Category Archives: Niren Tolsi

Al Jazeera: Has Zuma lost his grip on South Africa?

Niren Tolsi, Al Jazeera

In the Pretoria High Court 2D, Advocate Kemp J Kemp hunched his shoulders and pushed his head out like a heron about to snaffle its prey.

The 2009 decision to drop more than 700 fraud, corruption, racketeering and money-laundering charges against his client, President Jacob Zuma, was a “message”, Kemp argued, that the National Prosecuting Authority’s “enormous powers” would never again be used to “decide who will be the president of the country” or “to engineer political results”.   Continue reading

The Con: A Marikana Too Far

Bhavna Ramji and Philiswa Sithole, The Con

June 2013: The sun shining on Marikana in the North West turns the blood of goats being slaughtered into glinting rivulets of mercury. We’re at a government-sponsored mass traditional ritual performed by the 44 families that lost loved ones at Lonmin’s Marikana platinum mine during an unprotected strike in August 2012. The intention of the slaughter is to cleanse the area where people were killed of evil spirits.

Family members collect in pockets in front of the koppie where miners had gathered to demand a monthly increase to R12 500. Male elders slit the throats of the goats. The practised art of skinning and disembowelling the animal before charring the meat is under way.

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M&G: The scouring of Jo’burg’s inner city

The scouring of Jo'burg's inner city


Standing on the corner of Kerk and Joubert streets in Johannesburg's inner city on Tuesday morning this week, Mandla Mabaso said he was ready to die.

"I'm going to toyi-toyi [against the evictions of inner-city informal traders] and I hope I die," said the street cobbler, tears forming in his eyes. "It is better that I die than see my children suffer."

Earlier that morning, Mabaso had kept R13 for the taxi fare he needed to get from his home in Soweto to Johannesburg's city centre where he fixes shoes from 7.30am until seven at night. Mabaso had given the rest of his money to his wife to take their two children, Sicelo (5) and Ntombizodwa (5), to the local crèche.

But when Mabaso (32) arrived at his usual spot he was told by members of the Johannesburg Metropolitan Police Department that neither he nor the almost 100 traders who eke out a living at the Kerk Street linear market would be allowed to trade there, with no indication of when they might be be allowed back.

Mabaso, like many of the traders, had no money to return home. Nor could he imagine how he was going to find the R450 for next month's rent, or the R600 to keep his children in crèche during October. He was inconsolable.

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M&G: SA police caught dead to rights

SA police caught dead to rights

Unconstitutional interrogation tactics by South African police reflect erosion of rights the world over, says Niren Tolsi.

On Monday, Police ­Minister Nathi Mthethwa was ordered by the Durban High Court to pay R165 000 in damages to two activists from the shack-dweller movement Abahlali ­baseMjondolo and a member of the Kennedy Road informal settlement in Durban who had been injured by police gunfire.

The claim for damages stems from a 2006 incident involving S’bu Zikode and Philani Zungu, at the time, respectively, the president and vice-president of Abahlali, who were arrested and beaten by police.

The third claimant, Nondumiso Mke, was shot in the leg by police after the Kennedy Road community had mobilised to protest the apparently indiscriminate arrests of Zikode and Zungu, which led to police closing off the settlement, locking it down and firing indiscriminately into it.

The Mail & Guardian was present at Kennedy Road the night police fired randomly into the settlement.

At the time, police told the M&G that Zikode and Zungu had been arrested because they were suspected of being in possession of a stolen car. They were charged with resisting arrest and assaulting a police officer. These charges were later withdrawn.

Speaking to the M&G this week, Zikode said that at the time of their arrest and assault the police had not informed them what they had been charged with, or of their rights to an attorney, and they were not advised not to answer any questions until such time as an attorney was present, a right enshrined in section 35 of the Constitution.

‘A black man is always a suspect’

“We asked why we were being arrested and were told that, ‘A black man is always a suspect’,” said Zikode. “We were kicked into a van, handcuffed and taken to the police station where we were kicked into the interrogation room. There was no interrogation: I was grabbed by the neck, thrown against the wall several times and asked if I believed I was ‘Jesus Christ who was going to save all the mjondolos [shacks]’.

