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INTRODUCTION1

Introduction

Protests. Occupations, strikes, marches, disrupting meetings, even jamming


shopping tills by filling trollies full of goods and refusing to pay for them.
Hardly a day goes by without such protests taking place in some part of South
Africa. Protestors tap into a rich protest culture in the country that dates back
to the epic struggles against exploitation and oppression under apartheid.
Past and even present-day South Africa has truly become a country defined
by its protests: a protest nation. Protests, or expressive acts that communicate
grievances through disruption of existing societal arrangements, bring
problems in society to public attention in direct, at times dramatic, ways.
Because they are inherently disruptive, protests can wake society up out of
its complacent slumber, make it realise that there are problems that need to
be addressed urgently, and so hasten social change.
It could be argued that in a functioning participatory democracy there
should be little need for protests. South Africa, for instance, has set in place
many institutions for public representation and participation, including at
local government level. These include ward committees, democratically
elected councillors and public-participation meetings. If these institutions
do not work effectively, the media are always there to hold those in power
to account. Furthermore, South Africas fourth president, Jacob Zuma, had
promised to usher in a more sympathetic, pro-poor administration that took
the poors grievances seriously. To this extent, he seemed determined to mark
his presidency out from that of his reputedly more aloof predecessor,Thabo
Mbeki. Zuma was brought to power by a wave, or tsunami, of popular
support, driven principally by organisations that were in alliance with the
ruling African National Congress (ANC)namely, the Congress of South
African Trade Unions (COSATU), the South African Communist Party
(SACP) and the South African National Civic Organisation (SANCO)but
which felt marginalised under Mbeki. Their intention was to use Zumas
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rise to power to put the ANC and its alliance partners back at the centre of
decision making, thereby ensuring levels of democratic accountability that
had been eroded by Mbeki centralising power in the presidency.
However, these promises notwithstanding, more and more people have
taken to the streets to protest because they complain that these very structures
of democratic representation have failed them. In doing so, they challenge
established rules of engagement that often pass for political engagement in
contemporary societies: parliamentary debates, elections, press conferences.
These forms of politics are highly mediated, leading to the formal political
landscape being skewed towards those who already have access to power
and resources. Protests often puncture all the niceties of formal politics, and
make those who have learned how to evade responsibility by ducking and
weaving face the wrath of the public directly. If protests are sustained and
underpinned by mass organisations, they can become insurrectionary: that
is, they can change fundamentally how power is organised in society.To that
extent, protests are one of the most effective forms of political agency, which
is why the powerful fear them so much.
A growing number of protestors have argued that peaceful forms of
protest do not work, as the state simply ignores them. In response, some
protest organisations have become radicalised and engage in increasingly
disruptive and defensive forms of protest, such as erecting barricades and
burning tyres to take control of a particular area and to keep the police
out. They do this knowing that such protests get the media running and
politicians listening. Commentators warn about South Africa facing its own
Tunisia day if it does not deal properly with the many grievances driving
the protests.1 Yet, in spite of their transformative potential, some protests have
taken on a negative character, and these are often what the media focus on
as being the face of South Africas protests. Our television screens are full
of images of marauding protestors burning councillors homes and even
attacking councillors; libraries and schools have been burnt, suggesting that
destructive, anti-social behaviour has also become a feature of the protest
landscape. Some protests have turned xenophobic, with non-South African
nationals being attacked and routed out of their homes and businesses.
Virtually every day the headlines scream about yet another violent service
delivery protest. The political right, and even the centre, fear the protests as
mob rule that threatens chaos and anarchy.
In response to increasingly disruptive and even violent protests, the South
African Police Service (SAPS) argued for its public order policing capacity

INTRODUCTION3

to be doubled: an argument that was rejected by the National Treasury.2 It


also argued for ever-more sophisticated weaponry, and has adopted a more
paramilitary style of policing. SAPS based its position on the claim that
escalated protests represent a defiance of state authority through attacks on
police stations and other community-orientated institutions, such as libraries
and clinics, [which] cannot be tolerated and the rule of law must prevail.3
Significantly, SAPS portrayed the protests as being a threat to state authority
rather than a threat to public safety. Political elites who fear criticism and
wish to cling to power may be very tempted to stifle protests, but if they do,
they are sowing the wind.As the underlying grievances remain unaddressed,
they may radicalise protestors who become firmer in their resolve to be heard
and taken seriously, no matter what.
The right to protest is protected in South Africas Constitution under
freedom of assembly, and indirectly under freedom of expression, provided
that the people who engage in protest action do so peacefully and unarmed.
The Constitution protects this right because it recognises protest as an
essential form of democratic expression rather than viewing it as a threat
to democracy. This right is validated in and governed by the Regulation of
Gatherings Act (referred to hereafter as the RGA, or the Act) of 1993, which
sets out the responsibilities of the government and the state, and the rights
and responsibilities of protestors. Any public gathering involving sixteen
people or more, including protests, falls under the Act. In spite of the fact
that the right to protest is guaranteed in law, there are many signs of the state
circumscribing this right.Activist and media accounts point to municipalities
using myriad ways to thwart protests rather than enabling them, and the
police have taken to attacking protests, injuring and even killing protestors.4
While police violence has become a major issue of public concern, less well
known are the attempts by other state actors to frustrate the right to protest.
But although protests have become central to the political landscape in
South Africa, how much is actually known about them? This book closely
examines one facet of protest in South Africa: namely, the right to do so.
It seeks to explore the extent to which this right is being respected in the
country and, more broadly, whether political spaces, as seen through a protest
lens, are opening up or closing down. It considers the policy and legislative
environment for the exercise of the right to protest, how relevant policies and
laws are operationalised, and whether this environment enables or thwarts
the right to protest. A great deal of recent public attention has focused on

