Freedom of assembly and democracy in South Africa

[摘要] ENGLISH ABSTRACT : In apartheid-era South Africa protests were a mechanism through which thedispossessed and marginalised could challenge their exclusion. Thesecharacteristically confrontational and violent protests influenced the frameworkadopted to regulate demonstrations during the democratic transition and in the newconstitutional dispensation, namely the Regulation of Gatherings Act 205 of 1993('Gatherings Act). In the new constitutional dispensation the right to assemble anddemonstrate is guaranteed in section 17 of the Constitution.South Africa has been labelled the 'protest capital of the world. Protests are aregular occurrence and are a vital part of democratic participation and dissent. This isbecause the people, on whose will government is based, need an avenue outside ofexisting institutions to form and express their views and show their dissent. Thequestion arises as to how certain types of dissent fit within different conceptions ofdemocracy. This thesis attempts to determine whether and to what extent differentunderstandings of democracy allow us to make sense of the nature and importance ofprotest action.The thesis examines the regulatory framework of the Gatherings Act, with referenceto its implementation by the executive and state administration. It also examines caselaw in which section 17 of the Constitution has been interpreted. It argues that someof the provisions of the Gatherings Act, the implementation of the Act by the executive,and some court judgments reveal an impoverished understanding of democracy andunduly limit the rights of the citizenry to participate and dissent.The thesis examines various conceptions of democracy. It argues that, while theinstitutional models of representative, participatory and deliberative democracy mayhelp to illuminate certain aspects of freedom of assembly, they do not adequatelyaddress the inherent tensions in democracy which are illustrated in contentious anddisruptive protests. Representative models of democracy tend to offer a restrictiveview which assumes that the will of the people is identical to the decisions ofrepresentatives, and minimises the role of participation beyond and between elections.Participatory and deliberative models of democracy attempt to eliminate tensions andconflict by creating a platform for a possible rational consensus. These models placea great deal of reliance on the power of representatives to establish spaces fordemocratic interaction. Disruptive protests are extra-institutional forms of democratic participation. Thistype of extra-institutional politics can be linked to the model of agonistic pluralism.Rather than attempting to eliminate and exclude conflict from democratic thought, itrecognises that these conflicts are fundamental to democracy. The thesis argues thatthis model could help enable an understanding of protest action which recognises thecentrality of protests to democracy and transformation under the South AfricanConstitution.

[发布机构] Stellenbosch University