An ‘important purpose of section 34 [of the Constitution] is to guarantee the protection of the judicial process to persons who have disputes that can be resolved by law’ and that the right of access to court is ‘foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance’.The right guaranteed s34 would be rendered meaningless if court orders could be ignored with impunity:the underlying purposes of the right — and particularly that of avoidance of self-help — would be undermined if litigants could decide which orders they wished to obey and which they wished to ignore.
Statement by the Faculty of Law on the use of violence by SAPS
The Faculty of Law at UCT expresses great concern for the safety of protesting students and calls on the South African Police Service (SAPS) to act in accordance with the law – specifically section 9 of the Regulation of Gatherings Act 205 of 1993 – when it is required to manage student gatherings and protests. We also call on students to remain disciplined and to conduct themselves in a peaceful manner.
Section 11 of the South African Constitution guarantees for everyone “the right, peacefully and unarmed, to assemble, to demonstrate, to picket and to present petitions”. The SAPS has a pivotal role to play in protecting the exercise of this right. As was shockingly illustrated by the killing of 34 miners at Marikana, lives are endangered when the police fail to comply with the law and use force prematurely or excessively.
In the first instance we condemn the behaviour of the police on Monday night when they entered campus to enforce the interdict that UCT obtained against students. Students and staff submitted to peaceful arrest, yet stun grenades were fired at students. Enabling police violence on the UCT campus is unprecedented and cannot be supported.
We furthermore condemn the behaviour of the police during the student protest at Parliament on Wednesday. The Regulation of Gatherings Act as well as the apartheid era National Key Points Act 102 of 1980 prohibits certain forms of protest action at Parliament. However, only an independent court is permitted to determine whether these provisions have been breached (and whether they are indeed constitutionally compliant). Protesting students thus have the right to be presumed innocent of breaching the law until found guilty by an independent court of law. Moreover, as the South African Constitution is founded, inter alia, on the Rule of Law, the police may not take the law into their own hands and may not use force on protestors in order to “punish” them for allegedly breaking the law.
In dealing with protests the police are bound by the provisions of section 9(2) of the Regulation of Gatherings Act. This requires the Police to make every effort to control and manage the crowd at a protest or gathering so as to prevent confrontation and violence. It is only when such measures have failed that the Regulation of Gatherings Act empowers “a member of the Police of or above the rank of warrant officer” who “has reasonable grounds to believe that danger to persons and property, as a result of the gathering or demonstration, cannot be averted” to take the following action to disperse a gathering or protest:
• First, police must call upon the persons participating in the gathering or demonstration that poses a danger to persons or property to disperse.
• Second, the commander must in a loud voice order protestors in at least two of the official languages and, if possible, in a language understood by the majority of the persons present, to disperse and to depart from the place of the gathering or demonstration within a time specified by him, which shall be reasonable.
It is only after these steps have been taken and those gathered have not dispersed that a member of the police may order members of the SAPS under his or her command to disperse the persons concerned. When dispersing those gathered the police are required to use minimum force and are prohibited from using weapons likely to cause serious bodily injury or death. The degree of force which may be used may not be greater than is necessary for dispersing the persons gathered and must be proportionate to the circumstances of the case.
The Faculty expresses extreme disquiet at the failure of the SAPS to comply with the law as set out above when its members dispersed students within and outside the Parliamentary precinct on Wednesday.
We therefore call on:
1. The police to act in accordance with the law when dealing with all gatherings and protests in future.
2. The state to withdraw all charges against the students.
3. The University Management to do whatever it can to pressurize the state to dismiss all charges against the students.
4. We call on the University management urgently to engage with the SAPS to reach agreement on the manner in which it polices the protest action on campus, until such time as the University Council formulates a policy on the circumstances under which SAPS is invited onto campus, together with possible limitations on their actions, so that the disproportionate action against students seen on Monday evening never occurs again.
Pamela Schwikkard (Dean)
Pierre De Vos
Monica De Souza