a practical guide to

ARRES
PROTESTS & TS

BEFORE
U
SPEAK
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CONTENTS
Your right to protest 1
Organising a protest 3
At the protest 5

Dealing with SAPS 7

Arrest and detention 8

Minors rights 9
12
Important Contacts

With thanks to
Aneeqah Meyer Nicholas Herd

Claire Rankin Nicola Irving

Justin Winchester Shaniaé Maharaj

Kathleen Freeman Simbarashe Gomwe

Mame-Diara Mbaye Sohêla Surajpal

Maxine Shaff Tiyana Ramchunder

Your right to
protest
Given our history, protesting is an important part

of South Africa's democracy and an important

tool in achieving change.

Your right to protest is guaranteed in section 17

of the Constitution;

"Everyone has the right, peacefully and unarmed, to

assemble, to demonstrate, to picket and to present

petitions."

The Constitutional Court has affirmed the

importance of this right on numerous occasions

and has stressed the importance of this right

for children (i.e., individuals under 18 years old):

"By virtue of their unique [stage] in life, the importance of

the section 17 right has special signifance for those who

have no other realistic means of means of expressing their

frustration."

(Source: Mlungwana and Others v S and Another)

 However this right is not unlimited!
There are certain important regulations

to follow, outlined in this document,

when exercising your right to protest.

These regulations can be found in the

Regulation of Gatherings Act.

Failing to abide by these laws could lead

to your gathering being deemed an

illegal protest and dispersed by the

police.
 How to

ORGANISE A
PROTEST

If you are organising a gathering with 16 or more people, you must

notify a “responsible officer” from the municipality. Unfortunately there

is no definitive list of responsible officers currently, so contact your

municipality and they should guide you to the responsible officer.

The organiser must obtain a form called the “Notice under Regulation

of Gatherings Act” (i.e. Notice of protest form) from any municipality

office and give it to the local authority either via email, fax or handing

it in.

Notice of protest is given by submitting a form including info like the

name of the convener, number of marshals, location, etc.

Ideally, notice must be given seven days before the planned gathering.

However, where this is not possible, you may give less than seven
days’ notice so long as you provide a reason. Just be sure to give
at least 48 hours’ notice or the protest could be banned without
reason. After notice is given, a 'Section 4 meeting' occurs in which
logistics are discussed.

You can raise the fact that the protest formed spontanously as a
defence for not giving notice.

Previously, failing to give notice of a gathering was a crime, but this is

no longer the case (Mlungwane and Others v S and Another).

"Can we be refused
permission to protest?"
By submitting the Notice to Protest form,
NB: You
are not asking for permission to must get p
ermission
protest. You are simply notifying the if you plan
on protesti
ng near
authorities so that they can make plans
the Union
Buildings,
to accommodate you.
Parliament
or courts.

a protest may only be banned if...

There are legitimate concerns that the protest will lead to

injuries, serious property destruction, serious disruption of traffic;

AND

There has been a meeting with conveners and all attempts

to negotiate a safe gathering have failed;

AND
The convener receives a written explanation about why the protest

cannot proceed;

AND

The police submit a written affidavit under oath explaining that they have

reasonable grounds to believe that the protest may lead to injury,

destruction of property or traffic disruption.

You may appeal this decision in court.

 Protests are allowed to be disruptive. This means
you can sing, chant, march, etc. However the law

deems violent protests illegal; this includes causing

harm to other people or to property. While there are

political and philosophical reasons to damage

property, please be aware that this may give law

enforcement the ability to disperse your protest and

possibly use force against you. It could also lead to

financial implications for the organisers, or criminal

charges against those responsible.

A T T H E

protest
Designate certain people as marshals who are
responsible for controlling the flow of people and

looking out for anyone who may need help.

It is also wise to invite journalists and legal officers

who can intervene to negotiate with police officers or

in the event of unlawful arrests and the like.

 Make sure that people bring water, dress comfortably,

adhere to physical distancing precautions, wear masks

and are unarmed.

Take safety precautions such as only marching on roads

TIPS
TIPS
that have been closed for the protest and carrying first-

aid kits.

For protest organisers: while you are not legally obliged

to, it is wise to keep a copy of the notice form you

TOP
TOP

submitted with you as well as any other documents you

have exchanged with authorities.

Party-political activities may not be conducted at a

SOME
SOME

school during school time (section 33A of the South

African Schools Act). If your protest is happening during

school time and on school grounds, try to keep it free

from the influence of specific political parties (i.e. do not

let it turn into a DA rally, put up EFF posters or wear ANC

t-shirts or memorabilia).
 D E A L I N G W I T H

T H E P O L I C E
Use of Force
The police may only use force where necessary to prevent injury or
death, or destruction of property and when negotiations have failed.

Before using force, the police must:

- First initiate defensive/protective (NOT offensive/attacking) measures;

- Give two warnings in at least two official languages;

Before beginning offensive measures such as pushing back,

dispersing and evacuating, the police must:
- Give a second warning in the same way as above, giving people a

reasonable time frame to disperse.

- Any subsequent use of force must be geared towards de-escalating

conflict.

In the event of Brutality

FIRST get medical treatment
NOTE: Just because the police are
meant to only use force and
& IF POSSIBLE, get any

weaponry where necessary, they do recordings of the violence.

not always follow the law. Always
THEN get the name and rank of
be prepared for tear gas, rubber
the officers involved.
you may
bullets, etc. but know that

lay a charge for misconduct if TAKE photos of any injuries.

they break the rules (below).

