What is the Law on Protesting?

It’s hard to understate just how vital protesting can be when building a stable, functioning society. Even if it seldomly takes place, the fact that the citizenry has the option to gather together and make their grievances known helps to ensure the continuation of democracy. It’s no wonder then, that countries that crackdown on protests and demonstrations are seen as barbaric and authoritarian while their counterparts are seen as forward-thinking and egalitarian. But how does South Africa measure up in this regard? When can you protest and what kind of rules apply if you do? What is the Law on Protesting?

Section 17 of the Bill of Rights gives all people the right to assemble and demonstrate so long as they do so peacefully and are unarmed. At its most basic level, protesting is a constitutional right in South Africa.

More detailed legislation is given by the Regulation of Gatherings Act 205 of 1993 which specifies everything ranging from the conduct of the protesters to the liability for damages caused during a demonstration. Perhaps the most important part of the Act covers the powers of the police when dealing with protesters as well as the requirement for notice.

What are the Rules for Protesting?

There is an exhaustive list of rules and regulations which needs to be adhered to by protesters, for example, Chapter 2 of the Gatherings Act even covers how close certain protests can get too specific government buildings.

That said, some of the most generalised rules include –

• Notice must be given to the relevant authorities detailing the specifics of the protest (we’ll go into this in more detail later)
• The protest must take place in the location specified by the aforementioned notice and during the agreed upon time
• Protesters may not carry any dangerous weapons as specified in Section 5 of the Dangerous Weapons Act
• Protesters may not incite hatred against others based on their culture, race, sex, language or religion through use of signs/speech/singing, etc.
• No acts may be performed and no words may be used which are calculated or likely to cause or encourage violence against anyone else
• You may not wear disguises or masks which obscure your facial features and prevent identification (it will be interesting to see how this is affected long-term by the Covid-19 pandemic)
• You may not compel or attempt to compel anyone into joining a demonstration or protest

The list of regulations goes on but, in general, it is important to remember that the rights of protesters always need to be balanced against the rights of the rest of the public.

Is Protesting Without Permission Illegal?

Thanks to the constitutional provisions, South Africans do not need to get permission to protest, however, they do need to give notice to the relevant authorities at least 7 days before the demonstration is set to take place. If they are unable to give notice in time, they should instead do so as soon as they are able to.

This notice will need to be signed by the convenor of the protest and will need to include information such as –

• The names and addresses alongside the telephone and fax numbers of the convenor and their deputies.
• The name of the organisation on whose behalf the demonstration is being convened.
• The purpose of the gathering.
• The time, duration and date of the gathering.
• The location of the event and/or the route that the participants will take along with all relevant information regarding the journey such as when it will begin and when the participants are to disperse.
• The anticipated number of attendees.
• The number and names of marshals which will be appointed to control the gathering and the way in which they will be distinguishable.

If this notice is not given, the protest may be considered an illegal gathering which could lead to arrests and/or fines.

When does Protesting Cross the Legal Line?

Sadly, protests can quickly spiral out of control as mob mentality takes over and the perceived anonymity of the crowd encourages delinquency. Of course, if any of the above rules are broken, these actions can be viewed as illegal and no longer part of a lawful protest. It is for this reason that those in charge of the protest are expected to assign marshals to keep participants in line.

In these scenarios, police officers may also get involved in order to uphold the law and safeguard members of the public.

When can the Police Break up a Protest?

Chapter 3 Section 9 of the Gatherings Act details the powers of the police when dealing with protests and other demonstrations. Most notably, the police are able to do the following –

• After consultation, prevent or prohibit a demonstration when there is a threat that the gathering will seriously disrupt traffic, cause injury or cause property damage and that the police will not be able to contain this threat.
• Notify the convenor of the gathering when they believe that they will not be able to provide proper protection to participants.
• Prevent participants from deviating from the location/route specified in their given notice.
• Order any person interfering or attempting to interfere with the gathering to stop and to remain at a distance.

There are also many provisions made which would allow the police to use various means (such as arrests) to safeguard people and property from damage or injury which could result from such gatherings.

Additionally, if an order to disperse has been given and the participants, after a reasonable amount of time, have not dispersed or made preparations to disperse, the police may use force to disperse these individuals although this force may not include the use of weapons which are likely to cause bodily injury or death.

What is the Penalty for Illegal Protesting?

While penalties for any of the aforementioned infractions would vary heavily depending on the nature of the crime, the Gatherings Act does make provisions for fines of up to R20 000 and/or imprisonment of up to 1 year.

What are the Legal Consequences for Protesting?

Legal consequences can only result from participation in, or the assembly of, illegal gatherings. South Africans are protected from mistreatment that may arise from their participation in lawful protests and it is likewise illegal to fire a person if they have participated in such a lawful gathering. These cases can be taken to the CCMA as instances of unfair dismissal.

In Conclusion – What does the Law say about Protesting and When is it Legal?

Every South African has a constitutional right to assemble and protest so long as they do so peacefully and so long as they are unarmed. That said, there are many regulations that apply to protesters and those who organise protests which, if ignored, could make the protest illegitimate and may result in legal repercussions.

While you do not require anyone’s permission to protest, the convenor of the protest must provide notice of the demonstration to the relevant authorities at least 7 days before it takes place. If they are not able to provide such notice, they should do so at the closest opportunity. Gatherings that do not provide forewarning to the authorities may be dispersed.

Part of this notice involves specifying where and when the protest will take place as well as the route that will be followed if the gathering will be travelling. Once these points are determined, protesters must not deviate from this course or remain in an area longer than was prescribed.

In certain scenarios, police officers may request that the gathering be dispersed. This most commonly occurs when they determine that there is a real threat of injury and/or property damage that could result from the gathering and which they will not be able to adequately deal with. If an order to disperse is given and individuals refuse to do so or make no preparations to do so after a reasonable amount of time has passed, the police officers may use a limited amount of force to compel them. There are also many circumstances in which police officers may arrest those who are non-compliant and/or those who are threatening the safety of individuals and/or property.

No person may be compelled or threatened into joining a protest either before it has begun or during its course. Additionally, employers may not fire their workers because they joined a legal protest/strike, etc. Such firings may constitute an unfair dismissal and these employers can be taken to the CCMA.

Disclaimer LAW101: All of our posts are for research purposes only. Law 101 aims to assist its readers with useful information on the laws of our country that can guide you to make decisions in line with the South African Governmental Laws currently in place. Although our posts cite the constitution in many instances, they are intended to assist readers who are looking to expand their knowledge of the law. Should you require specific legal advice we advise you to get in touch with a qualified legal expert.

Found this article interesting? Leave us your thoughts below.