South Africa: Court rules protest ‘fees’ are unconstitutional
On 10 June 2022, the High Court in Johannesburg ruled that a City of Johannesburg policy that enables the charging of fees to protest convenors is unconstitutional.
The matter was brought by the Right2Know Campaign, the Gauteng Housing Crisis Committee, and community leader Keith Duarte, with the Centre for Applied Legal Studies (CALS) as their attorneys. In October 2020, Duarte was required to pay a prescribed fee of R297 to the City of Johannesburg when giving notice to the authorities of a planned protest. The fee was paid and the protest went ahead as planned.
In the case, the applicants argued that the request for a fee was presented as though it was a pre-condition for ‘approval’ of the protest: city officials informed the convenor that if he refused to pay the fee, the intended protest would be deemed unlawful, and no law enforcement agents would be deployed for the protest.
South Africa’s Regulation of Gatherings Act of 1993 provides that when planning a protest, organisers should notify local officials of their plans, after which the officials are responsible for liaising with relevant law enforcement and traffic authorities to ensure appropriate public safety measures, such as road closures. Local officials are also responsible for facilitating negotiations between protest organisers and law enforcement authorities when there is a dispute over any conditions of the planned protest.
However, activists have long reported that the City of Johannesburg had introduced various fees in relation to fulfilling this role, including an administrative charge, and fees to cover the cost of staff and vehicles deployed to protests. The application thus challenged the City of Johannesburg’s use of various fees for those exercising their right to protest, arguing that the Regulation of Gatherings Act does not provide for the use of fees, and that this constituted a blatant infringement on the right to protest. The South African Human Rights Commission intervened as a friend of the court to emphasise that the policy does not comply with international law.
Judge Victor ruled the City’s fee practice was an unconstitutional limit on the right to freedom of assembly, and was not in line with either the Regulation of Gatherings Act or the Constitution. She noted in her judgement that:
“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.
Because freedom of assembly is so integral to any democratic society, its exercise cannot be limited without good reason.”
Judge Victor further ordered the City to pay the costs of the applicants. Charging fees for gatherings through the City’s tariff policy may no longer take place.
CALS, representing the applicants, said in a statement: “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… The judgment acknowledges the importance of protest in our country, both historically during the struggle against apartheid and currently in holding those in power accountable. No longer will anyone wishing to raise their voices about the social issues that affect them be obstructed by irrational fees.”
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