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6 December 2012

Letter from the Socio-Economic Rights Institute on the Unlawful Banning of an AbM Protest by the Sydenham SAPS

Mr Sibusiso Sithole
City Manager, eThekwini Municipality
Per fax: 031 311 2170
Per email: dovec@durban.gov.za

Colonel de Villiers
Station Commander, Sydenham SAPS
Per email: SYDENHAM-SAPS@saps.gov.za

RE: PROHIBITION OF PALMIET ABAHLALI BASEMJONDOLO BRANCH MARCH

Dear Sir and Madam

The Socio-Economic Rights Institute of South Africa (SERI) is a non-profit organisation providing socio-economic rights assistance to individuals, communities and social movements in South Africa. Our thematic areas are: housing and evictions; access to basic services; and political space. The SERI Law Clinic acts as lawyers for Abahlali baseMjondolo (Abahlali) in a number of cases.

SERI has been informed that a peaceful march planned by the Palmiet Road shack
settlement Abahlali branch in Clare Estate, due to take place on Friday 7 December, has been prohibited. The march is being held to protest the erosion of local governance and democracy and lack of basic services in the ward. On 19 November 2012, Abahlali gave written notice of their intention to hold the march, which is ample notice in terms of the law.

However, it appears to SERI that a number of concerning issues have arisen which are not in line with the spirit or letter of the Regulation of Gatherings Act 205 of 1993.

  • First, after receiving an acknowledgment of receipt their letter of notice, Abahlali was subsequently informed that it had been lost. Further, attempts to confirm receipt of the notice were futile, as none of the contact numbers provided for the Metro Police worked.
  • Second, it appears Abahlali was informed that they cannot be given “permission” to march unless the person who the memorandum is addressed to agrees to accept it.This is not the case and all the Regulation of Gatherings Act states is that “if a petition or any other document is to be handed over to any person, the place where and the person to whom it is to be handed” must be provided on the notice.
  • Third, at a section 4 meeting chaired by Captain Govender from the Metro Police on 5 December 2012, it appears that an officer from the Sydenham SAPS stated that the march could not go ahead as Abahlali had not received a permit from the Reservoir Hills shopping mall (which the march passes by) or the Aquarius building (where the march is due to end, at the office of the ward councillor). The march is not taking place on either of these private properties, and permission is thus not required by the owners.
  • Further, in terms of the Regulation of Gatherings if a convener has not, within 24 hours after giving notice, been called to a section 4 meeting, the gathering may take place in accordance with the contents of the notice. The late notice at which the section 4 meeting was called is extremely problematic, so too are the grounds on which the protest has been prohibited.

    In terms of the Regulation of Gatherings Act, gatherings should only be prohibited in exceptional circumstances where credible information on oath is brought to the attention of a responsible officer justifying the prohibition. This can only occur if he/she can prove that the following will take place and that it will not be possible for the police to prevent them: the gathering will result in serious disruption of traffic; the gathering will result in injury to
    participants gathering or other persons; and the gathering will result in extensive damage to property.

    There is no absolutely no evidence that any of these three scenarios is a concern (Abahlali marches have always been peaceful in the past). In the circumstances, Abahlali is fully entitled to proceed with the proposed march and intends to proceed notwithstanding the purported ‘prohibition’. Any attempts to stop the march from going ahead will constitute an abuse of power and will be contrary to the Regulation of Gatherings Act and the Constitution of the Republic of South Africa.

    Yours sincerely,
    Kate Tissington
    Senior Research and Advocacy Officer
    Socio-Economic Rights Institute of South Africa (SERI)
    Email: kate@seri-sa.org

    cc.
    Dr Zweli Mkhize,
    Office of the Premier, Province of KwaZulu-Natal
    Per fax: 033 342 7368

    Captain Govender
    eThekwini Metro Police Special Events
    Per fax: 031 304 4353

    • Abahlali baseMjondolo