South African FlagNGO Law Monitor: South Africa

Introduction | At a Glance | Key Indicators | International Rankings
Legal Snapshot | Legal Analysis | Reports | News and Additional Resources
Last updated 20 January 2016

Introduction

The South African legal system reflects a combination of legal traditions. The civil legal tradition is rooted in the Dutch colonial period whilst the common law tradition emanates from the English colonial period.  In addition, indigenous law remains a central part of the South African legal system.  The South African constitutional dispensation has, since 1994, further resulted in the development of common law in line with the Constitution and the invalidation of statutory laws which are found to be inconsistent with the Constitution.

The legal framework does not present significant obstacles for civil society organizations (CSOs) operating in South Africa.  Indeed, South Africa’s legislation is generally enabling and supportive of CSO activity.  In 1997 the Nonprofit Organisations Act (NPO Act) was promulgated.  The NPO Act repealed the Fundraising Act of 1978 which was used by the apartheid government to suppress the fundraising activities of some organisations.

The NPO Act describes the State’s responsibility to nonprofit organisations as follows: “Within the limits prescribed by law, every organ of state must determine and coordinate the implementation of its policies and measures in a manner designed to promote, support and enhance the capacity of NPOs to perform their functions.”  Despite this noble commitment, the challenge comes with the effective implementation of laws. The institutions responsible for the implementation of the relevant legislation are generally under-resourced.  For some institutions it would be beneficial to review their effectiveness since coming into operation – or since South Africa became a democratic country.

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At a Glance

Organizational Forms [1] Non-Profit Trusts Non-Profit Companies
Registration Body Master of the High Court Companies Commission
Approximate Number 2,045 [2] 3,068
Barriers to Entry No legal barriers No legal barriers
Barriers to Activities No legal barriers No legal barriers
Barriers to Speech and/or Advocacy No legal barriers No legal barriers
Barriers to International Contact No legal barriers No legal barriers
Barriers to Resources No legal barriers No legal barriers
Barriers to Assembly Seven days advanced notification requirement; restrictions on assemblies near government buildings; excessive use of police force. Seven days advanced notification requirement; restrictions on assemblies near government buildings; excessive use of police force.
[1] This chart does not include voluntary associations, which are in fact the most common form of civil society organization, as they are a creation of common law, and not dependent upon authorization by a public office. There are no legal barriers limiting their establishment or operational activity. According to the "2012/13 The State of NPO Registration in South Africa: A Report from the National NPO Database,” the number of voluntary associations registered under the NPO Act of 1997 are approximately 9,182 (total of 102,297 registered at end of March 2013: 95% - voluntary associations, 2% trusts, 3% non-profit companies).

[2] The numbers listed reflect only those non-profit trusts and non-profit companies registered under the NPO Act. The numbers are current as of March 2013, and are based on the "2012-13 The State of NPO Registration in South Africa: A Report from the National NPO Database," published by the Department of Social Development, p. 10. According to this report: “Over the years, there has been a significant increased demand of NPO registration. By the end of March 2013, the total number of registered organisations was 102,297 since the inception of the NPO Act. This is a growth rate of about 20% (from 85,039) from the previous financial year.” (The State of South African Registered Nonprofit Organisations issued in terms of the Nonprofit Organisations Act 71 of 1997 – June 2012 - A Report from the National NPO Database – Page 3).

In December 2012, the website of the Directorate for NPOs reflected only a number of 48,928 registered NPOs. However, on January 15, 2013, the number of registered NPOs was at 29,079. This means that more than 55,000 organisations that were registered during March 2012 were either de-registered or marked as non-compliant by January 2013, presumably for reasons of non-compliance. The Department of Social Development reinstated all organisations that were de-registered in February 2013 and granted a six month grace period for NPOs to submit outstanding narrative and financial reports, as required in terms of the NPO Act. This came to an end on July 31, 2013, but the Department has, to date, not commenced the de-registration process. Media reports indicated that the date for de-registration to commence was extended to the end of March 2014. The website of the NPO Directorate reported a total of reported a total of 148,513 registered nonprofit organisations on January 5, 2016. According to the number of registered organisations reflected on the website of the NPO Directorate on July 14, 2015, a further 8,372 organisations were registered from that date until January 5, 2016.