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the policing of protests, with some arguing that increasingly violent policing
is eroding the right, as it deters people from engaging in protests in the first
place. While it does consider the role of the police, this book focuses in
particular on the role of municipalities in exercising their responsibilities to
facilitate protests, and whether they are exercising these in ways that enable
the right. This book also evaluates media performance in reporting on the
right to protest. It considers the extent to which media organisations provide
platforms for grievances to be aired and acted upon, or whether they are
distorting or even silencing protestors voices through mischaracterisation,
as has been alleged of protest reporting in other parts of the world. The
book also considers some related but subsidiary questions, such as whether
the police have a case in arguing for more resources because they are under
siege from violent protestors, and whether it is fair to say that the countrys
protest culture has become overwhelmingly violent, threatening public safety
in the process. Because of its specific focus, this book does not offer a more
general analysis of protests, their causes, repertoires, demands and ideologies,
and effectiveness as modes of communication and action. It also does not
attempt to answer the question of how and why protests turn violent. But it
does make some observations about what the data is telling us about shifts
in the political landscape in South Africa, and their global significance, as
these observations have a direct bearing on the character of state responses,
and whether these exhibit a civil or coercive character.
Assumptions, analytical framework and key arguments

It is important to outline at the outset some of the initial ideas that informed
this book, as they provide an indication of some of its basic assumptions
and hypotheses, and clarify starting points for discussion. One of the main
assumptions is that the right to protest is increasingly under threat, particularly
but not exclusively from the state. This book tests this assumption by
reporting on research conducted into the application of the right in selected
municipalities in order to assess whether the problem is more widespread
than the isolated incidents reported by activist and journalists. Another
assumption is that this question matters; that a society that does not respect
this fundamental right cannot be considered a democracy. Given that South
Africa likes to claim that it has transitioned successfully into a democracy,
this claim must be put to the test. Also, it is assumed that protests are an
important form of democratic expression. That is, they are not activities

INTRODUCTION5

with scant social significance; rather, they serve the important purpose of
communicating grievances to those who are in a position to do something
about them. Potentially, protests are a form of direct democracy in that
unlike representative or even participatory forms of democracythey can
enable public participation in a relatively unmediated fashion. In fact, the
power of protests is derived from the numbers that participate in them,
demonstrating that the ideas put across in these protests have mass support.
Even more fundamentally, protests can be used to contest existing
distributions of power in society by bringing the organised power of the
people to bear on questions of pressing importance.While protests may not
automatically disrupt existing social orders, and may even play a systemmaintaining role, they also have the potential to provoke ruptures in these
orders: much depends on the character of the protestors, the capacity of the
protests to be sustained, their links to broader insurrectionary movements and
the extent to which they are generalised across society. Another important
assumption is that protests are often a working-class form of democratic
expression. Those without the means to access more mediated forms of
communication (such as the mass media) may resort to more popular and
less mediated forms of expression, and protests are one such form. Mapping
the right to protest can therefore reveal a great deal about the state of
health of working-class politics, and the democratic spaces such politics
enjoy to grow and exert influence. If this significant form of expression is
being circumscribed, then it is important to understand how widespread
the problem is, and what impact the problem will have on the ability of
the most marginalised sections of society to make their voices heard and
practise popular politics.
Another assumption informing this book is that protests and state
responses cannot be fully understood in surface terms; reference needs
to be made to underlying power structures in society. In other words, the
micromobilisations that protests represent are not isolated phenomena:
they can be related to broader processes of social change. More specifically,
in expansionary periods, when political and economic elites can afford
democracy, they will tolerate higher levels of dissent, including protests. In
such periods, they are likely to promote a negotiated management of protests,
where protesting is recognised as a right within clearly circumscribed legal
and institutional frameworks. Such an approach is consistent with social
contract politics that dominated post-Second World War social democracies

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in the West.While many countries in the global South did not pass through
social democracy and its associated tolerance of protests (within limits), South
Africa adopted the negotiated management of protests after its transition to
democracy in 1994. However, in recessionary periods, when profits decline,
these elites are more likely to resort to coercion than negotiation, and to
circumscribe the right to protest. At the same time, protests are likely to
increase in frequency and intensity, as it is less possible for society to be held
in equilibrium through consensus, and as a result social relations become
more conflictual. South Africa is in just such a recessionary period. However,
if a longer-term, global view is taken, it becomes clear that the neoliberal
phase of capitalism precipitated a wave of protests reacting to the massive
inequalities it produced, either explicitly or implicitly, around the world.
While this wave has ebbed and flowed, it has been sustained for over three
decades. Since the 2008 global recession, it has intensified. Yet, apart from
reducing equality, neoliberalism has exhibited undemocratic and even antidemocratic tendencies.
Therefore the broader assumption made in this book is that, to the
extent that it exists, repression of protests is not an incidental response by
bureaucrats or politicians but an indication of more conflictual social relations
at the macro level. Neoliberalism has not been good for the right to protest:
under its hegemonic grip on elite world politics, the right has suffered very
serious setbacks. Coercive responses to protests have also increased since the
11 September 2001 terrorist attacks on the US, followed by other attacks
elsewhere. Governments have seized on the widespread public panic about
terrorism to introduce mass surveillance and other measures (such as police
militarisation) in the name of protecting national security. However, at times
these measures have been excessive, threatening civil liberties and creating
far more insecurity than they were meant to address. Wily governments, in
collaboration with the private security industry, have redefined more and
more social problems as national security threats requiring the intervention of
the states coercive capacities rather than its civil capacities: a process known as
securitisation. By now, there is more than enough evidence internationally
thatunder the guise of fighting the war against terrormore governments
have used their greatly expanded coercive capacities to clamp down on
legitimate dissent, including the right to protest. It is assumed that this is a
relevant backdrop against which to examine the right to protest in South
Africa, and to explore whether these trends are manifesting themselves here

