The right to protest is enshrined in the Bill of Rights under Section 17 and reads as follows: “Assembly, demonstration, picket and petition. Everyone has the right, peacefully and unarmed, to assemble, to demonstrate, to picket and to present petitions.” The important part of this right is that this right is awarded to “everybody”, not just to citizens of South Africa.
Protesting is not just about government, but also serves as a channel of communication with other South Africans. Three things get unpacked in the South African Transport and Allied Workers Union and Another v Garvas and Others case, also known as the ‘SATAWU’ case.
Firstly, protesting serves as an instrument for democracy and people who are oppressed. Secondly, the foundational relevance of the right to protest was established. The important thing to remember when describing this right is that it affects other rights. The significance of this is that once you reduce the right, you are not only impacting on the right to protest, but rights like freedom of expression, association and other rights like these are impacted or taken away from you as well. Thirdly, self-actualisation; the act of fighting for something you are passionate about helps develop oneself. Everyone has the right to protest, even foreigners. There is a broad interpretation on the word “everyone”, as mentioned above.
The importance of this right is to prevent oppression and advocating for other democratic rights. This is a generous right which aims to stop brutal oppression. In the SATAWU case, the court held that once you have the intention to incite violence, the right falls away but if you don’t have this intention, Section 17 would be the defence to make use of.
If the protest involves more than 15 people, notice in terms of the Regulation of Gatherings Act is a requirement. No notice of a protest of a group of more than 15 people would constitute an illegal gathering and can lead to arrests being made. Section 17 of the Constitution grants one the right to protest. However, Section 12(1)(a) of the Regulation of Gatherings Act states that any person who organises and acts upon the gathering in respect of which no notice or no adequate notice was given, in accordance with Section 3, shall be guilty of an offence or shall be liable to a fine or imprisonment for a period not exceeding 1 year.
There are certain places protesters would require special permission from to be allowed to protest there. These places include protesting within 100 meters of Parliament, the Union Building or a Court Building. This means that one would not only give notice to these institutions but will actually need permission.
The most basic requirement for the limitation of the right is the law of general application, Section 36 of the Constitution. In other words, “people must know the law” and the right must be clear enough, accessible and precise so that the people who are affected by it can understand the extent of their rights and obligations. The second part of the Section 36 limitation is, that the “limitation is reasonable and justifiable in an open and democratic society”. This part can be interpreted in the sense that, even though the right is limited, it should be reasonable and not infringe more rights than what is necessary to achieve its purpose.
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. (E&OE)
The Bill of Rights Handbook Fifth Edition by Iaim Currie & Johan de Waal
Mlungwana and Others v S and Another (A431/15)  ZAWCHC 3;  2 All SA 183 (WCC); 2018 (1) SACR 538 (WCC)
South African Transport and Allied Workers Union and Another v Garvas and Others (CCT 112/11)  ZACC 13; 2013 (1) SA 83 (CC)
The Regulations of Gatherings Act 205 of 1993
The Constitution of 1996