In addition, the National Department of Social Development issued a media statement on February 24, 2014, in which registered NPOs were called upon to submit their annual financial and narrative reports (as required in terms of the NPO Act) to the NPO Directorate by March 31, 2014, to avoid being de-registered.  The Department has, according to the media statement, "undertaken a road show around the country to assist NPOs with issues of compliance, educate NPOs on good governance, transparency and accountability matters, as well as to register new NPOs. This campaign has resulted in 3,149 NPOs submitting their annual reports." During July 2014 the Minister of Social Development published a short-list of candidates for appointment as the Arbitration Panel, as required in terms of the NPO Act. The Arbitration Panel is responsible for, amongst other things, presiding over disputes in the event that a de-registered organisation contests the grounds for its de-registration. This appointment process was reportedly finalized towards the end of 2015, but no formal announcement has been reflected on the website of the Department. The Minister of Social Development has reportedly since put a moratorium on the de-registration of NPOs.   

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Key Indicators

Population 51,770,560 (Census 2011)
Capital Pretoria (executive), Cape Town (legislative)
Type of Government Republic
Life Expectancy at Birth Male: 48.7
Female: 51.3 (Census 2011)
Literacy Rate Male: 87%
Female: 85.7%
Religious Groups Zion Christian: 11.1%; Pentecostal/Charismatic: 8.2%; Catholic: 7.1%; Methodist: 6.8%; Dutch Reformed: 6.7%; Anglican: 3.8%; Muslim: 1.5%; other Christian: 36%; other: 2.3%; unspecified: 1.4%; none: 15.1% (2001 census)
Ethnic Groups Black African: 79%; white: 9.6%; colored: 8.9%; Indian/Asian: 2.5% (2001 census)
GDP per capita $11,000 (2011 est.)

Source: The World Factbook. Washington, DC: Central Intelligence Agency, 2009.

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International Rankings

Ranking Body Rank Ranking Scale 
(best – worst possible)
UN Human Development Index 118 (2014) 1 – 186
World Bank Rule of Law Index 63.9 (2014) 100 – 0
World Bank Voice & Accountability Index 68.5 (2014) 100 – 0
Transparency International 67 (2014) 1 – 180
Freedom House: Freedom in the World Status: Free
Political Rights Score: 2
Civil Liberties Score: 2 (2015)
Free/Partly Free/Not Free
1 – 7
1 – 7
Foreign Policy: Fragile States Index
113 (2015) 177 – 1

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Legal Snapshot

International and Regional Human Rights Agreements

Key International Agreements Ratification* Year
International Covenant on Civil and Political Rights (ICCPR) Yes 1998
Optional Protocol to ICCPR (ICCPR-OP1) Yes 2002
International Covenant on Economic, Social, and Cultural Rights (ICESCR) Yes** 2012
Optional Protocol to ICESCR (Op-ICESCR) No  --
International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) Yes 1998
Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) Yes 1995
Optional Protocol to the Convention on the Elimination of Discrimination Against Women Yes 2005
Convention on the Rights of the Child (CRC) Yes 1995
International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (ICRMW) No  --
Convention on the Rights of Persons with Disabilities (CRPD) Yes 2007
Regional Treaties    
African Charter on Human and Peoples' Rights Yes 1996
African Charter on the Rights and Welfare of the Child Yes 2000
Treaty Establishing the African Economic Community Yes 2001
Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa Yes 2004
Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court on Human and Peoples' Rights Yes 2002

* Category includes ratification, accession, or succession to the treaty
**SA Cabinet approved ratification of ICESCR in October 2012. Must still be tabled in Parliament.

Constitutional Framework

The Constitution of the Republic of South Africa, Act 108 of 1996 (as amended), is the supreme law of South Africa.  The current Constitution was adopted by the Constitutional Assembly on 11 October 1996 and came into effect on 4 February 1997. 

Relevant constitutional provisions include:

Clause 16 – Freedom of Expression:

(1) Everyone has the right to freedom of expression, which includes:

  • freedom of the press and other media; 
  • freedom to receive or impart information or ideas; 
  • freedom of artistic creativity; and 
  • academic freedom and freedom of scientific research.

(2) The right in subsection (1) does not extend to

  • propaganda for war; 
  • incitement of imminent violence; or 
  • advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.

Clause 18 – Freedom of Association: Everyone has the right to freedom of association. 

Clause 36 – Limitations Clause:

(1) The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including-

  • the nature of the right; 
  • the importance of the purpose of the limitation; 
  • the nature and extent of the limitation; 
  • the relation between the limitation and its purpose; and 
  • less restrictive means to achieve the purpose.

(2) Except as provided in subsection (1) or in any other provision of the Constitution, no law may limit any right entrenched in the Bill of Rights. 

