With friends like these, who needs enemies?

ANGER IMAGEWritten by Dr J.P. Nel

I read the report by the Council for the Advancement of the South African Constitution regarding the “Restraint of Protest on or near University Campuses”. Admittedly I am not qualified as a legal expert. However, seeing that the constitutional rights of people are regarded as almost sacred by the people who prepared the report, I guess I can air my views as a citizen of the country.

One can probably agree with 90% of what is written in the report. However, it is the remaining 10% that causes damage and instability. Students have the right to protest, but something is clearly wrong when the execution of their rights lead to damages in excess of more than a billion rand.

Let’s look at some clauses in the report.

Clause 6, page 2.  “Universities are under a constitutional obligation to tolerate demonstration, picket and assembly.” No mention is made of the resulting injury to people and damage to property. Is that also their constitutional right?

Clause 21, page 9. “Even disruptive conduct can fall within the protection of section 17 of the Constitution.” It is, indeed, a sad day when the purpose for which universities are established, namely to educate people, is destroyed by rights which are no more than entitlements that is seriously damaging to the futures of all students, including those who protest, disrupt, destroy and, recently, rape.

Clause 22, page 9. “… a ‘never again’ Constitution, meant to redress the injustices of the past,…”. South Africa is in a crisis on almost all levels of society, including the economy, education, freedom of movement, and now also legislation. Emotional remarks like this do nothing to promote stability, cooperation and trust which are desperately needed if we are to rid ourselves of the injustices of the past.

Clause 27, page 10. “Prior restraint of protest is generally only permissible where it can be shown that there is an intention to protest violently. The mere assertion that the protest may destroy property or disturb the peace is not sufficient. “And so the poor police are required to react, never to prevent. This is a myopic and dangerous stance, one for which the writers of the repots should be held responsible if a university is set on fire or if anybody is murdered or raped during student protest.

Clause 29, page 10. “However, it remains an open question whether culturally symbolic artefacts carried purely for display or with other non-violent intent, such as ceremonial weapons, or knobkieries, may be carried in a protest.” How would one know in advance why the artefacts are being carried and what the intentions of the carriers are? The same applies to clause 31, page 11.

Clause 34, page 12. “There is no notice requirement when the gathering is spontaneous.”  This leaves the door wide open for protesters to simply claim that a protest, for which permission was not granted, was a spontaneous one.

Clause 59, page 17. “The anti-protest order was being used not only against students but also to limit academic freedom of the staff of the University.” Rioting, damaging property and injuring individuals are not academic freedom.

Clause 74, page 21. “Prior restraint against speech should never be granted, unless the interdict specifies the exact statements to be enjoined…” So, I guess hate speech is also fine.

In closing, I always wonder what the agenda of people preparing reports like this really is. Surely it cannot be to promote stability, employment, education and economic growth that South Africa desperately needs. Students need education. I agree that those who perform well should be encouraged with financial incentives. However, destruction and giving them an excuse not to study hard can’t add any value.

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