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Daily Maverick: Death by a thousand pinpricks – South Africa’s ever-vanishing right to protest

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Death by a thousand pinpricks – South Africa’s ever-vanishing right to protest

A great deal of media coverage has been given to ‘violent’ protests. But it’s a narrow view just to assume that the protestors are being violent; abuse is a two-way street – especially if bureaucracy is being used to quash dissent. By ANDREA ROYEPPEN AND JANE DUNCAN.

South Africans have become used to media images of marauding protestors burning property and looting shops; in fact, so pervasive have these images become that many could be forgiven for assuming that peaceful protests are a thing of the past.

But at times, journalists caricature protests as ‘violent service delivery protests’, in spite of the fact that violence is often not initiated by protestors, but is rather a response to state repression or even violence. This caricature fails to register the chain of cause and effect in protest cycles, criminalises the protestors in the eyes of the public and the police and inadvertently legitimises state repression. Furthermore, protests are often about a diversity of grievances, not just service delivery.

But why do some protestors resort to what the authorities term ‘illegal gatherings’ (some of which are not illegal at all) and violence to communicate their grievances? This article explores just how difficult it is to use official legal channels to exercise the right to protest, forcing more and more protestors to make their voices heard by any means necessary.

This article is the second in a two-part series on the state of the right to protest, based on recently completed research on protests and their prohibition in 2011-2012. The first explored the Rustenburg Municipality’s approach to the regulation of gatherings. It found a widespread and largely unjustifiable prohibition of gatherings. This article explores the state of the right to protest from the perspective of the protestors themselves. Twenty-two organisations were interviewed as part of the research.

Collecting documentary evidence of prohibitions of protests was difficult, as many protests are prohibited verbally by municipalities. This is in violation of the Regulation of Gatherings Act (RGA), which requires gatherings to be prohibited in writing. It can be inferred that municipalities engage in this unlawful practice to avoid paper trails that could be used against them in court proceedings.

There are very strict grounds in the RGA for the prohibition of gatherings, including protests. These include when the municipality receives credible information on oath that a proposed gathering will result in serious disruption of traffic, or that there will be injury to participants or others, or that there will be extensive damage to property and police will not be able to deal with such a threat.

One popular and unlawful excuse for prohibiting protests is that the police are unavailable to escort the protestors. This is not included as a ground for prohibition in the RGA for good reason, as it prevents more manipulative administrations from deciding, for self-serving reasons, to starve the relevant police structures of resources, and then ban protests against its own performance on the ground of lack of capacity. Yet, last year the Commercial, Services and Allied Workers’ Union (Cosawu) in Durban and the Commercial Stevedoring Alliance Allied Workers’ Union (Csaawu) in De Doorns had protests prohibited for this reason.

In any event, if the SAPS are struggling with resource constraints, then the SAPS has only itself to blame. In 2006, an ill-advised restructuring of the SAPS led to a reduction in the number of police involved in crowd management, in spite of the fact that the number of protests nearly doubled from 2005 to 2006.

Other marches have been banned on the basis that there will be no-one to accept the memorandum. The Emfuleni Municipality’s traffic department has insisted in the past that the organisation wishing to hold a march must secure a written undertaking from the institution they are marching against confirming that a representative will be available to accept the memorandum.

This makes the right to protest subject to the co-operation of the protestors’ adversary, who can easily squash a march simply by not making themselves available to accept the memorandum. The Rustenburg Municipality also has this requirement. The Boitekong community and the Bafokeng Landbuyers’ Association have both been unable to march because of this requirement.

Municipalities have also been known to act as gatekeepers, deciding whether protests are directed at the appropriate authorities or not, and in their view, if they are not, then they will prohibit them. A case in point involved the Vaal region of the Right2Know Campaign, which attempted to picket the Emfuleni Local Municipality to protest against the Protection of State Information Bill.

