SAMKELO MOKHINE | Protests should be available free of charge

The brutality visited on unarmed protesters in Sharpeville resulting in some 68 deaths on March 21 1960 reminds us of the strides made in the protection of basic human rights.

All that the Sharpeville protesters were doing was to fight for the basic human right to dignity – an inalienable right of every human being.    

Protests, demonstrations and mass marches have become a common feature in SA's constitutional democracy as it is an available tool for communities to express their discontent with the delivery of services or government policies.

Approaching courts to ventilate bread-and-butter issues is not an option for impoverished communities. The right to assemble, protest, demonstrate and picket is enshrined in section 17 of the constitution. 

The Regulation of Gatherings Act provides the regulatory framework for the exercise of the right to protest. The role of local authorities is crucial in the exercise of this right.

The primary role of local authorities, under the Regulation of Gatherings Act, is to facilitate a protest. All that the organiser is required to do is to inform the local authority at least 48 hours in advance of the proposed day for the protest, the location and route to be taken during the protest action. Protesters do not seek permission from the local authority to demonstrate.

The reason a local authority is informed of a planned protest is to ensure that the protest takes place in an orderly fashion and to avoid competing protests taking place in the same area resulting in potential chaos. The local authority has an obligation to ensure public safety and adequate traffic control in the supervision of a demonstration or protest.   

It is thus concerning to have some local authorities charging a fee to hold a demonstration or protest despite a court order. On June 10 2022, the Johannesburg high court declared that the levying of a fee of between R170 and R15,000 under the City of Johannesburg tariff determination policy for holding gatherings, assemblies, demonstrations, pickets and presenting petitions was unconstitutional.

The Johannesburg high court judgment has not been set aside on appeal and so remains binding on the City of Johannesburg.

The Johannesburg high court made it clear on the role of the local authorities finding that the charging of a fee is unlawful in that it was a barrier to the exercise of the right to protest.

The Right to Know Campaign and the Gauteng Housing Crisis Committee argued that the levying of fees was ultra vires the Regulation of Gatherings Act which governs gatherings and protests and was unconstitutional. The City of Johannesburg required the Gauteng Housing Crisis Committee to pay a fee of R297 to hold a protest in the Johannesburg central business district on October 23 2020.

The civil society organisations argued that the fee as a pre-condition for holding a protest amounted to a violation of the right to protest. The City of Johannesburg contended that the fee facilitated the right to protest and that it is empowered to levy the fee for traffic control services rendered with respect to protests under the provisions of the Municipal Services Act of 2000. The Regulation of Gatherings Act is silent on fees. 

The Johannesburg high court found that the silence on fees in the Regulation of Gatherings Act did not empower the City of Johannesburg to levy such fees. The policy to levy fees limited the right to protest. The fee has a “chilling effect because it increases the costs of exercising the right to protest”. The holding of demonstrations or protests should be available free of charge.

The City of Johannesburg continues to charge the fee in contempt. In fact, in one instance the amount charged was R11,000. The right to demonstrate and protest is a fundamental human right in a constitutional democracy and it must be respected by local authorities.

• Mokhine is executive direct at Freedom of Expression Institute