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POSA requirements for public gatherings - Peace Watch 1 / 2010
Veritas
February 17, 2010

Veritas has been asked to clarify what organisers must do to comply with POSA if they plan meetings, demonstrations or processions, and what the police are or are not entitled to do under the law when peaceful meetings, demonstrations or processions take place.The amendments proposed in the POSA Amendment Bill have not been taken into account. If they become law Veritas will send out a notice of relevant changes.

Constitutional Right to Hold Meetings, Demonstrations and Processions in Public Places

The Constitution protects the right to hold meetings and to demonstrate in public as part of the freedoms of expression and of assembly and association [see sections 20 and 21 of the Constitution]. In this, our constitution conforms with the Universal Declaration of Human Rights [Articles 19 and 20] and the African Charter on Human and People’s Rights [Articles 9, 10 and 11].

These are not absolute or unqualified rights: sections 20 and 21 of the Constitution allow Parliament to make laws limiting freedoms of expression, assembly and association “in the interests of defence, public safety, public order” and for the purpose of protecting the rights or freedoms of other persons, as long as the laws are “reasonably justifiable in a democratic society”. Sections 20(6) and 21(4) go on to say that no one has a right to exercise their freedom of expression, assembly or association in or on “any road, street, lane, path, pavement, side-walk, thoroughfare or similar place which exists for the free passage of persons or vehicles”. This does not mean that all processions and demonstrations in public roads and streets can be prohibited: in 1994 the Supreme Court said that, properly construed, the sections simply state that the right to hold demonstrations and processions in public roads and streets does not give licence to interfere with or obstruct the free passage of persons or vehicles.

Comment: So the Constitution guarantees everyone the right to hold meetings, demonstrations and processions even in public places, subject only to restrictions that are reasonably justifiable in a democratic society and so long as traffic along roads and streets is not impeded.

What restrictions are imposed on this right by the Public Order and Security Act (POSA)?

No Notice Need be Given of the Following Gatherings

The Schedule to POSA lists “gatherings” [which includes processions and demonstrations] not subject to the obligation to notify police:

  • a meeting of an organ or structure of a political party or other organisation such as a trade union [but in terms of section 23(8) of POSA the police may request — though not require — an organisation to supply them with the names of people who are entitled to attend such meetings];
  • a gathering held exclusively for bona fide religious, education, recreational, sporting or charitable purposes;
  • baptisms, weddings, funerals and cremations;
  • a gathering of members of professional, vocational or occupational bodies held for non-political purposes;
  • a gathering held by a non-political club, association or organisation where non-political matters are discussed;
  • a gathering held by a registered trade union for bona fide trade union purposes in order to conduct its business under the Labour Act;
  • a gathering for an agricultural or industrial show, or the sale of goods or animals
  • a gathering for a theatre, cinema, musical or circus performance
  • a gathering for lottery draws

Comment: Although not expressly exempted, a spontaneous gathering should be included in the exemptions because, as suggested below, POSA cannot be construed as prohibiting people from exercising their constitutional right to gather spontaneously in public.

Prohibition of All Gatherings in Certain Places

Section 27A of POSA prohibits all gatherings:

  • within 20 metres of the vicinity of Parliament, without written permission from the Speaker of the House of Assembly;
  • within 100 metres of the vicinity of a court building without written permission from the Chief Justice or the Judge President of the High Court;
  • within 100 metres of a protected place or area [e.g. State House and the President’s retirement home], without written permission from the responsible authority for the place or area.

Comment: These prohibitions — apart from being vague — are almost certainly unconstitutional.

Temporary Bans on Public Gatherings in an Entire District

Section 27 of POSA also allows a regulating authority [i.e. the police officer in command of a police district] to impose a temporary ban for not more than one month on all public gatherings in his or her district, or on specified types of public gatherings. This can be done only if the regulating authority reasonably believes that “normal” police powers [see below] will not be sufficient to prevent public disorder. There is a right of appeal against such a prohibition to the local magistrate under section 27B. The ban has to be published in the Government Gazette and in a newspaper and in such other manner that will ensure that it brought to the attention of people that may be affected by the ban.

[Note that there are no such prohibitions presently in force but this provision has been used in the past.]

Comment: Many people feel that if the police want to ban all gatherings in a district they should show due cause to a magistrate and the magistrate should decide whether such a ban is necessary, as is the case in many other countries.

Procedure to be Followed When Organising a Public Gathering

Anyone who wants to hold a public meeting [i.e., a meeting of more than 15 people in a public place or a meeting which the public is permitted to attend], or a demonstration or procession in a public place [i.e., a road, open space or other place to which the public has access] must follow the procedures laid down in POSA and outlined below.