INTRODUCTION7

too. If protests have been appropriately constructed as national security


threatsthat is, because of legitimate concerns about threats to public
safetythen public acquiescence to repression is more likely. However, if
their purported threats to national security are overstated, then it is more
likely that the repressive apparatuses of the state will overreach themselves
and that repression will extend into legitimate areas of political activity, to
the detriment of democracy.
This book is situated in the critical paradigm, in that it is orientated
explicitly towards social change.The intention in writing it was neither merely
to observe the world (as positivists do) nor to interpret it (as interpretivists do),
but to take positions on it. Hopefully this has been done without distorting
empirical findings: ultimately, the reader will be the judge.A key objective
is to understand the social processes that create and sustain inequalityone
of these being state repressionin the belief that knowledge of the nature of
collective action and repression can help build the capacities of movements
on the ground. The books theoretical underpinnings are Marxist in that
it assumes that capitalism is structured in ways that are fundamentally
exploitative, and that while the ultimate goal of its managers is to maintain
consent for such exploitation, they are willing to resort to coercion if
necessary. But doing so carries with it significant political risks, and more
far-sighted politicians recognise this. However, this book does not subscribe
to the structural variety of Marxism that remains obsessed with the ways
in which social structures (re)produce inequality in its various intersecting
forms (such as class, gender and race). Rather, it recognises the power of
agency to make, and remake, social structures, and this agency includes forms
of collective action such as protests. Marxism rebuffs the idea of the state
as a neutral mediator of societal interests: it believes that state actions are
inherently biased towards the maintenance of the capitalist system, and that
its coercive capacitiesthe police, the intelligence services and the military
form the sharpest end of its spear.This means that Marxists would discount
the notion that the state can ever take neutral decisions about which protests
to allow and which ones to repress. These decisions will inevitably follow
a pattern that favours the ruling class and disempowers any contesting class.
However, as Antonio Gramsci observed, the state cannot be understood
as a mere tool of the capitalist class, as there may well be competing factions
and even contradictions in how it acts. Rather, the state is an outcome of
concrete political struggles, and the agency of different political actors shapes

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and reshapes how the state is structured and how it operates. Furthermore,
on a day-to-day basis, and by virtue of the logics of its own bureaucratic
functions, the state is capable of exercising some autonomy from the dominant
political class. However, it would be too far-fetched to say that the state
exercises complete autonomy: when the chips are down and the capitalist
class needs the state on side, then the state will likely bring independently
minded bureaucrats to heel. These assumptions embrace the possibility of
totalising views that attempt to understand the various components of a
society in terms of a broader whole, but hopefully not at the expense of
nuance. Being able to grasp the totality of a social structure allows a thinking
person to move beyond the surface manifestations of events, and understand
these events as part of broader social processes that are not preordained and
unalterable; as they are products of human intervention, they can be changed,
and a belief that social structures can be changed is an essential precondition
for system-changing collective action.
While arguing for the importance of the right to protest, this book does
not adopt a rights-based approach uncritically. Civil and political rightssuch
as the right to protestare understood as defensive rights that democratic
movements must struggle for and win. If they do not do so successfully,
they risk losing the democratic space necessary to mount transformative
struggles proactively. In other words, struggles for rights are a necessary
condition for transformative collective action, but they are by no means a
sufficient condition. Rights-based movements, which frame the struggles for
transformation as struggles for rights, often fail to acknowledge that rights in
a capitalist society will never be extended to the point where they change
social relations fundamentally: that is, this way of conceptualising struggles
fails to take sufficient account of power, how power operates in real-world
situations, and what is needed to change how power is distributed in society.
Analytical framework

The key question explored in this book is as follows: what does the states
approach to the right to protest reveal about the extent of democratic
space and the direction of democratic politics in South Africa? In order to
arrive at an answer to this question, an analytical framework was developed,
incorporating a series of sub-questions pursued according to organising
concepts used to test the main theoretical assumptions. The framework
directed the researchers to collect raw data about the different actors in

INTRODUCTION9

relation to protests and their roles and responsibilities, the relationships


between these different actors and how they were changing over time, and
the relationships between these actors and the broader political environment.
The various elements of the framework were divided into interest groups;
interventions or actions; relationships; and outcomes and impacts. The
interest groups engage in various actions in relation to protests that suggest
particular relationships, and these relationships in turn have outcomes and
impacts on how protests evolve. As all these elements are related to one
another, it is necessary to analyse them systematically in order to build up
a bigger picture of how the right to protest is exercised in reality. Thus, a
municipality characterised by a relatively impartial bureaucracy with little
interference in decision making about protests may facilitate the right much
more easily. As a result, there may be less resistance on the part of protestors
to cooperate with the municipality and the police, leading to protests
being institutionalised more readily. On the other hand, protests may resist
institutionalisation if municipal bureaucracies are overly politicised and make
partial decisions about prohibitionsfor instance, to favour the incumbent
party. In such situations, it may be found that protestors take to the streets
without having notified the municipality of their intention to do so, which
in turn may prompt a spiral of confrontation and even violence between
the protestors and the police.These kinds of patterns were looked for in the
data once the elements of the analytical framework had been applied. The
following sub-questions guided data collection and analysis:
Interest groups

The different actors: municipalities, police, protestors, government,


private actors. What are their roles, rights and responsibilities? Is there
any evidence of other actors becoming active in relation to protests, such
as the intelligence services?
The protest data: How many gatherings were recorded by the municipality
to have taken place per annum? Of these, what percentage could be
classified as protests? How do these statistics differ from municipality
to municipality? Are there indications of many gatherings having taken
place without the municipality having been notified? If so, what were
the police and municipal responses to them relative to responses to
gatherings the municipality had been notified about?