When organisers met with the police to discuss the picket – which they were required to do as they suspected that more than 15 people would participate – they were informed that they could not picket outside the municipality. The police argued that the Bill did not fall under the jurisdiction of the municipality and was “more for government”.

If this logic were applied consistently, then it would mean that protests against the Bill could only take place in Cape Town and Pretoria, or protestors would need to travel to these cities, which is clearly absurd and prejudicial to people who object to the Bill and who don’t live in these cities.

Activists also related accounts of blanket bans on protests or marches at particular moments in time. For instance, in June 2012, the Schubart and Kruger Park Residents Committee was told that they could not march over that period as there were too many marches taking place in the Tshwane. Instead, the City required them to gather at a particular point and arrange for the memorandum to be collected there, which reduced their ability to bring their plight to public attention. While there is no doubt that marches disrupt traffic, a blanket ban on all marches is an unreasonable curtailment on the right to protest as less restrictive means of limiting the right to manage traffic flow could have been found.

Cosawu in Durban was told by the eThekwini Municipality that no marches were permitted in the City during the African Cup of Nations. Such a blanket prohibition is reminiscent of a series of entirely unlawful prohibitions on gatherings during 2010, when South African hosted the World Cup. The South African Police Service (SAPS) issued a directive to a number of Municipalities not to allow gatherings for the duration of the 2010 World Cup, although how many acted on it remains unclear. Marches had been banned in the Vaal region since March 2010, not on the pretext of the World Cup, but in an attempt to contain rising struggles against poor service delivery.

Then in April 2010, a march planned by the Public and Allied Workers Union of South Africa in Vanderbijl Park was banned. In spite of the fact that the Vaal was off the beaten track in relation to the World Cup, the banning took place in response to a directive sent on April 29 by the Sebokeng Cluster of SAPS to the station commanders of all police stations in the Cluster, stating that no marches would be allowed until after the World Cup.

Blanket bans are unlawful as they effectively suspend the right to assembly, demonstration and picket and prevent a case-by-case consideration of the merits of particular applications. This right can be suspended only under a State of Emergency, and then the procedures set out in the Constitution must be followed. Yet in spite of this, blanket bans of protests continue.

Sometimes, no reason or inadequate reasons are given for prohibiting protests. This happened to the Landless Peoples’ Movement when they attempted to protest against shack fires in Khayalitsha and the non-attendance by the Mayor at a meeting to discuss the problem in 2011. Kathorus Concerned Residents also experienced a similar problem when they attempted to protest about problems with RDP housing in the area. According to the RGA, gatherings cannot be prohibited without proper reasons being given.

Communities also complain about municipalities authorising gatherings, only for the authorisation to be withdrawn at the eleventh hour. This means that not only are protests being prohibited, but this is being done in an unreasonable manner that is bound to raise anger in the affected communities, as it is often difficult to cancel preparations at the last minute.

Residents of Harry Gwala informal settlement near Watville in Ekurhuleni experienced such a problem in October 2012, when a permit was granted for the march to go ahead, only for the traffic police to insist on a postponement the day before. No reason was given.

At times, unreasonable conditions are placed on gatherings. For instance, in August 2012, the Mogalakwena Local Municipality authorised a planned march of the South African National Civic Organisation (Sanco), but listed a series of conditions, including preventing any under-18s from participating in the march. Given the limited avenues that young people already have for expressing themselves, closing down even more avenues is ill-advised.

These conditions may also alter and even prevent the message of the protest from being heard. For instance, when the Sweet Home community in Cape Town wanted to march about basic services in the area, they were told they could not use their intended route, and instead the route was changed to one that was more obscure and out of the public eye.

Some Municipalities have also started charging various fees before protests can go ahead. For instance, the Emfuleni Local Municipality has charged protestors R165.00 per traffic officer per hour or part thereof as a condition for allowing a gathering, and each year the amount escalates. Such practices are discriminatory as they make the exercise of a right subject to financial means.

