IURI122 ASSIGNMENT2

Stephanie Pel 34524010

MS TSITSI MAVETERA  
Table of contents

Contents
1. Introduction............................................................................................................2

2. Historical background on the right to protest........................................................2

3. The right to protest under the democratic dispensation........................................2

4. Limitations on the right to protest.........................................................................3

5. Conclusion..............................................................................................................4

6. Bibliography............................................................................................................5

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IURI122

1. Introduction
In this assignment I will be discussing the historical background on the right to
protest and enlighten you some the things that Du Pisani mentioned in his article
and how the restrictions during Apartheid were not justifiable. Further there will be
background given on the historical background of protests and how section 16,17,18
and 23 gives effect to the right to protest and how the sections are applicable to the
case, and the purpose of the regulations of Gatherings Act, uphold the right to vote
by protecting, facilitating and regulating protest. Also, there is some limitations to
the right to protest and I will tell you how I think it is necessary and that these
limitations are for the constitution and for the Regulation of Gatherings Act, also how
these limitations are justifiable because it protects us and sets out rules for us on
how to protest in a way that is peaceful and unarmed.

2. Historical background on the right to protest

There were restrictions on protests and it went against basic human right, protests
are way you can express yourself (freedom of speech) for you to meet new people
work with them (right to associate). I think they did it to keep everything calm that
there would not be chaos, for example to keep people quiet about how they feel
about apartheid and why they think it is wrong. So that there would be not protesting
about Apartheid. It had a bad effect I think if they could protest in that time Apartheid
could maybe have stopped earlier and the people would have better human rights.

It is not justifiable because it was not fair, you could not protest and it basically goes
with freedom of speech and freedom of association. You could not express yourself
for example a peaceful protest for better health care services or cheaper education.
So, it’s not justifiable in my opinion because it also goes against other basic human
rights.

3. The right to protest under the democratic dispensation

The right to protest in the interim and final 1996 constitution has a provision that
gives effect to this right. This provision is Section 17 of Constitution and it states
that everyone has the right to assemble, demonstrate, picket and present petitions

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but in a peaceful and unarmed manner.1 Basically what this means is that every one
has the right to protest but in a way that is peaceful not disruptive.

There are some relevant sections in the constitution that is applicable to this case.
Section 18 of the constitution is relevant because it says everyone has the freedom
to associate, what this comes down to is you can protest with any group and
associate with them because you have the right to do so. 2 Section 23 of the
constitution it states that every labourer has the right to strike. 3 Section 17 that was
mentioned above is most relevant, it gives you the right to protest. Section 16 states
that you have freedom to express yourself, you can express yourself with a peaceful
protest to express what you feel or want to prove.4

The purpose of the Regulation of gatherings act 205 of 1996 in upholding the right
to protest is to regulate the holding of protests, it basically sets out how, when and
where a protest is allowed. It protects the right to protest and state intervention, it
sets out the rules for the people who wishes to protest and also the responsibilities
of the state which would be the ones who is managing the protest. 5 This Act is
basically set in place to facilitate, protect and regulate the right to protest.

4. Limitations on the right to protest

In terms of the Constitution Section 36 sets out the limitation of rights. The right to
protest has the limitation that it must always be done peacefully and unarmed, it
was proven in the case of Fourways Mall (Pty) Ltd ν SACCAWU and the
Constitutional Court case of SATAWU ν Garvas.6 This limitation is set out because
when there is an armed protest it could lead to someone getting hurt. In the
Regulations of gatherings Act the limitations are that there is no more than 15
people allowed to protest, this act is only applicable to gatherings and
demonstrations so it’s limited to these two things, notice must be given to police,

1
Section 17 of the Constitution of the republic of South Africa p8.
2
Section 18 of The Constitution of the republic of South Africa p8.
3
Section 23 of the Constitution of the Republic of South Africa p9.
4
Section 16 of the Constitution of the Republic of South Africa p7.
5
http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1991-38772017000400003.
6
http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1991-38772017000400003.

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municipality and state 48 hours before the protest can take place and only with their
consent it is allowed to take place.7

In the case of Fourways Mall (Pty) Ltd ν SACCAWU and the Constitutional Court case
of SATAWU ν Garvas they balance the right to protest with the limitations. They said
that there is no constitutional protection against armed protest this is why there is
limitations to the right such as it should be peaceful and unarmed, because it
actually protects the protesters and the other people who is around.

I don’t think the current limitations still embodies the right to protest as in the
Apartheid era. These limitations are necessary because let’s just think back to a
couple of months ago when the protests started in Johannesburg and Durban it
escalated in such a way that it became completely unpeaceful and armed. There
were so many people that got hurt because it led to looting and the police had to
step in and try to stop it, innocent people in their homes around the protesting areas
feared for their lives and this was also terrible for the economy, so this is why I think
the limitations set in place is necessary.

5. Conclusion
In my view the right to protest has completely transformed because in the Apartheid
era it was not allowed. When Apartheid came to an end protest were allowed but it
still has limitations as mentioned in the previous paragraphs. So, it has undergone
big change since Apartheid but the limitations are important because if they weren’t
set out protests can become violent and dangerous for example the Durban protest
and looting spree.

So, what this comes down to is there was a lot of injustices in the apartheid era but
things have changed and gotten better even if there are still some limitations. I think
of limitations as rules because it basically sets out what not to do or how you should
do it, its there to protect us and keep things peaceful.

7
http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1991-38772017000400003.

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6. Bibliography
Section 17 of the Constitution of the republic of South Africa p8

Section 18 of The Constitution of the republic of South Africa p8

Section 23 of the Constitution of the Republic of South Africa p9

Section 16 of the Constitution of the Republic of South Africa p7

http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1991-
38772017000400003

 Structure – introduction, body, conclusion 10

 Language, formulation and coherence in 10
argument
 Compliance with the Faculty of Law style 10
requirements [If you are a student from
Humanities – then you may also use the Harvard
style]
 Content of discussion – Background of the right 20
to protest in South Africa (under Apartheid
regime) – developments and relevant legislation
(1910- 1993)
 The right to protests under the democratic
dispensation (1993- current) – constitutional
right and current legislation
 Limitations on right to protest - (with regard to
relevant case law), prevalence of violent protests
in South Africa
 Comparison with the apartheid era