By Thulisile M. Buthelezi, Durban intern
The Regulation of Gatherings Act 205 of 1993 is an important piece of legislation used to regulate the holding of public gatherings and demonstrations. South Africa’s 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 freedom of association, which means the right to associate with a cause, idea or organisation. Of course, there are certain channels and procedures that must be followed in order to organise a legal protest in South Africa. Simply put, it must be in accordance with the Regulation of Gatherings Act.
South Africa has experienced a wave of service delivery protests amounting to a rebellion of the poor and marginalised. It is unfortunate that many service delivery protests take place under conditions characterised by malicious damage to public and private property and the looting of shops. Municipalities are the most basic units of government in the country and are tasked with providing basic services and fostering development in the regions they govern. Local government in South Africa is largely understood in terms of service delivery and the South African Constitution assigns municipalities the responsibility to mobilise economic resources towards the improvement of the lives of all citizens. Basic services are the fundamental building blocks of improved quality of life and adequate supplies of water and adequate sanitation are necessary for life, well-being and human dignity.
In May/June 2019, the Durban Municipality came to a halt as violent protests ripped through the city after municipal workers went on strike, demanding salary increases. This came after municipal workers discovered that the City was giving MK veterans preferential treatment in terms of promotions and salary increases. The said damage to infrastructure as a result of the strike amounted to over R4 million, ultimately affecting service delivery and the economy as a whole.
In order to embark on a service delivery protest within the legal parameters it is important to identify a person (convener) who will be responsible for contacting the relevant local authority. The elected convener must notify the local authority at least seven days before an action by completing a notice form (which contains the details of the gathering/protest, details of the convener and activists who will guide the protest and prevent it from becoming violent) that must be submitted to the local authority to inform them of the gathering. The Act does not require notice if there are less than 15 participants unless the protest is to take place at Parliament, the Union Buildings or any South African court.
Protests are meant to be disruptive and make statements, but within reason. While singing, chanting and marching are all allowed and encouraged, protesters cannot physically harm a person or vandalise property. Lawful protests must dissolve at the time that the organisers agreed on and if the police services (SAPS) give an order. It is illegal to continue to disobey the SAPS order and it can lead to arrest. According to the law the SAPS are meant to protect the protesters and facilitate a safe space for the protest to take place. Police officers are meant to engage with protesters to resolve any issues that may occur during the protest and intervene if things get out of hand, and some form of violence or destruction of property occurs. The SAPS are permitted to arrest protesters who break the law.
If the protest is illegal people can be charged with convening a gathering without giving notice, attending a prohibited gathering or even with public violence, malicious injury to property and assault. It is worrying that the country has been plagued by violent service delivery protests characterised by increasing damage to public and private property. This has resulted in the economy bearing the brunt of this undesirable situation.