Category Archives: Jane Duncan

M&G: People’s protest is being criminalised

http://mg.co.za/article/2014-05-01-peoples-protest-is-being-criminalised

by Jane Duncan

The South African Constitution guarantees the right to assemble, demonstrate and picket. But to what extent are South Africans able to practise this right?

Research undertaken into 12 municipalities suggests that, although this right is still being largely respected, there are signs that it is being eroded.

My research was precipitated by a pilot project on the Rustenburg municipality’s response to protests. The research found that, in 2012, the year that industrial protests peaked in the platinum belt, the municipality banned 53% of them, largely on the grounds that they were not recognised by the Regulation of Gatherings Act, which gives effect to the right.

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SACSIS: The Auditor and the Hitmen

http://www.sacsis.org.za/site/article/1833

by Jane Duncan

Last month, forensic auditor Lawrence Moepi was killed in a suspected hit, which happened as he arrived for work at his Johannesburg office. Apparently, Moepi was working on some big cases involving suspected corruption. The Auditor-General had also appointed him to the investigations team on the now-notorious arms deal.

Moepi had earned a reputation of being a fraudster’s worst nightmare: a fearless, principled, incorruptible auditor. It is widely suspected that he was killed to shut him up. Other auditors have spoken up, alleging that his killing is the tip of the iceberg, and that many other auditors who expose corruption or mismanagement of funds are at risk.

Unfortunately, Moepi’s killing is the latest in what has become a firmly-established trend where whistleblowers, activists and other people of principle are killed to prevent them from exposing fraud and corruption.

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Sunday Times: Journalists failing South Africa on police violence

Journalists failing South Africa on police violence

Jane Duncan, Sunday Times, 27 October 2013

Last month, 17 year old Nqobile Nzuza was shot dead by the police in a protest over housing and evictions in Cato Crest informal settlement, Durban. Another person was shot and wounded. The protest was part of a series of road-blockades organised by the shackdwellers’ movement, Abahlali baseMjondolo.

The police maintain that they acted in self-defence. They say that they were called to the area to respond to a disturbance. Two policemen were attacked by a large crowd, which stoned their vehicle, breaking the windows, and attempting to pull them from it, and they shot at the crowd to prevent themselves from being killed.

Abahlali denies the police’s claims, stating that the police opened fire on the crowd without provocation. Her family said that she had been shot in the back and the movement claimed that the second person was also shot from behind. These details add considerable weight to the movement’s claims that they were both fleeing when they were shot.

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

http://www.dailymaverick.co.za/article/2013-03-08-death-by-a-thousand-pinpricks-south-africas-ever-vanishing-right-to-protest/

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.

SACSIS: The Criminal Injustice System

http://www.sacsis.org.za/site/article/1574

The Criminal Injustice System

Jane Duncan

At the end of January, an all too familiar pattern of events played itself out in the Pinetown Magistrate’s Court in Durban. Four member of the shack dwellers’ movement, Abahlali baseMjondolo, were arrested after a protest against problematic practices in a housing development in KwaNdengezi. They were accused of public violence, robbery, damage to property, and assault with intent to do grievous bodily harm.

Charges were withdrawn against three in court, with the exception of public violence. Abahlali has described the case as political and not criminal, as their activism is challenging entrenched interests in the area. They maintain that the charges against their members have been fabricated, and that the flimsiness of the remaining charges will emerge once the matter returns to court.

Meanwhile, in Makause, on the East Rand of Gauteng, three activists were arrested in October last year and are due to appear in court next month, in spite of the fact that, four months after their arrest, no formal charges have been put to them.

The likely charge appears to be intimidation. One of the activists apparently mentioned the Marikana massacre in a meeting to discuss an intended march against police violence. Two activists were then subsequently arrested for wearing T-shirts in support of the massacred workers at Marikana, and one of them (a woman) was stripped of her T-shirt and made to stand semi-naked in the police station. So the available evidence points to the police having taken offence to the references to Marikana, and this has formed the basis for the arrests.

Time will tell if the cases against these activists have any substance. But if similar, previous cases are anything to go by, that they are likely to be baseless.

Many citizens look to the criminal justice system for redress when they are victims of crime and other social ills, and so they should. Their expectation is that the system exists to deter crime and punish offenders, and will mete out justice impartially, without fear or favour. The system is also expected to mount a substantial case against accused persons, who are meant to enjoy protections against abuses of the system, particularly by its investigatory and prosecutorial arms.

But there are signs that – in situations where outspoken critics challenge the power of politicians – the system can be turned against political critics. The politicisation of the system is highly uneven: many police officers and prosecutors conduct their work impartially, and with integrity. But it is also apparent that political manipulation is a growing problem.

