The purpose of this page is to raise awareness about the laws regulating the right to freedom of assembly and freedom of association, and the exercise of these rights by individuals and organizations including community-based organizations.
The main objective is to enable conveners/organizations and other persons to lodge a complaint of non-compliance with the law by the state and/or police officers. Further, it is to assist with providing educational awareness on the right to protest in accordance with international law and South African law.
Persons can use this tool to report any form of limitation of their right to freedom of assembly and association as well as any form of police brutality they experience when participating in a gathering/protest.
THE RIGHT TO PROTEST: GUIDELINES ON RIGHT TO FREEDOM OF ASSEMBLY AND ASSOCIATION
The right to protest is a fundamental right in South Africa and serves as a bedrock to our democracy. The Constitution of the Republic of South Africa confirms the right to protest. This right is envisaged in section 17 of the Constitution. Everyone has the right to assembly, to demonstrate, to picket, and to present petitions. This right is regulated by the Regulations of Gatherings Act 205 of 1993. The RGA works on the basis that citizens and organizations have a right to protest and then sets out circumstances in which this right may be exercised.
Given the importance of the right to protest in South Africa, the LRC has developed a toolkit to provide information and educate on the content of this right to protest. The toolkit is intended to serve as a resource for use by organizations, students, activists, or any other persons who wish to partake in protests, register their community organization, or learn more about the right to freedom of association and the right to freedom of assembly in South Africa. Download the Toolkit Here
Protesting, picketing, and demonstration hold a historic significance in South Africa. Pre-1994, protests were a tool used by the marginalized groups who lived during the times of a thoroughly wicked political system – apartheid. Then, the protest was geared towards dismantling injustices perpetrated by the apartheid system and thus have contributed immensely to the birth of democratic South Africa. Protests can and do bring social-political change – they bring social problems to the public eye and can be effective in bringing about change. Apartheid South Africa had a history of repressing and criminalizing protests. The architects of the South African democracy chose a way of breaking away from the ways of the past and recognized protesting as a basic human right for all.
SIGNIFICANCE OF PROTESTS TODAY
Protests are a catalyst for social change in South Africa. The rights to protest, picket and demonstrate, form the tenets of South Africa’s constitutional democracy and are key rights for accountability and advancement of rights. Research shows that protest is often the last resort which communities turn to when other participatory mechanisms have failed. The right to protest is an essential tool for political expression and a crucial mechanism through which dissatisfied groups can voice their grievances. In recent years South Africa has seen widely documented #ServiceDeliveryProtest, the #FeesMustFall, the #MarikanaMassacre, and #RhodesMustFall. These are protests that was so reminiscent of the pre-1994 protests geared towards social change. Even though South Africa is now a democratic state there are still injustices that are faced by various groups who take up protesting as a tool to voice out their concerns and s means to effect change.
- WHO CAN CONVENE A PROTEST?
According to South African law, everyone has a right to protest, including persons who are under 18 years. Anyone can convene a protest.
- DIFFERENCE BETWEEN DEMONSTRATION AND GATHERING
The Gatherings Act differentiates between a ‘gathering’ and a ‘demonstration’. A demonstration is defined as including ‘any demonstration by one or more persons, but not more than 15 persons, for or against any person, cause, action or failure to take action.
For this type of protest (demonstration), you do not need to file a notice.
A gathering is defined as ‘any assembly, concourse or procession of more than 15 persons in or on any public road or any other public place or premises wholly or partly open to the air.
For a gathering, you will need to file for a notice before convening.
- WHEN TO FILE A NOTICE?
According to the Gatherings Act, the convener of gatherings must give notice of the gathering seven days before the proposed date to gather. The notice must be given to the local authority. Your duty is only to give notice and you do not need to wait for a response from the responsible officer, you may proceed with a gathering as long as you gave prior notice. FILING NOTICE IS SUFFICIENT, YOU NEED NOT RECEIVE A RESPONSE.
NOTE: Failure to give notice is no longer an offense. If you get arrested for not giving notice, the arrest is unlawful.
- WHERE DO YOU FILE A NOTICE?
You can file a notice with a designated officer at your local authority. If there is no local authority available, you may give the notice to the magistrate of the district.
- WHAT TO DO WHEN POLICE HARASS AND INTIMIDATE YOU
Police are not supposed to harass or intimidate you for protesting, they are only responsible to ensure that protestors are adequately protected. When an officer assaults/intimidates and harasses you, ensure that you document the incident and report it. Recite and confirm your rights to the officer. You may not be arrested for peaceful protesting.
Always refrain from damaging public and private property when protesting as that is a criminal offense. You must always protest and convey your message without violence.
Reporting Tool on Freedom of Assembly and Association
IMPORTANT LAWS THAT PROTECT YOUR RIGHTS
- The Constitution of the Republic of South Africa, 1996 [READ MORE]
- The Regulation of Gatherings ACT 205 OF 1993 [READ MORE]
- International Covenant on Civil and Political Rights [READ MORE]
- African Charter on Human and Peoples’ Rights [READ MORE]
- African Commission on Human and Peoples’ Rights Guidelines on Freedom of Association and Assembly [READ MORE]
- African Commission Guidelines for the Policing of Assemblies by Law Enforcement Officials in Africa [READ MORE]
IMPORTANT CASE AUTHORITY: KNOW YOUR RIGHTS!
In the case of Mlungwana and Others v The State and Another (known as ‘SJC10’), the Constitutional Court dealt with the criminalization of a convener’s failure to give adequate notice to the local municipality when convening a gathering of more than 15 people. Section 12(1)(a) criminalized the failure to give notice of a gathering. The Constitutional Court decided that section 12(1) of the RGA is inconsistent with the Constitution and thus invalid. This interpretation promotes fundamental freedoms. The Mlungwana case is a landmark case that reinforces and confirms your right to protest.