Public demonstrations have been central to South Africa’s democratic life for decades. Yet recent events suggest a narrowing of the substance of the right to assemble, demonstrate and picket, and a de-legitimisation of street politics.
In this regard, the City of Cape Town’s near hysterical overreaction to attempts to occupy Rondebosch Common is cause for concern. Last week’s Constitutional Court case about whether the South African Transport and Allied Workers’ Union should be held responsible for violence they could not have foreseen in one of their marches, and the chilling effect on freedom of assembly if they are, also raises important questions about whether the state respects the space for street politics as a legitimate form of politics.
Evidence is emerging from many parts of the country that freedom of expression is not the only Constitutional right in trouble at the moment: the right to assembly, demonstration and picket is as well. The Regulation of Gatherings Act gives effect to this right.
When the Commission of Enquiry into the Prevention of Public Violence and Intimidation, chaired by Judge Richard Goldstone, wrote the Act in the early 1990’s, it marked a radical departure from past practices.
The Commission argued that rather than seeing gatherings as threats to national security, the state should recognise them as essential forms of democratic expression. The state should also have a positive obligation to facilitate rather than repress gatherings. Municipalities would play this facilitative role, ensuring that negotiations took place between themselves, the South African Police Services (SAPS) and the convenors of the march.