Opinionista Justin Jaftha 18 March 2019

The Regulation of Gatherings Act needs an overhaul — but not the reactionary amendments of the FF+

A private members bill proposed by the FF+ to ban protests outside educational centres is an attempt to further the scope and impact of a draconian piece of legislation while ignoring new constitutional jurisprudence that has bearing.

The Freedom Front Plus (FF+) recently proposed a Private Members Bill in Parliament aimed at banning protests outside schools and institutions of learning and care for minor children. The proposed Regulation of Gatherings Act Amendment Bill (the bill) emanated as a result of recent violent protests at schools across the country.

In Limpopo in 2016, 29 schools in the area of Vuwani were set alight by protesters. In 2018, violent protests happened outside Overvaal High School in Vereeniging where protesters gathered in front of the school after 55 English-speaking pupils were denied access to the mainly Afrikaans-speaking school.

One of the main objectives of the bill is to prohibit all demonstrations and gatherings, including peaceful ones, at any place within a 500m radius of a building which houses a school, a nursery, a children’s home and houses of safety. The FF+ submitted, during a Portfolio Committee of Police meeting on the bill, “that if a 500m gap clause is inserted into the Regulation of Gatherings Act, the police can then respond if the clause is breached”.

The right to freedom of assembly is central to our constitutional democracy. However, the right to protest is not absolute and must be exercised with due regard to other rights in the Bill of Rights. Violent protests at schools, institutions of learning and care where children are present should never be tolerated. That said, the underlying objective of the Regulation of Gatherings Act Amendment Bill seeks to limit (or have a chilling effect on) the right to freedom of assembly.

Section 17 of the Constitution guarantees that “(e)veryone has the right, peacefully and unarmed, to assemble, to demonstrate, to picket and to present petitions”. The Constitutional Court has stated the importance of the right to protest in numerous judgments. In SATAWU v Garvas the court stated that the right to freedom of assembly exists primarily to give a voice to the powerless.

In Mlungwana and Others v S and Another, the Constitutional Court declared section 12(1)(a) of the Regulation of Gatherings Act (which criminalises the convening of all gatherings without notice, including a peaceful and unarmed assembly) unconstitutional. The court found that:

People who lack political and economic power have only protests as a tool to communicate their legitimate concerns. To take away that tool would undermine the promise in the Constitution’s preamble that South Africa belongs to all who live in it, and not only a powerful elite.” The court held that “it would also frustrate a stanchion of our democracy: Public participation”.

Mlungwana revealed the need for the act to be revised. The court held that It will be up to the legislature to revisit the act, if so minded, in whatever manner it sees fit.

The Regulation of Gatherings Act Amendment Bill is not this necessary revision. Instead, the amendment bill simply attempts to further the scope and impact of this draconian piece of legislation while ignoring new constitutional jurisprudence that has bearing.

The most fundamental issue in relation to protests at schools that the FF+ has overlooked is that its amendment bill will most pointedly serve to silence learners.

In Mlungwana and Others v S and Another, the Constitutional Court, convinced by the argument put forward by Equal Education (an amicus in the case), emphasised: “that for children, who cannot vote, assembling, demonstrating and picketing are integral to their involvement in the political process”.

By virtue of their unique station in life, the importance of the Section 17 right has special significance for children who have no other realistic means of expressing their frustrations.”

The proposed prohibition of demonstrations and gatherings at schools will limit the ability of learners to express their views on the quality of education they are receiving or the lack of safety, the discrimination, the sexual harassment, the lack of dignity and the lack of adequate sanitation that they might be experiencing at schools across the country. The proposed prohibition would even limit the ability of learners to express their views on climate change and the future of the planet they will inherit.

On 6 March 2019, a peaceful protest involving 300 learners was held at Diazville High School in Saldanha Bay. The protest, reminiscent of the impetus behind the 16 June 1976 uprising, was to address the issue of Afrikaans being used as a medium of instruction by some teachers even though the learners’ home language is Xhosa and their language of teaching and learning is English.

Again, the protest was peaceful and according to reports no teaching or learning time was disrupted. Now, had the proposed bill been in effect, the learners would have been in breach of the legislated 500m radius and this would have warranted a police response.

Even though the bill does allow for reasonable exceptions to the 500m gap clause, based on regulations to be issued by the ministers of Basic Education and Social Development, this is insufficient to ensure that learners rights aren’t infringed upon. According to the bill, the 500m exceptions would only apply if protesters at schools, most often learners themselves, had approached the relevant MECs of Education (schools) and Social Development (nurseries, children’s homes and houses of safety) for “permission”.

Again, in Mlungwana and Others v S and Another the Constitutional Court found that children may not even know of the requirements in the act, or have the resources to adhere to those requirements. Despite this Constitutional Court finding, the FF+ now wants to introduce new requirements, a separate set of regulations and it wants to heighten the requirement to give notice to asking for “permission” instead.

In responding to peaceful protests at schools the state should not be able to “employ heavy-handed countermeasures that unduly limit” the right to freedom of assembly when there are other more viable avenues available to address issues. There are obligations on the state to protect, respect and fulfil the right to protest.

The state’s obligation to respect this right means that it must not unreasonably impede people from protesting.

That said, unlawful and violent protests at places were children are present should have consequences. The best interests of children and the right to basic education are important rights in our constitutional democracy and they should be guarded.

The critical question then is how best to ensure a safe and secure learning environment for children where their voices can also be heard and valued.

In 2016 the South African Human Rights Commission investigated the impact of protest-related actions on the right to basic education. The commission made some key findings and recommendations.

One was that the Department of Basic Education should establish an interdepartmental National Public Protest Response Team consisting of various government departments such as the South African Police Service, the Department of Co-operative Governance and Traditional Affairs and other relevant stakeholders.

The commission proposed that the structure of the National Public Protest Response Team should be replicated at a provincial and local level. The commission concluded that these provincial and local response teams could tailor the national guidelines to local conditions. The commission found that having this body in place would allow for a faster reaction by the appropriate authorities when public protests threaten access to basic education.

This helpful recommendation by the commission has never been considered or taken up by the Department of Basic Education, SAPS or any other governmental department. Instead, Parliament is engaging in deliberations on piecemeal amendments to a problematic apartheid-era piece of legislation.

There are a number of aspects of the Regulation of Gatherings Act that requires scrutiny in order for it to give better effect to the right to freedom of assembly. If Parliament is serious about ensuring the right to protest, the rights of children, the right to basic education and the rights of children to protest then it would meaningfully engage the Human Rights Commission’s report while reviewing and revising the entirety of the Regulation of Gatherings Act. DM

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