A City of Johannesburg policy that requires people to pay for policing services during a protest, demonstration, assembly or gathering has been found unconstitutional.
The City’s tariffs determination policy imposes a fee of R170 to R15 000 to hold gatherings, assemblies, demonstrations, pickets and to present petitions. The convener is responsible for payment.
But following an application to strike the policy, judge Margaret Victor of the high court in Johannesburg found it to be unconstitutional on the basis that it violates the right to protest. The matter came before Victor because of a protest in Johannesburg on 23 October 2020 organised by Right2Know, a movement that advocates for freedom of expression and access to information. The protest took place as planned and was peaceful.
But before the protest, during what is known as a section four meeting – a final meeting between the allocated Johannesburg Metropolitan Police Department (JMPD) officer and the convenor to iron out the details of the protest, route, destination and number of people expected to attend – the convenor was directed to pay a levy. This created an impression that exercising the right to protest was conditional on payment of the levy. The City insisted that the payment was not a condition but a way for the JMPD to facilitate the protest.
The Gatherings Act, which includes the regulation of protests, is silent on the payment of fees. The Centre for Applied Legal Studies, which presented Right2Know, told the court that the City’s policy was in direct contradiction to legislation and that it prevents impoverished city dwellers from exercising their constitutional right to protest.
That protesting is a fundamental tool for participatory democracy is what propelled activist Keith Duarte, Right2Know and the Gauteng Housing Crisis Committee to approach the court. The South African Human Rights Commission joined the case as the friend of the court, to help it with international law on the right to protest.
The applicants told the court that the policy needed to be struck down as it limited the right to protest and violated several other prominent constitutional rights. The City of Johannesburg, one of the respondents, told the court that imposing a fee was not contrary to the Gatherings Act and that as a municipality it was entitled to charge a levy for providing the service of traffic control and policing.
The respondents, who included the chief of the JMPD, said the Systems Act gave them authority and activists had brought the wrong case to court, one that challenged the policy instead of the Systems Act. But the court rejected this suggestion before dealing with the main issues.
‘The path of democracy’
Victor found the City’s tariffs determination policy irrational after a thorough examination of the law and international principles that underpin the right to protest. “I outright reject the argument made by the respondents that the levying of fees is for the purposes of facilitating the right to protest,” she said. “The right to protest does not exist with some caveat that to be enjoyed with protection from the state, one must first put in place the funds.”
The court emphasised that law enforcement officials have a constitutional obligation to ensure that people are safe when gathering. People are entitled to this supervision free of charge, it said.
In her judgment, Victor said: “Protesting, demonstrating or picketing allows members of society to hold government and other entities to account. It is an outlet through which citizens can occupy public spaces to voice discontent and have their voices heard. The right enables participatory democracy, so to trammel on the right is to manipulate the path of democracy.”
The court was alert to the reality that when marginalised people protest, they are often met with state repression. In making this point, Victor quoted activist and scholar Jane Duncan, who highlights that “protests can bring matters to the attention of the authorities that they may not want to hear, protests are popular and unmediated expressive acts, offering forms of communication to poor and marginalised people who may not otherwise have access to more conventional channels such as the media”.
Activists and social justice organisations have warmly welcomed the decision. “Judge Victor’s ruling is a victory for the right to protest and for all those who seek to exercise it, but particularly for those who are rendered vulnerable and marginalised and cannot afford a fee,” said Sithuthukuli Mkhize, the head of the civil and political justice programme at the Centre for Applied Legal Studies.