As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
Great confusion reigns about directives issued by someone in the South African Police Services (as the Constitution refers to it) or the Police Force (as the militarists and other enemies of freedom refer to it) to a number of municipalities not to allow marches for the duration of the 2010 World Cup. According to Professor Jane Duncan:
A snap survey conducted at the end of last week of other municipalities hosting World Cup matches revealed that a blanket ban on gatherings is in operation. According to the Rustenberg municipality, ‘gatherings are closed for the World Cup’. The Mbombela municipality was told by the SAPS that they were not going to allow gatherings during the World Cup. The Cape Town City Council claimed that it continues to accept applications for marches, but indicated that it ‘may be a problem’ during the World Cup period. According to the Nelson Mandela Bay and Ethekwini municipalities, the police will not allow gatherings over the World Cup period.
If this is true, it would mean that parts of South Africa are now effectively functioning under a state of emergency in which the right to freedom of assembly and protest have been suspended. This would be both illegal and unconstitutional. Other reports have suggested that such orders were indeed given, but that the police are now backtracking – probably because the police have realised that they are breaking the law and that the order, in fact, constitutes a grave breach of the law and the Constitution.
It is a sad day indeed when the police itself become a threat to our democracy and our rights because Fifa and the government want us all to behave and shut up for the next month and to forget about our democratic rights.
The starting point of the Regulation of Gatherings Act, which was passed in 1993, is that anyone who complies with the requirements set out in the Act is entitled to assemble, to march and to hand over petitions. It is our democratic right and a fundamental aspect of a democracy that we should be able to express our views and grievances in this collective manner. If we want to protest the manner in which Fifa has taken over our country and is stealing our money and robbing us of our dignity, we have every right to do so.
The Act requires organisers of a gathering or march to give notice of the gathering or march at least 7 days before it is to take place. A responsible officer appointed by the Police Commissioner is then required to engage with the organisers in good faith and to consult with them to ensure that a march or a gathering is conducted in a peaceful and orderly fashion.
If the police officer cannot reach an agreement about the way in which the march or gathering should take place, he or she may – if there are reasonable grounds to do so – impose conditions with regard to the holding of the gathering to ensure the free flow of traffic and to prevent any damage to property or harm to anyone. The Act therefore makes it clear that in ordinary circumstances when one wants to march, demonstrate or gather, permission for the event MUST be given – although reasonable conditions could be imposed in order to protect the interest of the public (the interests of the government of the day or of Fifa would be utterly irrelevant).
There is no provision in the Regulation of Gatherings Act that allows the Police Commissioner or anyone else to issue a blanket ban on the holding of gatherings. There is no provision that states that gatherings can be banned because the police are busy ferrying around Sepp Blatter in a blue light convoy and do not have time to deal with marches and demonstrations. There is no provision in the Act that states gatherings can be banned because the international media is looking and the gathering will give our government or Fifa a bad name or embarrass them.
I have re-read the Act and can confirm that it does not even allow our proxy-government – also known as Fifa – the right to issue such a ban or to request the Police to do so. There are good reasons for this. A blanket ban would constitute a fundamental and unjustifiable infringement on the right guaranteed in section 17 of the Constitution. This section guarantees for everyone the right “peacefully and unarmed to assemble, to demonstrate, to picket and present petitions”.
It will probably come as a surprise to Sepp Blatter and other leaders of Fifa (who, I read to my utter surprise and shock, has been called a quasi-Mafia for the way in which they run their “business” and take over host countries), that the South African Constitution does not contain any exception for Fifa and hence does not allows it or anyone acting on Fifa’s behalf to issue orders imposing a blanket ban on gatherings and marches. This can only happen if the life of the nation is threatened and Parliament enacts a State of Emergency and even then the emergency can usually only last for 21 days.
It is true that section 5 of the Regulation of Gatherings Act does allow for the prohibition of gatherings and marches but only in very limited circumstances. It can only be done if “credible information on oath is brought to the attention” of the responsible police officer that:
there is a threat that a proposed gathering will result in serious disruption of vehicular or pedestrian traffic, injury to participants in the gathering or other persons, or extensive damage to property, and that the Police and the traffic officers in question will not be able to contain this threat, he shall forthwith meet or, if time does not allow it, consult with the convener and the authorized member, if possible, and any other person with whom, he believes, he should meet or consult, including the representatives of any police community consultative forum in order to consider the prohibition of the gathering.
But even then, the police officer must first consult with the organisers to find a way of dealing with such concerns. Only where the police officer on reasonable grounds is convinced that no amendment of the conditions for the march would prevent any of the dangers set out above, can a march be banned.
The eyes of the world will be on South Africa over the next month and for those citizens who feel aggrieved about any matter (whether it is about the shocking harassment of Abahlali baseMjondolo members by police and ANC aligned thugs, the destruction of fynbos by golf estate developers, the attack on the Peace Flotilla by the Israeli navy, or the fact that Julius Malema allegedly has R53 million in the bank and allegedly often drinks tea with Minister Simphiwe Nyanda) it is a golden opportunity to have their voices heard in the full glare of the international media spotlight.
The police service – who is supposed to serve the interests of all South Africans – has a duty to facilitate all such peaceful protests. It is thus the duty of police officers to serve the interests of a democratic state – not the interests of the government of the day (who may be led by either the ANC or by Fifa – we are not sure at the moment which one). It may well be that limited policing resources will allow the imposition of more restrictions on marches and demonstrations during the world cup period, but it would not – I repeat NOT – allow any police officer to ban any march that is going to be peaceful and is not going to present a huge disruption to traffic.
So if you have a gripe and you want to demonstrate or march, get those applications in as soon as possible. If the police refuse to grant permission for the march, well, we can make sommer a very big stink.BACK TO TOP