The recent decision by the Johannesburg Metropolitan Police Department (JMPD) to prohibit a march planned by Kopanang Africa Against Xenophobia (Kaax) was set aside by the Johannesburg high court on Friday. The gathering is considered lawful in terms of the Regulation of Gatherings Act, and the conveners are entitled to proceed with the event on Saturday, 26 March.

The court has ordered the JMPD to consult with the conveners of the Kaax march at 11am on Friday to establish the reasonable conditions under which Saturday’s gathering will take place.

“We are very pleased that the high court has overturned the prohibition of our march against xenophobia, we are very pleased that we will be able to proceed tomorrow — Saturday the 26th — and that the costs have been awarded against JMPD,” said Dale McKinley, a spokesperson for Kaax. “We hope everybody comes out and supports our march tomorrow.”

Sharon Ekambaram, another representative of Kaax, said: “It’s important that as activists, as organisations, as civil society, we respect… and work in the best interests of law and order in our country, while using the constitution and the powers that it gives us to be able to have freedom of expression and to be able to, ultimately, hold our government to account.”

The Socio-Economic Rights Institute, which operated as Kaax’s legal representative in this matter, originally approached the Johannesburg high court with an urgent application to overturn the JMPD’s prohibition of the march on Tuesday, 22 March. 

The first applicant in the case was Kaax, and the second Julekha Latib, a member of the Kaax Committee and the convener for the march. The first respondent in the case was the JMPD, while the second was the responsible officer at the JMPD who took the decision to prohibit the gathering.

The hearing took place on Thursday, 24 March, with Advocate Tembeka Ngcukaitobi arguing the case on the applicants’ behalf. Advocate Quintus Pelser represented the JMPD and the responsible officer. The matter was overseen by Judge Allyson Crutchfield.

Case for the march

On 17 March, the JMPD elected to prohibit Kaax’s planned march against xenophobia. This decision came just five days before the march was set to take place on 21 March, Human Rights Day.

Kaax had given the JMPD notice of the planned march on 1 March, according to the organisation’s application to the high court. This is well within the requirements of the Regulation of Gatherings Act, which requires the convener of a gathering to give notice of the intended event no later than seven days before it is due to take place.

“The notice recorded that the proposed gathering would begin at Peter Roos Park at 10h00 and disperse at 13h30 at the Museum of Africa. It further recorded that we have designated 20 marshals to manage the gathering,” stated the court application.

A meeting between the JMPD and the march conveners to discuss the planned event — as required in the Regulation of Gatherings Act — was initially set for 9 March. However, the JMPD later postponed it to 16 March.

The JPMD’s delaying of the consultation process around the march, as well as their belated decision to prohibit the gathering, led to Kaax launching the application to overturn the prohibition with “extreme urgency”, according to the court application.

The primary reasons given by the JMPD for the prohibition of the march were:

• The failure of conveners to retract posters in circulation before the event, describing it as a “march against SA laws” and proclaiming, “as illegal immigrants, we are going nowhere”;
• The date and location of the march, which they alleged the conveners refused to change; and
• The prevailing threats that law enforcement would be unable to contain, which could result in serious injuries, death and extensive damage to property.

In their court application, Kaax claimed that the reasons given by the JMPD were unclear, inconsistent with the requirements of the Regulation of Gatherings Act and not a lawful basis for the prohibition of the gathering.

In a Kaax press briefing at the Constitution Hill Human Rights Festival on 21 March 2022, McKinley asserted that the posters proclaiming the march as going “against SA laws” were fake, edited and distributed by an entity independent of Kaax. The original posters declared the event to be a “March against xenophobia”.

Upon learning of the fake posters, Kaax took steps to disavow them, both on social media and in the form of a press statement, according to the court application. 

In a post on their Facebook page on 14 March 2022, Kaax stated: “This ‘poster’ being circulated is FAKE. It is being used by Dudula thugs to undermine the real march being organised to promote unity, jobs, dignity, and stand united against Xenophobia.”

