“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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