Appointment of Convenors: An organisation that intends to hold a demonstration or procession in a public place must appoint a convenor and deputy convenor to be responsible for all dealings with the police, including for making arrangements for the demonstration or procession, and who must without delay notify the regulating authority for the police district concerned of the appointment [POSA, section 23]. Anyone who wants to convene a public meeting must appoint a “responsible person” with the same functions as a convenor, and must notify the regulating authority of the appointment without delay [section 24 of POSA].

Notice of Public Meetings, Demonstrations and Processions to Police: Section 25 of POSA requires organisers/convenors to give at least five days’ written notice of the meeting, 7 for a demonstration or procession, to the regulating authority [the police] for the district in which the meeting is to take place; the notice can be handed in to the person in charge of the police station nearest to the venue of the meeting, procession or demonstration,

Comment: Although this requirement may seem to render spontaneous public gatherings illegal, that cannot be the case if POSA is read in conjunction with the Constitution — as it must be.

Notice must give particulars, including:

  • the convenors
  • the purpose of the meeting, demonstration of procession
  • times and places of assembly and dispersal
  • the anticipated number of participants;
  • in the case of a demonstration or procession, the route to be followed, form of the procession, e.g. whether vehicles will be used
  • if a petition or similar document is to be presented, the place where and person to whom it will be presented.

Notice not an Application for Permission: The written notice is not an application for permission. Contrary to popular belief, POSA does not say that police permission is required for a meeting, procession or demonstration.

Effect of Failure to Notify Police: Failure to give notice does not make the meeting, procession or demonstration unlawful and is not in itself a reason for prohibiting it. Nor will persons taking part be guilty of an offence simply because it was not notified. [Although police may try and pin another offence on them – see next Peace Watch.] The convenor, however, may be guilty of an offence under section 25(5) of POSA, which allows for a fine of up to $2000-00 or one year’s imprisonment or both, and may also be civilly liable under section 28 for loss, damage, injury or death that may occur at the meeting, procession or demonstration.

Police Responsibilities When Notified: Duty to Act in Good Faith: On receipt of written notice of a public meeting, demonstration or procession, the police must proceed to consider whether or not it may go ahead. In the case of a public meeting, if the convenor hears nothing from the police, he or she can assume there is no problem and the meeting can go ahead as scheduled [POSA, section 26(2)]. In the case of a demonstration or procession, if the police consider it can take place without further negotiation, they must advise the convenor accordingly [POSA, section 26(1)]. But even if they don’t advise the convenor he or she can go ahead with the demonstration or procession because the onus is on the police to convene a consultative meeting if they believe the demonstration or procession will cause any problems.

Consultative Meeting: If the police receive credible information on oath that there is a threat that a meeting, procession or demonstration will result in serious disruption of traffic, injury to persons, extensive damage to property, or other forms of public disorder, they must promptly call a consultative meeting with the convenor to discuss how such problems can be avoided [POSA, section 26(3)]. The Act specifically states that the police must ensure that discussions at the meeting take place “in good faith” [POSA section 26(4)(c)]. If no agreement can be reached on precautions to meet bona fide police concerns, the police have the power to impose conditions designed to ensure that traffic is “least impeded”, to keep rival demonstrations apart, to ensure access to property and workplaces and to prevent injury or property damage. These conditions must be communicated to the convenor of the gathering, and must be obeyed, subject to an appeal to a magistrate, as outlined below. See section 26(8) & (11) of POSA.

Police Prohibition of Public Meeting, Demonstration or Procession: If, following discussions with the convenor, the police see no way in which their concerns can be met by appropriate conditions, then — and only then — they have power to prohibit the meeting, procession or demonstration. It is implicit in these provisions that:

  • a prohibition should be resorted to reluctantly and only if genuinely essential;
  • a prohibition can only be resorted to if the police have received credible information on oath that there is a threat of serious disruption of traffic, injuries, extensive property damage or public disorder. Since the information must be on oath it should presumably be recorded as an affidavit. Convenors should demand to see the affidavit.

An order prohibiting a public meeting, demonstration or procession must be handed to the convenor, together with the reasons for the order, and must be obeyed [POSA, section 26(10) & (11)]. If it is not possible or practicable to notify the convenor, then the police must give public notice of the order.

Appeal to Magistrate against Police Decision: If a convenor is dissatisfied with conditions imposed by the police, or by a prohibition order, the convenor may appeal to a local magistrate. The appeal must be dealt with before the proposed date of the meeting, demonstration or procession [POSA, section 27B].

In the Next Peace Watch:

Police powers when gatherings take place – What the police can do to disperse a gathering – Criminal offences connected with gatherings

*Veritas makes every effort to ensure reliable information, but cannot take legal responsibility for information supplied.

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