Lawyering protest: critique and creativity. Where to from here in the public interest legal sector?

Lisa Chamberlain, Gina Snyman

Abstract


Frequent protests arising from a diversity of motivations are a feature of the South African landscape. Despite the right to protest being entrenched in section 17 of the Constitution, it is under threat, and communities seeking to protest increasingly risk criminalisation. This article identifies some of the emerging themes in the protest landscape and the manner in which the right to protest is being suppressed. Four dominant themes are highlighted through the lens of the experiences of the public interest legal sector, being: the conflation of notification and permission; heavy-handed state responses to protests; the abuse of bail procedures; and the use of interdicts. Law has therefore become at least one of the sites of contestation in the protest arena. The political space held open by the existence of the right to protest is thus closing as a result of violations of this right.  It is therefore both useful and necessary to interrogate the role of lawyers in such contestation. This article also examines the context and nature of the public interest legal sector’s response to these emerging themes.


Keywords


protests; right to protest; student protests; community protests; use of interdicts; bail in protests; Regulation of Gatherings Act

Full Text:

PDF

References


Doctors for Life International v Speaker of the National Assembly and Others 2006 (6) SA 416 CC.

K von Holdt, M Langa, S Molapo et al, The smoke that calls: insurgent citizenship, collective violence and the struggle for a place in the new South Africa, , Cape Town, Johannesburg: The Centre for the Study of Violence and Reconciliation and Society, Work and Development Institute, University of the Witwatersrand, 2011, 33.

R Ballard, Social movements in post-apartheid South Africa: an introduction, in P Jones & K Stokke (eds), Democratising development the politics of socio-economic rights in South Africa, Leiden: Martinus nijhoff, 2005, 77.

C Mbazira, Service delivery protests, struggle for rights and the failure of local democracy in South Africa and Uganda: parallels and divergences, South African Journal of Human Rights (2013) 251-275, 272.

L Sinwell et al ,Service delivery protests: findings from quick response research on four “hotspots” – Piet Retief, Balfour, Thokoza, Diepsloot’ (September 2009) Centre for Sociological Research, University of Johannesburg.

L Chenwi and K Tissington, Engaging meaningfully with government on socio-economic rights: a focus on the right to housing, Socio-Economic Rights Project, Community Law Centre, University of the Western Cape (March 2010) 7.

B Omar, SAPS costly restructuring: a review of public order policing capacity, Institute for Security Studies Monographs, 138 (2007), 18 as discussed in S Mottiar and P Bond, The politics of discontent and social protest in Durban, Politikon: South African Journal of Political Studies, 39 (2012) 309-330, 311.

M P Sebola, The community policing philosophy and the right to public protest in South Africa: are there positive developments after two decades of democracy, Journal of Public Administration 49 (2001) 300-313, 307.

S Mottiar and P Bond, The politics of discontent and social protest in Durban, 312.

M Memeza, A critical review of the implementation of the regulation of Gatherings Act 205 of 1993: a local government and civil society perspective, (2006) report by Freedom of Expression Institute 12.

The right to protest: a handbook for protestors and police’ freedom of expression institute, Johannesburg: The Freedom of Expression Institute, 2007, 5.

S Murphy, Unique in international human rights law: article 20(2) and the right to resist in the African charter on human and peoples’ rights, African Human Rights Law Journal 11 (2011) 475-494, 474

Q Dlamini, Mass action and the law: can South Africa do without the regulation of the Gatherings Act?, AFR. J. RHETOR 27 (2009), 86-107, 86.

South African Transport and Allied Workers Union & Another v Garvas & Others 2013 (1) SA 83 (CC).

S Woolman, My tea party, your mob, our social contract: freedom of assembly and the constitutional right to rebellion in Garvas v SATAWU (Minister for safety & security, third party) 2010 (6) SA 280 (WCC),South African Journal of Human Rights 24(2) (2011), 346-353

K Khumalo, Developing the crime of public violence as a remedy to the rights of non-protestors during violent protests and strikes- a critical analysis of the South African jurisprudence, Obiter 36(3) (2015), 578-599.

S v Mamabolo 2001 (3) SA 409 para 50.

South African National Defence Union v Minister of Defence and Others 1999 (4) SA 469 (CC) para 6-8.