National Laws and Regulations Affecting Sector

Relevant national-level laws and regulations affecting civil society include: 

  • Constitution of the Republic of South Africa, Act 108 of 1996 (as amended)
  • Companies Act 71 of 2008
  • Companies Amendment Act of 2011
  • Non-Profit Organisations Act 71 of 1997 (as amended) (“NPO Act”)
  • Trust Property Control Act 57 of 1988 (“TPCA”)  
  • Income Tax Act 58 of 1962 (as amended) (“ITA”)
  • Value Added Tax Act 89 of 1991 (“VATA”) 

Pending NGO Legislative / Regulatory Initiatives

1. The Protection of Personal Information Act

The Protection of Personal Information was signed into law by the President of South Africa during November 2013. The Act is of general application and essentially promotes the protection of personal information processed by public and private bodies, including NPOs, by regulating the processing of such information. This Act is different from the controversial Protection of State Information Bill, as discussed below in this section.

2. Gauteng Social Development Guidelines for the Selection of Board Members for NPOs

The Gauteng Department of Social Development (Gauteng is one of 9 provinces in South Africa) has issued Guidelines on the selection of Board Members for NPOs. With reference to the recruitment and appointment of board members (for organisations presumably getting funding from the Department), the Guidelines provide amongst others: The Head of the Department of Social Development or his/her delegate shall establish a Screening Committee on an ad- hoc basis for a specific task; The Screening Committee shall consist of representatives of the Department of Social Development, local municipality officials, and representatives from other organisations or relevant stakeholders; Call for nominations of board members should be made through local newspapers, pamphlets, stakeholders’ meetings, community imbizos, etc.; Announcements should be made through local churches, and/or any other means of communication in a specific community; The strategic plan of the Department should be shared with potential board members by Department of Social Development officials; The Screening Committee should establish whether the potential board member is suited or skilled for board membership and should also establish whether there is any conflict of interest with the activities of the NPO. The names of nominees who accept and who qualify shall be put on ballot papers by the Screening Committee.

3. The South African Nonprofit Organisations Summit

The National Department of Social Development hosted the South African Nonprofit Organisation Summit (the Summit) during 15-17 August 2012 in Johannesburg, South Africa. The Summit was, according to the Department, aimed at creating a platform for effective partnerships between the government and nonprofit sector as mandated by the Nonprofit Organisations Act 1997, Act 71 of 1997, as amended.  The Summit was also attended by the provincial ministers for social development, the national Minister of Social Development and, on the second day, the President of South Africa.

The Summit endeavoured to identify opportunities for supporting the nonprofit sector to ensure sustainability; identify and explore mechanisms to improve an enabling environment for nonprofit organisations; and to provide clear directives on the review of the legal framework on the nonprofit sector. One of the parallel commissions at the Summit focused on exploring options for the review of the legal framework on the nonprofit sector. Some of the issues emanating from the discussions at the commission, included: 

  • Decentralizing the registration processes in terms of the Nonprofit Organisations Act (NPO Act) which is currently taking place at one central location,
  • Making application and reporting forms prescribed in terms of the NPO Act less complex,
  • Making the application for registration in terms of the NPO Act available in other official languages,
  • Improving document management at the Department to avoid missing documentation,
  • Increasing communication amongst key institutions dealing with NPOs,
  • Shortening the registration process, and
  • Establishing a self-regulatory NPO Council.  

The proposed establishment of a self-regulatory NPO Council in South Africa sparked some controversy during discussions at the commission as some delegates felt that a self-regulatory council, similar to the Charities Commission in the United Kingdom, may not be a suitable option for South Africa.

The Department also circulated a document at the Summit entitled: Policy Framework on Nonprofit Organisations Law (the Policy Document). The Policy Document captures the foundational principles of government’s intended review of the legislative framework affecting the non-profit sector. The Policy Document further states that: “The objective of the review is to ensure that the new regulatory framework is appropriate to the legal and socio-economy contexts of South Africa as a constitutional democracy and an open society.”

The Policy Document proposes, amongst other, the establishment of a new entity to be called The South African Nonprofit Organisations Regulatory Authority that will deal with the registration of nonprofit organisations, investigate complaints and enforce compliance, raise awareness and education and provide public access to information.

