DURBAN, KwaZulu-Natal — The Durban High Court is set to decide on an urgent March and March protest ban sought by the South African Police Service (SAPS) and the Police Ministry. Authorities cite credible intelligence of imminent violence and an alleged plot to burn a Department of Home Affairs refugee reception centre, sparking a complex legal battle over constitutional rights and public safety.
The urgent legal intervention follows escalating unrest and xenophobic tensions across the eThekwini municipality and Durban’s central business district. An interim relief order has already placed strict measures on the group’s planned gatherings ahead of a formal high court hearing scheduled for Friday.
Police Cite Imminent Threat and Resource Constraints
The application to halt the demonstrations is spearheaded by KwaZulu-Natal police commissioner Lieutenant General and Glantlam Konazi and Acting Police Minister Firoz Cachalia.
In their court papers, the police argue that they “cannot wait for the first flames before seeking protection.” Authorities point to specific intelligence regarding an alleged plot to set fire to the refugee reception centre located on Che Guevara Road.
Beyond the immediate threat of arson, the police cite severe resource constraints. Officers are already stretched thin monitoring the Che Guevara Road facility, preparing to secure polling stations and hotspots across KwaZulu-Natal for the upcoming elections next week, and supporting the 500 soldiers currently deployed on the ground in the province.
The state’s concerns are rooted in recent escalations, including the killing of a foreign national on October 22, as well as incidents of vehicles being burnt and looting occurring in front of police in Durban and eThekwini earlier this month.
March and March Denies Responsibility for Violence
In response, a March and March spokesperson has strongly pushed back against the interdict. The spokesperson claims the legal move is orchestrated to silence certain voices just days ahead of the national elections.
The group argues that while public violence has occurred, it cannot be legally attributed to March and March. They maintain that the looting and burning seen in the aftermath of gatherings are carried out by remnants and individuals who are not official members of the movement.
The movement’s leadership has consistently stated that they do not advocate for public violence, but rather demand that the government properly handle illegal immigration and enact pending legislative bills. They argue that if the state can prove the alleged arson plot is not directly attributed to their organized members, the court must protect their constitutional right to picket and protest.
Constitutional Rights and Legal Precedents
Legal analyst Melusi Xulu notes that the case hinges on balancing two distinct constitutional mandates. On one hand, Section 25(3) mandates the police to investigate crime and maintain public order. On the other, Section 17 guarantees citizens the right to assemble, protest, and present petitions peacefully and unarmed.
Xulu highlights that the courts will likely avoid a blanket approach, seeking a narrow middle ground that limits the risk of public violence while protecting the fundamental right to protest.
To determine liability for damages, the court’s decision may be influenced by established legal precedents. Xulu points to a 2012 Constitutional Court ruling which decided that organizers of a march can be held responsible for damages, provided the damage can be directly attributed to them. Furthermore, a 2018 case established that failing to give prior notice for a gathering is not a criminal offense, reinforcing that the right to protest remains protected even without formal notification.
Xulu notes that while the state is focusing on the threat to the refugee centre, March and March will likely point to the fact that out of approximately 120 marches held across the country in June, only about eight resulted in violence, proving their general commitment to peaceful assembly.
Calls for Amicable Government Engagement
Beyond the courtroom, Xulu suggests that the state must look beyond legal interdicts to address the root causes of the unrest. While acknowledging that going to court is a valid legal step, the analyst emphasizes the need for the government to listen to the citizens’ cries regarding illegal immigration.
Xulu points out that the leaders of March and March are educated and willing to engage. He suggests that the government should extend a hand in collaboration, similar to how the Minister of Justice recently met with various civil society individuals.
“Our country has been built on protest,” Xulu noted, emphasizing that while the violent methods of the past must be avoided, the government must maintain an open ear to the people leading the marches. Finding an amicable solution through direct conversation about how to manage public processes safely could de-escalate the volatile atmosphere more effectively than a blanket court ban.
The high court is expected to deliver its ultimate decision on the interdict this Friday, marking a critical moment for the balance between national security and constitutional rights in South Africa.
