Equal Education asks Court for apology for shutting down of peaceful protest

21 November 2018

On 11 July 2017, the police and the KwaZulu-Natal Department of Education (KZN DoE) unlawfully shut down a peaceful protest held by members of Equal Education (EE). Represented by the Equal Education Law Centre (EELC), EE has now asked the Pietermaritzburg High Court for an order that the Constitutional right to protest was violated, and that the KZN Police Commissioner and KZN Education MEC Mthandeni Dlungwane must publicly apologise.

At our gathering that was unlawfully shut down, we intended to screen a film, called the Long Walk to School, outside the Pietermaritzburg office of the KZN DoE. The film highlights the years of struggle of EE members to secure more effective scholar transport provision in the province.

We had in fact complied with all the formalities in the Gatherings Act, and the protest began peacefully. Despite this, we were approached by police officers and the KZN DoE’s head of security, who challenged whether we had “permission” to gather, and eventually ordered EE members to disperse. On questioning this order, we were told that we could approach a court if we were aggrieved, and that if we did not disperse, police officers would be ordered to use teargas on us! The EE members present included Equalisers younger than 18-years-old. Fearing for their safety, a decision was made to halt the screening of the film and to end the gathering.

Shocked and frustrated at this flagrant violation of such a critical democratic right, EE instructed the EELC to write to SAPS and the KZN DoE about what had happened. In the absence of any meaningful response, EE decided to ask the Court for assistance.

The KZN DoE and the KZN Police Commissioner have opposed our application. In their court papers they say the affidavits giving the view of learners on what happened are unnecessary. The comments of the learners in the court papers include:

“When other police officials arrived.. I got scared and threatened. When there’s angry police in a protest, protestors get shot or beaten up and I was worried that could happen”.

“When police arrive, I should feel safe, but I didn’t because they were angry and threatened me and EE members”

“I wanted to protest that day to show people that here in KZN, people are suffering. When I saw the police, I felt as if we had no right to say anything… they just chased us away.”

“I feel frustrated that police were called, we all needed to be treated equally. I was angry because I wanted to express my feelings about the transport problem”

It is deeply saddening that our government should find these critical concerns of children unnecessary. In the historic Constitutional Court judgment handed down this week (in which case EE intervened as a friend of the Court), the Court affirmed the importance of the right to protest for children:

“[i]t must be emphasised that for children, who cannot vote, assembling, demonstrating and picketing are integral to their involvement in the political process. By virtue of their unique station in life the importance of the section 17 right [the right to protest] has special significance for children who have no other realistic means of expressing their frustrations.”.

Worryingly, the State makes the all too common assertion that the protest was unlawful because the KZN DoE was not invited to the pre-protest meeting contemplated in the Gatherings Act. But it is the duty of the State to invite all relevant people to that meeting, and there is nothing in law that says the meeting must include the officials who are the subject of the protest. It would be entirely absurd to punish the organisers of a gathering, who are often marginalised and poor people, for the failure of a certain organ of State to attend that meeting. The question of who is invited and who attends can not be within the power of the people who organise gatherings.

We see litigation largely as a measure of last resort. However, we cannot sit idly and allow free reign on the trampling of the rights of EE members to organise. For children in poor communities this is one of the only powerful means of expressing a political voice. After more than a year of waiting for an acknowledgment of wrongdoing, and an apology, we are hopeful that our judiciary will ensure that this justice is done, for EE as a movement, and for children, activists and communities seeking to organise and protest throughout the country.

To read the court papers in this matter, click this link.

Issued by Leanne Jansen-Thomas, Equal Education Head of Communications, 21 November 2018