held that the right to freedom of assembly is central
to our constitutional democracy. It exists primarily to give a voice to the
powerless. This includes groups that do not have political or economic power,
and other vulnerable persons. It provides an outlet for their frustrations. It is
also one of the principal means by which ordinary people can meaningfully
contribute to the constitutional objective of advancing human rights and
freedoms. This is only too evident from the brutal denial of this right and all
the consequences following therefrom under apartheid.
 Balancing the right to
protest against other
constitutional rights
• Like other rights in the Bill of Rights, section 17 must be balanced against
other rights and interests, particularly the right to life, dignity, freedom
and security of the person, and property.
• In addition, section 17 is automatically subject to the limitations clause
contained in section 36 of the Constitution (limitation clause).
• Most importantly, the construction of section 17 also includes internal
qualifiers to the right to protest: in order to be lawful, a protest must be
peaceful and unarmed. The implication is that there is no constitutional
protection for ‘armed assemblies’ because of the potential for assemblies
to become violent when participants are armed. This is especially the case
in South Africa where protests have become increasingly violent and are
becoming a cause of concern as far as damage of property and security of
person is concerned.
• The role of the Regulation of Gatherings Act (RGA) 205 of 1996, in giving
effect to section 17 (including its limitations on the right to protest). See
sections 3, 5, 8 and 12 of the RGA; legal questions and judgements in
Mlungwana and Others v The State and Another (2018) ZACC 45.
 The Regulation of
Gatherings Act 205 Of
1993
 A constructive attempt by the legislature to reconcile the rights of assemblers
with the state’s interest in maintaining public order. The RGA was promulgated
to “regulate the holding of public gatherings and demonstrations at certain
places..”. The Act gives effect to section 17 of the Constitution that everyone
has the right to assemble and protest peacefully. Whereas authorities have a
duty to facilitate this through negotiations with organisers of such an event if
necessary.
 The Act represents a compromise between the old and the new order. (How?)

 Limitations imposed by the Act

 However, the right is subject to notification to the local authorities and police
seven days in advance. Furthermore, the Act places a legal duty on the
responsible officer to identify, engage with organisers of a gathering or protest
to try to reach agreement about how the gathering or protest should be
conducted - section 3 of the RGA.
 To ensure the facilitation of peaceful gatherings, the Act allows the responsible
officer to impose certain conditions on the gathering or protest if there are
reasonable grounds to do so to minimise traffic disruptions, to ensure continued
access for others to their places of work and property, to prevent injury to any
person and to prevent the destruction of property. Only after such a meeting,
would a responsible officer be able to prohibit a gathering if he or she is
convinced on reasonable grounds that the gathering would cause disruptions or
extensive damage to property- section 5 of the RGA.
 Conduct during gathering should be peaceful, no incitement of hatred/ violence
against any person or any group of other persons on account of differences in
culture, race, sex, language or religion. – section 8 of the RGA
• Liability for damage, offences and penalities- Act imposes joint and several 188
liability onthe organisers of a demonstration or gathering for riot damage
caused by the participants in the demonstration or gathering- section 11 and 12
of the RGA
Criticisms to the RGA
 Does the Act seem to favour the authorities rather than
upholding the right to protest?
 Is the seven-day notice period an infringement on the
right to protest?
 Demonstrations/ gatherings- not more than 15 people?
• Mlungwana and Others v The State and Another (2018)
ZACC 45 ( the Constitutional court had to determine
whether section 12(1)(a) of the Act was unconstitutional
to the extent that it criminalized the actions of a
convener in convening a “gathering” without giving
notice. Did section 12(1)(a) of the RGA infringe the right
entrenched in section 17 of the Constitution? If so, was
the limitation reasonable and justifiable in terms of the
limitation clause?
Recap – SU 3
• 3.1 – Apartheid legislation and the nature of Apartheid
• 3.2 – Internal and external resistance events, UN resolution, the
nature of the transition period, first certification judgment, nature of
1996 Constitution.
• 3.3 – Aspects that make SA Constitution transformative,
transformative nature of the right to protest.