How the state's protest powers actually work: who can be arrested, what the law requires, and what happens next

The National Joint Operational and Intelligence Structure, known as NATJOINTS, says heightened police deployments will stay in place at hotspots in Durban and Johannesburg after this week’s anti-undocumented-immigration protests. In the Durban CBD, Soweto and Johannesburg, 30 arrests have been made, 25 in KwaZulu-Natal and 5 in Gauteng, for offences including public violence, illegal gathering, obstruction and resisting arrest. SABC News reported those figures on 10 October. This piece is about the machinery behind them: what the law actually requires, who may be arrested, and what happens to a person once they are.

NATJOINTS is not a police station and it is not a single unit. It is the standing coordination structure that brings the South African Police Service together with the metro police, the defence force, the State Security Agency and other departments when a situation is judged to need more than one service. When NATJOINTS announces that deployments will remain in place, it is saying that the coordination arrangement stays switched on, not that a new law has been made. The operational decisions, who is deployed where and for how long, sit with the police and the provinces.

The legal instrument a reader is most likely to meet in this situation is the Regulation of Gatherings Act. A gathering of more than 15 people on public roads or public space needs notice to the relevant municipality, and the municipality is the body that may impose conditions or, in defined circumstances, prohibit it. That is the counter a march organiser deals with: a local government office, a notice period, a named contact, and a set of conditions about route, time and marshals. It is not a permit in the ordinary sense, and the absence of a permit is not itself an offence. What the Act creates is a process, and the offence is failing to follow it.

The second instrument is the common law and statutory offence of public violence, which is about a group acting together in a way that seriously disrupts public order or endangers people or property. It does not require a weapon and it does not require an injury. It is also not the same thing as being in a crowd where something happened. For a charge to hold, the state has to show participation, and participation is a question of conduct, not proximity.

Obstruction and resisting arrest are the smaller, more common counts. Resisting arrest is exactly what it sounds like: a person who is being lawfully arrested and who physically resists. Obstruction is broader and covers conduct that prevents a police officer from doing their job. Both are usually laid alongside a more serious count rather than on their own.

The arrests are a fact and they are not the whole of the week. The protests were about undocumented immigration, and the demands behind them are about enforcement, documentation, and the pressure residents say they feel on services and informal trading. Those demands are the reason the deployments are in place, and the state’s response to them is the question the deployments are meant to answer.

What a person at the counter or on the street is entitled to is set out in the Constitution and the Criminal Procedure Act. Anyone arrested has the right to remain silent, to be told the reason for the arrest, to consult a lawyer, and to be brought before a court as soon as reasonably possible. In practice that means within 48 hours, or by the end of the next court day if the 48 hours fall on a weekend or public holiday. A person who is not brought before a court within that period must be released, unless a court has authorised an extension.

Bail is a separate question. The default position in South African law is that a person is entitled to be released on bail unless the interests of justice require otherwise. For the counts listed in this week’s arrests, bail is decided by a magistrate at the first appearance, and the factors are whether the accused will attend trial, whether they will interfere with witnesses, and whether their release would disturb public order. Public violence is a Schedule 1 offence in some circumstances, which shifts the burden onto the accused to show that bail is in the interests of justice. Illegal gathering, obstruction and resisting arrest are ordinarily not.

Once a person is charged, the case moves through the district court. A first appearance is usually brief: the charge is put, bail is argued if it is contested, and the matter is postponed for further investigation or for the accused to appoint a lawyer. A trial date can be months away. If the accused cannot afford a lawyer, they may apply for legal aid, and the Legal Aid South Africa office at the court is the body that decides whether they qualify. Qualification is means-tested, and the threshold is set nationally.

What is not in the public record yet is how many of the 30 will be prosecuted, how many will have charges withdrawn, and how many are first-time detainees. The police do not publish that breakdown at the arrest stage. The National Prosecuting Authority decides whether to prosecute, and the decision is made on the docket after the first appearance. A withdrawal is not an acquittal, and the NPA can reinstate charges if new evidence emerges.

For residents in the affected areas, the practical effect of the deployments is more visible policing, more road closures, and longer queues at the courts on Monday. For the people arrested, the practical effect is a weekend in custody unless bail is granted at the first appearance. For everyone else, the question the week has raised is the one the deployments are meant to answer: what the state can actually enforce, and how quickly. The NATJOINTS briefing is the state saying the deployments stay. The next material step is the first court appearances, where the charges either hold or fall away.