Public demonstrations have been central to South Africa’s democratic life for decades. Yet recent events suggest a narrowing of the substance of the right to assemble, demonstrate and picket, and a de-legitimisation of street politics.
In this regard, the City of Cape Town’s near hysterical overreaction to attempts to occupy Rondebosch Common is cause for concern. Last week’s Constitutional Court case about whether the South African Transport and Allied Workers’ Union should be held responsible for violence they could not have foreseen in one of their marches, and the chilling effect on freedom of assembly if they are, also raises important questions about whether the state respects the space for street politics as a legitimate form of politics.
Evidence is emerging from many parts of the country that freedom of expression is not the only Constitutional right in trouble at the moment: the right to assembly, demonstration and picket is as well. The Regulation of Gatherings Act gives effect to this right.
When the Commission of Enquiry into the Prevention of Public Violence and Intimidation, chaired by Judge Richard Goldstone, wrote the Act in the early 1990’s, it marked a radical departure from past practices.
The Commission argued that rather than seeing gatherings as threats to national security, the state should recognise them as essential forms of democratic expression. The state should also have a positive obligation to facilitate rather than repress gatherings. Municipalities would play this facilitative role, ensuring that negotiations took place between themselves, the South African Police Services (SAPS) and the convenors of the march.
The Commission also argued for a radically different approach towards policing. Gatherings were to be handled with tolerance and sympathy so as not to provoke a confrontation that may result in violence. Furthermore, gatherings were meant largely to be self-policing, with protestors being responsible for controlling participants through the delegation of marshals.
In terms of the Act, a convener must give notice of an intended gathering to the Municipality at least seven days before the march, although there is also provision for urgent notifications. The responsible officer of the Municipality may then call up a meeting between the three role players to discuss the gathering within 24 hours of having received the notice. In this meeting, the police may request that certain conditions be imposed on the gathering. But the Act requires that the negotiations in meetings take place in good faith. If a meeting is not called up, then the gathering is automatically lawful.
Yet local authorities repeatedly conflate notification with permission seeking, treating the application process as a permission-seeking exercise. This has led to the police breaking up gatherings if the convenor cannot produce a permit proving that the march ‘has permission’ to proceed. Admittedly, the Act lends itself to such confusion.
Furthermore, meetings are often not called within twenty-four hours, and negotiations often do not take place in good faith and in a spirit of negotiation. In fact the meeting may be called on the eve of the march, making it extremely difficult for the convenor to take the Municipality to court on review if the march is banned. Furthermore, Municipalities and the police have been known to impose conditions that may compromise the purpose of the protest and alter its message, thereby reducing the meaningfulness of the protest.
For instance, the Emfuleni Local Municipality charges protestors R165.00 per traffic officer per hour or part thereof as a condition for allowing a gathering. Such practices are discriminatory as they make the exercise of a right subject to financial means.
Municipalities have also been known to invite individuals into the meeting that have a vested interest in the gathering, such as councillors, who in turn have been known to influence decisions about whether to allow gatherings or not, especially if the gatherings are protests against their own performance. In Johannesburg, a Councillor even instructed the responsible officer to prohibit a Soweto Electricity Crisis Committee march before the section four meeting took place, which demonstrated manifest bad faith.
Gatherings have also been prohibited without a meeting, which demonstrates bad faith too as the local authority and police have not even attempted to negotiate conditions short of outright prohibition.
In terms of the Act, the responsible officer may prohibit a gathering on very narrow grounds, especially if violence is likely and no conditions can be imposed that can mitigate this threat. But the responsible officer’s decisions can be challenged in a magistrate's court within twenty-four hours of the prohibition.
However, Municipalities have been known to ban gatherings on grounds that are not recognised by the Act. For instance, the Mogalakwena Municipality in Limpopo banned a march by the GaPila community on the basis that their grievances were not taken to the ward committee first. The Act does not specific any particular route for grievances to follow before they can form the basis of a gathering.
