After apartheid ended, there were many new social movements in South Africa, including political protests, which created a need for regulation of public assemblies. The new Constitution provided that “Everyone has the right, peacefully and unarmed, to assemble, to demonstrate, to picket and to present petitions.” The Regulation of Gatherings Act of 1993 also protected this right to protest, but instituted many requirements that had to be met while exercising this right. This was a significant expansion of the right to assemble; The Riotous Assemblies Act, which previously covered this subject, authorized magistrates to ban a public gathering if they believed it could be a serious threat to public order. At the time, “protest was considered a severe challenge tantamount to war by the apartheid state. For this reason many gatherings were banned.”
This is a current topic of concern because the country “has seen a groundswell of protests in the past few years” and “the number of arrests during protest action has likewise increased.” In 2017, a group called the Social Justice Coalition successfully challenged the constitutionality of a section of the Act which provided for criminal charges, including imprisonment, against protest organisers who failed to provide adequate notice of the assembly to the government. Protests in South Africa will continue to be an important feature of their democracy, because they remain the “only, or at least primary, means that some groups have of social sanction to hold the state accountable,” especially for those whose concerns are excluded from mainstream political parties.
Summary of act:
The Act regulates gatherings and protests, namely by requiring such events to designate a person to negotiate with police about the conditions for the protest and provide planning information to the government at least a week in advance, or at the earliest opportunity, but providing the government the option to prohibit solely on the basis of less than 48 hours of notice being given. Organiser information must be shared with police, and the police will negotiate with organisers on the details of the gathering and reach an agreement. Even if no agreement can be reached, the police can still impose conditions on the gathering to ensure that traffic and property will not be disrupted or damaged. If the police feel that there is a threat the proposed gathering will result in serious disruption of traffic, injury to persons, or extensive property damage, and that the police will not be able to meet the threat, they may prohibit the gathering if, after meeting with organisers, they are unable to amend the agreement to prevent such threat. There is a process for appeal.
The Act prohibits demonstrations or gatherings within 100 meters of a court or parliament building except on Saturdays, Sundays, and holidays, or unless a magistrate gives written permission for such.
The Act regulates the conduct of protesters. No participant may possess an airgun, firearm, or imitation of such, or any dangerous weapon. An interesting restriction is that no participant may “by way of a banner, placard, speech or singing or in any other manner incite hatred of other persons or any group of other persons on account of differences in culture, race, sex, language or religion.” No participant can say or do anything that would be calculated or likely to cause or encourage violence against any person or group of persons. Participants are not permitted to wear disguises, masks, or anything resembling a security force uniform.
Police are empowered to regulate gatherings in various ways. They may prevent participants from moving to a different spot or deviating from the planned route that was specified in the notice given to the government of the event. Police can also prevent participants from “disobeying any condition to which the holding of the gathering is subject”; do what is needed to ensure there is no disruption to traffic or access to property, or to prevent injury. They may also protect protesters my ordering anyone attempting to interfere with a demonstration to cease and remain at a specified distance. Police can order people to disperse within a period of time (in at least two official languages) if they believe danger to person or property cannot be avoided. If after such time people have not dispersed, the police may “order the use of force, excluding the use of weapons likely to cause serious bodily injury or death.” The degree of force must be not greater than necessary and proportionate to the circumstances and objective to be attained. If anyone kills, seriously injures, attempts to destroy or does serious damage to valuable property, then police may use other methods of force including firearms, but the force must be no greater than necessary, and proportionate.
The Act holds organisers liable for damage. If there is any riot damage, every organiser or convener (for a gathering) or every person participating in a demonstration, shall be jointly and severally liable for damage as a joint wrongdoer. However, the Act provides that this charge can be defended against by asserting that a person was not “permitting or conniving” the act, or it did not fall within the scope of a gathering or was not reasonably foreseeable, or the person took all steps in their power to prevent the damage—although proof that they merely said they forbid it does not count as taking all reasonable steps.
The Act provided for a fine or imprisonment for anyone who convenes a gathering without adequate notice (which was later declared unconstitutional), fails to attend relevant negotiation meetings, does not comply with conduct standards, fails to comply with a notice or condition to which demonstration is subject, attends a gathering that has been prohibited, interferes with police, or fails to comply with a police order.
In terms of drafting, the Act leaves some questions unresolved. For example, neither “demonstration” nor “gathering” is properly defined, “except by the use of additional terms in relation to gatherings (namely assembly, concourse or procession), which are equally undefined.” It also regulates conduct in the negative, stating what is unacceptable, but leaving conduct may be acceptable open to interpretation.
The Act has also received criticism for the huge amount of discretion it gives to state authorities about whether or not to prohibit a gathering. For example, if the notice requirement is not met, the event can be prohibited even if it would otherwise have been lawful. Police on the scene also have significant discretion. Consider the example of a protest where police “quickly arrived at the scene and arrested 16 women who were too slow to evade capture because some of them were elderly.” The courts continue to convict in such circumstances, drawing public disapproval of both the court and police response to protests.