The recent attempt by the National Prosecuting Authority to charge the arrested Marikana miners with the murder of their own comrades under the apartheid-era common purpose doctrine, is possibly the most visible and shocking example of this trend. But there are many other, less well publicised, examples.

These abuses are most noticeable in the investigatory arm of the system. Many bogus criminal cases, cooked up by members of the police under the sway of local politicians, are caught when the matters go to court, and judges often unleash stinging rebukes against the police and prosecutors involved.

Public violence and illegal gatherings are the most commonly used charges. The familiar cycle is as follows. A protest occurs over a specific grievance, which may or may not be ‘legal’. If the protest is ‘illegal’, it is generally because the protestors have notified the municipality of their intention to march, and the protest has been prohibited on unlawful grounds, or because the protestors did not notify the municipality as they know it will be prohibited or severely proscribed.

Alternatively, protestors may embark on other forms of direct action like road blockades, after becoming sick and tired of holding march after march where their memoranda of grievances are simply deposited into a municipal bin.

If the protest turns violent, it is often in response to police violence against what is generally a peaceful protest. In anger, the protestors run amuck, attacking property and even people. The police then use the events as an excuse to target prominent activists who are considered ‘troublemakers’, whether they were directly involved in the violence or not. They may even have attempted to prevent the violence. If they are arrested after the fact, then their arrests are likelier to happen towards the end of the week, to stretch their detention over the weekend before appearing in court.

As in the Makause case, the charges may be left deliberately unclear, making it impossible for the activists’ legal representatives to prepare adequately. The state generally applies for postponement after postponement, claiming that its case is not ready, which ties the activists up in court appearances for months, only for the charges to be dropped for lack of evidence. By that stage, great damage has often been done to their lives.

As evidence leaders, prosecutors may be too busy to question to integrity of the police evidence, or they may actively facilitate the police strategy to keep the activists behind bars by any means necessary.

Some activists cannot afford bail. But if they can, then another increasingly common technique is to seek stringent bail conditions to prevent activists from continuing their organising work, and magistrates – inexperienced in constitutional matters – often simply accept the word of the state prosecutor.

For instance, in Grahamstown in 2011, after a protest that resulted in community members digging up a road in Phaphamani, Unemployed Peoples’ Movement and Womens’ Social Forum activists were given bail conditions that effectively banned them from political activity, including organising or even participating in marches. The charges against the activists were dropped a year later.

Sometimes, bail may be refused on spurious grounds. In the same year, Thembelihle activist Bayi-Bayi Miya was arrested on charges of public violence and intimidation for leading protests in the area, in spite of the fact that Miya had in fact attempted to stop the violence. Other residents were arrested too. The state opposed Miya’s bail successfully in the magistrate’s court, and the police kept him in ‘preventative detention’ to stop him from organising any more protests.

The Socio Economic Rights Institute (SERI), representing Miya in the South Gauteng High Court, argued that the state’s charges against him were so weak that he would almost certainly be acquitted. They challenged successfully the magistrate’s decision to allow the detention and deny bail, but only after Miya had spent a month behind bars. Last year, the case against the other residents was struck from the roll for lack of evidence after seven months and nine postponements, leading SERI to conclude that the case against their clients was, in fact, political.

Then there are the cases which strongly suggest that evidence against activists has been manufactured for political reasons. A key witness in Miya’s case emerged only 22 days after he was alleged to have uttered a threat to burn her house down – in spite of her claiming to fear for her life – and her statement was so weak that nothing of significance could be deduced from it.

In 2009, members of Abahlali baseMjondolo were arrested on murder charges following an armed attack on members in Kennedy Road informal settlement, in an attempt to rout them out of the settlement.

The charges were eventually dismissed after the judge found contradictions in the state’s case. Several of the witnesses were unsatisfactory, and the judge questioned their truthfulness after it emerged in testimony that witnesses had been coached to point out members of an Abahlali-affiliated dance group, rather than just the perpetrators.

The democratic South African state still enjoys huge legitimacy; after all, it is only two decades since many struggled and died to bring it into being. But, by politicising the criminal justice system, the police and politicians are sowing the wind.

Once the veneer of impartiality is stripped from the criminal justice system, and it becomes exposed for what it truly is when the chips are down – namely the repressive apparatus of the ruling political class – then the state will lose its legitimacy. Struggles could move beyond localised fights with non-performing councillors and escalate in a struggle against this political class and even the state itself. Then they will have a protracted fight on their hands that, in the long term, they cannot possibly win.