Background to the case
In 2020, members of the Gauteng Housing Crisis Committee, a coalition of communities that advocate on issues related to housing, land, and employment, planned a protest for 23 October. They met beforehand with the Johannesburg Metropolitan Municipality (“Municipality”) to discuss logistics for the protest, as required by the Gatherings Act 205 of 1993. After the meeting, Keith Duarte, the convenor of the protest, was asked to pay a R 297 fee to the Johannesburg Metropolitan Police Department (JMPD) for providing traffic control services during the planned protest. Mr Duarte paid the fee, and the protest took place as planned. However, following these events, the Gauteng Housing Crisis Committee, Mr Duarte, and the Right2Know Campaign challenged before the Gauteng High Court the legality and constitutionality of the fee that was charged by the Municipality.

Arguments of the Gauteng Housing Crisis Committee, Mr Duarte, and the Right2Know Campaign
The Right2Know Campaign, the Committee and Mr Duarte provided four arguments in support of their case. Firstly, they contended that the Gatherings Act, as the only legislation applicable to protests, does not make provision for a municipality to charge a fee for providing security and traffic control services during a protest. Since Johannesburg’s Tariff Determination Policy (Policy) requires a fee to be paid, it goes beyond what the City is allowed to do in terms of the Gatherings Act and must be struck down. Secondly, they argued that the Policy is unconstitutional since it limits the right to protest as provided for in section 17 of the Constitution. Thirdly, they contended that JMPD should not charge a fee for their policing services as the right to protest also include a duty for the state to provide protection services during a protest. Thus, they submitted that the Municipality cannot charge a fee for performing a constitutional duty. Lastly, since rights are interconnected, it was submitted that a violation of the right to protest will also violate the rights to dignity and equality as well as the right to freedom of speech, religion, opinion, and association which are also protected by the Constitution.

Arguments of the Johannesburg Metropolitan Municipality and JMPD
The Municipality argued that the Policy did not contravene the Gathering Act since the Municipality has the legal power to charge a fee for traffic services which originates from the Constitution as well as the Municipal Systems Act 32 of 2000.  The Municipality cited sections 151, 152 and 153(a) of the Constitution which empower a Municipality to govern local government affairs, provide sustainable services in terms of their financial and administrative capacity and prioritise the basic needs of its community. In turn, sections 4, 74 and 75A of the Municipal Systems Act stipulate that municipal councils have the power to charge fees for any municipal function and that the fee amount is limited in terms of a tariff structure. The Municipality and JMPD, therefore, submitted that, while the Gatherings Act is silent on fees charged for protests, it does not mean that the Municipality is not empowered to charge a fee at all. Rather, the power simply originates from the Constitution and Municipal Systems Act rather than the Gatherings Act itself.

The High Court decision
The Court first assessed whether the Municipality’s Policy was in line with the principle of legality because if it was not, the Policy would be unconstitutional. The principle of legality would require that the Policy be permitted by the Gatherings Act and if not, that it be rational.

The Court made it clear that the Gatherings Act, not the Municipal Systems Act, applies to protests. The Gatherings Act does not provide for fees to be charged for protests. Thus, the Act’s silence on the matter cannot be interpreted to allow for such a fee. As such, the Court ruled that the Policy is misaligned with the Gatherings Act.

Turning to the second question, in Pharmaceutical Manufacturers: In re Ex Parte President of South Africa, the Court ruled that a policy can only be rational if it is logically connected to its purpose. Here, the JMPD claimed that the fee is meant to fund the policing and security services that are provided during a protest. The Court did not accept this reasoning for the following reasons. Firstly, an essential part of the right to protest is the state’s obligation to provide police protection to protestors, whether they pay the fee or not. Secondly, the fee payable by NGOs and NPOs is usually nominal as they are entitled to an 80% discount in terms of the Policy. Such a small fee would not be enough to cover the actual cost of providing the protection services. As such, there is no logical connection between charging the fee and the reason provided by the Municipality for charging the fee. Thus, the Court concluded that the Policy is not in line with the Gatherings Act and that it is irrational. For that reason, the Court ruled that the Policy contravenes the principle of legality and is unconstitutional.

The Court could have stopped there as the Policy would be struck down for its unconstitutionality but, since the right to protest is such a vital part of South Africa’s constitutional democracy, the Court also decided on whether the Policy contravenes the section 17 right to protest. This entails a two-step enquiry where the Court would first determine whether the Policy limits the right to protest and if so, would determine whether the limitation can be justified in terms of section 36 of the Constitution.

The right to protest is highly regarded both in South Africa and abroad (as seen from numerous international instruments). The right should not be limited without good reason, but it can be regulated. In South Africa, as stated above, the Gatherings Act regulates the organisation of protests. Yet, as shown in SATAWU v Garvas and Mlungwana v S, regulations may not discourage or impede the exercise of the right to protest. The Court emphasised that charging a fee would discourage people from exercising their right to protest and goes beyond mere regulation. As such, the Policy limits the right to protest.

Section 36 of the Constitution allows for certain limitations of constitutional rights to be permitted if it occurs through “a law of general application” and is “reasonable and justifiable in an open and democratic society based on dignity, freedom and equality”. In this case, the Court indicated that the Policy is not a law of general application and as such, it cannot be justified in terms of section 36 of the Constitution. Yet, the Court also made it clear that if it were such a law, it would still not be justifiable due to its disproportionate impact. The Court emphasised that the Policy disproportionately affects the most marginalised members of society for two reasons. Firstly, they are often those who struggle to have their voices heard through other democratic means and rely strongly on protests to voice their concerns. Secondly, they are citizens that are less likely to afford the fee and would then be discouraged from protesting. Therefore, the limitation cannot be justified.

The Court concluded that the Policy is unconstitutional as it contravenes the principle of legality. Additionally, the Policy contravenes the constitutional right to protest in a manner that cannot be justified. As a result, the Court declared the Policy to be unconstitutional and invalid.

Commentary
This case represents a significant victory for advocates of the right to protest and for our constitutional democracy, at large. It highlights the vital role the right to protest plays in allowing citizens, particularly the poor, to hold the government accountable. Yet, the case shows that municipalities still regard protesters as adversaries. South Africa’s constitutional democracy is based on public participation and protests play a large role in this. As such, municipalities should not see protestors as adversaries, but rather as partners. Municipalities should engage with protest convenors on their concerns and such engagements could lead to consensus between the parties and outcomes that benefit both. Protest convenors should not be left with no option but to go to court to exercise their constitutionally guaranteed right. On the other hand, protestors should exercise their right to protest peacefully in line with the Constitution.

By Francesca Visage, LLM Student: Dullah Omar Institute