by Professor Jane Duncan
Faculty of Humanities Seminar Room
5:00 p.m. 7 May 2013
Death by a thousand pinpricks - South Africa’s ever-vanishing right to protest
But at times, journalists caricature protests as 'violent service delivery protests', in spite of the fact that violence is often not initiated by protestors, but is rather a response to state repression or even violence. This caricature fails to register the chain of cause and effect in protest cycles, criminalises the protestors in the eyes of the public and the police and inadvertently legitimises state repression. Furthermore, protests are often about a diversity of grievances, not just service delivery.
But why do some protestors resort to what the authorities term ‘illegal gatherings’ (some of which are not illegal at all) and violence to communicate their grievances? This article explores just how difficult it is to use official legal channels to exercise the right to protest, forcing more and more protestors to make their voices heard by any means necessary.
This article is the second in a two-part series on the state of the right to protest, based on recently completed research on protests and their prohibition in 2011-2012. The first explored the Rustenburg Municipality’s approach to the regulation of gatherings. It found a widespread and largely unjustifiable prohibition of gatherings. This article explores the state of the right to protest from the perspective of the protestors themselves. Twenty-two organisations were interviewed as part of the research.
Collecting documentary evidence of prohibitions of protests was difficult, as many protests are prohibited verbally by municipalities. This is in violation of the Regulation of Gatherings Act (RGA), which requires gatherings to be prohibited in writing. It can be inferred that municipalities engage in this unlawful practice to avoid paper trails that could be used against them in court proceedings.
There are very strict grounds in the RGA for the prohibition of gatherings, including protests. These include when the municipality receives credible information on oath that a proposed gathering will result in serious disruption of traffic, or that there will be injury to participants or others, or that there will be extensive damage to property and police will not be able to deal with such a threat.
One popular and unlawful excuse for prohibiting protests is that the police are unavailable to escort the protestors. This is not included as a ground for prohibition in the RGA for good reason, as it prevents more manipulative administrations from deciding, for self-serving reasons, to starve the relevant police structures of resources, and then ban protests against its own performance on the ground of lack of capacity. Yet, last year the Commercial, Services and Allied Workers’ Union (Cosawu) in Durban and the Commercial Stevedoring Alliance Allied Workers’ Union (Csaawu) in De Doorns had protests prohibited for this reason.
In any event, if the SAPS are struggling with resource constraints, then the SAPS has only itself to blame. In 2006, an ill-advised restructuring of the SAPS led to a reduction in the number of police involved in crowd management, in spite of the fact that the number of protests nearly doubled from 2005 to 2006.
Other marches have been banned on the basis that there will be no-one to accept the memorandum. The Emfuleni Municipality’s traffic department has insisted in the past that the organisation wishing to hold a march must secure a written undertaking from the institution they are marching against confirming that a representative will be available to accept the memorandum.
This makes the right to protest subject to the co-operation of the protestors’ adversary, who can easily squash a march simply by not making themselves available to accept the memorandum. The Rustenburg Municipality also has this requirement. The Boitekong community and the Bafokeng Landbuyers’ Association have both been unable to march because of this requirement.
Municipalities have also been known to act as gatekeepers, deciding whether protests are directed at the appropriate authorities or not, and in their view, if they are not, then they will prohibit them. A case in point involved the Vaal region of the Right2Know Campaign, which attempted to picket the Emfuleni Local Municipality to protest against the Protection of State Information Bill.
When organisers met with the police to discuss the picket – which they were required to do as they suspected that more than 15 people would participate – they were informed that they could not picket outside the municipality. The police argued that the Bill did not fall under the jurisdiction of the municipality and was “more for government”.
If this logic were applied consistently, then it would mean that protests against the Bill could only take place in Cape Town and Pretoria, or protestors would need to travel to these cities, which is clearly absurd and prejudicial to people who object to the Bill and who don’t live in these cities.
Activists also related accounts of blanket bans on protests or marches at particular moments in time. For instance, in June 2012, the Schubart and Kruger Park Residents Committee was told that they could not march over that period as there were too many marches taking place in the Tshwane. Instead, the City required them to gather at a particular point and arrange for the memorandum to be collected there, which reduced their ability to bring their plight to public attention. While there is no doubt that marches disrupt traffic, a blanket ban on all marches is an unreasonable curtailment on the right to protest as less restrictive means of limiting the right to manage traffic flow could have been found.
Cosawu in Durban was told by the eThekwini Municipality that no marches were permitted in the City during the African Cup of Nations. Such a blanket prohibition is reminiscent of a series of entirely unlawful prohibitions on gatherings during 2010, when South African hosted the World Cup. The South African Police Service (SAPS) issued a directive to a number of Municipalities not to allow gatherings for the duration of the 2010 World Cup, although how many acted on it remains unclear. Marcheshad been banned in the Vaal region since March 2010, not on the pretext of the World Cup, but in an attempt to contain rising struggles against poor service delivery.
