Learn about the constitutional right to protest, how to manage police violence or arrests, and your rights around filming or photographic the police.
Section 17 of the Constitution grants everyone the right to peacefully assemble, demonstrate, picket or petition as long as the participants are unarmed. This includes the right to peacefully but disruptively protest. However, all protests must be done in accordance with the Regulation of Gatherings Act to be legal.
Organising a Protest
The Gatherings Act says that, if a protest, picket or petition has more than 15 people, a notice must be given to the local authorities and the police and a proper procedure must followed:
- A person must be appointed in charge of the protest and is responsible for organising and controlling it;
- Notice of the planned protest must be given to local authorities and the police at least seven days before the planned protest starts. (Notice can, however, be given within a shorter time-frame if reasons for late notice are provided and reasonable. If notice is provided less than 48 hours before the protest, it can be banned by the local authorities or the police without reasons.); and
- Local authorities and the police will need to meet with the person in charge of the protest 24 hours before it starts to discuss safety and traffic concerns. Any suggested safety and traffic concerns by the police ought to be factored into the planned protest to make it safer for all.
Failure to give notice of a protest is not a crime and a protester will not be arrested for attending a protest where no notice has been given.
Prohibiting a Protest
The police can prohibit a protest if:
- The protest will result in serious disruption of traffic;
- The protest will result in injury;
- The protest will result in extensive damage to property;
- If negotiations to make the protest safer, in light of the above reasons, have failed; and
- The police or traffic department provide an affidavit to Court stating that there are reasonable grounds to believe that the protesters’ or public will be at risk if the protest continues or starts.
Grounds for arrest
A person may only be arrested at a protest if:
- the police have a valid warrant for arrest;
- a crime has been committed in front of the police; or
- the police have a reasonable suspicion that a protester has committed a crime or will commit a crime.
If a protest turns violent, protesters can be arrested for public violence, malicious injury to property or assault among other charges.
Note: A person that associates themselves with violent protesters at the time that the violence is occurring may also be arrested for the violence even if they did not do anything.
What to do when being arrested
When being arrested at a protest:
- A protester must never resist being arrested by the police. Resisting arrest by the police can lead to further charges being put against the protester;
- If a protester resists arrest or becomes violent, the police are allowed to use reasonable force against that protester;
- When arresting a protester, the police have the duty to inform the protester of their rights, including the right to remain silent and the consequences of not remaining silent. If this is not done, the arrest is unlawful.
- A protester ought to always pay attention to everything that happens to them when they are being arrested, so that they can later recall this to their legal representative or a judicial officer;
For more information on arrests and what to do following an arrest see our Arrest section.
The police are allowed to use violence at a protest if:
- There is a serious safety risk, they have communicated this risk to the protesters, and attempts to negotiate a solution to stop the risk have failed;
- The police have given a public warning (in at least two official languages) that reasonable action or violence will be taken against protesters if the safety risk remains; and
- The police have given a second public warning (in at least two official languages) that reasonable action or violence will be taken against protesters if the safety risk remains or the protesters fail to disperse peacefully after a reasonable amount of time.
If a protester has been the victim of police brutality, what should they do?
- Get medical treatment as soon as possible;
- Get video or photographs of their injuries or the violent act;
- Get a doctor’s report;
- Get the name and rank of the police officer(s) involved;
- Go to their local police station to lay a criminal charge against the officer(s) involved; and
- Lodge a complaint with the Independent Police Investigative Directorate (IPID).
Protesters can sue the police for monetary compensation in a civil court for any injuries experienced from police brutality.
Filming The Police
A protester may film or photograph the police as long as they do not disturb evidence or the exercise of the police’s powers and duties. The police are not allowed to seize or damage recording devices or force protesters to delete any footage or photograph. However, the police may request a protester to move out of a cordoned off crime scene if the protester is intruding on the duties or functions of the police. Protesters ought to respect the police and their wishes, including while photographing or filming them.
Note: Evidence of inappropriate attempts to engage into arguments with a police officer can be used to incriminate a protestor.