The Freedom of Expression Institute has just released a research report following research it conducted on the implementation of the Regulation of Gatherings Act in the Johannesburg Metro. The research that violations of the Act were endemic.

See below for an activists' summary of the report.

Read the full report . 

Research Project on the Gatherings Act: A summary for activists

The Gatherings Act is a South African law that was passed in 1993.  Its full name is the 'Regulation Of Gatherings Act'.  Its aim is to protect the rights of citizens to freedom of assembly and freedom of expression.  It states that all people have the right to gather with other people and to express their views freely on any matter in public, with the protection of the state, for as long as they do so peacefully and with respect for the rights of others.  It sets out the procedures that need to be followed when groups of people larger than 15, want to hold gatherings, such as marches, demonstrations and public mass meetings.  It also outlines the duties and responsibilities of the local authorities in the protection of these rights to free assembly and expression.   

The FXI Research Project On Violations Of The Gatherings Act

Background To The Project

Over the last few years, the FXI has been approached for help by social movements, organisations and groups who have experienced problems with state authorities (mainly in the form of the police) when protesting.  In particular, the Landless People's Movement (LPM) and the Anti-Privatisation Forum (APF) were beginning to experience the use of the Gatherings Act to prevent protests from taking place.  In discussions with the LPM and APF, it was decided that the FXI should undertake research to find out whether there have been significant abuses or violations of the Gatherings Act by the authorities.  The long-term value of this research project would be to help with legal challenges against authorities abusing the Gatherings Act to prevent legitimate protest action. 

Due to a lack of funds at the time, this project could not be conducted on a national scale.  Instead, it was agreed that the project would focus on the Johannesburg Metropolitan Police Department (JMPD), and its interactions with the APF, LPM, Congress Of South African Trade Unions (COSATU), Jubilee South Africa (Jubilee), and the Treatment Action Campaign (TAC).

Aims Of The Research Project

To find out whether the police have abused the Gatherings Act when interacting with the APF, LPM, COSATU, Jubilee, and TAC in Johannesburg. 

• To find out whether local authorities discriminate against certain organisations or movements when permitting or prohibiting gatherings.
• To record any other abuses of the Gatherings Act that organisations or movements may face when trying to protest or march or meet in public. 
• To develop a 'historical record' of violations of the Gatherings Act by the JMPD to assist with legal work of the FXI for movements. 

How Was The Research Conducted?

All existing records related to the Gatherings Act were collected from the APF, LPM, COSATU, Jubilee, and TAC.  These included all notifications given to the JMPD to gather; all correspondence between movements and the JMPD about gatherings being planned; and any records of meetings between the JMPD and movements about gatherings.  The JMPD was also approached for all its existing records related to the Gatherings Act. 

A team of researchers then went through these records, looking for abuses/violations of the Gatherings Act.  

A major problem for this project was the fact that both the JMPD and most movements did not have proper records available.  In spite of many missing records, the researchers were still able to find important evidence of abuses of the Gatherings Act.  This highlights the importance for activists organising marches, protests and other public gatherings to keep proper records of all engagements with the authorities.   

Main Findings Of The Research

Unacceptable Record-Keeping

Movements and organisations have a poor record of the notifications filed with the JMPD for gatherings, and no proper records of the correspondence entered into with the JMPD with regard to holding protests, demonstrations, and so on.   

The JMPD has very poor databases which keep records of those gatherings which are permitted and those which are prohibited.  These databases are not updated regularly, and do not contain important information e.g. the reasons for prohibiting gatherings.

Evidence Of Abuses/Violations By JMPD

• The 7 Day Notice Period (Section 3(2) of the Gatherings Act)

The Gatherings Act states that the convenor[1] of a gathering must notify the responsible officer[2] 7 days before the planned event.  It goes on to say that if it is not reasonably possible for the convenor to do this, notice must be given at the earliest opportunity.  However, if notice is given less than 48 hours before an event, then the responsible officer may notify the convenor that the gathering has been prohibited.

 The JMPD has used this section of the Act to deliberately prevent certain  gatherings from taking place.  Records show that legitimate reasons for the late submission of notices are not considered by the JMPD.  Instead, any gatherings that do not comply with the 7 day notice period are immediately prohibited. 