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Interventions or actions

The protestors: Who is protesting and how often? What are the key
issues they are protesting about? Are the organisations that are protesting
changing over time, and if so, why? Where do they stand in relation to
key power holders in the state and society? Are they part of the alliance
or not? Are some organisations more likely than others to be denied the
right to protest, and if so, why?
The municipality: How do municipalities respond to gatherings? Do
they respond differently to gatherings and to protests? Do different
municipalities respond differently, and if so, why?
The police: How do the police respond to protests? Are there shifts
in police responses over time, and if so, why? Are they more likely to
respond violently to particular groups, such as those outside the alliance?
The intelligence services:Are they are involved in decision making about
protests? How and why?
Relationships

The relations between these different actors: Is decision making between


these different actors static or is it changing over time, and why? Are the
roles and responsibilities of these different actors clear? Why do different
actors support or resist the right to protest? Which actor or actors seem
to hold the power in relation to decision making about protests?
Relationships between actors and the broader political environment:
How are actors impacting on this environment? What do protests and
their denial tell us about broader political shifts?
Forms of repression: Were any prohibitions visible in the municipal
records? Were unreasonable conditions imposed on protests? Were protests
being banned or were conditions imposed without meetings having
taken place between the municipalities, police and the conveners of the
protests? Were the prohibitions or conditions reasonable or unreasonable?
If meetings did take place, did they take place in a spirit of good faith, or
did the police and/or municipal officials intimidate the conveners? Was
there political interference in decision making or harassment of activists
by the authorities? Were the requirements of the RGA adhered to? Were
there any municipal and police practices that pointed to problems with
the Act? Did the intelligence services play any role in contributing to
repression, or were their interventions justifiable?

INTRODUCTION11

Outcomes and impacts

Outcomes and impacts of regulating protests: How have different actors


responded to the regulation of protests (including when they proceed
without incident) when conditions are imposed and when they are
prohibited? What are the impacts on and consequences for democracy
of denial of the right to protest? What is the broader political significance
of the protests, and how does this significance (or lack of it) impact on
state responses?
The units of analysis were individual protests. Information about these
protests was gleaned from notifications of gatherings to municipalities in
terms of the RGA, letters from municipalities, any other documentation
in the municipal records, and records kept by the police in their database
of protests. Data was also gleaned from different actors, such as municipal
officials, the police and protestors, through focus groups and in-depth
interviews. These key elements of the analytical framework allowed for the
interpretation of empirical data and the construction of general explanations
or theories about the relationships between protests, repression and broader
questions of political space.
The research revealed that, on the whole, the right to protest is still
very much respected by municipalities, and consequently by the police, as
municipal decisions often set the tone for police actions. As a result, the
political space for collective action remains very much open. However,
there are signs of this political space closing, particularly in the wake of
South Africas third democracy-era local government elections in 2011.
Municipalities use myriad ways to limit and even thwart this right. Not one
of the municipalities researched received a completely clean bill of health
when it came to regulating protests within the framework of the Constitution
and the law; however, some bureaucracies exercised some autonomy from
the political layer in making decisions, although not always with the best of
intentions. Smaller municipalities were less likely than the bigger metropolitan
municipalities to tolerate protests by organisations outside the ruling alliance.
It is often assumed that municipalities, in consultation with the police, impose
conditions on protests to prevent violent protests from taking place, especially
in contexts where there has been a history of such protests.Yet the research
pointed to a very different picture: namely, of the vast majority of protests
being peaceful and taking place without incident.This phenomenon can be

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referred to as the daily humdrum of protests. With the media focus on the
spectacle of violent protests, this larger picture is often missed.
In fact, journalists show very little understanding of the dynamics of
protests, and even less understanding of the RGA and the obligations it
imposes on municipalities and the police. They are more likely to take
seriously the voices of officialdom, relative to the voices of protestors, and
often adopt frames that criminalise protests unfairly: a problem that has
been well recognised internationally in relation to protest reporting, and
which has been theorised into the protest paradigm. Many elements of
the protest paradigm were found in much of the reporting on protests in
the municipalities surveyed, which raises serious questions about the antidemocratic uses to which this journalism can be put, as it could be used
(and has been used) to justify greater state repression. However, there were
significant exceptions to this general rule, especially in relation to reporting
undertaken in the wake of the 2012 Marikana massacre, when scores of
mineworkers, as well as some security guards and police, were killed. This
massacre sensitised more thoughtful journalists to the problem of excessive
and unjustified state violence against protests, suggesting to them that they
needed to consider the dynamics of protest and state responses more deeply.
The book also considers some of the broader political implications of
these shifts by asking, what is the historical significance of the recent protests
in South Africa? To explore this question, some of the major commentators
and theorists of the day are engaged. It could be inferred that if the protests
were significantthat is, if they promised to shift South Africa towards a
more equal societythen those in power would be more likely to stymie
them, as they would feel threatened by their potential. However, if the protests
were not anti-systemic in nature, then the powerful would be more likely to
accommodate and even institutionalise them. It is argued here on the basis
of analyses of the data that there are significant political shifts under way
that bear all the hallmarks of a Gramscian organic crisis. This means that,
in spite of official attempts to close political space from above, this space is
being prised open from below, and that when considered in the context of
the broader waves of resistance to neoliberalism of the past three decades, the
transformative potential of the protests is high. Furthermore, there is evidence
of a shift towards less visible, more pre-emptive forms of repression, which is
actually a sign of the political elites weakness rather than its strength, as the
elite recognises that it cannot use the state to repress dissent in more visible

