Labour and social conflict forced its way into the public consciousness last year when scores of people, mainly miners, were killed and injured in Marikana. The media coverage of August 16 has focused mainly on the events surrounding the massacre and the roles of the various protagonists. What has not been examined in enough detail, however, is how municipal control of protests has contributed to the outcomes of unrest in the area. By Jane Duncan and Andrea Royeppen.
Some media coverage explored the mounting social crises that gave rise to the massacre, including the living and working conditions endured by miners and communities in the platinum belt. But there has been little focus on the presence or absence of democratic space as a contributing factor to the crisis. The conflict in Marikana strongly suggested that existing avenues for the expression of grievances were dysfunctional, prompting in part the decision to embark on an unprotected strike and protests.
In the wake of the massacre, activists alleged a crackdown on dissent, especially in the platinum belt, but certainly not confined to it. In September, the Rustenburg Local Municipality prohibited the Wonderkop Community Development Association from organising a protest against police violence after a councillor, Paulinah Masutlho, was shot dead, allegedly by the police.
Another protest, to be held by the Marikana Support Campaign outside the Farlam Commission, was also prohibited. In Makause on the East Rand of Gauteng, the police thwarted criticism of their own by blocking attempted protests against police violence.
Then it emerged that before the massacre, the Bafokeng Landbuyers’ Association had also attempted to hold protests on mining rights, the demolition of houses, and the Protection of State Information Bill, but their attempts were repeatedly thwarted by the Rustenburg Municipality, which banned their protests on what they claimed to be spurious grounds. They have also claimed that the Municipality is placing a myriad obstacles in the way of their and others’ right to protest, to protect powerful mining interests and to stifle dissent against their practices in the platinum belt.
With these recent incidents in mind and in an attempt to explore whether violations of the right to protests were increasing - as suggested by the anecdotal evidence - we initiated a research project on protests and their prohibition over the past two years.
This research included reviewing the records of the Rustenburg Municipality on notifications of gatherings in terms of the Regulation of Gatherings Act (RGA), and the Municipality’s responses. In terms of the Act, convenors of gatherings are required to notify their Municipality of their intention to hold a gathering, and these records are held by the Municipalities concerned. The project also included developing a database of violations of the right to protest in other parts of the country, to make it easier to track patterns of prohibition.
The research findings are summarised in two articles. This article summarises the findings on the state of the right to protest in areas falling under the jurisdiction of the Rustenburg Municipality.
When the Goldstone Commission revised the Riotous Assemblies Act, and proposed the RGA as its replacement, it argued that rather than seeing gatherings as threats to national security, the state should recognise them as essential forms of democratic expression. The state should also have a positive obligation to facilitate gatherings.
Municipalities were tasked with ensuring that negotiations took place between the three main protagonists, namely themselves, the South African Police Service (SAPS) and the convenors of the gathering. However, what the Commission did not foresee was that Municipalities themselves would themselves become targets of community protests, increasing the temptation for them to manipulate the RGA procedures to stifle dissenting voices against their own performance.
So,what do the Municipal records tell us about the state of the right to protest in Rustenburg? To their credit, the Municipality provided access to their records with little fuss, and the findings are based on the records provided. Overall, the number of gatherings increased from 2011 to 2012, including the number of protests. Gatherings are defined as all events that could be considered ‘non-political’ in nature, and include open air concerts, church meeting and school functions.
Protests, on the other hand, are defined as those gatherings that are directed towards state institutions or other power holders, and that seek to influence or contest decisions made by them. Protests formed the minority of gatherings that were applied for over the period.
So, in 2011, only 32% of protests were approved, while 29% were not approved. This means that nearly as many protests as were approved, were also not approved. The remaining 30% were not specified whether they were approved or not approved.
Activists have complained about the fact that municipalities often prohibit protests verbally, so as not to leave a paper trail of prohibition. This practice seems to be in operation in Rustenburg as well, and may explain the large number of ‘not specified’ applications. This means that the number of prohibitions is likely to be even higher than what is reflected here.
In 2012, 33% were approved and 53% not approved, with the number of protests unspecified whether they were approved or not declining. This suggests that the municipality had become much more categorical in their decisions about this type of gathering, and that they were much more prone to prohibiting protests than they were in 2011.
The research also found that non-political gatherings were less likely to be marked as ‘not approved’. In 2011, 41% of gatherings were approved, and 12% not approved, with the rest (47%) being unspecified.
In 2012, 28% were approved, 10% not approved, and the rest not specified. The number of unspecified applications is unacceptably high and undermines accountability, as it becomes impossible to track the Municipality’s records on approved gatherings properly.
The stated prohibition rate for protests in Rustenburg is significantly higher than the number of ‘unrest-related’ incidents noted on the SAPS’s Incident Registration Information System (IRIS). According to IRIS annual statistics, the number of incidents that become violent, and are therefore classified as ‘unrest-related’, is in the region of 10% of the total number of gatherings. These gatherings are the ones the SAPS considered to have ‘gone bad’, and which therefore could have presented the authorities with legitimate reasons for prohibiting them. This approximate figure can be deduced from statistics supplied by the Minister of Police in response to a Parliamentary question last year, and which draws on the IRIS database:
The statistics for gatherings in the North West also reflected this trend, with approximately 10% of gatherings classified as ‘unrest-related’, although the number of protests per thousand residents is higher than most other provinces, except for the Northern Cape.
