No permit required: A democratic SA allows all its citizens the right to peaceful protest

The right to protest is guaranteed under Section 17 of the South African Constitution:

“Everyone has the right, peacefully and unarmed, to assemble, to demonstrate, to picket and to present petitions.” The Regulation of Gatherings Act, 205 of 1993 exists to give effect to this right.

South African politicians, government and the police currently use apartheid-era tactics to suppress protests in the country. The use of language, when referring to protest, such as “without permission/a permit”, “illegal” and “unlawful”, is problematic and dangerous to South Africa’s participatory democracy. The media has also fallen into the trap of using this language when reporting on protests. This must stop.

In November 2018 the Constitutional Court affirmed the right to protest when it handed down a landmark judgment in the Mlungwana and Others v S and Another. The court declared that Section 12(1)(a) of the Gatherings Act is invalid and unconstitutional because it criminalises peaceful protesters who fail to notify the authorities of their intention to protest.

The criminal convictions — for convening an illegal gathering — of the 10 Social Justice Coalition (SJC) members were overturned. This is a victory for democracy that continues to be celebrated today. The Constitutional Court has given Parliament the duty to amend the act within 24 months from the date of the judgment.

The state, in this case, had argued that should the court declare Section 12(1)(a) as invalid, that the declaration of invalidity be suspended for 24 months until Parliament amends the act. But the court disagreed with the State’s position, declaring:

“In the context of the facts of this case, no lacuna would result if the declaration took immediate effect. As explained above, there is a variety of existing incentives in the Act for the giving of notice… Furthermore, the right to assemble peacefully and unarmed, as explained above, is too important, and the violation of the right by section 12(1)(a) is too severe, for section 12(1)(a) to be countenanced in light of its invalidity.”

This simply means that the state will not be inconvenienced in its role of facilitating protests by the declaration of invalidity because there are other parts of the Gatherings Act that can be used to regulate protests and make sure they are peaceful, without Section 12(1)(a). The notice requirement still stands and many, including the SJC, continue to give notice for some protests. It was never the SJC’s position that notice must not be given, but that failure to do so should not be criminalised.

The Gatherings Act, as it stands, still has many faults and needs an overhaul. That being said, with the exception of protests taking place within 100m of Parliament, a court or the Union Buildings, the act requires no special “permission” for a protest to take place.

The act simply requires protesters to give notice at least seven days before a protest. But when seven days is not reasonably possible, notice must be given at least 48 hours before a protest. The use of the word “permit”, leads to the view that a protest can be illegal or unlawful, but the Gatherings Act does not say “illegal protest” or “unlawful protest”.

In April 2018 police shot and killed two people during protests in Caledon. Premier of the Western Cape Alan Winde was reported as saying:

“I am really angered by the two deaths as a result of an illegal protest. Looking at some of the video footage, even children were involved in the illegal protest. It is totally unacceptable.”

When challenged on Twitter by the Social Justice Coalition on the use of the words “illegal protest”, he said:

“You are wrong. It’s illegal to block roads, burn tyres etc. You must make application for a march.”

As explained above, the law is clear on this issue of “application”, and the premier is wrong. Yes, it may be illegal to block roads and burn tyres, but there is existing common law in the country to deal with such things.

A simple Google search for the word “illegal” produces: “Contrary to or forbidden by law, especially criminal law.”

Protesting in South Africa is not forbidden by law or criminal law. Criminal acts such as the destruction of property, which sometimes happens during protests, are forbidden by law, or illegal. This does not make the whole protest illegal. The words “illegal protest” trigger a police response. On many occasions, when police have responded to protests that are reported as “illegal”, they have responded with force. This has resulted in injuries and deaths.

The role of the media in how they report on protests and the language they use is, therefore, vital — affecting not only how the police see and react to protests, but also how protests are viewed by the general public. We all need to interrogate politicians and the police when they refer to a protest as illegal. This leads us to the second reason why the words “illegal protest” are problematic and dangerous.

This language denigrates protests and diminishes their role in South African democracy. There is already a negative attitude towards protest by those who are unaffected by the violent injustices that many face due to failures of government.

It is mostly poor black citizens who organise and participate in protests in South Africa. Referring to protests as illegal is the same as saying that participating in South Africa’s democracy is illegal. Protesting is the only way many poor communities who are denied services can voice their dissatisfaction with government. To call their protests illegal is to say they do not deserve to participate in South Africa’s democracy.

The right to protest is the right to participate. Justice Petse, in the Mlungwana judgment, wrote:

“It is true that barely a quarter of a century ago we emerged from an era in which a substantial majority of the citizenry was denied their inalienable right to participate in the affairs of their country. They were afforded virtually no avenue through which to express their views and aspirations.

“Taking to the streets to vent their frustration was the only viable avenue they had. It mattered not during the reign of the apartheid regime that their gatherings were peaceful. They were ruthlessly crushed without any regard for the legitimacy of the grievances underlying their protests.”

Therefore we cannot and must not allow government and politicians to stop our growth as active citizens by using tactics and language that suppress protest. We all have a duty to defend and protect our right to protest. In doing so we protect and advance our hard-won democracy while holding to account those elected.

The role of the media is crucial in this. DM

Axolile Notywala is a social activist and was elected as General Secretary of the Social Justice Coalition in June 2017. He also serves as a board member of the My Vote Counts (MVC) Campaign. Axolile is a 2015 alumnus of the UCTs Building Bridges Leading in Public Life Programme and a 2016 Mandela Washington Fellow. Notywala is the General Secretary of the Social Justice Coalition.