Browsing by Author "Hanekom, Eduhahn Luke"

Now showing 1 - 1 of 1
  • Thumbnail Image
    Item
    Freedom of assembly and democracy in South Africa
    (Stellenbosch : Stellenbosch University, 2019-04) Hanekom, Eduhahn Luke; Botha, Henk; Stellenbosch University. Faculty of Law. Dept. of Public Law.
    ENGLISH ABSTRACT : In apartheid-era South Africa protests were a mechanism through which the dispossessed and marginalised could challenge their exclusion. These characteristically confrontational and violent protests influenced the framework adopted to regulate demonstrations during the democratic transition and in the new constitutional dispensation, namely the Regulation of Gatherings Act 205 of 1993 (“Gatherings Act”). In the new constitutional dispensation the right to assemble and demonstrate is guaranteed in section 17 of the Constitution. South Africa has been labelled the “protest capital of the world”. Protests are a regular occurrence and are a vital part of democratic participation and dissent. This is because the people, on whose will government is based, need an avenue outside of existing institutions to form and express their views and show their dissent. The question arises as to how certain types of dissent fit within different conceptions of democracy. This thesis attempts to determine whether and to what extent different understandings of democracy allow us to make sense of the nature and importance of protest action. The thesis examines the regulatory framework of the Gatherings Act, with reference to its implementation by the executive and state administration. It also examines case law in which section 17 of the Constitution has been interpreted. It argues that some of the provisions of the Gatherings Act, the implementation of the Act by the executive, and some court judgments reveal an impoverished understanding of democracy and unduly limit the rights of the citizenry to participate and dissent. The thesis examines various conceptions of democracy. It argues that, while the institutional models of representative, participatory and deliberative democracy may help to illuminate certain aspects of freedom of assembly, they do not adequately address the inherent tensions in democracy which are illustrated in contentious and disruptive protests. Representative models of democracy tend to offer a restrictive view which assumes that the will of the people is identical to the decisions of representatives, and minimises the role of participation beyond and between elections. Participatory and deliberative models of democracy attempt to eliminate tensions and conflict by creating a platform for a possible rational consensus. These models place a great deal of reliance on the power of representatives to establish spaces for democratic interaction. Disruptive protests are extra-institutional forms of democratic participation. This type of extra-institutional politics can be linked to the model of agonistic pluralism. Rather than attempting to eliminate and exclude conflict from democratic thought, it recognises that these conflicts are fundamental to democracy. The thesis argues that this model could help enable an understanding of protest action which recognises the centrality of protests to democracy and transformation under the South African Constitution.