Abstract

Section 17 of the Constitution of the Republic of South Africa, 1996 enshrines the right to assemble, peacefully and unarmed, and the Regulation of Gatherings Act 205 of 1993 enables the exercise of this right peacefully and with due regard to the rights of others. The recent student protests across South Africa have occasioned litigation seeking to interdict protest action, which the universities claim is unlawful. Overly broad interdicts, which interdict lawful protest action, violate the constitutional right to assembly and have a chilling effect on protests. In a decision of the High Court of South Africa, Eastern Cape Division, Grahamstown, a final interdict was granted interdicting two individuals from, among other things, disrupting lectures and tutorials at Rhodes University and from inciting such disruption. In this note, the constitutionality of interdicting non-violent disruptive protest is discussed and analysed, using Rhodes University v Student Representative Council of Rhodes University and Others (1937/2016) [2016] ZAECGHC 141.