The Policy Document further states that: “It will be therefore be imperative for voluntary associations, nonprofit companies and nonprofit trusts to be subjected to the same rules regarding formation, governance and reporting requirements in order to circumvent any legal loopholes that will undermine the principles of public beneficiation and disclosure. This will further create greater equality within the nonprofit sector and will also promote public confidence in the sector.” (page 6)

The above statement is seemingly in contradiction with a later statement in the Policy Document which provides that: “There will be therefore a need for the regulatory framework to differentiate between the different categories of NPOs and to align standards and the regulation regiment accordingly.”(page 12)

With reference to international organisations operating in South Africa, the Policy Document provides that: “The regulation of foreign organisations that have established a presence in South Africa requires special consideration. A simple process that allows foreign organisations to be registered and maintained in South Africa must be developed, while providing for recourse in cases of misconduct and winding up, particularly with respect to liabilities for debts, the duties and responsibilities of the foreign office bearers and inter group transactions. Foreign nonprofit organisations must equally be subjected to the same requirements and obligations as that of any registered nonprofit organisation. However, registration for foreign organisations must be compulsory considering the risk of money laundering and financing of terrorist activities.” (page 18) In March 2014, the Department of Social Development published an amended version of the Draft Policy Framework. This amended document has removed some of the draconian proposals relating to enforcement and investigation of NPOs by a proposed National Directorate for NPOs. Towards the end of 2014 the Department of Social Development published a request for proposals to amend the Nonprofit Organisations Act and to draft an amendment Bill. No further developments have taken place since then. The Department of Social Development confirmed in June 2015 that a service provider has been appointed to do an evaluation of the NPO regulatory framework in South Africa, but the process was still in the early stages of development at the time of the confirmation.  

4. The Financial Action Task Force Report

The Financial Action Task Force and the Eastern Southern Africa Anti-Money Laundering Group published a report in 2009 entitle" Mutual Evaluation Report - Anti-Money Laundering and Combating the Financing of Terrorism." The report concludes that South Africa has not assessed potential risks of terrorist financing posed within the non-profit sector and recommended that NPOs should be compelled to register under the Nonprofit Organisations Act and the Directorate for Nonprofit Organisations should be given the power to sanction office-bearers, impose fines and freeze accounts of NPOs that are in violation of oversight measures. It is not clear whether the South African Government will support this initiative. 

5. The Protection of State Information Bill

The Protection of State Information Bill [B6-2010], which is aimed at the protection of certain information from destruction, loss or unlawful disclosure, was, amidst significant public controversy, passed by the National Council of Provinces on November 29, 2012 and South Africa’s highest parliamentary body, the National Assembly, in April 2013. It was referred to President Zuma for his assent. The President in September 2013 referred the Bill back to the National Assembly to review two specific sections of the Bill. The National Assembly has reportedly referred the Bill to an ad hoc committee which was established during 2012 to attend to a revised version of the Bill. The Bill, in essence, defines the kind of state information that requires protection  against alteration, destruction,  loss or disclosure.  It further provides for a procedure of classifying and declassifying  such information and punishment  in the event of non-compliance. The ‘B’ version of the Bill, which has been called The Protection of State Information  Bill [B 6B-2010], was, in the wake of ongoing opposition and controversy, on November 22, 2011 adopted by members of Parliament. The Bill was referred to the National Council of Provinces (the Council) which has established  an ad hoc committee  to report to the Council during 2012.

The constitutionality of the Bill has been subject to significant public scrutiny in South Africa. One of the key concerns relates to ‘what’ information can be considered to be in the national interest and consequently classified as confidential or secret. Another key concern relates to ‘who’ can determine what information is in the national interest and consequently classify such information as confidential or secret. In terms of the Bill, any head of an organ of state, as defined, may classify or reclassify information using the classification levels set out in the Bill. The power to declare information as confidential or secret is accordingly given to broad range of state officials. 

The Bill, in its current format, can be interpreted to allow for a veil of secrecy to be cast over certain information and may consequently limit public accountability and scrutiny of matters in the public interest. A number of eminent institutions and academics have criticized the initial version of the Bill. The General Council of the Bar (GCB) during August 2010 reported to Parliament that the initial version of the Bill does not pass constitutional muster. The GCB was of the view that some provisions were contrary to the foundational values of the South African Constitution. The GCB also pointed out that the current Promotion of Access to Information Act of 2000, which also applies to state, has been enacted in terms of the Constitution and allows for state information to be legitimately withheld from the public domain. The ruling party has made some concessions which are reflected in the latest version of the Bill, but even this version of the Bill has remained controversial. The concessions revolved around who would be authorized to classify information, provision for an independent appeal process and the removal of minimum sentencing provisions. The latest version of the further Bill states that interpretation measures taken in terms thereof must, amongst other, have regard to the freedom of expression, the right of access to information and the other rights and freedoms enshrined in the Bill of Rights; and be consistent with article 19 of the International Covenant on Civil and Political Rights and have regard to South Africa’s international obligations.