“I remember Philani fell unconscious to the ground for about five minutes,” said Zikode, adding that they had received no medical attention while being detained overnight, despite bleeding “from the head and nose and suffering severe headaches”.

Speaking after his first court appearance in 2006, Zungu told the M&G that former Sydenham police station superintendent Glen Nayager had assaulted him after his arrest.

“I was punched and had my head beaten against the wall by Nayager until I fainted,” he said.

“He kicked me in the private parts and when I asked him why, he said ‘Because you are a ball.'”

At the time, Nayager, who has since died, said: “I had nothing to do with their arrest. I can’t comment on the allegations against me.”

Asked this week to comment on Boston Marathon bombing suspect Dzhokhar Tsarnaev not being read his Miranda rights before being questioned by United States security agents M&G which, like section 35 of South Africa’s Constitution, guarantees the rights of an arrested person to a lawyer and not to implicate themself under duress M&G Zikode said it was “shocking”, as the South African state often adopted best-practice models from countries such as the United States.

At risk

“As a movement, we have always been under attack by the police,” said Zikode. “They either criminalise us and our attempts to protest peacefully, or harass us. This sort of action [regarding Tsarnaev] is already happening to us, but it is worrying if it becomes more accepted internationally.”

This is a view shared by Bonnie Meyersfeld, the director of the Centre for Applied Legal Studies at Wits University, who said that: “Often, police act outside the Constitution, making our legal system one merely on paper.”

Meyersfeld said activists were especially at risk and there was concern that those responsible for indiscriminate arrests and torture were not being held accountable by the authorities.

The United Nations Convention against Torture defines torture as: “Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third party has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting on official capacity.”

What happened to Tsarnaev during his interrogation is unclear. What is clear is that he was not afforded his Miranda rights because of a worrying trend by the Barack Obama administration to take a more expansive interpretation of the public safety exception clause to the Miranda rights.

In 1984, the United States Supreme Court established the exception clause in the case of State of New York vs Quarles.

In that case, an alleged rapist was wearing an empty gun holster and his intended victim had told police that he was in possession of a gun. Before reading him his Miranda rights, the arresting questioned the suspect about the whereabouts of the gun. The court allowed the suspect’s answer to stand in evidence, as its location had posed an immediate threat to public safety.

Broad approach

This ruling suggests that police and federal officers in Boston would be allowed to ask Tsarnaev whether there were any other bombs planted in Boston or anywhere else as these would prove an immediate threat to public safety, but not much else.

But the Obama administration’s broader interpretation of the exception clause is reflected in a 2010 justice department memorandum to the Federal Bureau of Investigation, noting that “there may be exceptional cases in which, although all relevant public safety questions have been asked, agents nonetheless conclude that continued unwarned interrogation is necessary to collect valuable and timely intelligence not related to any immediate threat and that the government’s interest in obtaining this intelligence outweighs the disadvantages of proceeding with unwarned interrogation”.

This broad approach has been used on other terror suspects, including Faisal Shahzad, who tried to bomb New York’s Times Square in 2010.

The American Civil Liberties Union M&G in its 2010 review Establishing a New Normal, which examined national security, civil liberties and human rights under the Obama administration M&G noted that there was a ­significant scaling back of civil liberties under Obama, especially when it came to “terror suspects”.

Jaimie Williamson, the legal advisor to the International Red Cross and an expert on terrorism and the law, also underlined this trend, but noted that it did not apply only to the US government.

Williamson, who was speaking at a discussion titled “Terrorism and Civil Liberties: An Impossible Balance?” at the Commonwealth Law Conference in Cape Town last week, suggested that this differentiation of rights for criminals and those suspected of terrorism activity had led to “lacunas” in both domestic and international arrest, interrogation and prosecution procedures of terror suspects and a reversal of minimum standards of rights, such as the right to be presumed innocent until proven guilty, or not to be tortured.

It is a worrying international trend, say activists, which is being replicated on ordinary citizens in nascent democracies such as South Africa’s.

M&G: Dlamini-Zuma report: Report puts KZN councillors in firing line

Dlamini-Zuma report: Report puts KZN councillors in firing line

by Niren Tolsi

Influential KwaZulu-Natal politicians have been implicated in a probe into election irregularities by Nkosazana Dlamini-Zuma.