Gunme and Others v Cameroon (2009) AHRLR 9 (ACHPR 2009)

S T Lewis, The Marikana aftermath: the right to peaceful protest is dying in South Africa, RGR 33 (2013), 116-117

M P Sebola ‘The Community Policing Philosophy and the Right to Public Protest in South Africa: Are there Positive Developments after Two Decades of Democracy’ 49 Journal of Public Administration (2001) 300, 307

F Miraftab & S Wills, insurgency and spaces of active citizenship: the story of Western Cape anti-eviction campaign in South Africa, Journal of Planning Education and Research 25(2) (2005) 200–217.

S Mottiar and P Bond, The politics of discontent and social protest in Durban,323.

J Duncan, The Right to Protest in South Africa (2016), Durban: University of KwaZulu-Natal Press, 1976, 11.

L Chamberlain, Assessing enabling rights: striking similarities in troubling implementation of the rights to protest and access to information in South Africa, AHRLJ 16 (2016) 365-384.

Local Government Briefing Note 2012 (1) 3, A municipality’s role in the Regulation of Gatherings Act. Local .

M Johnson & J Griffiths ‘The Regulation of Gatherings Act 205 of 1993’ Legal City online magazine 27 July 2012 available at http://www.legalcity.net/Index.cfm?fuseaction=magazine.article&ArticleID=4493411 (accessed 7 June 2016).

Mzi Memeza, A critical review of the implementation of the Regulation of Gatherings Act 205 of 1993: A local government and civil society perspective(2006), http://publicationdesign.co.za/wdb1/wp-content/uploads/RGAReport-Mzi.pdf (accessed 9 November 2017)

M Johnson and J Griffith, Controlling gatherings – great in theory, ( Without Prejudice 12 (2012), 77-78, 77

R2K Activists Guide, Protesting your rights: The Regulation of Gatherings Act, arrests and court processes (2015), Right to Know, http://www.r2k.org.za/wp-content/uploads/R2K-Protest-Guide-2015-final-web.pdf (accessed 9 November 2017)

Patricia Tsoaeli and Others v The State FSHC Appeal No A222/2015 dated 17 November 2016 para 3.

M Gontsana & L Bork ‘SJC Members Defend Civic Centre Protest’ 7 October 2014, in GroundUp, http://www.groundup.org.za/article/sjc-members-defend-chaining-themselves-civic-centre_2327/ (accessed on 6 September 2017).

L L Lancaster, At the heart of discontent: measuring public violence in South Africa, Institute for Security Studies Research Paper 292, 2016, 2.

https://www.uj.ac.za/faculties/humanities/Centre%20for%20Sociological%20Research/Documents/Quick%20response%20research%20into%20Service%20Delivery%20Protest%20Hotspots.pdf (accessed 6 September 2017).

J M Burchell and J Milton, Principles of criminal law, 3ed, Cape Town: Juta Academic, 2005, 867

R2K Gauteng statement on situation in Thembelihle, 26 February 2015 http://www.r2k.org.za/2015/02/26/thembelihle/ (accessed 6 September 2017).

S v Budlender and Another 1973 (1) SA 264 (C).

G Nicolson, Bonginkosi Khanyile: free, in an unfree system, 1 March 2017,

https://www.dailymaverick.co.za/article/2017-03-01-bonginkosi-khanyile-free-in-an-unfree-system/#.WZ6unYSGPIU (accessed on 6 September 2017).

Unreported judgment of J Kollapen in Platreef Resources (Pty) Limited v Kgobudi Traditional Community SGHA 29218/10 dated 28 January 2013, 3-4.

Rhodes University v Student Representative Council of Rhodes University [2017] 1 All SA 617 (ECG).

Ferguson and other v Rhodes University CCT 187/17 at para 28.

S Booysen, Public participation in democratic South Africa: from popular mobilisation to structure co-operation and protest, Politeia 28 (2009) 1-27, 12.




DOI: http://dx.doi.org/10.17159/2413-3108/2017/v0n62a3059

Refbacks

  • There are currently no refbacks.

Comments on this article

View all comments


Copyright (c) 2017 Author and Institute for Security Studies

Creative Commons License
This work is licensed under a Creative Commons Attribution 4.0 International License.