6. Financial Intelligence Centre Amendment Bill, 2015

The Financial Intelligence Centre Amendment Bill, 2015 has been published for public comment. South Africa’s legal system does not adequately allow for the identification of beneficial ownership. Accounting institutions (including non-profit trusts) will, among other, have to introduce a Risk Management and Compliance Programme and establish a compliance function to assist the governing board to discharge the obligations pursuant to the Financial Intelligence Centre Act. This is a law of general application and not specifically aimed at non-profit organisations.

Please help keep us informed; if you are aware of pending initiatives, write to ICNL at ngomonitor@icnl.org.

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Legal Analysis

Organizational Forms

There are three kinds of civil society organisations in South Africa, namely:

  • Voluntary associations that are established in terms of common law.
  • Non-profit trusts that are established in terms of the Trust Property Control Act, and
  • Non-profit companies that are established in terms of the Companies Act.

Any of these CSOs can register in terms of the Nonprofit Organisations Act of 1997, provided that those CSOs comply with a number of requirements listed in that Act. In essence, the founding document of such CSOs must contain prescribed information (including the name, objectives, non-profit distribution constraint, governance structures, etc) and narrative and financial reports must be submitted to the Directorate for Nonprofit Organisations on an annual basis.  

Public Benefit Status

South Africa uses a tiered regulatory approach toward public benefit status.

As a first step, the Nonprofit Organisations Act defines a nonprofit organisation as a trust, company or other association of persons established for a public purpose and the income and property of which are not distributable to its members or office-bearers except as reasonable compensation for services rendered.  Applicants must submit documentation to the Directorate of Nonprofit Organisations for registration.

Second, a nonprofit organization may apply for the status of “public benefit organization.” Among other requirements, the organization's sole purpose must be to undertake one or more public benefit activities, carried out in a non-profit manner and with an altruistic or philanthropic intent. Public benefit organizations are restricted from using their resources to directly or indirectly support, advance, or oppose any political party, but they are not restricted from lobbying. They are entitled to a broad range of fiscal benefits, including a partial income tax exemption, an exemption on donations tax, and an exemption on transfer duty on immovable property. 

Third, Public benefit organizations may apply for the right to receive tax-deductible donations.  

Barriers to Entry

The legal framework for each of the available organizational forms is generally enabling, and does not include barriers to formation, establishment or registration. Problems worth noting here are in regard to the establishment and registration of nonprofit organizations. Incorporating a non-profit company in South Africa is subject to delays, despite the new Companies Act of 2008. Furthermore, the Nonprofit Organisations Act sets a fixed time period of two months within which registration applications must be decided upon. The NPO Directorate in 2013 introduced an online registration facility which has significantly reduced the long processing times experienced prior to the introduction of such facility. However, organizations still have to wait weeks for the actual registration certificate to arrive via mail after the organisation has been registered online.

Barriers to Operational Activity

There are no serious legal barriers affecting the operational activity of CSOs in South Africa.

It is worth noting, however, that non-profit trusts, as accountable institutions under the Financial Intelligence Centre Act of 2001 (FICA), are subject to registration with FICA. FICA has the object of combating money-laundering activities in South Africa. Trusts, including non-profit trusts, are regarded as accountable institutions in terms of FICA and must accordingly comply with its provisions.

The Financial Intelligence Centre Amendment Act of 2008, which came into operation on 01 December 2010, have introduced some amendments to FICA which are of critical importance to non-profit trusts. These amendments were not specifically directed at non-profit trusts, but include them under the definition of ‘accountable institution’. The amended provisions require accountable institutions to, amongst other, register with the Financial Intelligence Centre (Centre) and notify the Centre of any changes to the registration details. The Centre is empowered to issue directives to ensure monitoring and compliance with FICA. Inspectors, appointed in terms of the Act, are allowed to enter and inspect any premises of an accountable institution and may, in certain instances, be able to direct persons to appear for questioning, produce documents and furnish information. Inspectors will also be able to open any strong-room or safe and use any computers system on the premises to access data. Accountable institutions failing to register with or provide information to the Centre are guilty of an offence and may, upon conviction, be liable to a fine of up to R100m ($13.3m) or a maximum of 15 years’ imprisonment. Non-profit trusts, as accountable institutions, were required to register with the Centre at the end of February 2011. On March 1,2011 the Centre issued a statement recommending "that institutions that have not as yet registered do so as soon as possible. Late registrations closer to March 1, 2011 will be viewed more favorably, as sanctions could be issued for late registration in due course. The [Centre] reserves the right to issue sanctions or penalties for late registration under the Financial Intelligence Centre Act No 38 of 2001 (the FIC Act).” 

