One could say all is well that ends well. But news that the Presidency has distanced itself from an earlier missive which purported to ban all protests around the Union Buildings still leaves one with a worry about the Presidency’s commitment to free speech and concerns that it has an eccentric view about its own power.
The Presidency’s move comes in the wake of an urgent court challenge by Equal Education (EE) in the North Gauteng High Court. Equal Eduaction was upset because in a letter dated 24 November 2009, Mr Dumisani Mahlasela, Head: Public Participation and Public Relations, The Presidency, stated: “Mr Vusi Mavimbela, Director-General in The Presidency, has directed that all marches to the Union Buildings and the Presidency be suspended until further notice.”
There have been two responses from the Presidency: Firstly, The Presidency has issued a media statement saying: “The Presidency wishes to place on record that it has not instituted any ban on marches to the Union Buildings.” But this statement directly contradicts the letter of Mr Mahlasela referred to above.
After the Court challenge The Presidency wrote a letter to EE saying: “I am happy to inform you that The Presidency has no objection to your march scheduled for March 26 at the Lawns.” (The ‘Lawns’ refers to the gardens below the Union Buildings.)
It appears that the Presidency has misconstrued its power in this regard, first denied the existence of a letter which shows that it did and then, when it was caught out, retracted. Better late than never, I guess. If one looks at the relevant legislation it is clear that the Presidency does not have the power to ban all marches to the Union Bulding.
The Regulations of gatherings Act of 1993, passed by the apartheid parliament, deals with protests at the Union Buildings. Section 7(1) states that all demonstrations and gatherings are prohibited in certain areas of the Union Buildings immediately around the office of the President (but this does not include the lawns of the Union Buildings).
In other words, while demonstrations immediately around the Union Buildings are generally banned, demonstrations on the Lawns are not banned and must be dealt with by the relevant authorities.
However – and this is important – section 7(2) of that same Act states that the ban on demonstrations in the immediate vicinity of the Union Building is not absolute. One may apply to the Director-General: Office of the State President, who can grant permission for such a gathering.
The Act does not state when permission may be granted and when not. The Act was passed before the advent of the Constitution so its unclear whether this provisions is Constitutional as it may unjustifiably infringe on the right to freedom of assembly guaranteed in section 17 of the Constitution.
If it is Constitutional, it will have to be applied by the DG to conform to the Constitution and the DG will have to take into account the right of freedom of assembly when making a decision to grant permission for a gathering or not. This means that a blanket ban on all gatherings at all times at the Union Buildings – even hose in the vicinity of the President’s office – will probably be unconstitutional. Even in that limited sense the Presidency misconstrued its powers in this regard.
The DG will only be able to deny permission to gather when he or she has good reason to do so (for example, when he fears that the working of the government will be threatened or that violence will ensue if permission is granted for a gathering).
The fact that the Presidency wrote a letter in which it purported to ban all gatherings around the Union Buildings while it had no legal authority to do so, is worrying. In a country based on the Rule of Law the Presidency has a special duty to act in terms of the law and not to Act as if it is a law unto itself. Writing letters purporting to ban all demonstrations around the Union Buildings when it has no legal authority to do so, suggests the Presidency is not too familiar with these basic tenets of the Rule of Law.
It is to be welcomed that when it was challenged the Presidency immediately realized that it had acted outside the scope of its powers when it purported to ban all gatherings around the Union Buildings. The Union Buildings holds a symbolic place in our political landscape and the right to freedom of expression and the right to gather must surely include the right to demonstrate outside the Union Buildings – as long as the correct legal steps have been taken.
One does not want to see the chaos that erupted last year when soldiers marched to the Union Buildings, but the Gatherings Act allows for such contingencies and the relevant authorities – not the Presidency – may well refuse to grant permission for a demonstration if there are valid fears that violence might ensue. The last time I checked Equal Education is quite a peaceful organization, so their demonstration could not possibly be said to fall within this category.
Prof, I must agree with you.These are worrying times when the Presidency thinks it is a law unto itself and dishes out blanket bans, it’s scary! Also worrying are reports of abuse of power by journalists who collude with politicians to tarnish their opponents image if such reports are true but I am watching this space.
Sigh… and now the link to the letter is dead
Technical trouble. Try these links:
Link to Presidency letter suspending all marches: http://www.equaleducation.org.za/press-a-views/press-releases/item/download/12
Link to Presidency media statement denying ban on marches: http://www.info.gov.za/speeches/2010/10031615151001.htm
Link to Presidency letter to EE today: http://www.equaleducation.org.za/press-a-views/press-releases/item/download/13
Prof De Vos – Next weekend Christian societies in SA rally at the Union Buildings for an annual prayer gathering to pray for the government and the whole of South Africa – will (or did) they have to obtain permission?
