Don’t fall for “illegal” protest nonsense

On Tuesday the South African Government Twitter handle, @GovernmentZA, went on a rant about what it termed “illegal protests” across the country, including one tweet that said the protests “do not possess the characteristics of strengthening democracy.”

While the misunderstanding of the role of protest in democracies is itself jarring, the tweets also misrepresent the law in important ways. Technically, there is no such thing as an “illegal protest”. Unfortunately, this misreading of the law is quite common and the right to protest has for some time been under attack in South Africa, as most activists who use the right could tell you and as shown in the #BophelloHouse94 case.

So what does the law say?

Perhaps a prior question is, who gets to decide what the law is? The most important answer in this moment is not the president, not the police and not Twitter handles. The Constitution is the ultimate law of the land and the legislature makes laws in line with the Constitution.

Section 17 of the Bill of Rights in the Constitution entrenches the right of everyone “peacefully and unarmed, to assemble, to demonstrate, to picket and to present petitions.”

The law regulating the right to protest is the Regulation of Gatherings Act. It creates three categories of protests: “notified”, “unnotified” and “prohibited” protests. We won’t refer to any protest as “illegal” because the Act never uses that word and we shouldn’t either: the term “illegal protest” is a vestige of apartheid and should be left in the past.

Notified Protests

The Act sets up a procedure for a person to follow if they want to convene a protest or, as the Act calls it, a “gathering”, the definition of which, roughly translated from legalese, is a group of 15 or more people gathering in public for political reasons. The first step in the procedure is for the the “convener” of the protest to give notice of the intention to gather at least seven days before the protest. If it’s not possible to give notice seven days ahead, the convener of the protest should give notice at the earliest opportunity and explain why it wasn’t possible to give notice earlier. If the convener gives notice less than 48 hours before a protest, the protest can be prohibited, an issue we’ll come to in more detail below.

If nobody responds to the notice, the protest can go ahead. Ideally, though, the Act contemplates an engagement between the police, local government and protestors intended to ensure that the public and the protesters are all safe and protected during the protest.

The critical point is that this is a notification system—not an application system. Nobody has to ask for permission to protest, conveners of protests just need to tell the authorities a protest is coming so that everyone can work together to ensure the safety of all involved. Those with experience organising protests will know that the police don’t always see it this way—but the law is clear.

Unnotified protests

Sometimes protests take place without the authorities having been notified in advance. Such protests are not “illegal”, they are simply “unnotified”. The recent #BophelloHouse94 judgment of the Bloemfontein High Court explicitly found that it is not a crime to attend a protest for which no notice has been given. In other words, you are under no obligation to first check whether notification has been given to the police for a protest that you wish to attend.

There is however a difference between attending a protest and convening (or in another, though less exact, word, organising) a protest. It is currently a crime to convene a protest without giving notice (although it is a defence to a charge of this crime that the gathering was “spontaneous.”) The Social Justice Coalition is in the process of challenging in court this part of the Act; it is arguing that the crime for convening an unnotified protest is unconstitutional.

The #BophelloHouse94 judgement has provided important clarity on the role of police at protests for which no notification was given. It is now unambiguously unlawful for police to arrest people for simply attending an unnotified gathering. That said, they may arrest the conveners of the gathering. The primary role of the police, however, must be to ensure public safety. In other words, when police show up to an unnotified gathering, their job is to facilitate the safe exercise of the right to protest—to keep the public and the protesters safe.

Prohibited protests

In some exceptional cases a protest can be prohibited. Once a protest has been prohibited, it is a crime to convene or even attend such a protest. There is however a process by which the decision to prohibit a protest can be appealed.

There are five ways a protest can be prohibited:

1. If the convener gives notice less than 48 hours in advance of the protest the “responsible officer” has the discretion to prohibit the protest.

2. A protest can be prohibited for public safety reasons. This requires “credible information under oath” of a threat that a protest will result “in serious disruption of vehicular or pedestrian traffic, injury to participants in the protest or other person, or extensive damage to property” and that the police won’t be able to contain the threat. Even after all of this information is given under oath, the authorities can’t prohibit the protest quite yet: they first have to hold a meeting with the convener to discuss how the protest can be conducted safely. After that meeting, if the authorities are “on reasonable grounds convinced” that the threat can’t be averted, only then can the protest be prohibited. Two things are apparent here: first, the threat has to be serious and, second, even then, there is a process to try to avoid prohibition. This is because prohibiting a protest is a big deal: it is the most severe restriction of the right to protest.

3. A police commissioner can instruct the local authority to apply to a court to prohibit a protest. It’s important to note that the police can’t themselves prohibit the protest, they can only instruct someone else to ask a court to prohibit it.

4. Anyone whose rights may be affected by a protest can apply to a court for it to be prohibited (or for its prohibition to be overturned).

5. In certain physical areas, such as within 100 metres of courts on weekdays, protests are always prohibited unless one receives special permission.

Finally, it is important to note that — except in regards to the physical areas in which protests are always prohibited — there is always a procedure authorities must follow to inform people that a given protest has been prohibited.

Other reasons for arrest

It is not a crime to simply attend a protest unless it has been prohibited and protests can only be prohibited in very specific circumstances. It is therefore rare that simply attending a protest will be illegal. Still, all things that are otherwise illegal, such as violence, vandalism, arson or hate speech, are also illegal during a protest.

Disobeying a lawful police order is also illegal. This can be a sticky issue because police who arrive to an unnotified protest tend to simply order the crowd to disperse and then, eventually, arrest the people who do not. But, as seen in the #BopheloHouse94 case, the police don’t have the right to disperse a protest simply because no notice was given.

Still, again as shown in the #BophelloHouse94 case, the police often arrest people even if no laws were broken and there is no basis in law for the arrest. Given the high stakes political situation of the moment, it will be unsurprising if more people are arrested unlawfully in the coming weeks. In such cases it is critical to insist on your rights and to seek legal help. 

The authors work for SECTION27.

Views expressed are not necessarily GroundUp’s.

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