Dear Helen Zille ... - Thought Leader

An open letter to the Mayor of Cape Town

Dear Mayor Zille

It is completely unacceptable that you were treated in such an unbecoming way by police on Sunday when you participated in the anti-drug march in Cape Town, the city where you are mayor. While I don’t necessarily agree with the ANC’s Smuts Ngonyama that people of “high office” should be treated with “more decorum”, I do think that you were treated very disrespectfully by the police.

I noted and was struck by your statement that the last time you witnessed “people being treated in this way was during anti-apartheid protests”. Unfortunately, however, those protests were not the last time that I saw such treatment being meted out to protesters. In fact, over the past few years, I have sometimes seen protesters being treated worse than I have seen protests being dealt with in the 1980s. We should not put too much of store on that, however. It might just be that I move in different circles to those you move in.

In the recent past, the protests that I have been most familiar with have been those related to service delivery and international solidarity. Those people involved in the former often recall that they are treated as if this still was South Africa under apartheid.

Last week, for example, saw quite serious repression in a number of protests in Gauteng. Two staff members at the organisation where I work, the Freedom of Expression Institute (FXI), were witnesses at one of these — in Protea South last Monday. The road was covered with blue rubber-bullet casings from the random and indiscriminate firing by police. One woman was shot in the face by a rubber bullet. I’m sure you have witnessed that in anti-apartheid protests? A female community leader, Maureen Mnisi, was arrested because, according to the police captain on duty, he had “always wanted to arrest her”.

The FXI deals extensively with the right to protest and the implementation of the Regulation of Gatherings Act (RGA). Nevertheless, we too get shocked every now and then. Last Monday in Protea South was one of those times. Can you imagine using a helicopter to swoop down on unarmed protesters in order to intimidate them? Can we tolerate journalists being shoved and threatened when they cover protests? Does section 16 of our Constitution not protect both those protesters and those journalists?

On the same day, similar incidents took place in Kliptown and in the Vaal. In Kliptown, police allegedly went house to house searching for protest organisers. These were all South African citizens who thought that such police action had ended with apartheid and who were trying to exercise their right to free expression and to protest in order to focus attention on the lack of housing, water and electricity in their communities.

These distressing events indicate continuing violations of the rights of protesters and the rights of the media to cover such protests. The constitutional right to protest is increasingly under threat, and the RGA — which aims to facilitate such assemblies — is being routinely violated, usually by police who do not understand the provisions of the legislation and act contrary to both its spirit and its letter as, it seems, happened in your case.

However, Mayor Zille, the violations of the RGA usually start before the protest even begins. And the culprits in that case are not only the police, but also the local authorities in various municipalities — the metro police in larger metropolitan areas like Cape Town.

Police insist on asking protest organisers to “apply for permission” and then deciding whether “permission is granted” or “denied”. Indeed, the Act does not contemplate such a permission-seeking exercise. Protesters are expected to “notify” the local authorities. The Act, you see, takes it for granted that the right exists and that all that is required is for it to be exercised with due regard for safety, and so forth.

It is because of this misunderstanding by local authorities that your metro police, during the public-sector strike not long ago, declared a moratorium on gatherings in the Cape Town metro. Can you believe this? Metro police decide they have the power to suspend a constitutional right! Have you witnessed any such thing since the days of those anti-apartheid protests? On behalf of the Freedom of Expression Institute, I wrote to you about this matter on June 8 this year. We are still patiently awaiting your response. The notion that police (whether South African Police Service or metro) can suspend the constitutional right to free expression and protest because they think their human resources are stretched is a notion upheld neither by the Constitution nor by the RGA.

Your metro police also “denied permission” to organisers of the “Naked Bike Ride” because, the police said, they didn’t “support” the ride. Can constitutional free-expression rights only be exercised if the police “support” the particular expression?

Ironically, on Human Rights Day this year, a march by the Social Movements Indaba in Cape Town was illegally proscribed by the police — with the support of the Cape Town metro police. The FXI, on that occasion, advised marchers to cancel the march due to the fact that children and elderly people were present and the police official in charge arrogantly made it clear to the FXI’s lawyer that she would ensure that the marchers were arrested if they proceeded. On Human Rights Day, Mayor Zille! I thought that would not happen after apartheid.

Perhaps we should not be too surprised. After all, it was your party that was pushing the Cape Town nuisances by-law, which initially sought to promulgate unconstitutional provisions with respect to gatherings, completely ignoring the provisions in the RGA. Fortunately, to the credit of the committee dealing with the proposed by-law, it recognised the validity of the FXI’s submission on the issue and removed the entire section in the by-law dealing with gatherings, agreeing with the FXI that the regulation of gatherings was adequately covered in the RGA and that the by-law would impose additional, unconstitutional burdens on protest organisers.

I should not have to repeat this to you, Mayor; much of it has been raised in the letter to you. I’m not sure which is worse: your non-response to that letter or the response of the PA to your director of legal services who wrote to the FXI’s lawyer: “We have no intention of debating this issue and interpretation of the provision of the gatherings Act with you, but if you and your organisation are conversant with the gatherings Act, any party aggrieved by the refusal can approach the magistrate’s court to set aside the prohibition. We will only then deal with any issues regarding the interpretation of the provision of the Gatherings Act.” Perhaps this is an agreed position between your director of legal services and the South African Police Service and, hence, your having to appear in court this morning?

Finally, a legal point about your march. Police spokesperson Captain Elliot Sinyangana is reported as saying that your march was legal up to the point that it was at the house of the alleged drug dealer. Police say, however, that the second part of your march — to the Mitchells Plain police station where you went to demand the release of one of the march organisers — was illegal because it was not agreed on between them and the organisers.

The police, I must say with respect, really do not understand the RGA very well. The Act, in section 12 (2), contemplates spontaneous gatherings. That a gathering is spontaneous is an adequate defence of the charge of not having given timeous notification to the local authorities. The second part of your march, then, was a spontaneous gathering. The duty of the police, in this case, would be to facilitate the protest taking place, ensure that there was no danger to the protesters and to property and persons along the route of the march, and attempt to liaise with your march organisers to ensure that everything went smoothly. Instead, they arrested you and some of your companions. Completely illegal, if you ask me. But not unusual.

Many service-delivery protests in various parts of the country are spontaneous — as your march to the police station was. Usually, the protesters, instead of being assisted by the police (or having the good fortune of being arrested as you were) are attacked, tear-gassed, beaten up, baton-charged, fired upon by rubber bullets and arrested in terribly undignified ways. Because these protesters do not hold “high office”, they do not deserve any worse treatment than the mayor of a large metro, they do not deserve to be treated without respect, they do not deserve to be treated without decorum.

I hope, Mayor Zille, that you will follow through on your threat to sue the police. I’m sure the FXI will be willing to appear as an expert witness on your behalf. I hope, too, that you will regard this as a lesson in democracy and use it to overhaul the manner in which your city deals with protests and gatherings.

Don’t let the forces of repression narrow the spaces for free expression!

Yours truly,
Na’eem Jeenah