Anonymouse, the Gatherings Act makes clear that demonstrations within certain perimeters of Union Buildings can only happen with permission from the DG. Outside these perimeters permission must be granted by the relevant official. That official must make a decision based on the relevant facts and cannot take dictation from the Presidency on the matter. Any attempt from the Presidency to order the relevant official not to grant permission has no basis in law and must be ignored. Of course the Presidency can make submissions to the official in an individual case to provide facts which might persuade the official not to grant permission. But that s different from purporting to order the official not to grant permission for a gathering.
I think the person who issued that letter didn’t know what the law was!
“……suggests the Presidency is not too familiar with these basic tenets of the Rule of Law ”
No shit, Sherlock !
And you can add to that the Constitution as well.
Prof,
Forgive me, but I am confused by your reasoning.
Why do you say the Gatherings Act would likely be unconstitutional?
My understanding is that the right to freedom of assembly can be limited by section 36 of the Constitution, and the Gatherings Act does seem to limit that right on grounds that seems reasonable.
Basically the act does not completely limit protests etc. but technically leaves it up to the discretion of the presidency? That sounds like a fair limitation on the right to me.
This all reveal the incompetence of the government officials ["staatsamptenare" aka "kripvreters"] in the Precidency.
But also a prevailing tendency to abuse of power {in this case non-existent “power”] around the Prez.
Vide the blue light brigades and harassment of journalists.
All flouting a basic constitutional tenet, nl the principle of legality.
As a “non-legal” person, I am extremely concerned that the Presidency, and those involved in Pres Zuma’s security, appear to think that the law only applies to the common man. Those connected to the ruling party may do as they please because the won the vote!
“Passed by the Apartheid parliament”. Quick point of clarification. Although the Act was passed in 1993, it was done so with the support of all parties (including the ANC and IFP representatives in parliament at the time), save for the Conservative Party. The Act was only implemented on 15 November 1996, when it was was signed into effect by President Mandela.
Allow me to voice my concern about the Act particularly with Section 7(1), the Union buildings being an area of government business surely deserves the quiteness necessary to conduct business for the government of the day.
@ Vusi
Vusi is right.
I firmly believe that demonstrations should be confined to special zones where they will not inhibit concentration or discourage exchange of important ideas.
vusi says:
March 18, 2010 at 13:34 pm
“the Union buildings being an area of government business surely deserves the quiteness necessary to conduct business for the government of the day.”
It it often seems very quiet in those quarters, maybe because “business for the government of the day” is being conducted.
On the other hand it may be because “business for the government of the day” is not being conducted.
The quietness may even be because of business being conducted with the government of the day, by the government of the day – http://www.fin24.com/articles/default/display_article.aspx?ArticleId=1518-1786_2576701
If I remember correctly, one dont need to ask permission for a gathering ito the freedom of assembly, but merely notifying the relevant authorities in advance that such a gathering will take place, i.e. gatherings cannot be denied. However this freedom should not impinge on the freedom of movement of people not participating in the gathering. In practice, the organisers must consult with the the relevant authorities to minimise the impact on freedom of movement by the freedom of assembly. Since buisnesses are legal persons, they enjoy these same freedoms, i.e. why striking workers cannot enter premises and obstruct normal operations taking place.
I should think the restrictions on gatherings at the Union Buildings is primarily for (state?) security purposes.
vusi says:
March 18, 2010 at 13:34 pm
Ja, “nog ‘n bietjie slaap, nog ‘n bietjie sluimer, nog ‘n bietjie hande-vou om uit te rus, …” – Spr 6:9-11; 24:32,33
English transl: Yes, sleep a while, take a nap, take a rest for a while. … Prov 6:9-11; 24:32,33.
That is what will happen if the government sits in quiet all day.
It seems to me that in South Africa that everytime a Constitutionally enshrined right is codified it is watered down!?
Am I mistaken?
The Gatherings Act and the Promotion of Access To Information Act are two which immediately spring to mind.
Prof, would you like to approach Zacob Zuma or the ANC, directly, with a view to ‘going through the constitution’ section by section, and if I may, call out the setions needing urgent attention: Powers and functions of the President, Accountability and responsibilities, also in chap 5, The Bill of Rights (all sections), Courts and administration of Justice(all sections), Chapter 9 and 10, all sections here. I am quiet serious! Teach them, help the mense, help the old man. Yes, this may read funny, but these people need help. And if you have the time, talk about the tentions within Classical and Modern Liberalism (we are both:individual responsiblity vs social responsiblity and strict meritocracy, through perhaps a BEE prism vs concern for the poor; also, the tensions within radical vs liberal feminism and ‘deep’ vs ‘shallow’ ecologism.
@ Andre
I think the ANC have already had a quiet word with the Professor.
Have you not noticed that recently he has chosen very mild topics and the indignation seems to be gone