Protests have long been a part of South Africa’s fabric: in the past, gatherings and demonstrations played a significant role in overthrowing the oppressive government; and currently, protests are effectively used to bring attention to issues such as service delivery and access to education, amongst others.
South Africans’ right to take to the streets to march, demonstrate or present petitions is protected by the Constitution. This right is linked to other political rights, including freedom of expression and association (which means the right to associate with a cause, idea, or organisation). Of course, specific channels and procedures must be followed to organise a legal protest in South Africa. Simply put, it must be under a law known as the Regulation of Gatherings Act.
Steps to organising a legal protest in South Africa
Step 1: Identify who’s in charge
The first step would be to nominate and identify a convener (the person in charge of the protest). This person will be responsible for contacting the relevant local authority to gain permission to take to the streets. Do note: a deputy convener must also be selected in case the primary convener cannot fulfil their duties.
Step 2: Notify the local authority
The appointed convener must complete a notice form and submit it to the local authority. This form contains details of the gathering, the details of the convener, and, if necessary, the organisation’s details. It must include details of the marshals and activists who will guide the protest and prevent it from becoming violent and out of control.
This signed and completed document is handed to the local authority to inform them about the gathering. Do note: If there are 15 people or less at the protest, permission is not required unless the rally will take place at Parliament, the Union Buildings or any South African courts.
Step 3: Determine who the relevant local authority is
This person is usually an officer appointed by the local authority to deal with protests and gatherings and will approve or reject notice forms. So, be sure to identify the correct person to give the completed notice form.
Step 4: Give a week’s notice (at least)
The law states that the notice form must be handed to the relevant authority at least seven days before the protest. If a notice is sent within 48 hours of the gathering, the responsible officer may legally prohibit the gathering without reasons.
Step 5: Meet with authorities after submitting the notice form
An invite to meet with the local authorities-whether the municipality or Metro police- must be sent 24 hours in advance.
This meeting aims to discuss the details in the notice form and make amendments or alternative arrangements, if necessary. For example, if the notice form specifies a specific route the protest will follow, this has to be approved by the local authorities. The authorities can change the course if they feel as though the proposed one is a security threat.
As Local Government Action points out: “If an agreement is reached, the gathering may proceed by the notice as it has been changed. If no agreement is reached, the responsible officer may impose on the convener any reasonable changes to the conditions under which the gathering was planned to proceed. If the convener is not called to a meeting within 24 hours of sending the notice, the gathering is automatically legal and approved and can proceed without any further formalities under the conditions described in the notice.”
However, if there is no reply to the invite, the protest can legally go forward.
Can a gathering or protest application be rejected?
Yes. However, the local authority or relevant officer must state in writing why the application has been rejected. The reasons usually include one or more of the following:
- The gathering will result in serious disruption of traffic;
- The gathering will result in injury;
- The gathering will result in extensive damage to property;
- Negotiations for safe protests have failed;
- The SAPS or Traffic Police provide an affidavit stating that there are reasonable grounds to believe that the protesters’ or public safety is at risk.
Can a rejection be challenged?
Absolutely. If the convener feels that the application was unfairly rejected, they can approach the Magistrate’s or the High Court to assess the notice. If successful, the Court has the power to allow the gathering to go ahead.
It is important to remember that protesting without following procedure is illegal, and any person attending an unlawful gathering is breaking the law.
Can anyone attend a protest?
Any South African has the right to attend a protest, but again, the proper procedure must be followed.
According to Advocate Jackie Nagtegaal from LAW FOR ALL, employees could face unintended consequences if they simply stay away from work without permission. “Employees have a contractual obligation to their employer, and simply not pitching up for work is a misconduct. They run the risk of not getting paid for the day, receiving disciplinary warnings and facing dismissal depending on the circumstances”.
If you do decide to protest, stay on the right side of the law and keep the following in mind:
- Speak to your employer and don’t just stay away from work. Put in leave, if necessary.
- Do not wear any clothing or uniform that could identify you as employed with a particular company.
- Be cautious and think about what you say or post on social media, especially if it has the potential to get you in trouble at work.
What is acceptable behaviour at a protest?
Protests are meant to be disruptive and make statements, within reason, of course. While singing, chanting, and marching are allowed and encouraged, protesters cannot physically harm a person or vandalise public or private property. Lawful protests must dissolve when the organisers agreed on and if the SAPS gives an order. It is illegal to continue to disobey the SAPS’s order, and it can lead to arrest.
What role does the South African Police Services play at protests?
According to the law, the SAPS are meant to protect protesters and facilitate a safe space for the protest to occur. Police officers are also meant to engage with protesters to resolve any issues that may arise during the rally and, of course, intervene if things get out of hand and some form of violence or destruction of property occurs. The SAPS can arrest people who break the law.
The SAPS can use force to prevent injury or death, or destruction of property, but they must first try and negotiate. They must provide at least two warnings in two different languages and give reasonable time for the protests to dissolve.
When protestors don’t stick to the rules, they can be arrested. If the SAPS sees someone committing a crime or have cause to believe someone was involved, they can stop them. If arrested, the SAPS must give reasons and search a person and their belongings with their permission.
If the protest is illegal, people can be charged with convening a gathering without notice, attending a prohibited gathering or even with public violence, malicious injury to property, and assault.
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