A legal analysis in context: The Regulation of Gatherings Act – a hindrance to the right to protest?

Jameelah Omar

doi:10.17159/2413-3108/2017/v0n62a3044

Abstract

 South Africa has seen a groundswell of protests in the past few years. The number of arrests during protest action has likewise increased. In June 2017 the Social Justice Coalition (SJC) challenged the constitutionality of the Regulation of Gatherings Act 205 of 1993 in the Western Cape High Court. This was an appeal from the magistrates’ court in which 21 members of the SJC were convicted of contravening the Regulation of Gatherings Act for failing to provide notice. This is the first court challenge to the constitutionality of the Regulation of Gatherings Act. Although the challenge was brought on restricted grounds, it highlights the Regulation of Gatherings Act as a sharp point of controversy. This article will consider the regulatory provisions and the extent to which they restrict the constitutional right to protest, particularly in light of the important role played by protest in South Africa’s constitutional democracy.

Highlights

Post-apartheid, since 1990, new social movements have emerged, for example the Concerned Citizens Forum, the Treatment Action Campaign (TAC), and the Landless People’s Movement. This can be explained by the fact that many of the social movements that played key roles in opposition to apartheid were absorbed into government structures post-1994.12 More recently, new movements have formed, such as Reclaim the City, the Social Justice Coalition, and Ndifuna Ukwazi
The participants mentioned in the Act are the South African Police Service (SAPS), a local authority, and the convener of the gathering, who is the formal point of contact for the protesting group
The increase in the number of protests has been accompanied by a clear increase in the number of people arrested at protests.[75]

Summary

Protest in South Africa

South Africa has seen a marked increase in the number of protests in the past few years.[8]. Social movements are distinguishable from grassroots or community-based groups that tend to be more organic and temporary, often without clear leadership or targeted strategies.[17] Habib describes these organic groups as ‘a survivalist response of poor and marginalised people who have no alternatives in the face of a retreating state that has refused to meet its socioeconomic obligations to its citizens’.18 These loose groupings are responsible for the bulk of protests that are referred to as ‘service delivery protests’. Without substantial socio-economic reform, including addressing unemployment, the number of protests, and the issues that will be targeted through protest strategies, are likely to continue to increase

The constitutional right to protest

The role of the Regulation of Gatherings Act

The procedure for lawful protest in the Act

Challenging the Act

Conclusion