In regard to the date and location of the march, Kaax’s court application claimed that the responsible officer at the JMPD, who took the decision to prohibit the gathering, failed to provide substantive justification for shifting the date of the march. Moreover, when the convener met with the JMPD on 16 March 2022 to discuss the event, its location was not mentioned as an issue.

Kaax considers the “prevailing threats” referred to by the JMPD to mean third parties such as Operation Dudula and #PutSouthAfricansFirst. In the court application, they claimed that the responsible officer relied on an unsubstantiated, perceived threat to prohibit the gathering, which is not a reasonable basis for such a decision.

“The threat has nothing to do with any conduct on the part of Kopanang and its members,” stated the application. “Most issues in respect of which gatherings are convened under the RGA are contentious matters in respect of which societal opinion is divided. This is at the very heart of the reasons for constitutionally protecting the right to assemble. The [Regulation of Gatherings Act] provides a framework to facilitate protest in these precise circumstances.”

Part of the basis for the urgency of KaaxX’s application was the coalition’s aim to go ahead with the march on 26 March.

Speaking in court, Ngcukaitobi said, “You’re left with a scenario where we are two days away from the march, and if [Crutchfield] did not hear us, or did not enrol the case, we… will be forced actually to postpone the march, or to cancel the march whatsoever, which is precisely what the city of Joburg wants to achieve, and the JMPD wants to achieve, because that is what it said is prohibition – that this march should not happen.”

Response to the case

In a responding affidavit on behalf of the JMPD and the responsible officer, it was stated that the application to overturn the prohibition of the march was “vexatious litigation” that “was initiated without any probable cause by one that is not acting in good faith and is doing so for the purpose of annoying or embarrassing the respondents”.

“I persist that given the date of 21 March 2022, the reasons provided for the prohibition of the gathering remain unassailable and reasonable as they were taken to mainly protect human life and safety,” stated Mbulelo Allan Ruda, head of the group legal and contracts for the City of Johannesburg Metropolitan Municipality, in the affidavit.

He added that it would have been reckless of the respondents to ignore the threats that had been levelled at the march.

Kaax failed to show circumstances that rendered the application urgent, according to the responding affidavit, as they did not show why, given their inability to march on 21 March 2022, it is necessary to march on 26 March 2022.

“What is clear is that the applicants have not submitted any evidence that plans to hold the gathering on 26 March 2022 are on track. In any event, even if such plans are on track, we submit that in light of this application, such plans would amount to nothing but a classic case of self-created urgency,” stated the responding affidavit.

It was further claimed that the applicants were not permitted to reschedule an already prohibited gathering to another date and should rather have submitted a new notice of the proposed gathering on 26 March under the terms of the Regulation of Gatherings Act.

Given that Human Rights Day had come and gone, Pelser argued that there was no reason the march could not be held at any later date.

“This coming… Saturday is as good as any other Saturday,” he said.

Ngcukaitobi responded to this by explaining that the Johannesburg march was planned as one of a series of national gatherings for Human Rights Day. Kaax allocated substantial time and resources to the organisation of these events, and the marches in Cape Town and Bloemfontein were permitted to go ahead as planned.

“The other gatherings, which have not been prohibited by Cape Town and Bloemfontein, went ahead on the 21st of March. They were a success, being well-attended, peaceful and free of adverse incidents,” said Ngcukaitobi. “Kopanang now seeks to complete the series by holding the Johannesburg gathering within the same week as Human Rights Day, on the back of the substantial promotion and advertising work that has already been done by its members and civil society planning.

“The date of the 26th March was not our first choice,” he continued. “But it is close enough to a series of national marches to serve its purpose and not waste the efforts and resources deployed to organise it.”

He emphasised that the right enshrined in section 17 of chapter two of the Constitution — being the right to assemble, demonstrate, picket and present petitions, peacefully and unarmed — is a broad right, and is recognised as such by the Constitutional Court.

“It is permissible to regulate the exercise of the right under the regulation of the Gatherings Act,” said Ngcukaitobi. “It’s entirely permissible. But the prohibition has been found wanting.” DM/MC

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