Last year, the Johannesburg Metropolitan Police Department (JMPD) began to charge applicants R129.34 to process notifications for protests or gatherings, the purpose of which was to provide for the ‘planning of the protest’. However, this provision seems to have been quietly dropped after it was challenged by the Right 2 Know Campaign. The Mafikeng Local Municipality also attempted to charge the Rooigrond community a fee for a planned protest about attempts to force them off the land, but the fee was dropped after a local councillor was tipped off about the problem.

The interviews pointed to a trend whereby more metropolitan municipalities used a myriad of technical excuses to frustrate the right to protest in city centres, as the threat of adverse media attention discouraged the police from using more overt forms of repression. But in more outlying areas, out of view of the mainstream media, the police were more likely to use brute force to crush dissent.

Organisations from Makause, Thembelihle and Rooigrond all reported experiences with violent policing. In the case of the Thembelihle Crisis Committee, after their experiences with the police in 2011 when protests erupted against poor services and housing in the area, and the protests turned violent, leading to which led to arrest and subsequent dropping of charges against 14 people, the organisation decided not to notify the municipality of their intention to march in August 2012. They reasoned that they could not guarantee that the protest would be entirely peaceful as, by that stage, frustrations had reached boiling point.

Municipalities and the police have also mastered the art of manipulating community conflicts to their advantage. According to the Makause Community Development Forum on the East Rand of Gauteng, the municipality and the police have used their awareness of a rival faction affiliated to the municipality to block protests planned by the Forum. The Palmiet Road branch of Abahlali baseMjondolo has experienced similar problems, with the police favouring a march held by community members aligned to a local councillor.

Many communities simply accept these injustices as they are unaware of their rights, and therefore how to challenge such abuses of power. But eventually, a million tiny infractions of basic rights and freedoms do build up.

But activists who are keenly aware of these injustices spoke about not bothering with the official process of notifying municipalities anymore, as it has become increasingly difficult to exercise the right to protest using official channels. They argued that the ‘legal’ route has been manipulated to thwart rather than enable the right to protest. Even when they succeed in going the ‘legal route’, all too often, the grievances vocalised in memoranda and speeches are simply ignored.

The recent protests in De Doorns and Sasolburg have shown that once the ‘gatvol factor’ kicks in, there can be little stopping the waves of anger that spill out onto the streets. To the extent that various spheres of government and organs of state are closing down avenues for more conventional forms of engagement, they are sowing the wind, and they may yet reap the whirlwind.

Daily Maverick: Thandiswa Qubuda – another dead brick in the wall of rape imprisoning South Africa

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Thandiswa Qubuda – another dead brick in the wall of rape imprisoning South Africa

Very little is known about Thandiswa Qubuda, a recent casualty of South Africa’s violent rape pandemic. She was raped, beaten and died after lying brain dead in hospital for six weeks. There are no photos of her in newspapers, no stories of her life, no media headlines about the savage gang attack that led to her death. Qubuda’s passing would have been largely unnoticed, were it not for activists who demanded that people learn about what happened to her: that she was an unemployed woman, failed by the police and by a justice system supposed to protect her. By MANDY DE WAAL.

The 19th of January 2013 brought a rare pleasure for Thandiswa Qubuda of Hlalani in Grahamstown. Friends asked the unemployed woman, who was in her late twenties, to join them for an evening out. It was a Saturday, and Qubuda and her mates headed to Fingo Village, one of the Eastern Cape city’s oldest townships.

It is not certain exactly what happened, but just after midnight, as Saturday night became Sunday and a heavy rain fell, Qubuda faced unspeakable terror. The young woman was dragged by as many as eight men to a toilet in the midtown, gang-raped and brutally beaten. She was left to die, prostrate and half-naked in the pouring rain; unconscious and with her arms folded over her exposed breasts.

After she had lain unconscious for hours in the downpour, an ambulance would come and dispatch Qubuda to Settlers Hospital in Grahamstown, where she died some six weeks later, gasping for breath.