It is also worth noting that opening a bank account has become a challenge for some non-profit organisations operating in South Africa. Community-based organisations that are established as voluntary associations will have to wait for registration in terms of the Nonprofit Organisations Act (up to six months) to open a bank account. Organisations having board members that are based outside of South Africa may also find it a challenge to open bank account in South Africa.   

Barriers to Speech / Advocacy

CSOs in South Africa are not prohibited from criticizing the government or advocating for politically unpopular causes.  There are no legal restrictions or governmental harassment of such activities.  CSOs that are involved with causes that are unpopular from a government’s perspective may ordinarily not attract significant funding support from government.  But CSOs have been involved with the processes of drafting of laws and lobbying for legislation and government policies.  CSOs that have tax exemption cannot use their resources to support, oppose or advance the activities of any political party. 

Barriers to International Contact

There are no legal barriers impeding international contact or communication.

Barriers to Resources

Generally, the law does not impose any constraints on the ability of CSOs to seek and secure funding.  There are no special rules for CSOs to receive foreign funding.  CSOs are permitted to carry out commercial activities, either directly or through a for-profit subsidiary. CSOs can compete for government funds based on objective criteria.  Government departments and development funding agencies have, however, been criticized by CSOs for having negatively impacted on the ability of CSOs to secure funding.

It is worth noting, however, the Consumer Protection Act of 2008 came into operation on 01 April 2011 and regulates, amongst other, direct marketing. In terms of this Act direct marketing includes approaching a person, either in person or by mail or electronic communication, for the direct or indirect purpose of, amongst other, requesting a person to make a donation of any kind for any reason. The National Consumer Commission (the Commission) has the discretion, in terms of this Act, to establish a registry in which any person can register a pre-emptive block (either generally or for specific purposes) against direct marketing communication. Regulations have been published by the Minister of Trade and Industry which also prescribe mechanisms to block direct marketing communication.

There are a few important implications for non-profits soliciting donations in South Africa once the relevant provisions of the Act and the regulations are implemented. Firstly, the Act will effectively allow individuals and legal persons to block non-profit organisations from soliciting donations by registering pre-emptive blocks. The regulations allow for the establishment of a registration facility. Secondly, all direct marketers, including non-profits soliciting donations from the public, will have to assume that a comprehensive pre-emptive block has been registered unless confirmed otherwise by the Commission. Thirdly, all direct marketers must register with the Commission (and annually confirm their details) and apply in writing to the Commission to find out if a pre-emptive block has been registered. Fourthly, non-profits applying to find out about pre-emptive blocks, will in all probability have to wait some time as the Commission will be required to put in place a screening and validation process in respect those registering as direct marketers. Pending registration, the direct marketer will not be able to obtain information on pre-emptive blocks.

Barriers to Assembly

Section 17 of the Constitution states that “Everyone has the right, peacefully and unarmed, to assemble, to demonstrate, to picket and to present petitions.”

The Regulation of Gatherings Act (“The Act”) defines a demonstration as any demonstration by one or more persons, but not more than 15 persons, for or against any person, cause, action or failure to take action. A gathering is defined as any assembly, concourse or procession of more than 15 persons in or on any public road or any other public place or premises.

Advance Notification
Advance notification is required under the Act. Organizers intending to hold a “gathering” must notify the responsible officer from the relevant local authority of the names and addresses of the organizers 7 days before the date of a gathering. The responsible officer of the local authority can respond in one of two ways, namely:

  • Consult with the police regarding the need to negotiate or impose any condition on the proposed gathering. If the responsible officer is of the opinion that negotiations are necessary, s/he must call a meeting with the relevant stakeholders as provided in the Act; or
  • Notify the convener that the proposed gathering may take place.

If it is not reasonably possible for the organizer to give notice earlier than 7 days before the gathering, the organizer shall give notice at the earliest opportunity, but not less than 48 hours before the commencement of the gathering. If notice is not given less than 48 hours, the responsible officer may prohibit the gathering. It would therefore seem that spontaneous demonstrations are not allowed.

The Act is somewhat ambiguous with regards to the regulation of “demonstrations.” It is clear from the Act that the notification requirements are not applicable for demonstrations. However, the provisions of the Act dealing with the conduct at gatherings are also applicable to demonstrations.

