South Africans are being held hostage by protestors that blockade roads. Persons lives are at risk. I am personally aware of several people who have been injured. I recall a situation recently where an elderly 80-year-old lady was travelling on the N2 highway outside Plettenberg Bay when she was hit in the face by a stone that went through her window. She was severely injured. During November 2021, protesters outside Knysna blocked the roads and caused a long traffic jam. The protesters then circled behind the cars (started more fires – which must have been terrifying for the persons in the cars trapped in the middle) and started robbing the trucks and vehicles standing waiting. The roads between Knysna and Plettenberg Bay are blocked regularly by protesters.

I happened to hear a radio broadcast on SAFM on the 6^th of December 2021, in which a person came on air and expressed the view that people are not being heard and it is for this reason that they believe that they have no other alternative but to block roads. The presenter immediately pointed out that it is illegal for a person to wilfully or unnecessarily prevent, hinder, or interrupt the free and proper passage of traffic on a public road (see Regulation 319 of the National Road Traffic Regulations). However, the person being interviewed remained of the view that this was the only avenue available to protestors to be heard.

Clearly, we have a terrible situation developing which has become a norm. Americans are being faced with shooting in schools and it has become an accepted cultural norm in South Africa to blockade roads. The only way in which to deal with this is to deal with it decisively.

Government’s response:

On Wednesday the 20^th of June 2018, the Transport Minister Blade Nzimande called on protest organisers to make use of Government channels to air their grievances and desist from damaging property. He assured the public that:

“Any criminal acts in the form of violence, disruption of state and private property, looting and blockading of roads under the pretext of service deliver protests will not be tolerated”.

Fast forward to 2021 and we find ourselves in a situation where the exact opposite has happened. National highways are blocked all the time which are preventing the transport of goods and words like “economic sabotage” are used by the newspapers. It is more like “terrorism”. Even the words we use show the extent to which South Africans have started living with this reality. I have tremendous sympathy for the plight of people who are not heard but this form of illegal protest must not be allowed.

The Right to Protest v Types of offences:

Section 17 of our Constitution guarantees and protects the right to protest:

“Everyone has the right, peacefully and unarmed, to assemble to demonstrate and to present petitions”.

The Regulation of Gatherings Act No 205 of 1993 is intended to help people to organise a protest in a safe and organised way. There is a useful guide on how to do this at www.protestguide.org.za.  The authorities may not refuse to allow you to protest except under particular circumstances. A police officer may prohibit a gathering in terms of section 5 of the Regulation of Gatherings Act if he or she receives credible information on oath that a proposed gathering will result in the serious disruption of vehicular or pedestrian traffic.

However, all rights are subject to competing rights (such as private property) and limitations (such as the State’s right to impose restrictions on the time and place of the protest in circumstances where the protest may constitute an imminent threat to public security).

Increasingly public protest is accompanied with public violence, criminality and damage to motor vehicle vehicles.

Public violence is not easily defined. The courts have admitted "the vagueness of this offence and the difficulty, if not impossibility, of giving it an exact definition": R v Salie 1938 TPD 136 137­139; and see R v Tshayitsheni 1918 TPD 23 30. Here are many definitions:

• Public Violence - The essential elements of public violence would seem to be: “an act: (1) in concert (2) of a considerable number of people (whether armed or not) (3) with an illegal object (4) calculated to disturb the public peace (5) by violence or the threat of violence" (per Roberts, AJ in R v Segopotsi 1960 2 SA 437 (T).
  
  
• Public violence consists in the unlawful and intentional commission, by a number of people acting in concert, of acts of serious dimensions which are intended forcibly to disturb public peace or security or to invade the rights of others. See Milton Criminal Law and Procedure 2 74; Burchell Principles of Criminal Law 777; Snyman Criminal Law 311.
  
  
• The Prevention of Public Violence and Intimidation Act 139 of 1991, referred to public violence and intimidation, whether or not committed, presumably committed or alleged to have been committed to achieve any particular political aims.