Thereafter, legal action may be taken through

(1) laying charges at a police station,

(2) lodging a complaint at the IPID (complaints@[Link] or

012 399 0000), or

(3) suing.
What to do if you are arrested

You can be arrested if an officer sees you commit an

offence, or has probable cause to believe that you

committed a crime.

Remember: they have a right to search you

and your belongings.

If you are arrested, you have the following rights:

To be INFORMED of your suspected offence.

To SILENCE (apart from your name and address).

Suggestion: It is usually best to keep silent about

yourself and your fellow protesters because

anything you say may be used against you.

If you are headed to a protest where you believe you

may get arrested, bring proof of address as this

can facilitate quicker bail if you get arrested.
 If you are put into a police van and still have your

phone on you, send the following information to a

friend or legal representative:

• The name of everyone that was arrested with you;

• The name of the arresting officer;

• Which police station you are being taken to and/or

the registration number of the police vehicle you are in;

• The contact details of someone who lives with you.

WHAT IF YOU'RE
a minor?
Children between the ages of 10 and 18 may be arrested,

however the Child Justice Act gives you certain additional

rights when arrested:

• The right to have your parents/guardians present and

notified as soon as possible.

• The right to an assessment by a probation officer, who is

a trained social worker, within 48 hours of arrest.

• The right not to be detained - even if you are arrested,

children under the age of 14 years cannot be detained in

prison. Children 14 years and older should be detained in

prisons as a last resort.

 In the event

of arrest...
You will be transported to a police station or

1 processing station. If arrested with others, avoid

discussing anything with others in the vehicle.

You will be required to give your name and address.

2 An officer will take your fingerprints and

photograph.

You may be put in a holding cell before being

3 charged.

You may be interrogated either in the police car or

highly advised that you remain

at the station. It is

4 silent until you have spoken to a lawyer which is

welll within your rights!

For minor offences, such as trespassing, the police

may grant you bail (must be paid in cash).

5 The amount will be confirmed at the official bail

hearing in court. Make sure you get a receipt

signed by the officer.
 Detention
[ the brief period for which you are held in custody while the police
decide whether there is enough evidence to charge you ]

The Police must show reasonable cause for

suspecting that you have broken the law.

Your right to silence applies during this period:

the police have no right to demand any information

or evidence from you about anyone. Anything you

say can be used against you and others in a court.

You have the right to consult a legal

representative of your choice and communication
with, and to be visited by, a spouse/partner/next of

kin/chosen religious counselor/chosen medical

practitioner.

Your detention may only be for a maximum of 48

hours, excluding weekends and public holidays.

At your first appearance in court, you have a right to

appoint a lawyer or have one appointed for you.

It is highly advised to not plead before you have

consulted with them.

IMPORTANT CONTACTS
Centre for applied legal studies | 011 717 8600
CALS is a human rights organisation based at the Wits School of law. We use a
combination of research, advocacy and litigation to advance social justice.

Freedom of expression institute | 011 482 1913

Provide legal services and strategic litigation on free expression which includes
defending the right to assembly and protest, artistic freedom, academic, access to
information and media freedom.

Lawyers for human rights | 012 320 2943

LHR is staffed by specialist legal practitioners and activists, dedicated to helping
vulnerable, marginalised, and indigent people and communities.

Legal Resources Centre | Multiple

The LRC seeks to ensure that the principles, rights and responsibilities enshrined in our
national Constitution are respected, promoted, protected and fulfilled. They have a
dedicated Protest Centre enabling the right to peaceful protest in South Africa.
Johannesburg:011 836 9831
Cape Town: 021 481 3000
Durban: 031 301 7572
Grahamstown: 046 622 9230

[Link] | 011 339 6080

[Link] is a dynamic NGO that works with the private legal profession to provide pro
bono (free or extremelt discounted) legal advice to the poor. Additionally, [Link]
houses the Hogen Lovells Police Brutality Clinic on the 1st and 3rd Tuesdays of every
month between 09h00 – 12h00 on the 1st floor west wing at Constitution Hill (1 Kotze
street, Braamfontein, Johannesburg). It is advised to call in advance to make a booking.

Right2know Campaign | 0800 212 111 & more

Right2Know have established Right2Protest: a toll free legal advice and support line for
protestors (above). Other numbers for general support
National: 073 904 1626
Gauteng: 073 904 1626
Kwazulu-Natal: 083 498 1583
Western Cape: 021 447 1000
Soci0-Economic Rights Unit of SA | 011 356 5860
Amongst other things, SERI work to protect the political spaces in which socio-economic
rights activists, social movements, community-based organisations, and trade unions
are able to express themselves freely, assemble and protest without unjustified state
interference, and be free from arbitrary arrest and detention

South African Human Rights Commission (COVID-19 Lockdown

Contact details) | Multiple
The SAHRC is the national institution established to support constitutional democracy. It
is committed to promote respect for, observance of and protection of human rights for
everyone without fear or favour.
Eastern Cape: 082 055 6430
Free State: 076 038 4507 / 078 453 7642
Gauteng: 073 749 6168 / 072 258 7131 / 082 876 2784 / 061 814 7143
Kwazulu-Natal: 071 446 2333
Limpopo: 071 566 5188
Mpumalanga: 078 670 4360
North West: 014 592 0694 / 079 127 2528 / 067 173 8817 / 076 084 9284
Northern Cape: 079 439 5557 / 054 332 3993
Western Cape: 073 075 2278/082 460 5640/074 808 0066

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