Municipalities are creating arbitrary, unconstitutional requirements for 'permission' to protest

First published by GroundUp.

When protest convenors give notice of their intention to stage a protest, the duty of the responsible municipal officers is to ensure that convenors comply with the provisions of section 3 of the Regulation of Gatherings Act (RGA). But we have found gatekeeping officials limiting people’s right to protest through arbitrary practices.

A protest convenor should give notice in writing within seven days or no later than 48-hours prior to the date of the protest. When this notice is given, the responsible officer performs a “checks and balances” process, limited to the provisions of the RGA. This includes ensuring that the protest will not pose any harm to the protesters and the surrounding community, nor negatively impede pedestrian and vehicular traffic.

But responsible officers have mistaken this duty and assume that they have the power to decide whether a convenor has their “permission” to protest, even though it is a constitutionally guaranteed right.

Officials often do not give written reasons for stopping a protest, making it difficult for the convenor to approach the courts and challenge arbitrary prohibitions and requirements that a number of municipalities have self-created.

The provisions of section 4 of the RGA empowers a responsible officer to call a meeting with an authorised member of the police, the convenor, and any party whom in the opinion of the responsible officer must be present at the meeting. The purpose of such a meeting is to discuss the contents of the convenor’s section 3 notice and not to impose arbitrary conditions.

But on two occasions, the community of Marikana in North West province has been arbitrarily denied its constitutional right to protest. The responsible officer claimed that people could not hold a protest near the Tharisa mine, because the convenor did not have a “confirmation” from the mine stating that it was aware of the march and that the mine permitted it. Insisting on such confirmation is unlawful.

Section 3 of the RGA provides that “if a petition or any other document is to be handed over to any person” the convenor must list “the place where and the person to whom it is to be handed over”. According to this provision, the only obligation resting on the convenor is to provide the name of place and person to whom the memorandum of demands will be handed over. There is no requirement in law to obtain a “confirmation” from the intended recipient of a memorandum. In the case of the Tharisa mine, it is the duty of the responsible officer to inform the mine about the intended protest.

In Matjhabeng local municipality in the Free State, the convener of an intended protest by the Matjhabeng Unemployed Graduates Organisation came to regret approaching the responsible officer to give notice. The responsible officer told the convener that “protests are not allowed under alert level 1 of the lockdown”, which is untrue.

The provisions of section 5 of the RGA require a responsible officer to give written reasons within a reasonable time subsequent to prohibiting a protest. In this case, the responsible officer in Matjhabeng local municipality provided written reasons which were then reviewed and set aside by the Magistrate’s Court.

In the City of Johannesburg, those intending to exercise their constitutional right to protest must pay a fee or risk not having law enforcement officers present at their protest. A number of conveners have succumbed to this frivolous requirement because they could not risk the safety of protesters.

Some conveners have since decided not to give notice because of this requirement. In essence, protesters who comply with the law and give notice often regret it.

In Blouberg local municipality, a convener was denied a section 3 notice form because – according to the responsible officer – a notice for intended protest may only be completed if the convener can prove that he or she has confirmation from the ward councillor and the mayor regarding their respective approvals of the intended protests. The responsible officer further informed the convener that the right to protest is a right of last resort. To this thinking, the ward councillor, mayor and responsible officer are the gatekeepers of the constitutional right to protest and they dictate when people can exercise this right. Nor did the responsible officer provide written reasons for refusing to provide the convener with a notice form.

Such gatekeeping makes it undesirable for conveners to abide by the provisions of the RGA. Although spontaneous protests are constitutionally recognised and protected, and failure to give notice is not a criminal offence, giving notice is a pivotal administrative process for protecting protesters. DM

Stanley Malematja is the attorney in the Right2Protest Project based at the Centre for Applied Legal Studies, Wits University.

Views expressed are not necessarily those of GroundUp.