When does peaceful protest become a riot?
Around the world, people are protesting. A recent act of violence in the UK by a young man has sparked a wave of rioting and looting, and in the US far-right protesters have attacked a hotel housing asylum seekers. In South Africa, we’re not unfamiliar with public violence. But in a democracy all people have the right to protest peacefully. Denial of the right to protest is associated with oppressive, totalitarian regimes. When does a protest become a riot? What are your rights when it comes to standing up for what you believe in?
Definitions
According to Merriam-Webster’s Dictionary of law, a protest is “a usually organised public demonstration of disapproval” (of some law, policy, idea, or state of affairs), while a riot is “a disturbance of the peace created by an assemblage of usually three or more people acting with a common purpose and in a violent and tumultuous manner to the terror of the public”. Public violence and rioting often grab headlines and highlight the delicate balance between the right to protest and the need for public order.
Under South African law, public violence is defined as the unlawful and intentional commission of an act or acts by a number of people, of such a nature that they disturb the public peace and order. This is codified in common law and can be found in various legal precedents and statutory provisions. Rioting, while often used interchangeably with public violence, has a specific context in South African law and generally refers to a tumultuous disturbance of the peace by a group of people, characterised by violence against persons or property. Rioting can therefore be described as a more serious form of public violence, which includes large-scale public disorder and destruction to property.
Right of protest
Every South African has the right to protest peacefully. This right is enshrined in our Constitution, which states that the “exercise of such rights shall take place peacefully and with regard to the rights of others.” The Prevention of Public Violence and Intimidation Act provides for the prevention and control of public violence and intimidation and protests that are not peaceful. Section 2 of the Act established the Commission of Inquiry regarding the Prevention of Public Violence and Intimidation.
Legal consequences of public violence and rioting
The consequences for engaging in acts of public violence or rioting are severe and attract criminal and civil liability. Criminal charges include:
- Public violence – conviction can lead to imprisonment and/or fines
- Malicious damage to property – depending on the extent of the damage, this can result in significant penalties
- Assault or assault with intent to cause grievous bodily harm (GBH) – if someone is harmed during the riot, charges of assault, assault GBH or even attempted murder may be brought against the perpetrators
- Arson – if property is set on fire, arson charges may apply, carrying heavy sentences
Apart from criminal charges, individuals may also face civil charges for damages caused during acts of public violence or rioting. These can carry a substantial financial liability. In addition, our courts have the discretion to issue various interdicts to prevent individuals from participating in further acts of public violence or rioting. The South African judicial system does not treat offences related to public violence lightly.
Rights of offenders
Despite the serious legal implications, individuals accused of public violence or rioting have specific rights under the law, including the right to legal counsel and representation. Section 35 of the Constitution enshrines the right of arrested, detained, and accused persons to legal representation. This means that anyone facing charges for public violence or rioting has the right to consult with and be represented by an attorney. If an accused cannot afford an attorney, they have the right to apply for Legal Aid. The right to legal representation is part of the broader right to a fair trial, which includes the presumption of innocence, the right to remain silent, and protection against self-incrimination.
Stay on the right side of the law
Public violence and rioting carry significant legal risks and consequences in South Africa and worldwide. While the right to protest is a fundamental aspect of democratic expression, protesters must not disregard public safety. Understanding the legal definitions, boundaries, and consequences of these actions is essential for anyone who wants to participate in peaceful public protest.
If things go wrong
Hopefully, you won’t cause or find yourself caught up in a riot. But sometimes a peaceful protest can turn ugly without warning. You may or may not be a willing participant, but in the chaos of a riot the police can’t always discriminate between instigators and those caught in the fray. If you are arrested and detained, contact criminal defence lawyer Simon Dippenaar on 076 116 0623. Cape Town attorneys SD Law & Associates are experts in criminal defence and bail and can help. Save our number in your phone the next time you attend a protest or demonstration.