Powerbrokers in influential ANC regions in KwaZulu-Natal are likely to face the chop as councillors if the recommendations of the report compiled by current African Union chairperson Nkosazana Dlamini-Zuma are acted upon.

Dlamini-Zuma’s report was initiated by ANC President Jacob Zuma to investigate allegations of irregularities in the list processes for councillors leading up to 2011 local-government elections. The ANC had opened up nominations to broader communities, rather than just party members, for the first time.

ANC members under threat include eThekwini regional treasurer Zandile Gumede, the councillor in the city’s ward 53, who is considered a force in the province. Political heavyweight and uMgungundlovu regional chairperson Alpha Shelembe was accused of interfering in the processes of ward 18 in uMsunduzi (Pietermaritzburg) to ensure that his personal assistant was voted in at branch general meeting to elect candidates to run for councillor positions. It is unclear what sanction he will face, if any.

ANC provincial spokesperson, Senzo Mkhize, said the provincial executive committee had “accepted” the report at a recent meeting and had set up a task team consisting of national executive committee deployees to KwaZulu-Natal and members of the provincial executive to “start a process of consultation” regarding the report.

He said the task team, headed by Joe Phaahla from the party’s national executive committee and provincial deputy chairperson Willies Mchunu, would consider what procedures to follow in relation to the report’s recommendations, also in regard to ANC members who were not councillors, but who were fingered for alleged wrongdoing by the report.

The Dlamini-Zuma report, which the Mail & Guardian has a copy of, recommends that some measures to be applied to councillors – usually that they be removed and by-elections be held – but, in many instances, does not go any further.


Zandile Gumede, together with municipal housing committee chairperson Nigel Gumede, are said to wield considerable power in eThekwini, the party’s largest region in the country. The report recommended that Zandile Gumede be “removed [as councillor] and that the process be redone”.

According to the task team, it had been notified “that there were problems in the list processes as some members were intimidated in meetings”. The report found that “there were conflicts revolving around the ward councillor … [who was] accused of murder and fuels tensions and divisions in the ward [sic]. Tensions are high ever since one of the complainants was shot.” And Gumede was accused of living in a ward outside the one she represents.

ANC KwaZulu-Natal spokesperson Bongani Mthembu denied allegations that the report might be used in the power battles expected to commence now that nominations had opened to fill the provincial chairperson vacancy created at the ANC’s national general conference in December last year, where incumbent Zweli Mkhize was voted in as the party’s national treasurer.

Mthembu dismissed claims that people like Gumede and Shelembe might not face full disciplinary procedure because of the power they wielded and the votes they could deliver to an aspirant chairman. The contest for the chairmanship is understood to be between Willies Mchunu and current provincial education minister Senzo Mchunu.

According to the report, the “majority of the [30 disputes investigated in KwaZulu-Natal] related to alleged irregularities and manipulation of the list processes by branch and regional leaders in certain cases and general organisational issues such as gatekeeping, bulk-buying of membership and sidelining of members”.

In Ward 12 in KwaDengezi, complaints included allegations that the ward councillor was selling government houses and that “cases of corruption and killing of people in their ward were brought to the police, the police never did anything about the reported cases”. The task team recommended that Police Minister Nathi Mthethwa “facilitate investigations of killings in that ward”.


In Shelembe’s case, allegations include that his bodyguards beat up “a comrade who was raising a query” during the branch meeting in ward 18 in uMsunduzi and that he “manipulated the list process in the branch and he did not dispute the allegations when his attention was brought to this”. The task team recommended that the process be redone and that “Shelembe should not participate in these processes”.

Nkosazana-Dlamini’s report investigated 419 disputes around the country and recommended that processes be redone in 125 of these cases. At the bare minimum, councillors will be recalled and by-elections held in the affected wards.

KwaZulu-Natal appears fastest out the blocks in dealing with matter.

In North West province, ANC spokesperson Kenny Morolong said the provincial executive committee would meet “in the next few days” to discuss the report for the first time.

In the Western Cape, two Cape Town ward councillors in Gugulethu township, Mzwakhe Nqavashe and Coetzee Ntotoviyane, are likely to face disciplinary action.

Limpopo ANC spokesperson, advocate Mathivha Makondelele, said the province had “accepted” the report and was initiating a process to deal with the recommendations.