“Thandiswa Qubuda’s passing is horrifying. She met her death in the most savage and brutal way. If Thandiswa were from a wealthy family, her story would have been in all the newspapers, the police would have rounded up the perpetrators, and they would be in jail, but because she is unemployed she is the wretched of the earth. She does not appear in the headlines and her rapists walk free,” says Ayanda Kota, founder of the Unemployed People’s Movement (UPM).

Kota’s sister and brother-in-law were amongst the first people on the scene after the community was alerted to the rape. “There were about eight men who were raping Thandiswa when a neighbour heard the screaming and went to see what was happening. The men said that this neighbour must join in the rape or he would be shot, but the man ran off to alert the community and call the police instead,” Kota said on the phone from Grahamstown.

“The rape took place on the corner of New Town Street and E Street in Fingo village. It must have happened after midnight because people started calling the police and ambulance from about 01h45, but the police and the ambulance only arrived after 04h00 in the morning,” he said.

“What is disturbing is that the police station is less than a kilometre away from where the rape occurred. My sister and brother-in-law were at the scene where Thandiswa was found. She was half-naked and her pants were dropped at the knees. She was lying on her back facing upwards, unconscious with her arms folded over her chest as if to cover her breasts. The people who first found her thought she had already passed away,” Kota explains.

“She was lying in that rain for two hours. After 04h00, the ambulance came, a stretcher was taken out and the paramedics rushed her to hospital. Police in Grahamstown were told that it was a rape case when they got to the scene later, but they didn’t do anything. They didn’t even go to the hospital,” alleges Kota.

“A case was opened for attempted murder,” UPM spokesperson, Xola Mali, told Daily Maverick from Grahamstown. “There was a rape charge, but there was no evidence to back it up, so that case was dismissed by the court this past week.”

Independent city newspaper Grocott’s Mail reported that two men aged 19 and 20 were arrested a day after the rape and brutal assault, but were later released from custody with a warning because there wasn’t enough evidence to hold them.

The investigating officer on the case, John Manzana, told Grocott’s Mail that the pair had been arrested because “circumstantial evidence in his docket indicated that both of them were seen walking with the victim and entered the place where the victim was later found”. The state prosecutor, Asanda Koliti, withdrew rape charges because the state “had not received confirmation that the woman had indeed been raped,” the newspaper reported.

“The young woman was transferred from Settlers Hospital in Grahamstown to Livingstone Hospital in Port Elizabeth, but the doctors there said that they could do nothing for her because she was already brain dead,” Mali told Daily Maverick. “She was just sent back from Port Elizabeth to Grahamstown.

“She was an unemployed woman, but she had friends who had piece jobs (occasional employment), so sometimes her friends would get money and they would occasionally go for a night out. Because she was unemployed she largely depended on her friends and community members for food, so an evening out was a rare pleasure for her,” Mali added.

“This is not the first case we have seen like this. There are many more cases like this here in Grahamstown. As usual the perpetrators will be roaming Grahamstown looking for new victims and posing a threat to society. Violence against women and children is escalating on a weekly, if not daily basis,” he said.

“The fact that the men who did this are free shows you the inefficiency of the justice system. This is a poor woman who comes from a poor family. Her family does not understand the system – they trust that the police and the justice system will do the job, but they are being let down,” said Mali.

“The parents of this woman who is now dead can’t afford lawyers to probe the case and to get to the bottom of the matter, so there is a big possibility that these men will go free,” Mali explained, adding that together with other activists and civic organisations in the area, the community of Grahamstown would be mobilised to march on the local police station to demand that ‘enough is enough’.

“We have no faith in the justice system itself, because the police are not properly trained and can’t investigate properly. The police no longer work for the community – they are militarised to deal with activists and people who fight for the rights of the people. The SAPS only protect the interests of the rich, the government, of the elite. We need to make sure that the justice system works for everyone who lives here, and not just the rich or people in government,” Mali said.

