The right to protest is being blocked by administrative barriers
Municipal officials often misinterpret the law
Protesters march to Parliament in May. Protests are increasingly being blocked by administrative barriers, say the writers. Archive photo: Ashraf Hendricks
The right to protest is an integral part of our Constitution, but administrative barriers put up by municipalities who misinterpret the Regulations of Gatherings Act are making it increasingly difficult for people to exercise this right.
The recent High Court judgement involving the City of Johannesburg highlights this challenge. Despite a court order from the Johannesburg High Court on 10 June 2022 mandating the City to stop charging fees for protests, the municipality has continued to impose fees ranging from R5,000 to R20,000 on protesters. This is in violation of the order and undermines the right to peaceful assembly.
In Newcastle, KwaZulu-Natal, the municipality has been rejecting protesters’ notice forms unless they submit proof that those to whom they are directing their protest are willing to receive their memorandum of demands. But this is not a requirement under the Regulations of Gatherings Act. Unfortunately, after multiple engagements with the Newcastle Municipality, the practice still continues. The Right2Protest Project (R2P), a coalition of civil society organisations that aims to promote and protect the rights to protest and freedom of expression for all, is actively challenging the municipality’s’ interpretation of the Act.
This year there has been a notable increase in requests for help with these issues through the R2P National Toll-Free hotline, from communities, activists, and social movements facing similar municipal prohibitions on protests in Limpopo, Northwest, and the Free State. R2P is currently supporting protesters across the country, reflecting the broader struggle to ensure the right to protest is upheld and municipalities comply with the law.
One of the problems is that municipal officials in charge of enforcing the Regulation of Gatherings Act routinely misinterpret or incorrectly implement its provisions. In our experience, local authorities often misinterpret the requirement to give notice as a requirement to seek permission to protest.
Section 3 of the Act stipulates that those who want to hold a gathering must submit a written document with details such as the identity of the convenor, deputy convenor, the date, time, locations, procession route, and marshal strategy to the responsible officer in the municipality. The municipal officer can then call all those involved, including the convenor and deputy convenor, to a meeting to discuss the finalising of the notice.
In the matter of Mlungwana and Others v S and Another, the Constitutional Court confirmed that all this section of the Act requires is to give notice of the intended gathering, not to seek permission. Yet the municipal officers responsible continue to treat the notice process as a form of permission-seeking. This creates an environment of intimidation, with long forms to fill in and meetings which often discourage protest.
As for the practice of expecting protesters to provide proof that their memorandum of demands will be accepted, this is prevalent not only in Newcastle but in other mining communities such as Thabazimbi, and Witbank.
Protesters should not be responsible for securing such confirmations. It is enough that, as a courtesy, protesters send emails informing the state or private individuals of a planned protest against them.
In addition, marginalised communities face significant economic barriers when complying with the Regulation of Gatherings Act. For example, some individuals travel long distances to the Johannesburg city centre to submit notice forms, incurring substantial costs and time. Similar patterns are seen in rural areas where protesters may have to travel up to 50 kilometres to give notice of a protest.
After submitting the notice, protesters must often return for a meeting, further adding to the economic burden. Local authorities could help by providing alternative, more accessible ways to submit notice forms, and by hosting meetings closer to communities, such as at local police stations.
The design, content, and requirements of notice forms vary significantly across the country, causing confusion and administrative chaos. In Dannhauser, KwaZulu-Natal, a handwritten notice is enough, while cities like Tshwane and Cape Town offer simple, downloadable forms that can be submitted via email. In contrast, Johannesburg requires the physical submission of a lengthy form, which cannot be copied or removed from the premises.
This lack of uniformity complicates compliance and community safety plans.
We recommend:
- Municipalities should invest in continuous training of officials on the requirements of the Regulations of Gatherings Act;
- Responsible officers must be made aware that the right to protest is based on giving notice, not on an application permission. They do not have power to “approve” a protest. They must exercise their powers in good faith;
- In their application of municipal laws and by-laws, responsible officers must ensure there is no contradiction of the Regulations of Gatherings Act . Instead, those laws must be aimed at ensuring a protest takes place within the spirit of the Constitution and the Act;
- Local authorities should provide alternative, online ways to submit notice forms and should host meetings closer to communities; and
- Notice forms should be standardised across the country to provide clear instructions and improve public compliance.
In this way, the barriers to peaceful assembly as guaranteed in the Constitution can be removed. Protest should only be prohibited if there is a significant threat to public safety.
Omhle Ntshingila and Felix Quibe are based at the Right2Protest Project, Centre for Applied Legal Studies, Wits University. Views expressed are not necessarily those of GroundUp.
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