Fundamental rights and democratic contestation: reflections on freedom of assembly in an unequal society

Henk Botha
2018 Law Democracy & Development  
were integral parts of the anti-apartheid struggle, and mass mobilisation and demonstrations continued to play an important role during the constitution-making process. Given these historical and present realities, it is not surprising that a link is made in constitutional literature between freedom of assembly and democracy. It is stated that the right to assemble, to demonstrate, to picket and to present petitions, institutes a form of direct democracy, 1 and that exercises of this right
more » ... of this right amount to "a direct expression of popular sovereignty". 2 And yet, freedom of assembly is not as rigorously protected in South Africa as one would expect. The terminology used in the Regulation of Gatherings Act 205 of 1993 sits uneasily with the language of section 17 of the final Constitution, as a "demonstration" is restricted to no more than 15 persons, whereas a "gathering" consists of more than 15 persons. While demonstrations are exempt from the requirement of prior notification, gatherings are subject to onerous notice requirements. These requirements, coupled with the tendency of municipalities to issue blanket prohibitions, have frustrated the realisation of this right, and rendered its exercise far too dependent on the discretion -and goodwill -of local authorities. 3
doi:10.4314/ldd.v21i1.11 fatcat:3hlnsdm6orgjrayuejkjqqtbva