It is unconstitutional to impose a levy on the constitutional right to protest

August 1st, 2022
The Right to Know Campaign and Others v City Manager of Johannesburg Metropolitan Municipality and Another (GJ) (unreported case no 49197/2021, 10-6-2022) (Victor J)

On 26 April 2022 the Gauteng Local Division High Court in Johannesburg heard an application by the Right2Know Campaign brought against the City Manager of Johannesburg Metropolitan Municipality and Chief of the Johannesburg Metropolitan Police Department. The court had to decide, inter alia¸ whether charging a levy on any person who intended to exercise their constitutionally guaranteed right to protest is in line with the Constitution and whether the City of Johannesburg’s Tariff Determination Policy (the Policy) is ultra vires the Regulation of Gatherings Act 205 of 1993 (the Gatherings Act).

On 10 June 2022, Victor J handed down a judgment which, inter alia¸ found that ‘the levying of fees in terms of City of Johannesburg Tariff Determination Policy for the holding of gatherings, assemblies, demonstrations, pickets and to present petitions is declared unconstitutional’.

Overview of the Gatherings Act

The Gatherings Act regulates s 17 of the Constitution, which provides that ‘everyone has the right, peacefully and unarmed, to assemble, to demonstrate, to picket and to present petitions’. The provisions of s 3 of the Gatherings Act requires a convener to give notice in writing to the responsible officer seven days or no less than 48 hours prior to the intended of the protest. Where notice is given no less than 48 hours but later than seven days, the convener must provide reasons for failure to comply with the seven days’ notification period. It is important to note that the Constitutional Court in the case of the Mlungwana and Others v S and Another (Equal Education and others as amici curiae) 2019 (1) BCLR 88 (CC) did not exempt anyone from giving in terms of s 3 of the Gatherings Act prior to a protest.

The provisions of s 3 of the Gatherings Act enlists requirements, which must be fulfilled, and the payment of a fee is not one of them. This alone goes to prove that the Policy is ultra vires the Gatherings Act. According to the provisions of s 4 of the Gatherings Act, if a responsible officer deems it necessary, they shall within 24 hours of receiving a convener’s notice, notify such a convener regarding a meeting ‘for negotiations on any aspect of the conduct’. Section 4(2)(c) of the Gatherings Act provides that at the said meeting, discussions shall be held on the contents of the notice, amendments or additions and the conditions, if any. Section 4(2)(d) of the Gatherings Act provides that ‘the responsible officer shall endeavour to ensure that such discussions take place in good faith’.

Factual overview

On 23 October 2020, members of the applicant exercised their constitutional right to protest. Prior to the protests, the convener gave adequate notice to the second respondent (responsible officer) and was subsequently notified and invited to a meeting in terms of the provisions of the s 4 of the Gatherings Act. Immediately after the meeting, the second respondent instructed the convener to go to a particular office where a payment of R 297 was requested. When the convener questioned why the constitutional right to protest is subject to a fee, the response that the convener received was that the fee was to ensure the protection of the participants of the protest by law enforcement officers.

The convener was obviously unsettled by the response and was of the view that the fee is a barrier to the right to protest. This is so, inter alia, because the Preamble of the Gatherings Act provides that ‘whereas every person has the right to assemble with other persons and to express his views on any matter freely in public and to enjoy the protection of the state while doing so’. Nowhere in the Gatherings Act does it state that the protection of participants of a protest is subject to a payment of a fee. As a result, the applicant argued, before the High Court, that the subjecting the imposition of a fee limits the constitutional right to protest.

The court’s findings

Although the court did not expand on the s 36 of the Constitution analysis, it nevertheless stated that the Policy would not survive constitutional muster. The court held that the only qualifier to the constitutional right to protest is ‘peaceful’ and ‘unarmed’, thus subjecting this fundamental human right to a fee is not in line with our constitutional values. The constitutional right to protest speaks to the nature of our democracy and further linked to the struggles against the overthrown Apartheid regime.

The court further noted that the Gatherings Act is the primary and principle legislative framework, which governs the right to protest as enshrined in s 17 of the Constitution. Furthermore, the court with reference to s 14 of the Gatherings Act found that the Gatherings Act shall prevail over the Policy of the first respondent. The court went further to state that the Gatherings Act imposes requirements on the right to protest. Considering that, any condition or requirement such as a payment of a fee, that would hinder unarmed and peaceful people to protest and enjoy the protection of the state while doing so, is not in conformity with the Constitution.

While there are limits to the right to protest, a requirement whose impact is the outright ban on the right to protest has no place in South Africa’s constitutional democracy. Those whose economic status bars them from paying a fee are at a greater risk of being excluded. Imposing a levy on the right to protest is repressive. The first respondent has no power and authority to subject access to fundamental human rights, such the right to protest, to the ability to pay a fee. The right to protest is guaranteed to everyone, whether ‘young or old, poor or rich, educated or illiterate, powerful or voiceless’ (Mlungwana at para 43).

Stanley Malematja LLB (UJ) LLM (UP) PGDip (Wits) is a legal practitioner at the Centre for Child Law at the University of Pretoria.

This article was first published in De Rebus in 2022 (August) DR 24.

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