Opinionista Stanley Malematja 20 November 2020

Brackenfell ruling upholds the right to protest

Those who run to the judiciary, urgently to prevent protest action, are attempting to dodge accountability and paint the protest as illegitimate. Protest actions challenge the status quo and often ruffle some feathers in the process. But that does not mean that a protest loses the protection of the Constitution because one does not agree with the message behind the action and the place where the protest is occurring.

“The school has no right to dictate where protests can take place,” Judge Siraj Desai concluded during a hearing last week. He was presiding over an urgent application brought by the Brackenfell High School’s governing body in an attempt to interdict protests from taking place outside the school. The protests began in response to reports that the school had sanctioned a social event open only to white matric learners and teachers. 

The Court did not grant the interdict and instead postponed the matter to allow the protesters more time to consider the application and file their own papers. Judge Desai acknowledged that the right to protest is a fundamental human right, enshrined in our constitution. It is one of the ways people in South Africa have of drawing attention to social issues, including the apparent discrimination still taking place at schools like Brackenfell.

Section 17 of the Constitution enshrines the right to protest. The Constitution does not limit protest action except to say that it must be undertaken in a way that is peaceful and unarmed. The Regulation of Gatherings Act is the law which gives effect to the right to protest and regulates how protests are organised. It provides the process for someone convening a protest to notify the Municipality and, importantly, gives the convener discretion over where the protest will take place. The responsible officer within the Municipality may negotiate with the convener about the location if there is a concern for the safety of protesters or general members of society.

The location where a protest takes place is often closely linked to the purpose of the protest, and protests are not confined to a particular area but may take place in both public and private spaces. Even Parliament and the Union Buildings are important sites of protest where gatherings are permitted subject to some limits imposed by the Regulation of Gatherings Act. Protests may be disruptive in order to draw public attention to a particular cause, but disruptive protests are still protected by the Constitution.

If the purpose of a protest is to raise concerns over issues of racism at a school, then, it makes sense for the protest to take place near or within the vicinity of the school. In trying to interdict the protest from taking place outside the school, the governing body’s application effectively sought to undermine fundamental human rights. When protests are looked at as an irksome inconvenience that needs to be stopped, this silences the voice of protesters and ignores their message. Applications for interdicts like this one are a way to suppress dissent and different views from being aired.

The Court’s decision to dismiss the urgent application has instead promoted one of the most endangered rights in our country. Protests against private institutions are often stifled by urgent court interdicts, as we have seen time and again with everything from #FeesMustFall to recent strikes involving farm workers. It is not often that the right to protest survives such applications, and the matter at hand is unique because of how the judiciary recognised and protected this constitutional right. Most protesters are unable to challenge the urgent applications because of a lack of resources. Although everyone has the right of access to courts, getting a legal practitioner to attend to urgent matters can be a challenging or expensive task.

Judge Desai has recognised this by allowing the protesters time to properly respond to the application against them. He has further correctly stated that he has no power to interdict a constitutionally compliant protest. The protests at Brackenfell High School were conducted peacefully by protesters. Therefore, to interdict such a protest would undermine the fundamental human right to protest and go against the highest law in the land.

While a single voice could easily be ignored, a choir is heard. This is the nature of protests. It is people standing together against an act or omission. Those who run to the judiciary, urgently to prevent protest action, are attempting to dodge accountability and paint the protest as illegitimate. Protest actions challenge the status quo and often ruffle some feathers in the process. But that does not mean that a protest loses the protection of the Constitution because one does not agree with the message behind the action and the place where the protest is occurring. I commend Judge Desai for illustrating the judiciary’s protection for the endangered fundamental human right to protest. DM

Stanley Malematja is an attorney at the Right2Protest Project based at the Centre for Applied Legal Studies, Wits University.


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  • Update: while protecting the right of a habitually violent group to hold protest action, SAPS put its foot down and dealt harshly with the (expected) breaches of the permit by the EFF. Instead of 100, the were over 400 protesters. Instead of being peaceful, they threw half bricks. They were met with stun grenades and water cannons, and because they had breached the terms of the permit, were not allowed anywhere near the school. Groups with the kind of reputation which the EFF has, for mayhem, arson, race baiting and assault, should have restrictions slapped on them every time their ill-disciplined followers run amok, or their equally ill-disciplined leadership incites, allows, or participates in, violence. A moratorium on public protest for, say, 6 months, every time they step over that line, until such time as they learn to abandon their violent ways, and maybe the parents of schoolchildren won’t feel such a pressing need to form a living barrier between protesters and innocent people, animals and children.

  • This is unfortunately an example of a poorly thought out piece of legislation. Should people have the right to protest – of course. As it says, it has to be “peaceful and unarmed”. The constitution also gives us other rights. It bestows the right to take part in economic activity, for example. So if a protester blocks a national road, burn vehicles, or stops ordinary people from getting to work, they are interfering with our constitutional rights. I will fight to protect someone’s right to protest – peacefully. But why does no one fight for my constitutional rights which are trampled in the process?
    Some organisations have proven to be delinquent – without exception. Show me one example where the EFF protests have not become violent, or led to damage to property. Why should habitual breakers of the law, and liars, receive preferential treatment against honest citizens? The EFF told Judge Desai they would respect the school exams and NOT protest during this time. After the judge ruled, they immediately planned the protest – liars.
    Going back to my first sentence – the right to protest what I see fit, as alluded to in the article, implies that I can be judge and jury about any topic of my choosing and then protest, even on private property? SO let’s see, if I and some friends decide we are going onto the private premises of the EFF, and protest for example because there are no white people in attendance, they will have to allow me to enter, trash their buildings and do nothing? Methinks not. This law – if correctly interpreted in the article – is unfair and ignores the rights of the general citizenship.

  • Post the outcome of the protest, the tragedy and shortsightedness of this analysis is everywhere to be seen ! The Fundamental question is who takes responsibility for the damage that ensues when THIS specific group (with a rich history of violence and intimidation) is involved ? Ask prof. Habib. In this case it won’t be the judge with his sanguine attitude and approach or for that matter the writer of this article who is probably sitting in some ivory or academic tower.

  • There is a constitutional right to protest. Yes. There is also a constitutional right to education for all learners. This article fails to assess the position courts should take when there is a conflict between the constitutional rights of two different groups, in this case the EFF on one hand and school learners at a vulnerable time during examinations on the other hand. This ruling shows an unfortunate bias in the courts in favour of the racist, unruly, violent behaviour of the EFF

  • Having a law degree does not make you an expert, and your argument, as well as the judge, sucks. This is not a protest for legitimate reasons, like service delivery from a municipality, but a blatant racial protest. Three-quarters of those protesting don’t even know why they are protesting, and are only doing so because of a call of action by their party of choice.


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