INTRODUCTION13

ways without risking the loss of legitimacy. In fact, the Marikana massacre has
done a great deal of political damage to the ruling elite in that the event has
hastened the search for political alternatives to the ruling alliance, which has
increased political diversity. In other words, no matter how dark the current
political moment seems, it is also pregnant with great promise.
The research process

I began to take an interest in the state of the right to protest when I


worked for a South African non-governmental organisation (NGO) called
the Freedom of Expression Institute (FXI). The years following the first
democratic elections in 1994 were full of hope, and we busied ourselves
with the task of contributing to the rewriting of apartheid-era policies and
laws to bring them into line with the countrys new Constitution. As the
RGA was a recent addition to the statute books, we paid little attention to
it, assuming that the law was fit for purpose for the new democratic era. In
any event, there wasnt a great deal of action in the protest space in those
years, presumably because the government and other power holders were
enjoying a post-apartheid honeymoon period.
The first time I encountered a problem with the Act and its implementation
was in 1999, when the FXI became involved in a case involving the South
African Roadies Association (SARA).This organisation attempted to hold a
protest outside the concert of the band Simply Red, which was performing
at a private venue in Johannesburg owned by South African multinational
cellphone giant MTN. SARA accused the concert promoters, Big Concerts,
of racism and of not developing freelance workers, and Simply Reds tour
manager had refused to hold training workshops.Yet, rather than being met
with a receptive audienceas could be expected in a deliberative democracy
the protestors were arrested and charged with illegal gathering.5 Then, in
2001, the United Nations (UN) held the World Conference against Racism,
Racial Discrimination, Xenophobia and Related Intolerance in Durban. Civil
society mobilised around the conference to develop an alternative agenda
for tackling racism: one that did not shy away from tackling the systemic,
global nature of racism and the complicity of Western powers in creating
conditions for its continued existence. The conference galvanised radical
civil society, and a new social movement devoted to addressing the ongoing
problems of landlessness and dispossession, the Landless Peoples Movement
(LPM), was launched.These mobilisations intensified in the build-up to the

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next major UN conference to take place on South African soil, the World
Summit on Sustainable Development (WSSD).This conference was held in
Johannesburg in 2002.
These conferences took place in a global context that emboldened
radical civil society and anti-systemic social movements. Many of these
movements linked the promotion of fundamental rights and freedoms to
systemic problems in the global capitalist system, and sought fundamental
system change for a more just and equal society rather than mere reforms.
While these movements used a variety of means to pressure for social change,
protests were central in their organisational repertoires. In 1999, what had
become known as the anti-globalisation movement successfully shut down
the World Trade Organization (WTO) talks in Seattle through direct street
action. Many of these movements coalesced around an alternative global
conference, the World Social Forum, which sought to provide a space for
building ideological alternatives to neoliberalism, a theme that underpinned
its annual global meeting of governments and captains of industry. Challenges
to neoliberalism were becoming more visible at the global meetings of world
leaders, and the intelligence and police agencies were clearly becoming
very worried. No major meeting of world leaders could take place without
protests outside and against them.
In an attempt to prevent a recurrence of what took place at Seattle, the
police and intelligence agencies began to restrict the right to protest, and
South Africa was no exception to this general rule.Terrified of being shamed
in the eyes of the world, the South African government began to overpolice South African-based summits. Evidence of intelligence surveillance
of civil society emerged during the World Conference against Racism, but
the mobilisations around the conference were allowed to proceed with little
official interference. But official paranoia became especially apparent in 2002.
Fearing a WTO-style shutdown of the WSSD conference by protestors,
the police and intelligence agencies swung into action. They placed under
surveillance the LPM and other organisations they considered to be threats,
and clamped down on attempts to protest in the run-up to the summit.The
FXI became heavily involved in contesting these high-handed measures,
bailing arrested protestors out of jail, and challenging violations of the right
to protest legally and through advocacy and publicity. It was an incredibly
demanding period for all of us involved in freedom-of-expression work. It
was also eye-opening, because it suggested that the states security apparatus

INTRODUCTION15

was willing to resort to repression to prevent disruption of conferences


that were, at best, content with tinkering on the margins of the dominant
global social order and, at worst, complicit in the reproduction of neoliberal
ideology. In a seminar reflecting on the implications of state actions in relation
to the WSSD for the right to protest, a prominent ANC member argued
that heavy-handed policing at the conference was a flash in the pan. The
police overreacted, he claimed, because it was a global conference, and their
over-policing of the WSSD should not be taken as a sign of a shift to more
repressive approaches towards dissent in South Africa.6
However, in spite of the ANCs protestations, it soon became apparent
that more repressive approaches towards the right to protest had become
the new normal in South Africa. In 2004, when a wave of protests hit
small towns in the Free State province, thirteen protestors faced sedition
(or low treason) charges.The FXI intervened and publicised the matter, and
the National Directorate of Public Prosecutions backed down. Then the
FXI become involved in contesting a series of prohibitions against various
social movements that fell outside the ANC alliance, notably the AntiPrivatisation Forum (APF) and the Soweto Electricity Crisis Committee
(SECC). In an attempt to understand how widespread the problem was,
the FXI commissioned a research report from Research and Education in
Development (RED) on the regulation of gatherings in Johannesburg.7 The
researchers obtained access to the notices filed by conveners in terms of the
RGA notifying the Johannesburg Metropolitan Police Department (JMPD)
of the City of Johannesburg of their intentions to stage gatherings. They
also interviewed the citys responsible officer. The findings were disturbing
in that they strongly suggested a pattern of prohibition whereby the JMPD
was not administering the RGA in a politically neutral fashion; rather, the
police were manipulating the Act to make it more difficult, even impossible,
for the ANCs political critics to take to the streets. Evidence also emerged
of municipalities elsewhere engaging in similar acts of censorship.Yet since
the RED research, no attempt has been made to document these problems
systematically, and to develop a national picture of the extent of the problem:
hence the research that gave rise to this book.
To take on this work, I raised funds from the Open Society Foundation
for South Africa (OSF-SA) for a research project into the right to protest in
twelve municipalities. The purpose of this project was to establish patterns
of notification and prohibition of gatherings and protests. According to the

