Protesters and protest are still being criminalised in South Africa despite a Constitutional Court judgment regarding criminal sanctions. The Mlungwana v State judgment of 2018 confirmed the high court’s declaration that section 12(1)(a) of the Regulation of Gatherings Act, 1993 was unconstitutional and invalid.
The case centred on criminal charges laid against protesters who did not notify the responsible officer of a municipality of an assembly, but the Constitutional Court further delved into the issue of criminal sanctions where a protest was peaceful and unarmed. The court held that criminalisation deters the exercise of the right to assemble, and deterrence by its very nature limits the exercise of this right.
Ironically, three days before this Constitutional Court judgment, the Estcourt magistrate’s court handed down a judgment in the case of Nomzamo Ndlela v State in which 16 women were arrested and detained after peacefully protesting against the government in Colenso, KwaZulu-Natal. The court convicted the women of “public violence”, after they were detained and denied bail for 60 days.
The Socio-Economic Rights Institute of South Africa learned about the story from a 2018 article by Mail & Guardian journalist Paddy Harper titled “Peaceful protesters ‘pleaded guilty to get out of jail’’’. We were later contacted by the son of one of the convicted women who asked for legal assistance for her.
At common law, the charge of public violence was intended to address street brawls and riots but it is now increasingly being used to punish protesters and discourage dissent.
In 2010, the Supreme Court of Appeal in the Le Roux case found three men who had participated in a restaurant brawl guilty of committing “public violence”.
The rioters had turned over tables, thrown chairs, broken glasses, assaulted patrons and barricaded the entrance to the restaurant. The court described the scene as “full-scale chaos”. Numerous innocent bystanders were left bruised and bleeding.
The definition of public violence in the Le Roux case is that “public violence consists in the unlawful and intentional commission, by a number of people acting in concert, of acts of sufficiently serious dimensions which are intended violently to disturb the public peace or security or to invade the rights of others”.
The protest in Colenso happened under very different circumstances. On 30 August 2018 at 5am, about 100 members of the community of Colenso gathered and went to the R103, singing in demonstration. A truck driver saw the protest and became afraid.
The community members raised their hands to show they would not harm the truck or its driver. However, the driver tried to turn the truck around, jack-knifing it and blocking the road. The protesters continued to demonstrate peacefully. For an hour, the road in and out of the town was blocked by the truck.
Police quickly arrived at the scene and arrested 16 women who were too slow to evade capture because some of them were elderly. The women were subsequently separated from their children and the rest of their families for two months. Despite there being a detention facility in Estcourt, closer to Colenso, they were detained in Newcastle, about 130km away, making it more difficult for their families to visit.
The 60‑day detention had a severe effect on the women and on the rights of their families. The women said they were sometimes denied food and water and would go for days without taking a bath. The conditions of the single cell into which they were squeezed were inhumane. The toilets were not functioning properly. Their primary school-aged children had to miss school as they had no one else to take care of them.
One woman fell sick and was told that she would only get medical attention the next time a doctor was available. Another woman had to leave her epileptic daughter with a neighbour while she was in detention.
The women could be forgiven for believing that they were facing the full might of the state because they had the audacity to complain about their living conditions.
The women ended up pleading guilty to the charge of public violence in order to be released, following the advice of their legal representative and the prosecutor. They were sentenced to 200 hours of community service, three years of house arrest and a three-year custodial sentence suspended for five years on condition they do not commit a similar offence.
The women appealed both their conviction and sentence as they felt that they had exercised their right to protest and a harsh sentence had been imposed to punish and make an example of them for daring to engage in protest. They had no previous convictions and were engaged in a peaceful protest.
The KwaZulu-Natal high court refused to overturn the conviction finding that the “blockage of the road which was an alternative to a toll-road for just over an hour” invaded the rights of others and was sufficient to meet the requirements of the offence despite the lack of violence. The court held that this brought the protest outside the protections provided by section 17 of the constitution.
Two years after the women were convicted, they turned to the Constitutional Court to have their convictions overturned. Unfortunately, the court held in early March 2021, that on the basis of the facts there would not be a reasonable chance of success, and therefore declined to hear the matter.
Although a disappointing outcome, what has happened to these women and countless other protesters, in mainly remote corners of the country, calls into question the ambit of the right to protest and its efficiency in protecting vulnerable communities who seek to be heard.
A week after this decision by the Constitutional Court, during the recent wave of student protests, a Wits University student who was being arrested kept asking: “What did I do?” The police responded by asking: “Did you not see yourself blocking a road back there?”
That student was detained for hours and later released on bail. The next morning the National Prosecuting Authority refused to prosecute the student, citing insufficient evidence. The events of that day drew significant criticism about the handling of protest by the police.
The police should not violate fundamental rights in the name of “maintaining law and order”, because they are constitutionally mandated to facilitate the right to protest.
Officials in the criminal justice system, including police, correctional officers, prosecutors, and magistrates, should not weaponise the criminal justice system to stifle legitimate grievances. These officials have a duty to be impartial and uphold the values of the constitution.
When people feel frustrated with the government’s failures, they have the right to protest in terms of section 17 of the constitution. More often than not, demands are ignored until roads are blocked with stones and burning tyres.
Rather than responding constructively to the concerns of citizens, the state has developed a tendency to use the criminal justice system to silence dissent by using arbitrary arrest and often poorly founded charges against protesters.
The women of Colenso wonder if their fate would have been different, if they were not protesting in their rural town.