•  24 Hour Response Period (Section 4(3) of the Gatherings Act)

 The Act states that the responsible officer must respond to a notice within 24 hours of receiving it.  If a convenor does not hear from the responsible officer within 24 hours of handing in a notice, s/he is allowed to proceed with the gathering as if it were permitted. 

However, records show that JMPD officials often respond to notifications of gatherings by calling for meetings with the convenors well after this 24 hour period.  Often this works to prevent organisations from appealing a prohibition order. For example, if a gathering is prohibited the day before it is planned to happen, there is no way that the convenor will be able to approach a magistrate, and meet the requirements for notification as laid down by the Act.

•  Meetings Held In 'Bad Faith' (Section 5 of the Gatherings Act)

This research has shown that the JMPD often calls meetings without "credible information on oath" as required by the Act.  Instead, the experience has been that officers provide testimony under oath after meetings have occurred in order to prohibit gatherings.  This indicates a clear violation of the Act and the intention on the part of the JMPD to effectively prevent certain movements from protesting. 

Attitudes Of The JMPD

Records from the JMPD show clearly how attitudes to certain movements have become more antagonistic over time.  This has resulted in the JMPD abusing the Gatherings Act in its prevention of the protest action of certain movements.  In particular, the JMPD has used the Gatherings Act to prevent the protests of the APF and the LPM.  As the APF has grown more militant in its campaigns, and targeted the private interests of big companies like Johannesburg Water and ESKOM, the JMPD has become more forceful in its actions to prevent certain legitimate forms of protest action.  Similarly, the LPM has been prevented from holding several gatherings recently as a result of the militant campaigns of its Thembelihle branch. 

Most striking are the words of the JMPD's Inspector Isaac Maake.  When a researcher was trying to access records from Mr Maake, he said that all notifications to march are approved "except those made by the LPM, APF and the Traders' Crisis Committee".  He stated that the past actions of these movements and organisations had meant that they would not be allowed to protest.  He gave examples of the APF and LPM obstructing traffic, destroying meters, burning accounts, and stoning cars in Thembelihle as reasons for the recent blanket prohibitions of APF and LPM gatherings.  While this project did not include the Traders' Crisis Committee, it will be important to monitor their interactions with the JMPD in future studies.

Movement Experiences

These attitudes of the JMPD are reflected in the gatherings that have been permitted and prohibited by the JMPD over time.  From August 2002 to December 2004, TAC and Jubilee had all the gatherings that they applied for approved.  COSATU had 1 gathering prohibited during this period on the grounds    that late notice was given.  All other gatherings that COSATU gave notice for in this period were approved. 

While the APF and LPM had most of their gatherings approved when they first emerged, over time, and during particular contexts, prohibitions have been issued in violation of the Gatherings Act.  While there are not enough records to show the detail behind the negotiations that have taken place behind prohibitions, it would seem that the Gatherings Act is being used to stop the APF and LPM from protesting as they have come to challenge the interests of big private companies and municipalities in militant campaigns.  It will be extremely important for activists and movements to start keeping proper records related to the organising of gatherings so that we can build a good case against the authorities in the future. 

Outcomes Of The Research Project

• Findings of this project are already being used in legal actions against the JMPD by the FXI.
• Findings of this project have been used to start a debate in the media about the JMPD's role in protest actions.
• The FXI has secured funding to broaden this project to include more movements at a national level.

The Way Forward

The findings of this research project show the need for ongoing and consistent monitoring of the ways in which local authorities engage with movements and organisations around the holding of public demonstrations or meetings.  While the Gatherings Act exists to protect the rights of citizens to protest, local authorities often abuse it in order to prevent actions from happening.  This project has only touched the surface of the problem.  In spite of poor records from both the JMPD and social movements, this project has been able to highlight several abuses of the Gatherings Act, showing the need for a similar project on a national scale.

For a national project to succeed, organisations and movements will have to commit themselves to keeping proper records of the notices that are filed with the JMPD before gatherings; and all spoken and written correspondence with the JMPD about planned events.