ANALYSIS: Landmark ruling on gatherings and demonstrations affirms one of democracy’s greatest tools
Democratic South Africa, as we know it, was forged over decades of public protest, demonstrations and civil disobedience which pushed back the authoritarian might of the apartheid state. On Monday, the Constitutional Court ruled that the right to demonstrate or protest without fear of arrest is non-negotiable.
It is no small irony that Monday’s Constitutional Court victory with regard to the right to demonstrate and protest without fear of arrest or incarceration was sparked by the rounding up in 2013 of 21 members of the Social Justice Coalition outside the Civic Centre, home of the City of Cape Town, led then by DA mayor Patricia De Lille. That September, police arrested SJC activists who had chained themselves to the railings of the hulking 26-floor monolith built in 1978 to house the administrative offices of the municipality. The SJC had been protesting against the lack of sanitation and service delivery to the city’s sprawling townships. Ten of the 21 SJC members present had been identified as “convenors” and were arrested and charged under the Regulation of Gatherings Act of 1993, a law conceived in apartheid South Africa to crush dissent. In January 2018, Western Cape High Court Judge Thandazwa Ndita ruled that Section 12(1)(a) of the act, which required the obtaining of permission, was unconstitutional. She also set aside the convictions of the 10 SJC members. On Monday Judge Xola Petse, handing down a unanimous judgment in the Constitutional Court, ruled that the right to protest as entrenched in Section 17 of the Constitution “is simply too important to countenance the sort of limitation introduced by section 12(1)(a)”. Section 17 guarantees the right of everyone “peacefully and unarmed, to assemble, demonstrate, to picket and to present petitions”. Section 12(1)(a) – which has been struck down as unconstitutional – criminalised the failure by a “convenor” of any march or protest to be attended by more than 15 people, to give notice to a local authority. The arrest in 2013 of the SJC activists came almost a year after the 6 August 2012 killing by members of the SAPS elite tactical unit of 34 striking mineworkers at Marikana. A 2013 study by the International Network of Civil Liberties Organisation reporting on the increasing global suppression of protest, described the Marikana Massacre as occupying “the extreme end of the spectrum when assessing the government’s reactions to protests and demonstrations. “On the other end of the spectrum, but just as much a threat to the vision of participatory democracy in the Bill of Rights, has been government reaction to applications for protest marches and a resort to bureaucratic delay, formalism and obfuscation to frustrate and impede social protests.” In 2005 the Freedom of Expression Institute (FXI) had questioned the considerable powers granted to local authorities by the Gatherings Act. FXI identified what it termed a “disturbing pattern” of the isolation and targeting of social movements and organisations opposed to government policies by local authorities. This was done through an overly technical interpretation of the Gatherings Act and the imposition of unreasonable conditions on protest marches. In September 2018 The Right to Protest Coalition published its first State Of Protest report which reflected the same abuse by authorities. At the launch, Outreach organiser for Right2Know, Bongani Xezwi, said that the Act was often also applied irregularly depending on who was protesting. “Right2Know has marched to the Union Buildings before without serving notices and no one was arrested, but if a community, or students, who don’t have access to legal resources, march to the Union Buildings they are arrested on charges of public violence,” Xezwi noted. In 2013 the International Network of Civil Liberties described the freedom to protest as “democracy’s megaphone” and “the tool of the poor and the marginalised – those who do not have ready access to the levers of power and influence, those who need to take to the streets to make their voices heard”. However, across the world in the 21st Century, law enforcement agencies have increasingly come to resemble one of the most enduring and frightening fictional comic characters, Judge Dredd, when dealing with protest and dissent. Dredd first appeared in 2000AD, a comic series created by John Wagner and Carlos Ezquerra in 1977, and is the feared cop and judicial officer of the dystopian Mega-City One. Dredd has the power in this space to arrest, convict, sentence and execute “criminals” on the spot. Increasingly, including in South Africa, law enforcement officers and agencies have visually come to resemble Judge Dredd with his armadillo like uniform which Ezquerra based on those of Spain's General Franco's fascist stormtroopers. The increasingly outrageous uniforms of “public order” agencies are designed to provoke fear in the hearts of protesting citizens, rather than confidence that our right to protest will be protected. And it is this growing assumption that Monday’s ruling has now defanged. On Monday Judge Petse quoted Chief Justice Mogoeng Mogoeng’s view in the 2012 Garvas judgment in which he stated, “Indeed, it [protest] is one of the principal means by which ordinary people can meaningfully contribute to the constitutional objective of advancing human rights and freedoms.” Mogoeng added that this was “only too evident from the brutal denial of this right and all the consequences flowing therefrom under apartheid. In assessing the nature and importance of the right, we cannot therefore ignore its foundational relevance to the exercise and achievement of all other rights”. Let us not forget that it was civil society, abroad in South Africa, that has and continues to play a key role in protecting fundamental democratic rights, including that of protest. It was also, we should not forget, South African civil society which rallied in its thousands across the country in the massive pushback against the governing party and Jacob Zuma’s lootocracy in 2016/2017. The courts have once again proved to be the thin black line between the abuse of power by the state and the democratic rights of the electorate. Monday’s judgment is a significant victory for the people. DM