The right to protest: What employees should know

A4The right to protest is an integral part of South Africa’s constitution and has recently come to the forefront with mass protest being organised across the country in response to President Jacob Zuma’s reshuffling of cabinet, and the subsequent downgrade of South Africa to junk status. It is also something which often comes under inspection by the people being protested against, as well as employers who raise questions regarding their employees’ right to protest during normal working hours.

Section 17 of the Bill of Rights in the Constitution entrenches the right of everyone, “peacefully and unarmed, to assemble, to demonstrate, to picket and to present petitions.” 

Can employees protest during normal working hours?

If an employee of a private company wants to join a protest march during regular working hours, it is necessary that they clear it with their superior first.

  • Any absence from work that is not authorised by the employer constitutes misconduct and gives the employer the right to take disciplinary action against the employee.
  • The type of disciplinary action depends on the circumstances, but can include dismissal if the employer is able to show significant inconvenience caused as a result of the employee’s absence and/or if the absence was in defiance of an express instruction to attend work.

Despite this, the Labour Relations Act does give every employee who is not engaged in an essential service‚ the right to take part in protest action for the purpose of promoting or defending the socio- economic interests of workers.

Conclusion

It is also not a crime to attend a protest unless it has been prohibited and protests can only be prohibited in very specific circumstances. However, employees should confirm with their employers about taking time off to protest and employers should be reasonable about letting their employees protest, considering it is within their right to do so. However, all things that are otherwise illegal, such as violence, vandalism, arson or hate speech, are also illegal during a protest. 

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This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)