The Economic Freedom Fighters (EFF) are currently in the process of challenging the constitutionality of the Riotous Assemblies Act, No 17 of 1956 and the Trespass Act, No. 6 of 1959, both pieces of legislation that were passed under the previous political regime, and as such deemed by many to be ‘apartheid laws’.
The EFF may have their own motivations for challenging the law as party leader, Julius Malema, is currently facing two charges of having violated the Riotous Assemblies Act, after he allegedly called on EFF supporters to illegally occupy land in Bloemfontein and Newcastle. But there may well be cause to reconsider laws that were originally intended to try to limit the impact of the anti-apartheid liberation movement.
Interestingly, the genesis of the current Riotous Assemblies Act can be traced back to a number of years before the National Party came to power. The Riotous Assemblies (Amendment) Act, No 19 of 1930 authorised the Governor-General to:
prohibit the publication or other dissemination of any information calculated to engender feelings of hostility between the European inhabitants of the Union and any other section of the inhabitants of the Union”.
Once in office, though, the National Party tightened up the legislation even further, passing a series of laws aimed at limiting the movements of non-white South Africans. The 1956 Riotous Assemblies Act prohibited any outside gathering that the Minister of Justice perceived as a threat to public peace, and allowed the banning of any newspaper or any other “documentary information” that would cause hostility between black and white people. The Act was clearly an attempt at suppressing freedom of speech and the right of assembly, both of which would undermine the efforts of the apartheid government.
The timing of the 1956 Act is telling. It was likely passed in response to the 1955 Congress of the People, which saw some 3,000 people congregating in Kliptown to discuss the proposed Freedom Charter. The Riotous Assemblies Act featured heavily in the subsequent Treason Trial, with the state arguing that both the gathering and the Freedom Charter itself were in contravention of the newly passed Act, and its predecessor, the Riotous Assemblies and Suppression of Communism Amendment Act, No 15 of 1954.
The Riotous Assemblies Act was, in part, repealed by the Internal Security Act. On the 16th June 1976 thousands of youths took to the streets to protest against Bantu Education and the implementation of Afrikaans as a compulsory means of instruction. By the end of the day countless children had lost their lives at the hands of the police in what would later become known as the Soweto Uprising. The government’s response was to pass the Internal Security Amendment Act, No. 79 of 1976, which provided for long-term “preventive” detention of up to twelve months (renewable), and up to six months detention in solitary confinement of potential witnesses. The Act also made it clear that banning orders would apply not only to people accused of furthering communism, but also to any activity that was judged by the Minister of Justice as “subversion in general”. The effect of the Act was to immediately withdraw political activists from the political arena.
The 1976 Act was ultimately replaced by the Internal Security Act, No. 74 of 1982, which consolidated and replaced various earlier pieces of security legislation, including parts of the Riotous Assemblies Act. The new Act gave the government broad powers to ban or restrict organisations, publications, people and public gatherings, and made provision for detention without trial, which saw countless men and women locked up with no right to defense. The Act also made it a crime to quote in a publication any person whose name appeared on the government’s consolidated list of banned people; doing so carried a sentence of up to three years in prison.
Most of the Internal Security Act was progressively repealed during the transitional period between 1990 and 1996, with the last remaining sections of the Act repealed in 2005. Yet the Riotous Assemblies Act remains in force. Leader of the EFF, Julius Malema, is arguing that the Act criminalises his constitutional right to freedom of expression, and is calling for it to be struck down in its entirety. But on the 4th July 2019 a full bench of the Gauteng High Court found that only part of the Act was unconstitutional, and dismissed Malema’s application. The party now intends to take the case to the Constitutional Court, so we might yet see the Riotous Assemblies Act repealed. Watch this space….