In the matter of Ndela and Others v the State, 29 women were charged with public violence after they requested and caused a truck driver to block a road with his truck during a service delivery protest. The High Court found that any use of non-violent “force” or any protest action that “invades the rights of others” may lead to charges of public violence. The Supreme Court of Appeal upheld the decision of the High Court. The Socio-Economic Rights Institute (Seri) appealed to the Constitutional Court, which dismissed their application.

In the case of Fourways Mall (Pty) Ltd v South African Commercial Catering and Allied Workers’ Union, the Court found that the provisions of section 17 of the Constitution do not protect protest actions in which protesters intimidate the general public and interfere “with the rights of other tenants of a shopping mall”.

Public violence is also often associated with other crimes such as “Malicious damage to Property”, “Assault”, “Arson” and “Robbery”.

Bail and bail conditions:

Clearly it is time for perpetrators to be arrested and for people only to be released on bail if they qualify and strict bail conditions are observed. The Police and Courts have an important role to play, and the public simply do not understand why protesters who block roads are not arrested and released on bail in circumstances such as these.

Bail is a means of protecting the Constitutional right to be presumed innocent unless proven guilty. Section 35 (1)(f) of the Constitution gives arrested persons the right to be released from detention in the interest of justice, subject to the necessary conditions. Bail is a compromise between the individuals right to freedom on the one hand and the interest of justice on the other.

A police officer may grant bail at any stage before an accused is being brought before a lower court for the first time, which is within 48 hours after the arrest. However, the granting of bail by a police official is permitted only in respect of lesser offences.

A Prosecutor is authorised by the Director of Public Prosecutions to authorise the release of an accused on bail, after consulting with the police officer responsible for conducting the investigation. Once again prosecutorial bail is only permissible in certain circumstances and only lasts until the accused appears in court for the first court day.

If an accused is not released prior to his or her first appearance in Court, he or she may seek release on bail in terms of Section 60 of the Criminal Procedure Act. However, an accused person is entitled to be released on bail only if the court is satisfied that the interests of justice so permit. 

The court must consider the following factors when deciding whether to grant or refuse bail:

• The interests of justice do not permit the release of an accused from detention if there is a likelihood that, if released on bail, the accused would endanger the safety of the public or a particular person or commit a schedule one offence;
  
  
• The likelihood that the accused will attempt to evade his or her trial;
  
  
• The likelihood that the accused will attempt to influence or intimidate witnesses or conceal or destroy evidence;
  
  
• The likelihood that the accused will undermine or jeopardise the objectives of the proper function of the Criminal Justice System, including the bail system or in exceptional circumstances that the release of the accused is likely to disturb the public order or undermine public peace or security (Section 60 (4)(e);

In considering whether the release of the accused on bail will disturb the public order or undermine public peace or security, the Court may, where applicable, consider the following factors:

• whether the nature of the offence or the circumstances under which the offence is committed is likely to induce a sense of shock or outrage in the community where the offence was committed (Section 60 (8)(A) of the Criminal Procedure Act);
  
  
• whether the shock or outrage of the community might lead to public disorder if the accused was released;
  
  
• whether the safety of the accused might be jeopardised by his or her release;
  
  
• whether the sense of peace and security among members of the public will be undermined or jeopardised by the release of the accused;
  
  
• whether the release of the accused will undermine or jeopardise public confidence in the criminal justice system; or
  
  
• if any other factor which in the opinion of the court should be taken into account.

It is high time that the Police, Prosecutors and Courts adopt an extremely strict approach towards persons who blockade roads and jeopardise the lives and safety of people using the roads.

We see frequent complaints that the SAPS are not willing to intervene and wait for specialised units to arrive. It is usually too late by then and this policy needs to be reconsidered.

Police and Prosecutors play an important role and need to take decisive action to protect the public. We trust that we may also rely on Judicial Officers to protect the rights of ordinary citizens to use roads safely.