16PROTEST NATION

RGA, anyone holding a gathering of sixteen or more people needs to notify


the municipality of the intention to stage a gathering, and the municipality
holds these records. Up to this point, scholars have recognised three principal
sources of protest data: the SAPS Incident Registration Information System
(IRIS) database, media reports (especially from SABC News Research, which
holds the largest media database in the country) and monitoring institutions
such as Municipal IQ.8 Until recently, SAPS released aggregated statistics
about the number of public gatherings in South Africa, but researchers have
not really been able to access individual entries on the database. RGA records
held by municipalities are largely untapped as a research resource. This is
surprising, as they yield raw data about which individuals and organisations
are holding public gatherings in various parts of the country, and the RED
research pointed to just how rich this data set was. Municipalities generally
record the purpose of a gathering or protest, which allows the issues that are
giving rise to grievances to be tracked over time to see how they are changing.
The records also reveal how tolerant or intolerant municipalities are of the
right to protest, and whether they enable it or thwart it on spurious grounds.
This project was preceded by a pilot project on the right to protest in
the troubled Rustenburg area in the North West province of South Africa,
which had seen an upsurge in strikes and protests in 2010 as the town is at
the heart of the platinum mining belt. The initial work on the project was
funded by a once-off micro grant from the Dean of Humanities at Rhodes
University. Using this grant, Andrea Royeppen, a Rhodes masters student,
spent time at the Rustenburg municipality and worked her way through
its records, piecing together patterns of prohibition in the area. She did this
because it had become apparent that protestors were experiencing problems
with exercising their right to protest in the area in the wake of the Marikana
massacre. Several protests were prohibited by the Rustenburg municipality
under whose jurisdiction Marikana falls. Two of these were planned by
the Wonderkop Community Womens Association and were prohibited by
the municipality on spurious grounds. The prohibition was overturned by
the North West high court and the march went ahead, although stringent
conditions were applied.9
What we found in the records of the Rustenburg municipality was
disturbing. In 2012, one in two protests was prohibited, up from close to
one in three in 2011, and the reasons for prohibition that were given were
not recognised grounds in terms of the RGA. The results of this research

INTRODUCTION17

are set out in my book The Rise of the Securocrats: The Case of South Africa.10
I decided to extend the project to other municipalities to see whether the
same pattern of prohibition was evident elsewhere. Needless to say, it was
impossible to research all municipalities, so I had to make choices about
which municipalities to select. This book analyses trends in the records of
the following municipalities: Nelson Mandela Bay, Lukhanji, Makana and
Blue Crane Route (all Eastern Cape); Breede Valley,Witzenberg, Langeberg
(all municipalities falling into the Cape Winelands district municipality);
Mbombela (Mpumalanga); eThekwini (KwaZulu-Natal); and the City
of Johannesburg (Gauteng). Records were also obtained from the City of
Cape Town, but they were not in a form that could be analysed sensibly. For
instance, this was the only municipality that did not record the reasons for
gatherings and protests.A visit was also made to the Phumelela municipality
in the Free State, but its records were so poorly kept that they did not yield
any usable data.
The decision to select these municipalities was based partly on statistics
obtained from SAPS by the Media24 Investigations unit on the number of
peaceful and unrest-related protests in the country for the period January
2009 to November 2012 (SAPS terminology for protests that remained
peaceful or involved the commission of a crime, and which therefore
triggered the opening of a case docket in terms of the RGA).11 Areas
where the majority of protests were unrest-related were selected in order
to understand why this was so, and whether this problem had anything to
do with the regulation of protests by the municipality. Other municipalities
were selected as a control group, because according to the SAPS statistics,
most of their protests were peaceful; in such instances, it was important
to understand why this was the case. As I was based at Rhodes University
when we were conducting the fieldwork, the researchers prioritised the
Eastern Cape to build up bodies of knowledge about protest cultures in
the province: as a result, four of the ten municipalities covered in this book
are Eastern Cape-based, including the Makana municipality, where Rhodes
University is based. The research team were all Rhodes University-based.
Andrea Royeppen and Lehlohonolo Majoro were undertaking their MA
and honours degrees respectively through the Department of Political and
International Studies. They travelled to the various municipalities to gather
the records, which involved obtaining permission from officials to access
their records, and they recorded all notifications of gatherings and protests
to these municipalities.

