Abstract:
In recent years, schools have borne the brunt of protesters’ frustrations with the lack of access
to services in South Africa. A 2016 investigative hearing by the South African Human Rights
Commission (SAHRC) explored the causes of the protests and examined the failure to prevent
the destruction of school property. It found that no one was held accountable for the protest-related
damage. This article explores the competing constitutionally protected rights of protest and
education. Although the right to protest is central in a democracy, it must be exercised peacefully
with minimal disruptions to the right to education. Protest action that causes destruction should
be criminally sanctioned; however, action that impedes access to education through threats
and intimidation is difficult to deal with in the criminal justice system. This article questions the
applicability of section 3(6) of the South African Schools Act, which makes it an offence to stop
children attending school, and considers the proposed amendments to the Act in light of these
critiques. The article explores possible prosecution relying on the Intimidation Act, and finds
that the Act is under constitutional challenge. The article concludes that the focus on prevention
as contained in the SAHRC report is not misplaced, given the challenges in holding protesters
accountable under criminal law.
