November 17, 2005 11:21 AM
eThekwini City Manager Michale Sutcliffe was on SAFM this morning. I didn’t hear him but I am told that, amongst other things, he recycled the racist agitator thesis to explain why 20 000 people have mobilised themselves as Abahlali base Mjondolo to oppose his policies and denied that he ever banned the march organised by the Foreman Road Development Committee. (Affiliated to Abahlali base Mjondolo)
His office is responsible for granting permission for marches. The exact text of the fax banning the march is below (followed by the response from the Freedom of Expression Institute). The fax states that “the march is prohibited”…..If that is not a ban then this 1984. But at least Sutcliffe has had to account for himself somewhere. Although 3 000 people from Foreman Road and nearby settlements were prepared to put their bodies on the line in defence of their basic democratic rights, and Andile from FHR and Simon from FXI have been superb the media have generally treated Sutcliffe’s assumption of the right to (illegally) ‘prohibit’ basic democratic rights as a non-issue. If this kind of repression becomes normalised we are going to be in deep trouble.
Richard
FORMAN RAOD DEVELOPMENT COMMITTEE (WARD 25)
ATT: MAXWELL NDABANKUKU
135 FOREMAN ROAD
DURBAN, 4000
09th November
Dear Sir
PROTEST MARCH – 14TH NOVEMBER 2005 – BOTHA’S GARDEN TO CITY HALL
I refer to your letter received on the 20th October 2005 in connection with above and have to advise that the march is prohibited as the Officials from the Mayor’s Office have advised us that they have no feedback for your organisation.
The Mayor’s Office labour is unable to assist you and there will be no representative there to meet you.
Yours faithfully
Insp. P. Sewpersad
Arrive Alive
Asiphephe
Batho Pele
Ethekwini Municipality
Health, Safety and Social Service Cluster
Durban Metropolitan Police Service
URGENT ATTENTION:
Insp P. Sewpersad
By Fax: 031 306 4091
Your referenceOur referenceDate
Insp P. SewpersadMr S Delaney10 November 2005
Dear Sir/Madam
Foreman Road Development Committee / Protest March from Botha’s Garden to City Hall on 14 November 2005
1.We have received a copy of your letter dated 9 November 2005 to the Foreman Road Development Committee, prohibiting the Committee’s proposed march.
2.The Constitution states, “Everyone has the right, peacefully and unarmed, to assemble, to demonstrate, to picket and to present petitions”. The Regulation of Gatherings Act No 205 of 1993 (“Gatherings Act”) gives effect to this fundamental right.
3.Before detailing your various breaches of the Constitution and the Gatherings Act, the FXI, as a matter of policy, condemns your blatant disregard for the rights of marginalized communities in particular to exercise their freedom of expression.
4.The residents of the Foreman Road Informal Settlement continue to suffer from a near complete absence of development in the area, marked by a lack of water, electricity and proper housing. The residents are indigent and mostly unemployed, having to rely on disability grants, child support grants or pensions in order to survive. Moreover, many of the residents have chronic and life-threatening illnesses, including HIV/AIDS, diabetes and muscular dystrophy.
5.There can be few more urgent causes than a community suffering from lack of food, water and shelter. The Foreman Road Informal Settlement accordingly desperately needs to hold the march as soon as possible, in order to publicize the plight of the residents, in the hope that a speedy resolution to this humanitarian crisis can be found.
6.We now turn to your letter prohibiting the march. It is instructive to set out the reason given in the letter of prohibition, verbatim:
“I refer to your letter received on the 24th October 2005 in connection with the above and have to advise that the march is prohibited as the Officials from the Mayor’s Office have advised that they have no feedback for your organisation.
The Mayor’s Office labour is unable to assist you and there will be no representative to meet you”
(Emphasis added by underline)
7.A number of observations can be made about the letter of prohibition,
7.1the ostensible reason for prohibiting the march, namely that “*the Officials from the Mayor’s Office have advised that they have no feedback for your organisation *” is absurd, since section 5 (1) of the Gatherings Act only permits such a prohibition if there is a “*threat that a 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 that the Police and the traffic officers in question will not be able to contain this threat*”;
7.2 there is not the slightest suggestion that the ground relied on for the
prohibition was based on information obtained under oath as required by section 5 (1) of the Gatherings Act; and
7.3 there is also no attempt to try and obtain any undertaking or to impose any
condition on the march to avert such speculative threats.
8.The Constitution moreover guarantees everyone the right to administrative action that is lawful, reasonable and procedurally fair. Your prohibition is both unfair and unreasonable, in that your notification of the prohibition was given only 3 working days before the date of the march, which is manifestly unfair. It would be practically impossible for the Foreman Road residents to have sufficient time to have your prohibition set aside in court.
9.We accordingly submit that the prohibition on the march by the Foreman Road Development Committee imposed by you does not comply with the Gatherings Act or the Constitution. We call on you to reverse your decision and grant permission for the march.
Yours faithfully
Simon Delaney
Attorney,
Freedom of Expression Institute