Protests in South Africa – what are the legalities?

Protesting in SA

Protesting has been a regular feature of South African society since apartheid when citizens engaged in civil disobedience against human rights abuses.

In recent years, protests have been common, as our democratically-elected government has failed to ensure equitable service delivery. Recently, citizens have also protested against load shedding.

This article examines the rights of protesters, and the regulations you should be aware of if you’re organising or attending a protest.

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Changed demographics when it comes to protesters 

“The demographic of protestors has changed,” says Omhle Ntshingila, communications and engagement officer at the Right2Protest Project. “We previously saw service-delivery protests in informal settlements and rural communities, but we have seen an increase in middle-class protests in urban centres.”

According to Dr Carin Runciman, visiting associate professor at the Centre for Social Change, University of Johannesburg, protests continue to mainly concern poor service delivery. However, a significant proportion of protests also raise issues about the quality of governance, such as corruption and municipal dysfunction.

“This is clearly a response to the perpetual instability of local government, which is structurally unable to provide for the needs of the people,” says Runciman.

Kevin Allan, managing director of Municipal IQ, says 193 protests took place in 2022. “Service delivery protests are now regularly occurring and firmly entrenched - an accepted course of action by unhappy communities.”

“One of the biggest takeaways from protests in 2022 is that this kind of action will probably average at a higher annual rate than in most previous years,” Allan says.

Know your rights as a protestor

Section 17 of the South African constitution says that everyone has the right to assemble, demonstrate, picket, and present petitions peacefully and unarmed. Any protest that meets these criteria is legal, although some forms of protest are regulated.

“Our law makes provision for spontaneous protests. It’s not a criminal offence to protest without notifying your municipality,” says Ntshingila.

“Community members in far-flung parts of Soweto, for example, don’t have the resources to go to the Johannesburg Metropolitan Police Department (JMPD) offices to give notice of imminent protests - let alone return for a Section 4 meeting, where the relevant authorities would discuss the logistics of the gathering.”

These logistics could include transport, ablution facilities, redirecting traffic, or addressing legitimate security concerns, as organisers are responsible for any damage to property that may occur.

How does the regulation of gatherings act (RGA) regulate protests?

In terms of the regulation of gatherings act (RGA), there is a difference between a demonstration and a gathering.

A demonstration involves 15 or fewer people and doesn’t require advance notification. Any larger group - i.e., 16 or more people - will need to inform the local authorities of their intention to protest at least seven days before the event.

Failing this, the group will need to explain why they have not complied. A protest can be banned if notice is given less than 48 hours ahead of time, even if there are legitimate reasons for late notification.

This is not because the group needs permission to gather, but because the local authorities need to consider logistics. While good practice in terms of the law, this process can be used to suppress protests.

“Our constitution allows for spontaneous protests to occur – but in most cases, service delivery protests are not planned because they are a speedy response to an injustice faced by many communities in South Africa,” Ntshingila says.

Legal compliance is still necessary, however.

The Right2Protest Project was set up so that people understand their rights when protesting, and know when the law is being misused.  

The cost of protesting

Ntshilinga says that some municipalities have attempted to charge for protests, but this action has been unsuccessful.

“The Right2Know Campaign and the Gauteng Housing Crisis Committee won their case in the High Court against the City of Johannesburg, which was levying fees on protest organisers,” says Ntshilinga.

The practice was found unconstitutional, with Johannesburg High Court judge Margaret Victor stating that people exercising their right to protest should be supported rather than oppressed.

“The case set a good precedent and has made municipalities across the nation aware that any unconstitutional practice can be challenged in a court of law, despite decisions made by a city or town council to enforce by-laws,” says Ntshilinga.

“Protestors who are told they have to pay a fee need to report this to Right2Protest.”

What about violence at protests?

Ntshilinga says there has been a mischaracterisation of violence relating to protest action in South Africa.

“Violence by the police or security is often not covered in our media, and the disproportionate use of force is hardly ever addressed.”

She believes it’s essential to take note of that narrative and how the label of violent protests may be used to discredit protesters. She further notes that recent protest violence on the part of private security companies is a concern.

“We have heard of kidnappings, and even the use of live ammunition, which we have reported to the regulator of the private securing industry, PSiRA,” she says.

“Security agents actively police protests instead of handing the matter over to the police, which is what they are meant to do.”

Runciman agrees that when violence is reported, it often focuses on the actions of protestors rather than police action. Further, she believes it is essential to consider the definition of violence.

Blocking a road or burning a tyre is reported as violent when it may, in fact, be disruptive - as much as it is also illegal.

She adds that the characterisation of such protests as violent often serves to delegitimise genuine grievances.

The police are only allowed to use force against protesters to prevent injury or death to a person or destruction of property, and only when other measures have failed. They can use minimum force, but rules must be adhered to, even if a protest is considered illegal.

Protesters must be given time to disperse and warned in at least two official languages before force is used. However, the police’s use of excessive force plays a huge role in suppressing activism, says Ntshilinga.

“The police are not practising public order policing. Instead, they are turning spaces of protest into death and injury zones,” Ntshilinga asserts. “Unfortunately, protests are still spaces where authorities perpetrate violence.”

For this reason, among others, protestors are urged to obey the law and follow the correct procedures when planning and carrying out a protest.

Tips for organising a protest

Right2Protest has published a toolkit and guide for organising a protest, which can be accessed at https://protestguide.org.za.

This guide outlines the rights and responsibilities of protestors, including what to do if you are arrested or detained or experience police brutality.

“You can also call our helpline on 0800 212 111 if you have any questions,” says Ntshingila.

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