Abusing right to protest by using violence not the way to fight racism
SECTION 17 of the constitution provides that every person must have the right to assemble and to demonstrate with others, peacefully and unarmed, and to picket and present petitions.
This provision has to be interpreted and it is submitted that it does not preclude unpopular and, indeed, unruly demonstrations, which by their nature can be provocative and assertive manifestations of the popular (voice) and will challenge authority in both the public or private sector.
However, of singular importance, it was held in Acting Superintendent of Education v Ngubo, by the KwaZulu-Natal High Court, that the right to assemble and demonstrate extended no further than what was necessary to convey the demonstrator’s message.
The high court held that it was not possible to conceive of any situation where the right to assemble and demonstrate could be so extensive as to justify harass- ment, delicts or criminal acts.
Clothing company H&M produced an advertising image to promote its clothing products using a racist and distasteful image of a black child model in a sweatshirt bearing the words “Coolest monkey in the jungle”.
Understandably, the racist slogan precipitated an outcry of the first order and deserves unqualified condemnation and censure.
The clothing giant apologised abjectly on Monday, January 8 and immediately removed the offending image involving the black child.
Nevertheless, the EFF stormed various H&M stores in South Africa in protest against the racist slogan printed on the hoodie that caused an unprecedented uproar on social media.
It is reported that members of the EFF stormed, plundered and vandalised H&M stores, resulting in the destruction and malicious damage to property.
Jan Bornman of News24 (15/01/2018) reported that as a result of the protests and conduct
of the EFF, the Gauteng police confirmed they were investigating multiple malicious damage to property charges at shopping malls, including Sandton City and Menlyn Park shopping mall in Pretoria.
On Monday, AfriForum said it would lay charges of incitement of public violence against EFF commander-in-chief Julius Malema, as well as Floyd Shivambu and Mbuyiseni Ndlozi, for inciting public violence because they had allegedly used their influence to incite their supporters to carry out violent protests in the stores, resulting in criminal conduct such as malicious damage to property.
Although the DA unequivocally condemned the racist advert and said it would lodge an official complaint with the International Chamber of Commerce in this regard, it strongly condemned the destruction of property and vandalism, which is unacceptable, but declared this was not the way to fight racism, “but only compounds it”, said Refiloe Nt’sekhe, its spokesperson.
Unfortunately, the EFF has strong fascist tendencies and often attempts to use strong-arm tactics and a threat of violence and disruption to attain its political ends. Democratic political conduct requires involvement in robust, but intelligent, discourse and debate.
In Parliament, the EFF and its leadership, when they are present, have used the politics of obstruction and spectacle to make such discourse virtually impossible.
Their bitter feud with President Zuma has brought inordinate harm to the venerable Office of President, and to Parliament itself as an institution, and makes it difficult for other political parties to exercise their role of oversight using intelligent debate and a reasoned discourse in relation to the executive.
Furthermore, the EFF, in wishing to be a law unto itself, would, it appears, like to incite a race war over the issue of land and other controversial issues, such as the occupation of the commercial banks.
These tactics are inherently dangerous and do not contribute to meaningful discourse and debate in our body politic, particularly in Parliament as an institution, which has, as a result, been brought into contemptuous disrepute.
It should be made categorically clear to the EFF and its leadership, by all the relevant role-players, that such conduct as the vandalising of H&M stores is totally unacceptable.
Fascist conduct and strategy cannot advance the cause of liberty and transformation in the liberal and social democracy that our constitution provides for.
The conduct of the EFF members in storming and vandalising H&M stores must inevitably have a negative influence on investor confidence in South Africa; and, it was for this reason, that Finance Minister Malusi Gigaba condemned it in unequivocal terms in a recent television interview.
Constitutional democracy as prevails in South Africa must be distinguished from the kind of mob rule and fascist conduct displayed by the EFF.
It is of vital importance that the law should take its course and the courts should make it clear what the exact limits of the right to protest are and that they exclude any kind of criminal conduct, which the constitution does not condone in any manner as explained in the exemplary Ngubo judgment, referred to and quoted above.
Devenish is emeritus professor at UKZN and one of the scholars who assisted in drafting the interim constitution in 1993.