March 29, 2016

My Right to Protest: 10 Steps

Q: Do I have the right to protest?

A: Yes. In terms of section 17 of the Constitution “[e]veryone has the right, peacefully and unarmed, to assemble, to demonstrate, to picket and to present petitions“, this includes the right to protest.


The legislation that regulates the constitutional right to protest is the Regulation of Gatherings Act 205 of 1993 (RGA).

The RGA states that every person has the right to protest and emphasises that this right must be exercised peacefully and with due regard to the rights of others.

The purpose of the RGA is to facilitate engagement between protesters, the local municipality, and the police to ensure that protests are peaceful.

*10 steps to protest in compliance with the RGA:

Yotam Ronen / Active Stills

Yotam Ronen / Active Stills


Before the protest:

① DETERMINE WHETHER YOUR PROTEST IS A “GATHERING”.

In terms of the RGA, a “gathering” is a group of more than 15 people who come together in a public place.

The RGA does not apply to social or religious gatherings or general meetings such as community meetings.

If there are 15 or less people then it is called a demonstration. Demonstrations do not require you to following the same procedures as a gathering in terms of the RGA (e.g. notifying the responsible officer) although you are still bound by certain rules:

  • No one may carry dangerous weapons;
  • No one may wear clothing that resembles police or army personnel;
  • No one may completely conceal their faces;
  • The entrances to emergency services buildings may not be blocked;
  • No one may engage in intimidation; and
  • No one my incite violence or hatred.

② ESTABLISH WHAT YOUR PROTEST WILL DO

There are different ways to stage a protest, some forms of protest comply with the RGA and other do not.

RGA Compliant protests include: sit-ins, marches, pickets, and vigils.

Non-compliant protests include: extended road blockades, private road blockages and sit-ins, without the permission of a private landowner.


③ APPOINT A CONVENER AND DEPUTY CONVENER

The Convener and Deputy Convener:

  • Lead and take responsibility for the protest.
  • Act on behalf of the organisation / group of protesters at any consultations or negotiations.
  • Serve the relevant notice required by the RGA on the Responsible Officer or Station Commander at your local police station (i.e. Section 3 notice).
  • Act as the contact person for protest.
  • Instruct marshals.

④ GIVE NOTICE IN TERMS OF SECTION 3 OF THE RGA (This is the most important part of arranging a protest.) 

Q: Why must I give notice of my protest?

A: The RGA provides that in order to protest, notice must be givenThe purpose of giving notice is to ensure that your municipality and local police station can assist you with facilitating your protest on the day and help to ensure that your protest does not turn violent.

In terms of section 3 of the RGA, the Convenor or Deputy Convener must give a section 3 notice to the Responsible Officer or to the Station Commander at your local police station at least seven (7) days before the planned protestIf notice can only be given in less than seven (7) days, reasons must be given as to why the notice was not given at least seven (7) days before the planned protest. In exceptional circumstances, notice can be given at least 48 hours before the planned protest.

The notice must include all the relevant information about the protest. (Notice templates can be found here.)

If you do not know who the Responsible Officer in your municipality is, contact your local municipal offices or your local police station.

Make sure that you hand the notice to the Responsible Officer in person and ask him/her to give you a letter proving that you delivered the notice.

Claire Martens / Legal Resources Centre

Claire Martens / Legal Resources Centre


⑤ GIVE NOTICE OF PETITIONS AND MEMORANDA

Protests usually include the handing up of a list of demands or a memorandum of complaint.

The person or entity that is going to be handed a list of demands or memorandum must be notified that they will be asked to receive the document at a particular time and place.

This notice should be made in writing.

While the individual or organization being petitioned is not obliged to accept the memorandum, a protest cannot be prohibited if the individual or organisation does not want to receive the list of demands or memorandum.