18PROTEST NATION

Although the researchers attempted to access five years worth of data


for some municipalities to enable me to plot the trends over a longer
period of time, this was not always possible as the quality of record keeping
was highly uneven across the municipalities. The researchers developed
consolidated reports of the records they could access, as well as spreadsheets
of all notifications recorded by the municipality.These spreadsheets included
the name of the notifying organisation, the date of the gathering, the reason
for the gathering and the municipalitys response. The notifications were
divided into gatherings and protests in order to understand whether the
patterns of approval or prohibition were the same or different for both, given
that protests tend to be more politically sensitive and therefore most at risk
of being stifled.The researchers occasionally experienced some difficulty in
separating out protests from gatherings, but their guiding principle was that
protests are a species of gatherings that express particular grievances, and
often (but not always) involve the handing over of a memorandum to the
party that was considered to have created the grievance in the first place.
The researchers also spoke to the responsible officers of the municipalities
in order to find out how they approached the regulation of gatherings and
to uncover trends in the organising of gatherings and protests in the area.
The purpose of recording this information was to allow me to plot patterns
in how the RGA was being applied in these municipalities.
Most municipalities cooperated. Only the City of Cape Town insisted on
a formal information request through the Promotion of Access to Information
Act.All other municipalities granted access to their records without a formal
request having to be made. Some municipalities were more difficult than
others when it came to accessing their records; although it was often difficult
to identify the responsible officers, leading to the researchers being pushed
from pillar to post in some cases, once they were identified, many were very
cooperative and were often at pains to explain how they undertake their
responsibilities in terms of the Act. The most problems were experienced
with the Cape Winelands municipalities (Breede Valley, Witzenberg and
Langeberg), which were prioritised because of the spate of farming protests
that had taken place in the area.The researcher struggled to access the relevant
people. Furthermore, the trip unfortunately coincided with the passing of
former president Nelson Mandela; in fact, the researcher travelled to the area
the day before he passed away. This led to many municipal officials being
unavailable, which meant that he was able to access only some of the records.

INTRODUCTION19

It is important to realise that the municipal data gives us only part of the
protest picture. It does not provide information about gatherings and protests
that municipalities were not notified about. This means that any analyses
based solely on this data set will be skewed towards more institutionalised
forms of protest, held by protestors who are willing to operate within the
framework of the RGA.As a result, the records will tell us little about protests
that operate beyond the bounds of the RGA, such as spontaneous protests,
protests organised by people who simply do not know about the RGA,
or protests organised by people who are familiar with the Act but refuse
to be confined to protest forms that are bounded by the rule of law. The
records give few clues as to the social base of the protestors, although the
protesting organisations are identified by name, and some protests are held
by a clearly defined constituency (such as a municipal union or a particular
local ward), which means that the social base can be inferred. It is likely that
most protests that are listed in the records took place, as cancelled protests
are recorded: however, no information is available in the records about how
the protests turned out. However, to an extent this information is recorded
in the SAPS IRIS database.
As this manuscript was being finalised, the University of Johannesburgs
South African Research Chair in Social Change received a huge data dump
of information from the IRIS database in response to an information request
sent to SAPS. I have incorporated information from this entirely new data
set in relation to four municipalities (Mbombela, Blue Crane, Lukhanji
and Rustenburg), although for practical reasons I have focused on one
municipality in particular (Mbombela). The IRIS database records several
species of crowd-management incidents, including church- and funeralrelated assemblies, processions, music festivals, meetings, open-air electionrelated activities, sports and political meetings, as well as barricades, boycott
actions, demonstrations, disaster- and catastrophe-related gatherings, hostagerelated gatherings, sit-ins and occupations, acts of intimidation, stay-aways and
strikes.12 It is an extremely difficult data set to work with, as it generally does
not list convening organisations, and entries are not broken down according
to localised areas. Motives for the gatherings are broadly described. These
challenges make it difficult to analyse the thousands of entries for patterns,
and this task remains one that future researchers need to undertake.
In an attempt to probe issues emerging from the municipal records,
Andrea Royeppen conducted an initial round of interviews with 22 activist

20PROTEST NATION

organisations. After the municipal research was completed, researchers also


conducted in-depth interviews in four selected municipalities: Rustenburg,
Mbombela, Nelson Mandela Bay and Blue Crane Route. It was not practical
to conduct interviews in all twelve sites visited, so it was decided to focus on
those municipalities where the municipal records gave particular cause for
concern. Admire Mare, a PhD student at the Rhodes School of Journalism
and Media Studies, conducted some of these interviews and focus groups.
A research team also visited the Nelson Mandela Bay and the Blue Crane
municipalities and interviewed protestors and community members about
protests that had taken place in the areas towards the end of 2013.The team
was constituted and led by Derek Luyt, a former investigative journalist and
Rhodes academic, working on public accountability issues in the Eastern
Cape. The team consisted of Yanda Bango and Tulisa Mahote, both masters
students in the Department of Sociology, and Thabani Mdlongwa from
the School of Journalisms Public Service Accountability Monitor. They
attempted to establish how the extent of democratic spaces in these areas
impacted on the right to protest, to what extent protestors felt their right
to protest was respected or not, and whether protestors had adapted protest
repertoires in reaction to municipal and police reactions.
Overview of Protest Nation

The book is divided into eleven chapters. The general scope of coverage is
as follows: First, in order to understand the most important questions that
need to be posed, the main general theoretical arguments about protests and
repression are identified. Next, the specific context in which the right to
protest is being exercised is sketched, as this context may point to broader
trends towards either a more open or a more closed political context. The
data from each municipality is then considered with this context in mind
to see whether it confirms or refutes the major trends. Each chapter gives
emphasis to particular questions, such as whether the political space for the
right to protest is more open in urban, metropolitan contexts, as opposed
to rural contexts, or whether municipalities appear to be more open to
protests by ANC alliance partners than by those outside the alliance. As
focusing on municipal accounts only would be inherently one-sided, the
experiential knowledge of activists in attempting to exercise the right to
protest is also taken into account. Police and media accounts of how the right
is being exercised complement the overall picture, as all these actors make