Other marches have been banned on the basis that there is no one to accept the memorandum. According to the Emfuleni Municipality’s traffic department, the organisation wishing to hold a march must secure a written undertaking from the institution they are marching against confirming that a representative will be available to accept the memorandum. This makes the right to protest subject to the co-operation of the protestors’ adversary, who can easily squash a march simply by not making themselves available to accept the memorandum.
Another popular reason for prohibiting gatherings is that other gatherings are taking place on the same day, and the police do not have the resources to police more than one gathering. This reason has been manipulated in the past to allow gatherings that are more politically palatable to the ruling party, while disallowing gatherings that are more critical.
In order to prohibit a march, the SAPS must provide credible information on oath that the protest is likely to result in violence. The fact that the Act makes no provision for alternative affidavits from the convenor makes this in inherently one-sided process, capable of manipulation by Municipalities and the police. On at least one occasion in Thembelihle, a police affidavit containing highly disputable information was used as a basis to ban a protest.
Gatherings of fifteen people or fewer are known as demonstrations and are unregulated by the Act. Yet the police have been known to break up demonstrations on the grounds that they are illegal.
The Goldstone Commission argued that the police should not be required or authorised to disperse a gathering on the grounds that it has not been approved. In this regard, the police need to exercise high levels of judgement and not act in ways that may inflame a volatile situation.
According to the Act, when a gathering turns violent or where there is serious risk of injury to persons or property, then police may disperse the gathering but first, must use ‘reasonable force’ to disperse the demonstrators.
However, the argument that the gathering was spontaneous, rather than premeditated, can be used as a defence against a charge of an illegal gathering, as the Act contemplates situations where people gather spontaneously in reaction to unforeseen events.
The letter and spirit of the Act have been blithely ignored on many occasions, with peaceful but ‘unlawful’ gatherings being broken up with excessive force. A shift from softer to harder forms of policing has also become apparent in the policing of protests.
The Act does not contemplate a situation where blanket bans of protests can be instituted, except under a state of emergency when the right can be suspended. Yet, evidence has emerged since 2010 of unconstitutional blanket bans of protests.
By acting in these ways, the state has made a mockery of Goldstone’s original intentions. At the time of drafting the Act, Goldstone did not foresee the possibility that local governments would become the focus of such controversy around service delivery, and that in response they would develop myriad ways of misapplying the Act to censor their own critics.
In Makana Municipality, for instance, which has been the target of several service delivery protests, the responsible officer is the Director of Corporate Services, which falls under the office of the Municipal manager. He is part of the Municipal machine, and cannot be expected to take impartial decisions, especially when it comes to protests about the Municipality’s delivery record. Officials in other Municipalities undoubtedly also find themselves conflicted.
The assumption that the ‘golden triangle’ of the convenor, the Municipality and the police would be capable of a co-operative relationship is a fatal flaw in the Act. It is inappropriate to make the ability to exercise a constitutional right contingent on the good conduct of an actor that has a vested interest in not seeing the right being exercised at all.
At the very least, an independent ombudsman should perform the functions assigned to the responsible officer, rather than a Municipal functionary.
But should gatherings be regulated at all? Drexel University’s Tabatha Abu El-Haj has documented how in the United States, since the nineteenth century, the right to assembly has been gradually whittled down and its political effectiveness neutralised.
At that stage, street politics was popular and large spontaneous gatherings were the order of the day. The law interfered with gatherings only when they became disorderly. Since then, pre-emptive regulation was introduced, where permits were required to gather, and where marches could be banned if they disrupted traffic. Minimum time periods for notification made it practically impossible to gather spontaneously to respond quickly to political events. These changes have turned gatherings into a forced ritual that the authorities often simply ignore. But these practices, with certain variations, have become ‘commonsense’ in official circles in many countries.
However, the spate of recent protests in South Africa, many of them ‘illegal’, strongly suggests that South Africans are no longer willing to accept the state’s limitations on their right to practice politics in the most effective way possible. These protestors are communicating the message that the Regulation of Gatherings Act has had its day, and needs to be reviewed. The danger, though, is that in the current political environment, it may be replaced with something far worse.
The way in which Jane Duncan has catalogued the state's sustained and worsening violations of the right to protest over the years has been invaluable. She brings a genuinely national perspective to this problem which is invaluable.