(FXI/IFEX) – The following is a 16 March 2006 FXI statement: FXI welcomes the acquittal of two Soweto activists on a charge of Illegal Gathering After nine postponements and two days of trial, the Orlando Magistrate’s Court today found Kanapy Moeketsi and Peter Jacobs not guilty on a charge of illegal gathering. The FXI welcomes […]
(FXI/IFEX) – The following is a 16 March 2006 FXI statement:
FXI welcomes the acquittal of two Soweto activists on a charge of Illegal Gathering
After nine postponements and two days of trial, the Orlando Magistrate’s Court today found Kanapy Moeketsi and Peter Jacobs not guilty on a charge of illegal gathering. The FXI welcomes the court’s condemnation of the police’s behaviour in unlawfully banning a perfectly lawful march and riding roughshod over the right to march.
The judgement vindicates the FXI’s decision to instruct its own in-house attorney to defend the two accused as part of the FXI’s campaign to promote the right of poor communities to express themselves “with their feet”. This amplifies calls that the FXI is making to the Minister of Provincial and Local Government to issue a directive to municipalities to respect the right to protest.
Following on from the recent court victory of the Abahlali Base Mjondolo marchers in the Durban High Court – declaring that the march on 27 February 2006 was neither prohibited or illegal and awarding a punitive legal costs order against the Ethekwini Municipality – this ruling gives succour to poor communities around South Africa who, together with the FXI, are concerned that officials of the City of Johannesburg and municipalities around the country are blatantly disregarding our Constitution, laws and citizens.
Moeketsi and Jacobs were the convenors of a march against the planned installation of prepayment water meters in Orlando, Soweto. On 2 March 2005, approximately 600 residents of Orlando, members of Soweto Concerned Residents (then affiliated to the Anti-Privatisation Forum), took to the streets in a peaceful, unarmed march, escorted by 20 policemen. A week later Moeketsi and Jacobs were arrested by the same policemen who then claimed that they had handed Moeketsi and Jacobs a letter one day before the march, informing them that the march had been prohibited because “[the convenors] have shown no control over [their] marchers in the past who stop and sit on the roadway deliberately with the intention to obstruct vehicular traffic; there is also reasonable suspicion that [their] gathering will result in lawlessness and damage to property”.
After hearing only the State’s evidence of Inspector Make and Captain Nemalale of the Johannesburg Metropolitan Police Department (JMPD) and South African Police Services (SAPS), respectively, Magistrate Mia ordered the acquittal of the accused Moeketsi and Jacobs, without even taking the usual step of hearing the Defence’s version. In a robust judgement, finding the two not guilty on a charge of illegal gathering, Magistrate Mia echoed the preamble to the Regulation of Gatherings Act, 1993, which holds that “. . . every person has the right to assemble with other persons and to express his views on any matter freely in public and to enjoy the protection of the State while doing so. . .”
The convenors of the march had meticulously complied with the procedural requirements in the Gatherings Act. However the police failed to follow the required procedures, only calling a ten-minute meeting with the convenors, with the decision to prohibit the march already a fait accompli. Negotiations, which ought to have taken place in good faith in order to facilitate a peaceful march, did not occur.
Magistrate Mia emphasised that purpose of the Gatherings Act was not to prevent gatherings, but rather to facilitate gatherings. The Act requires the police to extensively consult and negotiate with the convenors of a march and impose conditions on a march where appropriate. None of this happened in this case.
Under extensive cross-examination by the defence attorney of their evidence, Inspector Make and Captain Nemalale contradicted each other on material allegations regarding the procedures to be followed in terms of the Gatherings Act.
Magistrate Mia was not satisfied that the prohibition of the march was made in good faith, especially since notification thereof was made at the last minute and the police did not comply with the procedures required by the Gatherings Act. Therefore, the court held, such prohibition could not hold any legal credibility. Moeketsi and Jacobs were accordingly found not guilty.
The FXI goes even further than Magistrate Mia in condemning the police’s flagrant violation of the letter and spirit of the Gatherings Act in this case:
– There was no evidence of “credible information on oath” preceding the calling of the police’s meeting with the convenors, or at all, as required by the Act. Without such affidavit swearing to the “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”, the march should not have been prohibited.
– The meeting took place in manifest bad faith:
– The photocopy of the letter notifying the JMPD of the march filed in Inspector Make’s archive had the words “Don’t approve”, scribbled on the top left hand corner.
– Stapled to the rest of the related correspondence was a letter from Councillor Sizakele Nkosi-Malobane, Chairperson for Public Safety & Security of the Mayoral Committee, addressed to Inspector Make, dated 21 February 2005, “informing” him of the prohibition of this gathering.
This certainly suggests that the meeting held “to discuss the planning and logistics of the event” could not have happened in “good faith” as demanded by the Act. Instead, it would seem that the meeting was being called as a mere formality with no possibility for any terms or conditions to be reached between the convenors and the police. It would seem that the meeting was simply designed to prevent the gathering from taking place rather than being a space in which the JMPD should be trying to facilitate the peaceful occurrence of the gathering in question. In fact, it would seem that the prohibition of the gathering came on 21 February 2005, well before the meeting happened on 23 February 2005.
– The actual prohibition letter from the JMPD constituted several violations of the Gatherings Act. Firstly, through their identification of the potential adverse effects the gathering may have on traffic. The Act actually acknowledges that gatherings will, inevitably, disrupt traffic and contemplates an agreement between the conveners and the police that will ensure that “vehicular or pedestrian traffic, especially during traffic rush hours, is least impeded”. Secondly, allegations of past indiscretions by people associated with the marchers were provided as reasons for prohibition. This was simply a pro forma banning order, probably simply replicated every time any organisation affiliated to the Anti-Privatisation Forum (APF) applied for a march. Clearly, the JMPD’s prevailing attitude has been to ban outright any resident’s committee associated with the APF from marching. The JMPD, through its representative Inspector Make, shows an absolute disdain for the freedom of assembly, a constitutional right that every South African should enjoy.
The FXI believes that the court ruling today is significant in that the JMPD will now no longer be able to ban marches with impunity and expect that people who march nevertheless will be convicted. The judgement is a victory for freedom of expression of poor communities in particular, for whom taking to the streets is the only form of expression available to them.
The FXI’s research report entitled “Establishing A Historical Record Of Violations Of The Regulation Of Gatherings Act & The Right To Freedom Of Assembly Amongst Social Movements in Johannesburg” is available at http://www.fxi.org.za
