authority believes is likely to organize a procession or public demonstration that will
be prohibited by the proposed order; and
afford all interested persons a reasonable opportunity to make representations in the
matter.
The regulating authority must also ensure that the order is published in the Gazette, a
newspaper circulating in the area and in such other manner as, in his opinion, will ensure
that the order is brought to the attention of persons affected by it.
The constitutional right to demonstrate and protest
Section 59 of the 2013 Constitution provides that everyone has the right to demonstrate and
to present petitions, but these rights must be exercised peacefully. This right is a vitally
important democratic right which allows citizens publicly to register their dissatisfaction with
the performance of their government or particular policies of government and bring their
grievances to the attention of government. In The Bill of Rights Handbook Iain Currie &
Johan De Waal 6th ed (2014) at 378, the authors make the following observation about
freedom of assembly:
“Freedom of assembly creates the space both to speak and to be heard. A single
voice is likely to be drowned out in our polity. A choir is far more likely to get its
message across. Power in modern nation states invariably concentrates in and
around large social formations. As a result, meaningful dialogue often requires the
collective efforts of demonstrators, picketers and protesters.”
Similarly, in the case of S v Turrell 1973 (1) SA 248 (C) 256, it was held that:
“Free assembly is a most important right for it is generally only organized public
opinion that carries weight and it is extremely difficult to organize it if there is no right
to public assembly.”
In the case of In re Munhumeso & Ors 1994 (1) ZLR 49 (S) the Supreme Court addressed
extensively the constitutional right to assemble and protest. It highlighted that public
assemblies and protests are a highly effective method of bringing grievances to the attention
of the authorities and seeking redress for grievances. However, it pointed out there was a
need to reconcile this important right with the governmental responsibility to ensure sound
maintenance of public order to prevent members of the public from being harmed by violent
protest action.
Section 58 of the Constitution also guarantees the right to assemble peacefully.
Limitations on the right to protest
In terms of section 86(1) of the Constitution this right must be exercised reasonably and with
due regard for the rights and freedoms of other persons in the Declaration of Rights.
Under section 86(2) the right to demonstrate may be limited only in terms of a law of general
application. It may only be limited to the extent that the limitation is fair, reasonable,
necessary and justifiable in a democratic society based on openness, justice, human dignity,
equality and freedom and in deciding whether any limitation meets this criterion a number of
relevant factors must be taken into account. These factors are─
the nature of the right concerned;
the purpose of the limitation and in particular whether it is necessary in the interests
of such things as defence, public safety and public order;