A walk from Cosatu. The City of Johannesburg charges a fee if residents want to organize a walk. (GALLON)
The city of Johannesburg imposes “duties” to be paid by those who intend to exercise the right to demonstrate in its vicinity. This, he says, is in line with the Municipal Systems Act. Sithuthukile Mkhize, Thandeka Kathi and Zanele Malindi argue that it is a bizarre practice.
The Constitution gives everyone the right to assemble peacefully, demonstrate, picket and present petitions. Protests in South Africa have often been used to express frustration and draw attention to a particular issue or cause in the hope that it will be resolved. However, some local municipalities have started to collect fees in order to exercise the right to demonstrate.
The Regulation of Gatherings Act (RGA) is the law regulating protests in South Africa. According to the RGA, a protester is required to serve notice on the designated municipal official. The purpose of this process is simply to notify the officer of the intended protest. Nothing in the law regulating demonstrations obliges anyone to seek permission or meet any conditions in order to fully exercise their right to demonstrate. To impose a condition in any way would therefore be illegal, unconstitutional and contrary to the objectives sought by the Constitution and the legislation.
The city of Johannesburg, however, seems to be a fairly unique metropolis in the country when it comes to exercising the right to demonstrate. The city of Johannesburg imposes “duties” to be paid by those who intend to exercise the right to demonstrate in its vicinity. This, he says, is in line with the Municipal Systems Act, which gives the City the power and mandate to collect fees for services provided to anyone residing in its vicinity. Very broad powers are conferred on municipalities to levy and prescribe fees. The authority generally authorizes the collection of charges for services consumed by members of the public, such as the provision of water, sewerage, electricity and other basic services.
The City of Johannesburg maintains that the protest action is a form of commercial/special event that requires additional city services from the Johannesburg Metropolitan Police Department (JMPD). The JMPD is a municipal police service established under the South African Policing Act. Services provided include traffic control and general policing. The City’s Mayor’s Committee has established a rate setting policy beginning in fiscal year 2013/2014. Tariffs, primarily those for minor policing services such as those provided during protests, are charged at a reduced rate for NGOs and NPOs. The reduced rate currently stands at 80% of the charge payable, according to the City.
READ | Court battle over whether you have to pay to protest
The payment of any fee as a condition of exercising the right to demonstrate is not only bizarre but also illegal and irrational. First, the members of the JMPD are all civil servants, paid directly from funds collected by the tax authorities from taxpayers. Second, the services provided by the JMPD are not out of the ordinary services, intended to be beyond the scope and scope of their duties as members of the JMPD. The services they provide are also within their working hours. During the protest actions, the members of the JMPD render services that they must already render as members of the municipal police.
An arbitrary practice
Third, it is unclear how funds received from the protests are allocated or whether the fees go directly to the JMPD budget. The practice is also arbitrary as it is unique to the city of Johannesburg. The JMPD is not the only municipal police service in the country – there are many others – but the practice of levying charges on protesters remains unique to the city of Johannesburg. The practice is unjustifiable and must be stopped.
The reduced rate for NGOs and NPOs does not make the practice legal. This remains problematic as there should be no fees collected in the first place. The prescription of fees has the effect of stifling the right to demonstrate. Non-payment of dues results in limited deployment of JMPD members. The amount of fees charged varies depending on the number of people attending the event. Previously, protesters have been charged up to R15,000. Recently, members of the Koponang Afrika Campaign against Xenophobia submitted a notice of protest on March 21, 2022. After meeting with the officer in charge of the JMPD, they were asked to pay an amount of over R10. 000.
Two NPOs, the Campaign for the Right to Know and the Gauteng Housing Crises Committee, are challenging the practice in the Johannesburg High Court and are represented by the Center for Applied Legal Studies (CALS). They seek an order quashing the practice of levying fees by the City of Johannesburg and a declaratory order declaring the practice unconstitutional and contrary to the RGA. The city opposes the application, which was heard on April 26 of this year and is currently awaiting trial.
Even though the City of Johannesburg argues that non-payment of fees does not amount to a ban on the planned protest, the effect and outcome of non-payment means that protesters are vulnerable as they lack the protection and full presence of the JMPD. The JMPD will only deploy half the number of officers it would deploy compared to when the payment is actually made. In addition, the demonstration is described by the City as “illegal”.
We call on the City of Johannesburg to review and repeal all resolutions, policies and laws that require protesters to pay a fee as a condition of exercising their right to protest. This practice is arbitrary and irrational and has a chilling effect on the right to demonstrate. The city of Johannesburg should already have a budget to host the events; therefore, there is no justification for prescribing and collecting protest costs, regardless of the amount. The City of Johannesburg is further called upon to ensure that its policies, resolutions and laws are fully in line with the international framework, the Constitution and the RGA.
– Sithuthukile Mkhize, Thandeka Kathi and Zanele Malindi are based at the Center for Applied Legal Studies at Wits University
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