Law used to ‘clamp down on dissent’

Bhayiza Miya lost six of his teeth and a month of his life to community protests in Thembelihle. He has been arrested, prosecuted and forcefully warned by police to stay away from big gatherings. Yet he will probably be back among his neighbours and facing police lines, rubber bullets and tear gas again soon, consequences be damned.

“We are planning again,” Miya said this week. “We are going back to the streets. We are planning a march, which will be peaceful. Then the police will come. When they arrive in that situation they will do what they normally do: they will start firing on us to get us to disperse.”

If the pattern of history holds, Miya or another leader will then be arrested, probably late at night during a lull in the protests, alongside a random group of other residents.

The people who call Thembelihle home know the pattern well: they saw that sequence of events in 2011 during 10 days of protests. Their conflicts with the Gauteng provincial government stretch back to 2001.

Yet the residents have little choice but to try again, Miya said, because the government does not listen to polite requests or letters. The only way the community has ever been able to attract the attention of mayors and provincial leaders has been through protest, so protest it is.

Little change
Little has changed since 2001: the dusty settlement across the road from Lenasia, south of Johannesburg, still has no formal electricity supply and little access to water or sanitation, and still does not understand the seemingly random and politicised allocation of government houses.

What has changed over the years, however, is the response by authorities to the protests, which in 2011 saw millions of rands of damage done to electrical transformers and the looting of foreign-owned shops. Where before protesters faced only police lines, they now face an entire criminal justice system seemingly intent on clamping down on the protesters rather than on associated violence. This has organisations such as the Socioeconomic Rights Institute of South Africa (Seri) worried.

“Criminal charges are often brought against protesters on little or no substantiated evidence, and proceedings are excessively delayed to prolong detention and intimidate community activists,” Seri researcher Michael Clark wrote in a research report on Thembelihle, launched on Tuesday.

“The criminal justice system is not so much used for the genuine prosecution of criminal activity, but is rather employed to deter and suppress popular dissent.”

When it comes to Thembelihle, Seri can speak with some authority. The organisation represented a group of 10 protesters and three minors arrested in September 2011. The 13 were charged with public violence and malicious damage to property. Seven months later prosecutors had been granted nine postponements before a magistrate struck the case off the roll. Four months later state prosecutors tried to restart the case, only to have it struck off again.

Targeted leader
In a separate case Miya, apparently targeted as a well-known community leader, was denied bail and imprisoned for more than a month before the high court finally ordered his release. He believes charges against him will be brought again as the community mobilises once more.

“The theory of the case [against Miya] was quite remarkable,” said Seri director and human rights lawyer Stuart Wilson at the launch of the report, speaking about his experience representing Miya.

“In that protest stones were thrown and certain threats were made. We don’t have any evidence that any of these stones were thrown by Mr Miya himself, but when somebody leads and organises a protest they are ‘responsible’ for everything that goes on during the protest. So by virtue of his organisation of the protest, Mr Miya stands accused of everything that went on during that protest.”

Wilson successfully argued the case against Miya held no merit, but a combination of police, prosecutors and local courts kept him imprisoned nonetheless. Meanwhile, the protest ran out of steam.

Seri believes such an apparently cynical clampdown on protesters ultimately erodes economic rights, because it frustrates communities already frustrated by conditions in their attempts to demand better. The organisation goes so far as to point out the parallels with political thinking under apartheid: black people would basically be happy with their living conditions if only the rabble-rousers could be neutralised.

Arrest as a form of punishment
Seri is not alone in that suspicion. In an article published this week, Cape Town-based community journalism project GroundUp documented instances that point to arrest as a form of punishment and clamping down in the Western Cape.

One example: in the early hours of Valentine’s Day, GroundUp said, following community protests against electioneering, about a dozen police officers raided the Siqalo informal settlement in Mitchells Plain. Among those arrested was Mandisi Ngcwangu, secretary of the Siqalo Residents’ Committee, who claims he was at work during the protest. He spent a week in detention before being granted bail.

“We are not surprised,” Ngcwangu told GroundUp. “We know that these tactics will be used to intimidate us, because we speak on behalf of the community and we protest against the government ignoring us. We were not arrested as criminals, but as leaders of the community.”

That prospect notwithstanding, leaders say what they experience under an unresponsive and uncaring government leaves them no option but to face such targeted arrests.

“The conditions that we find ourselves living under, the toilets, the smell … during summer it is unbearable,” Miya said. “I don’t know if this government wants us to fold our arms and wait for them to deliver.”

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Phillip De Wet
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