Kota warned that rape was now the new norm in South Africa, and added that the police were negligent, incompetent and unequipped to deal with the onslaught of sexual violence against women. “If you open the newspaper or turn on the TV or radio, you see that police are now assaulting, raping and killing people. They no longer serve the people,” he alleged.

“The police have become the oppressors and are part of this plague of injustice that is stalking our communities. We are a broken society. We can no longer trust those who are supposed to protect us, and we do not value our own. We have become a society that is broken and just sees women and children as objects with no value. We can no longer be patient with this disease because our society is criminally sick. We have to change this now: we need a revolution against this rape and violence,” Kota said.

Daily Maverick phoned the Grahamstown police station to offer the SAPS right of reply, but by the time of publication, there was no response from the regional spokesperson, Mali Govender, or from the police, despite assurances that a comment would be forthcoming.

A memorial service will be held for Thandiswa Qubuda on Thursday 07 March 2013 at BB Zondani in Grahamstown at 16:00 to commemorate the life – and mark the tragic death – of a woman lost to the war against rape.

Daily Maverick: Marikana: We should be incandescent with rage

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Marikana: We should be incandescent with rage

by Julie Reid, The Daily Maverick

The police seem adamant to generate bad press for themselves. In fact, they are remarkably good at it. South Africans are quite used to seeing media reports of police brutality, nepotism, corruption and the like. But the problem with the press’ reporting on police crimes is that events are often reported in isolation of one another, in sound bites, giving audiences the idea that they are isolated events. They aren’t.

At the moment, regular South African newspaper readers are quite appropriately outraged at what happened in Marikana. Much of the public outcry is directed at the police. Whichever way you look at it, and regardless of whether the police’s actions are eventually “proven” to be justifiable, these guys mowed down groups of striking miners with automatic weapons and live ammunition, and did not stop for quite a few minutes. So yes, SAPS, we are all more than a little angry with you. The public outcry over this event has been understandably acute and substantial. But this outrage at the police may have borne a different character were it represented differently by the press.

A different media representation may have produced a far more intense public sentiment of disdain for police actions. But current reports of the Lonmin tragedy are, for the most part, lacking in historical and socio-political context, and so the event appears to be something out of the ordinary. Without framing the story in a context of recent police (mis)behaviour, the Lonmin affair looks like an exception.

Part of the problem is the traditional format of daily news reporting. For the most part, newspaper reports focus on one event at a time only. Its only when journalists are given the time and space to really engage with an issue and to do some deep investigative reporting that a little context can be afforded to a story. But reports like these are few, and they are not where the majority of us will get our news. What is important in the case of the police action at Marikana is that this is simply the latest, and surely not the last, example of deeply questionable police activity. The mess is bigger than Marikana. In fact, it is much bigger.

For example, on 13 April 2011 a protestor called Andries Tatane was killed in Ficksburg by the police. What was most shocking about that occasion was not Tatane’s death (although that alone was bad enough), but that the event highlighted that the Independent Complaints Directorate, in its 2010 report, investigated 1,769 cases of people dying in police custody or as a result of police action. To give some perspective, that is 1,735 more people than the number killed at Marikana.

More recently, in June this year, Independent Police Investigative Directorate (IPID) Executive Director Francois Beukman announced that about 5,000 cases of assault, murder, torture and misconduct by police officers were reported in 2011, with about 500 cases then on the court roll.

Our own lack of perspective on the matter of police brutality becomes clear when simply looking at the Marikana numbers. The sound-bite rich media have hammered on about the 34 miners killed by the police. But the 78 persons who were injured during the event get scant mention, and this figure (78) is usually only delivered in a one-liner at the bottom of an article. But let us interrogate that number a little further: 78 injured. How were they injured? Were they trampled in the stampede which undoubtedly followed the volley of gunfire? It’s hard to believe all 78 of them were hurt in that way.