Yet the Rustenburg Municipality’s rate of prohibition of protests was nearly triple the average number of unrest-related incidents nationally and provincially in 2011, and five times this number in 2012, pointing to a culture of over-prohibition, especially of protests.
The Municipality has prohibited the protests of a broad spread of organisations, including the South African National Civic Organisation (Sanco, which was prohibited twice), the Seratong Community Ward 37, the Community Policing Forum of Seratong, the Kanana Community, Lethabong Residential Association, the Bafokeng Landbuyers’ Association, Lethabong Legal Advice Centre, Lekgalon Village, Ramochana Community Forum, Community of Madithlokwa sector, the Lefaragatlhe Community, Communities of Thabane and Macharora Villages, the Marikana support campaign and the Wonderkop Community Womens’ Association. Applications from the mining sector that were prohibited included from the Congress of South African Trade Unions (COSATU), the National Union of Mineworkers (NUM), the South African Transport and Allied Workers Union (Satawu), Aquarius and Murray and Roberts Mines, as well as employees of the North and South mines, BRPM mines and the Royal Bafokeng Platinum Mines. Most of these organisations had protests prohibited in 2012.
What this list implies is that even organisations that fall in the tripartite alliance are prone to being prohibited, so there does not appear to be political favouritism in decisions to prohibit. The most common reasons cited by the Municipality for prohibiting gatherings and protests are as follows:
- There was no recipient available to receive the memorandum.
- The list of marshals was missing.
- The confirmation of the use of the venue was missing.
- The application not made within the required time.
- No map of the route was provided.
- No letter of approval from the magistrate’s court was provided when protests took place outside the court.
- The police were unable to provide assistance for the gathering.
One of the reasons why the rate of prohibition is so high appears to be that organisations that intend to hold gatherings are required by the Municipality to comply with a checklist of letters they need to obtain before the gathering can go ahead. The checklist includes a permit to use a public road, an authorisation letter for the venue, a permission letter from the tribal council, and an acknowledgement letter from the intended recipient of the memorandum of demands that s/he will be available to receive the memo to be served.
None of these are requirements of the RGA. In terms of the RGA, when notifying the Municipality of their intention to gather, the convenor must provide information about the convenors, purpose of the gathering, details of the gathering (route, time and date and the such like).
In the case of a petition being handed over, information about the person to whom the petition is to be handed over must be provided. But the RGA does not require a letter from this person, and for good reason, namely that the intended targets of the protest action could squash the protest simply by refusing to accept the memorandum, which would subvert the very right the Act is meant to regulate. Freedom of association cannot be made subject to the say-so of a protestor’s adversary.
Yet the checklist makes obtaining this letter a requirement. The insertion of the tribal council requirement subverts a fundamental feature of the RGA, which is that the convenors merely need to notify the local authority of their intention to march, and not seek permission. Given the checklist requirements, it is unsurprising that the number of prohibitions in the Municipality is so large, as it has placed an impossibly high bar for lawful gatherings, particularly for protests as they are more likely to be controversial.
We approached the Municipality and asked them for comment on why the rate of prohibition was so high, and why they insisted on applying the checklist in spite of the fact that much of it conflicts with the RGA. After four days of waiting for a response, we were referred to the policy documents section of the Municipality’s website, and told that “all answers are in there”.
But they were not. No publicly available policy document deals with the matter of public gatherings. The only document relating to gatherings on the site is a press statement from the Rustenburg Community Safety Forum, expressing concern about the high number of “illegal gatherings” in the wake of the “Marikana disaster”. It also reflected a Forum agreement to “… [increase] police and municipality law enforcement patrols and [implement] an intensive education programme to educate communities on issues and laws that regulate gatherings”. This is in spite of the fact that the institution that that appears to be most in need of an education programme on the laws that regulate gatherings is the Municipality itself.
The Municipality was alerted to the fact that their website was silent on the regulation of gatherings, with the exception of the above document, but at the time of writing had failed to respond.
The balance of evidence suggests that the Rustenburg Municipality has no respect for the right to protest. What is not known yet is to what extent this contempt for basic rights and freedoms is shared by other municipalities. This is research that we hope to undertake in future.
If these abuses are becoming widespread – and there is enough anecdotal evidence to suggest that they are – then it should be expected that many will take to the streets anyway as their grievances remain unaddressed. As these protestors will now be ‘criminals’ in the eyes of the police, they could well be treated as such, which means that the unofficial police doctrine of ‘maximum force’ could be brought to bear to disperse the protests. This may mean, tragically, that we could expect more Marikanas. This is why unlawful practices need to be exposed and stemmed at their source, and in the light of the above information, there can be little doubt as to the source of the unlawful practices around protests in Rustenburg.
*This is the first in a two-part series of articles based on research on the state of the right to protest in 2011-2012. The research was supported by the Dean of Humanities Discretionary Fund, Rhodes University.