Letters from Jane Duncan on the Unlawful Banning of an AbM Protest by the Sydenham SAPS

To: Captain Govender
Metro Police Special Events
eThekwini Municipality
Fax: 0313044353

6 December 2012

Dear Captain Govender,

Re: Attempt to prohibit Abahlali base Mjondolo march on Councillor Themba Mtshali’s offices

I am writing in connection with an attempt by the South African Police Service (SAPS) from the Sydenham police station to prohibit a march proposed by the Ward 23 community in Clare Estate, which includes the Palmiet branch of Abahali base Mjondolo, on the offices of Ward 23 Councillor Themba Mtshali. The march was meant to take place on Friday 7 December 2012. The convenors provided adequate notice for the march.

The march is meant to begin at Palmiet Park, Palmiet Road in Clare Estate, proceed down O’Flaherty Road, onto Quarry road and then end at the Aquarius building on Mountbatten Drive, where his clr. Mtshali’s offices are. The Premier of the Province, Dr Zweli Mkhize, has apparently agreed to accept the memorandum.

Apparently, the SAPS have insisted that the convenors must first seek permission from the Reservoir Hills shopping mall, as the proposed route will take the march past the mall, as well as the owner of the building where the Council offices are held.

I have been involved in research and advocacy work on the Regulation of Gatherings Act and its application for a number of years, and am currently co-ordinating a project at the University on the Act, its application and its violation: hence my interest in the matter.

The Act does not require the convenors to seek permission from either of the above mentioned parties. The protestors will be using public roads and spaces for their protests, and apparently have no intention of entering either the shopping mall or the councillor’s officers.

This means that the Act, and the Act alone, governs the conduct of the marchers, as the Act applies to gatherings taking place in public spaces.Furthermore, the Act merely requires the convenors to notify the Municipality of their intention to march, which they have done. The march is therefore automatically lawful, unless it can be shown that the conditions for prohibition as set out in the Act apply, and there is no indication in this case that they do. The reasons given for wanting to prohibit the march are not recognised by the Act and are not lawful.

Unfortunately, all too often, reasons like the ones given are used to prohibit marches unlawfully, thereby depriving the affected communities of their constitutional right to assembly, demonstration and picket.

I appeal to you to ensure that the march is allowed to proceed as planned.

Prof. Jane Duncan
Highway Africa Chair in Media and Information Society
School of Journalism and Media Studies
Rhodes University