Many students have been taking part in fees protests across South Africa. It is important for students to understand their rights and how to protest on the right side of the law, as well as which sections of the Constitution they can use to defend themselves. It is also important for students to know when they are breaking the law, and could possibly be arrested.
According to Section 17 of the Constitution everyone has the right to demonstrate, picket and present petitions peacefully and unarmed. Protests themselves fall under the Regulation of Gathering Act No. 205 of 1993, which states that every person has the right to assemble with other persons and to freely express their views on any matter in public and to enjoy the protection of the state while doing so.
Protests cannot be held on someone else’s land without special permission. They cannot take place 100 meters from a court unless it’s a Saturday, Sunday, public holiday or the convener (the person organising the protest) has written permission from a magistrate. A protest may not be held at or near the Union Buildings in Tshwane unless permission from the Director General is given.
There are many different kinds of protests and whereas assemblies, gatherings, demonstrations, marches and mass meetings are legal, road blockages are illegal, as are sit-ins unless the convener has permission.
If a protest is attended by 15 or less persons, then it is considered a demonstration and doesn’t warrant notification of the local council. However, if a protest is attended by 16 or more persons then it is considered a gathering and will require notification of local authorities. This notification must be presented seven days before the gathering, unless the protest is more spontaneous, then a minimum of 48 hours is given to notify local authorities. If there is no notice and no valid reasoning behind it then the protest can be prohibited or (if it has already taken place) the convener could face a possible year in jail or a R20l000 fine.
Giving notice means that the convener will go to the local police station and fill out a form with a responsibility officer. An official must answer this form within 24 hours or the convener can legally continue with their plans as outlined in the notice. In order for a notice to be rejected it must meet three criteria: Firstly, an official meeting, also known as a section 4 meeting as it is discussed in section 4 of the Gatherings Act must take place between the convener, responsible officer and police. Secondly, the council has to have received information under oath that the gathering will disturb traffic badly, harm others, or cause damage to property. Finally, the police have to state that they won’t be able to stop the above issues from happening.
Regarding the actual protest, protestors are not allowed to carry dangerous weapons, dress like officials, or conceal their identity with masks, nor are they allowed to block entry ways to hospitals, fire stations and other emergency buildings. A protestor cannot force others to be part of their cause and they may not sing, say or carry something that might incite hatred or violence due to race, language, religion, gender or culture.
According to the Regulation of Gatherings Act, if a protest is getting out of hand, only a Warrant officer or higher may disperse the gathering. In order to do this the officer must get the attention of the convener or their deputy and ask them to disperse. If this is ignored then the officer may order the crowd, in at least two official languages, to disperse within a reasonable amount of time. If this is disregarded then the officer can command the crowd to disperse. Rubber bullets and water canons may only be used as a last resort and only to disperse the crowd.
It must be noted that if protestors are very violent, police officers may use whatever they need, including live ammunition, in order to ensure the safety of the nonviolent. A person can only be arrested if they are being charged with an official crime and are being taken to court, or if the police are investigating something and they believe the person being arrested knows something about it. A police officer must tell you why you are being arrested, and you don’t have to go with them if they don’t issue you a valid reason. If you are being arrested then it’s best to remain calm as the police can use force to detain you if you run. If you are arrested for no good reason or as a scare tactic, this is illegal and the arresting officers are breaking the law. When arrested you will most likely be allowed to pay bail and return home until your court case. A person’s court case must be brought to trial within 48 hours of their arrest. If it is a weekend or a public holiday then the court case must take place on the next available day by 16:00.
Photo: Fezekile Msimang.