As for counter-demonstrations, the Act empowers the police to restrict a gathering to a designated place or guide the participants along a route to ensure an appropriate distance between participants in situations of rival gatherings.

Time, Place, Manner Restrictions
The Act prohibits all demonstrations and gatherings in any building in which a courtroom is situated, or at any place within a radius of 100 meters from such building, except Saturdays, Sundays and public holidays. The magistrate of the particular district may, however, grant permission for demonstrations and gatherings to be held at such places. The Act also prohibits demonstrations and gatherings at designated areas in Cape Town and Pretoria. The Chief Magistrate and the Director-General for the Office of the State President may, however, grant permission for demonstrations and gatherings at those designated areas.

Furthermore, the police may in certain instances prohibit the holding of a gathering in a particular place. The criteria for police in such situations would include:

  • The availability of credible information under oath that the proposed gathering:
  • Will result in serious disruption of vehicular or pedestrian traffic, injury to participants in the gathering or other persons, or extensive damage to property; and
  • The police and the traffic officers in question will not be able to contain this threat;
  • The police met with or (if time does not allow it) consulted with specific people to discuss the prohibition of the gathering; and
  • The responsible officer provided reasonable grounds for the decision to prohibit a gathering.

It seems that this process can be manipulated, as the Act does not make provision for the convenor to contest such discretion by also providing information under oath. [1]

Finally, participants at gatherings and demonstrations must not wear a disguise or mask or any other apparel which obscures their facial features and prevents their identification or which resembles any uniforms worn by the security forces.

Enforcement
The power of the police to protect assembly participants has been questioned in situations where there has been conflict between protesters and the police.

The manner in which the South African Police Services has dealt with legal and illegal gatherings in South Africa has also been the subject of much controversy. The death of 34 striking miners in Marikana in August 2012 sparked worldwide debate about the use of force by the South African Police. The Marikana Commission of Inquiry was subsequently appointed by the President to conduct an investigation into the tragic events. The report by the Marikana Commission of Inquiry was released in June 2014. The report was more than 600 pages and largely dismissed allegations of political interference, but recommended that steps be taken by the police to look into the suitability of the National Commissioner of Police and the Provincial Commissioner for the North West Province to remain in their posts and whether they are guilty of misconduct in attempting to mislead the Commission. The full report can be accessed by clicking here. The National Commissioner of Police, Riah Phiyega, was suspended in October 2015 pending the outcome of the investigation to determine her suitability to remain in office in light of the Marikana tragedy.

In addition, at least 20 complaints of police brutality were submitted to the South African Human Rights Commission in response to a farm-workers’ strike in the Western Cape during December 2012 and January 2013.

Criminal Penalties and Fines
The Act lists a number offences that may result in a fine not exceeding R20,000 ($2,000) or imprisonment for a period not exceeding one year or both. Offences include:

  • Convening a gathering without notice;
  • Failing to attend a meeting called by the responsible officer of the local authority after having received the notice;
  • Failing to comply with any provision regarding the conduct of a gathering or demonstration;
  • Contravening or failing to comply with the contents of a notice or a condition to which the holding of a gathering or demonstration;
  • Convening a gathering that is prohibited in terms of the Act;
  • Failing to comply with an order issued by the Police pursuant to the Act; or
  • Supplying false information for the purposes of the Act.

[1] See also Professor Jane Duncan, Highway Africa Chair of Media and Information Society, School of Journalism and Media Studies at Rhodes University wrote an article entitled: Struggle for Street Politics.
(full article available at: http://sacsis.org.za/site/article/1203)  

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Reports

UN Universal Periodic Review Reports UPR South Africa
National Report
Compilation of UN information
Summary of stakeholders' information
Report of the Working Group
Decision on the Outcome
Draft Report on the eighth session of the Human Rights Council
Reports of UN Special Rapporteurs South Africa
USIG (United States International Grantmaking) Country Notes USIG: South Africa
U.S. State Department 2015 Country Reports on Human Rights Practices: South Africa
Fragile States Index Reports Foreign Policy: Fragile States Index
IMF Country Reports South Africa and the IMF
International Commission of Jurists Not available
International Center for Not-for-Profit Law Online Library South Africa

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News and Additional Resources

While we aim to maintain information that is as current as possible, we realize that situations can rapidly change.  If you are aware of any additional information or inaccuracies on this page, please keep us informed; write to ICNL at ngomonitor@icnl.org.