Then in April 2010, a march planned by the Public and Allied Workers Union of South Africa in Vanderbijl Park was banned. In spite of the fact that the Vaal was off the beaten track in relation to the World Cup, the banning took place in response to a directive sent on April 29 by the Sebokeng Cluster of SAPS to the station commanders of all police stations in the Cluster, stating that no marches would be allowed until after the World Cup.
Blanket bans are unlawful as they effectively suspend the right to assembly, demonstration and picket and prevent a case-by-case consideration of the merits of particular applications. This right can be suspended only under a State of Emergency, and then the procedures set out in the Constitution must be followed. Yet in spite of this, blanket bans of protests continue.
Sometimes, no reason or inadequate reasons are given for prohibiting protests. This happened to the Landless Peoples’ Movement when they attempted to protest against shack fires in Khayalitsha and the non-attendance by the Mayor at a meeting to discuss the problem in 2011. Kathorus Concerned Residents also experienced a similar problem when they attempted to protest about problems with RDP housing in the area. According to the RGA, gatherings cannot be prohibited without proper reasons being given.
Communities also complain about municipalities authorising gatherings, only for the authorisation to be withdrawn at the eleventh hour. This means that not only are protests being prohibited, but this is being done in an unreasonable manner that is bound to raise anger in the affected communities, as it is often difficult to cancel preparations at the last minute.
Residents of Harry Gwala informal settlement near Watville in Ekurhuleni experienced such a problem in October 2012, when a permit was granted for the march to go ahead, only for the traffic police to insist on a postponement the day before. No reason was given.
At times, unreasonable conditions are placed on gatherings. For instance, in August 2012, the Mogalakwena Local Municipality authorised a planned march of the South African National Civic Organisation (Sanco), but listed aseries of conditions, including preventing any under-18s from participating in the march. Given the limited avenues that young people already have for expressing themselves, closing down even more avenues is ill-advised.
These conditions may also alter and even prevent the message of the protest from being heard. For instance, when the Sweet Home community in Cape Town wanted to march about basic services in the area, they were told they could not use their intended route, and instead the route was changed to one that was more obscure and out of the public eye.
Some Municipalities have also started charging various fees before protests can go ahead. For instance, the Emfuleni Local Municipality has charged protestors R165.00 per traffic officer per hour or part thereof as a condition for allowing a gathering, and each year the amount escalates. Such practices are discriminatory as they make the exercise of a right subject to financial means.
Last year, the Johannesburg Metropolitan Police Department (JMPD) began to charge applicants R129.34 to process notifications for protests or gatherings, the purpose of which was to provide for the ‘planning of the protest’. However, this provision seems to have been quietly dropped after it was challenged by the Right 2 Know Campaign. The Mafikeng Local Municipality also attempted to charge the Rooigrond community a fee for a planned protest about attempts to force them off the land, but the fee was dropped after a local councillor was tipped off about the problem.
The interviews pointed to a trend whereby more metropolitan municipalities used a myriad of technical excuses to frustrate the right to protest in city centres, as the threat of adverse media attention discouraged the police from using more overt forms of repression. But in more outlying areas, out of view of the mainstream media, the police were more likely to use brute force to crush dissent.
Organisations from Makause, Thembelihle and Rooigrond all reported experiences with violent policing. In the case of the Thembelihle Crisis Committee, after their experiences with the police in 2011 when protests erupted against poor services and housing in the area, and the protests turned violent, leading to which led to arrest and subsequent dropping of charges against 14 people, the organisation decided not to notify the municipality of their intention to march in August 2012. They reasoned that they could not guarantee that the protest would be entirely peaceful as, by that stage, frustrations had reached boiling point.
Municipalities and the police have also mastered the art of manipulating community conflicts to their advantage. According to the Makause Community Development Forum on the East Rand of Gauteng, the municipality and the police have used their awareness of a rival faction affiliated to the municipality to block protests planned by the Forum. The Palmiet Road branch of Abahlali baseMjondolo has experienced similar problems, with the police favouring a march held by community members aligned to a local councillor.
Many communities simply accept these injustices as they are unaware of their rights, and therefore how to challenge such abuses of power. But eventually, a million tiny infractions of basic rights and freedoms do build up.
But activists who are keenly aware of these injustices spoke about not bothering with the official process of notifying municipalities anymore, as it has become increasingly difficult to exercise the right to protest using official channels. They argued that the ‘legal’ route has been manipulated to thwart rather than enable the right to protest. Even when they succeed in going the ‘legal route’, all too often, the grievances vocalised in memoranda and speeches are simply ignored.
The recent protests in De Doorns and Sasolburg have shown that once the ‘gatvol factor’ kicks in, there can be little stopping the waves of anger that spill out onto the streets. To the extent that various spheres of government and organs of state are closing down avenues for more conventional forms of engagement, they are sowing the wind, and they may yet reap the whirlwind.