INTRODUCTION21

contributions to a climate for open or closed engagement about contentious


actions designed to communicate grievances.
Chapter 1 summarises some of the international theoretical debates on
the right to protest and its limitation. It considers the relevance of social
movement theory for the South African context, theorisations about the
nature of state repression, and shifting modes of state repression in recent
years. It notes that modes of state repression have become more complex
and less overt, leading to a shift in focus in the international literature from
reactive to pre-emptive forms of policing. It also notes that, in view of less
visible, more surveillance-based forms of social control, there has been a shift
away from the concept of repression to the broader concept of pacification.
Chapter 2 provides an overview of the major arguments about the
significance of South Africas protests and identifies the strengths and
weaknesses of the literature on repression of protests in the country. The
chapter lays out some of the major theoretical questions emerging from the
literature that will be addressed in the book.
Chapter 3 focuses on the legislative and policy context for the exercise
of the right to protest in South Africa. It examines the broader economic and
political environment in which the right is being exercised, and explores how
formalised channels for the expression of grievances have not been working as
expected. It considers how the countrys legislative provisions for gatherings
and protests measure up to international human rights standards, and some
of the ways in which these provisions enable or thwart the right to protest.
Chapter 4 looks at the research findings in two municipalities in the
relatively highly repressive provincial contexts of Mpumalanga and KwaZuluNatal, and explores whether democratic spaces for the right to protest have
been closed down completely in these municipalities.
Chapter 5 focuses on the cosmopolitan urban centres of Johannesburg
and the Nelson Mandela Bay municipality. It explores the political shifts
among protest actors and tests whether municipalities are less likely to repress
protests in the more media-rich cities, which potentially raises the cost of
repression for the authorities.
Chapter 6 is concerned with social movement collective action. It
explores the significance of social movements in small-town contexts in the
Eastern Cape province by examining the rise of one social movement and the
decline of another, both of which were independent of the ANC alliance. It
looks at the effect of these developments on the democratic spaces in these

22PROTEST NATION

contexts, and the impact of state responses to protests. In particular, the chapter
considers whether organisations have been subjected to harsher treatment
by the respective municipalities because they lie outside the ANC alliance.
Chapter 7 examines the regulation of gatherings and protests in
municipalities incorporating large rural areas in the Eastern and Western Cape.
It considers the political shifts taking place in these localities, and tests the
assumption that the authorities are more likely to respond with hostility to
political shifts away from the ruling alliance, as most gatherings and protests
in these areas take place away from the media spotlight and, as a result, the
costs of repression are lower.
Chapter 8 summarises the main findings of the activist interviews, which
probe the experiential knowledge of users of the RGA, and examines whether
these interviews point to official facilitation or frustration of the right to
protest. It incorporates preliminary interviews with 22 activist organisations
and their legal representatives, as well as findings from four protest sites.
Chapter 9 evaluates police responses to the right to protest, with emphasis
on recent controversies around public order policing of protests. It examines
the efficacy of recent police arguments for more resources on the basis that
they are under siege by examining trends in the number of peaceful versus
unrest-related crowd incidents and the number of cases of police violence.The
chapter also considers the extent of police commitment to demilitarisation.
Chapter 10 discusses the media coverage of collective action in four
protest sites, evaluating the extent to which the coverage manifested elements
of the protest paradigm. It does so through a source analysis and a thematic
content analysis, and compares and contrasts media reports with the municipal,
police and activist accounts in those areas. The emphasis is on evaluating
whether the media coverage has contributed to an understanding of protests
and their underlying drivers, or whether distortion of these issues is apparent
in media reporting.
Chapter 11 brings together arguments from all the preceding chapters
and examines the overall trends emerging from the protest data. It looks at
whether the worrying findings that came out of the Rustenburg research
were evident in other municipalities, and at what can be concluded on a
more general level about the conduct of municipalities in facilitating the right
to protest. It also considers the broader political significance of protests, and
whether repression is a likely political trajectory for South Africas current
political administration.

INTRODUCTION23

Notes on terminology

Some points about terminology used in the book need to be made. The
RGA requires those wishing to engage in a gathering, including a protest,
to notify the municipality of their intention to do so. Once they have done
so, the notification process is complete. They do not need to wait for the
municipality to provide permission to proceed; however, many municipalities
are under that impression. As a result, when reference is made in the book
to the number of gatherings that have been approved by a particular
municipality, the word approved is put in scare quotes. This makes it clear
that the notification process is not a permission-seeking process, which is
what the word approved implies.
A distinction also needs to be drawn at the outset between peaceful
protests, disruptive protests and violent protests. In an attempt to encourage
a measure of reflection on the appropriate use of the word violent to
characterise protests, the South African Research Chair in Social Change
has distinguished between peaceful, disruptive and violent protests; this was
done to make the point that while some protests may involve property
destruction, they do not necessary involve violence.13 While peaceful protests
would take place without any public disturbance or injury to participants or
bystanders, disruptive protests would involve methods that disrupt the normal
functioning of social institutions but are nonetheless peaceful in that they
do not involve injury to persons; examples include occupations and sit-ins,
burning tyres and blockading roads.This form of protest is often undertaken
when peaceful means do not work and protestors need to escalate their
actions into disruption to draw attention to the fact that these institutions
may have normalised fundamentally unjust social arrangements. Violent
protests, in contrast, involve the destruction of property and/or injuring or
killing people. Even more confusingly, in cataloguing gatherings and protests,
SAPS draws a distinction between peaceful and unrest-related gatherings.
According to SAPS, an incident becomes unrest-related when it triggers
the opening of a crime docket in terms of section 12 the RGA, which sets
out offences and penalties for contravening the Act.14 It is likely that SAPS
would categorise disruptive and violent protests as unrest-related, but much
depends on whether or not a docket was opened. These terms will take on
these meanings in the book.