Dear Dr Sutcliffe
RE: YOUR ONGOING DENIAL OF OUR CONSTITIONALLY GARUANTEED RIGHT TO PUBLIC PROTEST
I write on behalf of Abahlali baseMjondolo to register our organisation’s protest, in the strongest terms, against the way you and other Metro authorities are dealing with our exercise of our Constitutional rights.
While you may not agree with content or urgency of the demands we press, and we would not expect you to ensconced as you are in a huge beachfront apartment, you must realise that they are legitimately posed demands seeking nothing more than what is guaranteed in the Constitution; access to housing. As we have very little money, no institutional power and limited access to the mass media, we have only our collective protest action to rely upon with which to persuade you to divert greater resources to the scandal of the housing situation in eThekwini. Where directors of Moreland, for instance, can pick up a phone to you to address their interests or the rich of Clare Estate can get your attention at a cocktail party, we are not that fortunate. Our recent experiences have convinced us that we can only attempt to influence policy formation and delivery by protesting.
It is thus extremely frustrating when you use all form of procedural ruses to deny us the opportunity to lawfully protest – and, of course, thereby deny us a basic constitutional right. When we apply for permission to march well in advance and as prescribed by law, you decline to tell us yes or no, until such time as it is impossible to organise a proper and orderly protest march. Does Moreland wait 10 days for you to phone them back?
When we tried to arrange a legal march from the Foreman Road settlement on 4 November 2005 your office sent us a fax stating that the march was ‘prohibited’. A top legal expert at the Freedom of Expression of Institute, Mr. Simon Delaney, described your banning of that march as “illegal and unconstitutional.” As leaders we advised our people that the march had been illegally banned and that we should simply have a meeting in the Foreman Road settlement instead. However our people were not prepared to accept this illegal attack by your office on their basic constitutional rights and staged an entirely peaceful protest. Video evidence, some of which was flighted as the lead story on E-TV that night, clearly shows that a peacefully gathering was attacked without warning by police and that excessive violence was used by the police resulting in numerous serious injuries. Moreover both journalists and academics present made formal complaints about serious police intimidation including the confiscation of cameras and threats of violence should they report what they had seen. However no action was taken against the police for their illegal behaviour and no apology was ever issued from your office. These events have been discussed in leading publications around the world, including the New York Times, and have brought great shame on our democracy.
Now you have, once again, denied us our right to march. It will not escape the attention of our 20 000 members and of the media, local, national and international, that your second banning of an Abahlali baseMjondlo march took place just days after the SAPS were used to prevent our movement from participating in the SABC current affairs talk show, Asikhulume, on 12 February 2006. This was a programme to which we had been invited in writing but although we arrived at the Cato Crest hall where the programme was being filmed in good time the police simply prevented our members from entering the hall while people in ANC t-shirts, including late arrivals, where waved through. I myself was assaulted by Officer Hlophe when I showed him my invitation to be a panellist on the programme and demanded to be let into the hall. This politically thuggery was covered in The Mercury and the Financial Mail. Experts have told us that if your office consistently bans our movement from marching and the police are used to prevent us from taking up invitations to appear on the media then there is no way that the coming elections will be able to be declared free and fair in the eThekweni Municipality. If this happens a large part of the blame will fall at your door.
To be specific with regard to the latest banning of an Abahlali baseMjondolo march: On 3 February 2006 we applied for permission to march on 20 February 2006. Our completed application form was taken by hand by Lungisani Jama and Mnikelo Ndabankulu to the office of the Chief Director of Metro Police. He indicated that he could not give us permission to march until you had considered our request. He declined to accept our form, which we had completed in full, and asked us to answer some questions about the march. We do so. He said we should wait for a decision by you to obtain the go-ahead.
On 9 February Mnikelo Ndabankulu was called to discuss the application at the Metro Police offices. Inspector Stevenson said that you had said that there could be no march and that a rally should be held instead. Reasons were not given on request and he refused to put his response in writing. On the same date, 9 February, I sent you a fax requesting an urgent written response to our application for permission to hold a legal march. I also phoned your offices on 10, 13 and 14 February asking for an urgent written response to the fax. On 15 February the Freedom of Expression Institute sent a you a fax asking you to respond to us in writing with urgency.
Then, late on the afternoon of 16 February we finally received a fax indicating that the application to march was ‘denied’ on the basis that we had not supplied all the required information. To our shock, this is all information we had filled in on the original form Inspector Stevenson refused to accept at a time when the march could well still have been properly organised. Moreover you only responded to us 4 days before the march was scheduled and 13 days after the original application. These kinds of delays are clearly not in the spirit of the Gatherings Act and function, in practice, to deny us our basic constitutional rights.
We are lead to the inescapable conclusion that you and other authorities have adopted a deliberate strategy to prevent us from lawfully exercising our rights to protest action by obfuscation. We call on you to desist from such a course of action.
We call on you to explain exactly what you consider you role to be in facilitating the go ahead of a march in this city. What is your authority and have you delegated it to any other person? We place you on terms that any further omissions on your part will be regarded as acts by us, and we reserve all our rights in law to compel you timeously and properly to exercise whatever powers you may have to allow or vary the conditions of marches to proceed in our city. A failure to timeously respond is in practical terms as bad as a refusal.
We wish to remind you that your frustration of our rights is creating a dangerous situation in the communities hungry for land and housing. There are many who are saying that for too long we have been trying nicely to make you realise how serious we are only to act contempt and illegal repression in return. While we ourselves strive only to act lawfully, we wish to warn you that it will be on your hands when the patience of the masses of poor people spills over because you have illegally closed channels for popular protest guaranteed to us by the constitution.
Legal experts have advised us that in fact the Gatherings Act does not require us to ask for permission to march. The right to march is in fact guaranteed to us. The act merely requires us to inform the authorities so that they can proper arrangements for traffic control and so on. Given that your prohibition of our march, scheduled for today, is neither in accordance with the letter or the spirit of the Act we have every legal and constitutional right to go ahead with our march and we will go ahead with our march. However in order to give you the time to prepare properly, a courtesy who have failed to accord to us, we will give you some time to plan. You are hereby informed that we will be marching from Botha Park to the City Hall on 27 February from 10:00 a.m. to 12:00 noon. This is not a new application but rather a change of the date proposed in the original application – a change necessitated by the unacceptable delays from your office in getting back to us. Delays that have served, in practice, to deny us a basic constitutional right. Should you require any further information about our march please contact us and we will give it to you promptly.
Yours sincerely
S’bu Zikode
Chairperson – Abahlali baseMjondolo