⑥ APPOINT MARSHALS

Before or after the section 3 notice has been given to the Responsible Officer, the Convener and the Deputy Convener must appoint a Chief Marshal and explain the contents of the notice to him or her. In consultation with the Conveners, the Chief Marshal must then appoint approximately 1 marshal for every 10-50 protesters.

A marshals task is to manage protesters, and to take the necessary steps to ensure that the protest proceeds peacefully and that the provisions of the notice and conditions are complied with.

Marshals must wear something that makes them specifically distinguishable from the ordinary protesters.

The marshals must be informed of the route and where they will be deployed.

Marshals must:

  • Try to prevent dangerous weapons and other harmful objects from being present at the protest or report to the police that weapons are present.
  • Try to ensure that no protester has anything or says anything that amounts to hate speech.
  • Ensure that the entrances to hospitals, fire stations, ambulances or other emergency services are not blocked.
Claire Martens / Legal Resources Centre

Claire Martens / Legal Resources Centre


⑦ BE AVAILABLE FOR A CONVENER’S MEETING WITH THE RESPONSIBLE OFFICER

In terms of section 4 of the RGA, the Responsible Officer may call a section 4 convener’s meeting to discuss the contents of your section 3 notice.

If the Responsible Officer is going to call a meeting, the Convener must be notified within 24 hours of giving notice to the Responsible Officer.

If the Responsible Officer has not called a convener’s meeting within 24 hours of receiving the notice then the protest can proceed as outlined in the notice.

The purpose of the convener’s meeting is to confirm the route and discuss the logistics of the protest, including the appointment of marshals. Often the Authorised Member (the member of the police that will supervise the protest and assist with road closures) will also attend the meeting.

A protest can be prohibited if the Responsible Officer is of the view that there is a real possibility of damage to property and / or harm to people. A protest can also be prohibited if less than 48 hours’ notice is given.


⑧ REQUEST WRITTEN “PERMISSION”

At the end of the convener’s meeting, request written “permission” for the protest or a written prohibition of the protest from the Responsible Officer.

Q: Why do I need written “permission” or “authorisation”?

A: You do not need “permission” or “authorisation” to exercise your constitutional right to protest but it is useful to have something in writing from the Responsible Officer to facilitate the protest on the day.


⑨ DURING THE PROTEST

The protest should begin at the time which was agreed upon at the convener’s meeting or if there was not a convener’s meeting then the protest should begin at the time stated in the notice.

The Convener and the Chief Marshal should each have a copy of the notice and any other authorisation that was provided to them from the Responsible Officer and should ensure that the protest proceeds in accordance with the terms in the notice.

The following conduct is prohibited and should be regulated by the Chief Marshal:

  • Participants wearing clothing that resembles that of any security force including the army or the police service.
  • Participants carrying banners or messages or singing a song that amounts to hate speech or discrimination based on culture, race, sex, language or religion.
  • Participants uttering words or acting in a way that intends to cause or encourage violence.
  • Participants covering / masking their faces or preventing themselves from being identifiable.

What are my rights if I’m arrested or detained at a protest?

Protesters have the right to record the protest.


⑩ AFTER THE PROTEST

At the end of the protest, the participants should disperse in the manner and at the time agreed upon (either at the convener’s meeting or in the notice if there was no convener’s meeting).

Failure to disperse at this time may mean that the continuing protest is no longer in compliance with the RGA and the police may attempt to disperse the protesters.

Protesting is your constitutional right!

Contact the LRC for further information or advice.

Text provided by Kelly Kropman (kelly@lrc.org.za) and Michael Laws (michaell@lrc.org.za)

*Please read the RGA before you convene a protest to ensure that your protest is compliant with the Act. The above guide provides only an overview of certain provisions of the RGA and does not cover all of the sections of the Act. If you are uncertain as to how to convene a protest, please contact your local municipal official, the Station Commander at your local police station, or a legal representative. For more information, please read the Terms and Conditions for the use of Protest Info.

MORE RESOURCES FOR PROTESTERS AND ACTIVISTS