1. Introduction
Protesting is one of the most effective ways in which individuals can exercise their right to freedom of expression. They can express their views on political issues, as well as actively play a part in public matters; making this form of expression an essential part of a participatory democracy. There are however limitations placed on this right. In this essay these limitations will be discussed in respect of their constitutionality.
2. Protesting and South African law
The right to protest is supported by fundamental human rights such as; the right of freedom of assembly, demonstration, picket and petition, freedom of expression and freedom of association as provided for in the Constitution of the Republic of South Africa (hereafter the Constitution).
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It is submitted that those provisions are intimidating since they will discourage protestors to freely and voluntarily engage in a public protest. Many members of the public will not risk personal liability to challenge public or political affairs.
Section 11 of the Gatherings Act states that if any damage is caused by the riot any person partaking in the riot will be jointly and severally liable for damages. In the case of South African Transport and Allied workers v Gavas (hereafter “SATAW”), damaged was caused to shops and vehicles in the course of the protest march. SATAW contented that section 11 (2) violated the right to freedom of assembly. The only argument which was used in this regard was that the phrase “and was not reasonably foreseeable “in section 11(2)(b) was irrational and his inconsistent with the principle of legality.
Section 11 therefor created a statutory purpose for delictual liability. This results in the organisation of a protest being increasingly costly for the groups that are not well-resourced, therefor prohibiting them from taking