General News

SA's implementation of human rights laws 'problematic' (January 2016)
Human Rights Watch South Africa says while the country has strong human rights laws in place, implementation remains "problematic". Serious concerns remain about the conduct and capacity of the South African Police Service (SAPS). A number of incidents in 2015 highlighted police brutality and the use of excessive and disproportionate force.

Marikana Report: Key Findings and Recommendations (June 2015)
President Jacob Zuma finally released the report of the Marikana Commission of Inquiry. Political figures were exonerated but Police Commissioner Riah Phiyega's fitness for office was questioned. Those who committed killings, both police and strikers, as well as those who failed to protect employees, should be investigated, the commission found.

Info Bill Must Go to Constitutional Court (May 2015)
In a statement to mark International Press Freedom Day, South African National Editors’ Forum chairperson Mpumelelo Mkhabela said a public interest defence clause in the Info Bill would truly enhance the ability of media to assist in the fight against corruption. “We therefore reiterate our call on this day, to the ANC and President Jacob Zuma in particular, to send the Bill to the Constitutional Court for ratification before signing it into law,” he said.

South Africa Xenophobia is 'Afrophobia' (April 2015)
South Africa's leading trade union has joined the chorus of condemnation of the latest wave of deadly attacks against foreigners in KwaZulu-Natal province. The xenophobic attacks at the weekend spread to the province's largest township of Kwamashu where law enforcement agents were said to be overwhelmed. Hundreds of people have been housed by the local Red Cross in Durban, having fled their homes after the violence broke out two weeks ago. Police said close to 30 people had been arrested for looting and torching immigrants' shops. The Congress of South African Trade Unions (Cosatu) said it "condemned the unacceptable xenophobic attacks against non-nationals, particularly directed to fellow Africans".

Info Bill Must Go to Constitutional Court (May 2014)
In a statement to mark International Press Freedom Day, South African National Editors’ Forum chairperson Mpumelelo Mkhabela said a public interest defence clause in the Bill would truly enhance the ability of media to assist in the fight against corruption. “We therefore reiterate our call on this day, to the ANC and President Jacob Zuma in particular, to send the Bill to the Constitutional Court for ratification before signing it into law,” he said. “The Bill is arguably the biggest threat to press freedom and freedom of expression since the dawn of democracy. We stand ready to challenge it in court should the president sign it into law.”

South Africa's wave of discontentment (March 2014)
So-called "service delivery protests" often take place in semi-urban areas, far from South Africa's wealthier and more affluent urban districts. About one-quarter of these protests turn violent, according to police estimates, sometimes leaving shops looted or libraries and clinics burnt to the ground. The causes of service delivery protests are as diverse as the problems facing South Africa's poor. A lack of affordable housing, the accidental death of a child or the cut-off of the water supply can all trigger angry demonstrations. The protests have been especially common in Gauteng province, South Africa's economic core. Police estimate that more than 500 protests have taken place in the past three months in Gauteng alone.

News Archive


South African police arrested for murder (January 2014)

NGOs must be ready to resist the interference of 'guidelines' (December 2013)

Mine shooting families picket South African government (September 2013)

UK should Revisit on South Africa and Concept of Aid (May 2013)

Joint Media Statement By Minister Dlamini and Ministerial Task Team On Non-Profit Organisations (February 2013)

Banking woes for charity suspected of financing Hamas (January 2013)

Proposals to Change the NPO Act? (January 2013)

Unwarranted harassment of activists: CIVICUS and HURISA  (December 2012)

ANC pushes secrecy Bill through NCOP (December 2012)

'Insult law' commonplace in many countries (November 2012)

Civil society statement on the occasion of the 2nd Southern Africa Regional Child Rights Conference in Johannesburg (November 2012)

UN member states urged to accept jurisdiction of ICC and ICJ (September 2012)

Zuma to speak on rule of law at UN Assembly (September 2012)

Questions linger about police force in protest at mine (September 2012)

The Independent Code of Governance for Non-profit Organizations to be adopted by CSOs (July 2012)

Secrecy Bill breakthrough as ANC agrees to major changes (May 2012)

Secrecy Bill continues to receive criticism during Parliamentary hearings (April 2012)

Secrecy Bill - Views from South African civil society (November 2011)

Public consultation on the Protection of State Information bill (September 2011)

New policy on protests will restore order (September 2011)

Final Info Bill draft adopted (September 2011) 

New protests over info bill start today (July 2011)

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The foregoing information was collected by the ICNL NGO Law Monitor partner in South Africa, Ricardo Wyngaard, Ricardo Wyngaard Attorneys.