How the police actually shut down a protest: the law, the arrests, and what happens next

Thirty people are in the criminal justice system this weekend because of what happened in Durban, Soweto and Johannesburg this week. Twenty-five were arrested in KwaZulu-Natal and five in Gauteng, according to the National Joint Operational and Intelligence Structure, the body that coordinates the police, metro police, intelligence services and other state agencies during large public order events. The offences listed include public violence, illegal gathering, obstruction and resisting arrest.

As SABC News reported on 10 October, NATJOINTS says heightened police deployments will remain in place at hotspots in Durban and Johannesburg. That is the news. What follows is the mechanism behind it, because the arrests are the point at which a political argument becomes a criminal case, and most South Africans never get told how that happens until it is happening to them.

The gathering rule, and the notice most people never file

Under the Regulation of Gatherings Act 205 of 1993, anyone organising a gathering of more than 15 people must notify the local municipality, normally the metro or district, in writing, at least seven days before the event. The notice names the convenor, the date, the time, the route and the expected number of people. The municipality then consults the police and can either accept the notice, propose changes, or apply to a magistrate to prohibit the gathering. The convenor can also be summoned to a meeting to negotiate the route and the conditions. The point of the Act is not to ban protest. It is to force the state to answer a notice, and to force the convenor to be identifiable.

An illegal gathering charge, in practice, means no valid notice was filed, or the gathering went ahead after a prohibition, or the gathering materially departed from the route and conditions that were agreed. It is a charge against the convenor or convenors, not against everyone who showed up.

Public violence, and why it is the heavier charge

Public violence is a common law crime, not a statutory one. It does not require proof that any specific person was injured or any specific property was destroyed. The state has to show that a group of people, acting together, used or threatened force in a way that disturbed the public peace or put people or property in danger. That is why public violence is the charge that usually carries the weight in a crowd case, and why it can be laid even when the crowd itself was not the thing that caused the damage. It is also the charge that carries the longest potential sentence of the four listed, and the one most likely to keep a person in custody over a weekend rather than out on a warning.

Obstruction and resisting arrest are the smaller charges. Obstruction is interfering with a police officer doing their job. Resisting arrest is refusing to be taken into custody. Both are usually added to a public violence charge rather than standing alone, and both are the charges most often laid against people who were not the organisers and were not doing anything except standing where the police wanted the road clear.

What happens in the first 48 hours

The Constitution sets the outer limit. Section 35 says an arrested person must be brought before a court as soon as reasonably possible, and in any event within 48 hours of arrest, or by the end of the first court day if the 48 hours expire outside ordinary court hours. That clock starts at the moment of arrest, not the moment of charge. A person arrested on Friday evening in Durban and held until Monday morning is on the wrong side of that rule unless a court has already been asked to extend it.

At the first appearance, the magistrate does not decide guilt. The magistrate decides bail. For a public violence charge, the state will often oppose bail on the basis that the accused is part of a group and may rejoin it, or that the accused cannot be identified and may not return. The accused is entitled to legal representation, and if they cannot afford it, to apply for a Legal Aid South Africa attorney at the court. The right to remain silent, the right not to be compelled to make a statement, and the right to be told the reason for the arrest are all in section 35 and they all apply from the moment of arrest, not from the moment of charge.

What the deployments mean on the ground

A heightened NATJOINTS deployment is not a single unit. It is a standing arrangement that pulls together the South African Police Service, the metro police of the relevant municipality, the Directorate for Priority Crime Investigation where organised crime is suspected, the intelligence services, the defence force where requested, and the provincial joint operations centres. In Durban and Johannesburg the visible effect is more vehicles, more roadblocks, more stop-and-search, and a longer police presence at the specific hotspots the province has flagged. The effect for a commuter or a trader in the CBD is that a normal route can close without notice and a normal day can end early.

What a reader is entitled to, and from whom

If you are arrested, you are entitled to know the charge, to phone a lawyer and a family member, to be held in a police cell that meets the minimum standards, to be brought before a court within the constitutional time limit, and to apply for bail. If you believe any of that was breached, the complaint goes to the station commander first, then to the Independent Police Investigative Directorate, which is the body with the statutory mandate to investigate deaths in custody, torture, assault and corruption by police officers. IPID is not the same body as the police’s own internal complaints unit, and a complaint laid with the station does not stop you laying one with IPID.

If you are an organiser, you are entitled to a written response to your gathering notice, and if the municipality prohibits the gathering, to the reasons and to a court that can review the prohibition. The Act does not give the police a general power to shut a march because they dislike it.

What is not yet known

The NATJOINTS statement does not say how many of the 30 have already appeared in court, how many have been released on bail or warning, how many are still in custody, or whether any of the charges have been withdrawn. It does not say which specific incidents each arrest relates to. Those are the details that will determine whether this week’s arrests become prosecutions or end at the first appearance, and they are the details a reader should watch for in the court rolls in Durban and Johannesburg over the next two weeks.