What is more likely is that the most of them were also hit by police bullets, meaning that it’s only a stroke of luck that they are not also dead. Let’s momentarily assume all of them were injured by police fire (especially since the press is not telling us what hurt them). This means that although 34 people were killed by the police, 112 people were shot by the police. Then we should take into account that 194 affidavits have been reportedly taken by the IPID from miners who were arrested during the protest and allegedly beaten up or “tortured” while in police custody. If we add this number, it brings the estimated number of people killed, shot or assaulted by the police in Marikana over the past 2 weeks to a whopping 306. That is a far greater tally than the magic number 34 which the media has repeated so often, but it is the number which should perhaps hold our most avid attention.

If we simply analyse the numbers collectively and with some perspective, the picture of the Marikana tragedy looks far more heinous than what the media has led us to believe. We should all be far angrier.

But this is not a media-bashing exercise. Although we often receive news of police misbehaviour in snippets reported in isolation from one another, the media can at least be credited with doing a sterling job of keeping those snippets coming at remarkably frequent intervals. On 21 August, amid the first days of the Marikana debacle, 3rd Degree broadcast a report on a Tactical Response Team established by former Police Commissioner Bheki Cele in 2009 to tackle medium- to high-risk crimes. This team was tasked mainly with handling robberies, cash-in-transit heists, ATM bombings and similar crimes. But 3rd Degree got hold of some shocking CCTV footage of members of this crack police unit harassing patrons of a township tavern. The footage clearly reveals how police officers barge into the tavern, order patrons to lie on the floor, kick a man who is not quick enough to do so and slap a woman in the face, among other nasty things, all without provocation or reason to do so.

On 23 August, just as Women’s Month entered its last few days, The Times reported on a Women’s Legal Centre study that found 70% of prostitutes had been harassed by the police. Some of the sex workers who took part in the study told how police had gang-raped them or forced them to perform oral sex, while most reported they had been otherwise assaulted. And while a police shooting occupies the attention of the public, we should remember that on 4 March it was reported that 27,329 police officers who underwent training to comply with the Firearms Control Act failed their firearms proficiency tests.

It was the Sunday Times that alerted us to the dastardly deeds of the now infamous Cato Manor Hit Squad, which allegedly carried out scores of assassinations under KwaZulu-Natal Hawks boss Major-General Johan Booysen.

On the morning of 27 August, 11 days after the Marikana shooting, I was confronted with another press report of the police behaving badly. This one supplied a list of allegations being investigated by the IPID, including three Honeydew police officers and one from Diepsloot arrested for the murder of a suspect; a Modimolle station commander charged with assault with the intent to commit grievous bodily harm for assaulting a man asking for assistance; a Klerksdorp policewoman was arrested for murder; six Durban officers arrested for sexually assaulting a man with a broomstick; thirteen Bellville policemen awaiting trial for kidnapping and the attempted murder of three suspects and a murder related to torture allegations; and twenty Klerksdorp policemen on trial for assaulting suspects going back to 2010.

But what really got my goat when reading the article was not the list of allegations against the police, although that alone is unfathomable. What incensed me was the reported response of the police spokesman, Colonel Vish Naidoo. This chap reportedly said that though he “cannot deny rogue officers exist in the force, a fraction of that fraction step outside the boundaries of the law”. This has become the standardised one-liner we hear repeated from police spokespeople ad-nausea each time the press points out that the police have once again, stepped out of line.

Bear in mind that the examples mentioned above are only some of the instances of bad police conduct reported in recent years by the media. What about the cases the press never finds out about, or does not consider newsworthy enough to report? If we take stock only of the number of instances of police-behaving-badly represented in the press, then the mind begins to boggle with the frequency of the issue.

When police spokespeople insist that such conduct is limited to only a few in the SAPS it becomes a little hard to swallow and very difficult to believe. It is, in fact, an insult. The police spin doctors should accept that the South African public is not that stupid. The sad fact is that the South African Police Service is an absolute mess. The police are killing us.

The media and their consumers, for their part, need to picture the Marikana massacre as only the latest episode in a much broader ongoing narrative of police violence and brutality. We should not be angry about what happened at Marikana alone. We should be incandescent about all of it.