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Dear Robert Macdonald (and your boss) …

Robert Macdonald
Spokesperson for the mayor of Cape Town, Helen Zille

Dear Mr Macdonald

I have taken note of your comment posted to my open letter to mayor Helen Zille. Thank you. I felt that, rather than replying via a comment, I should give you the honour of a fuller reply in the form of an entire blog posting which is a letter to you.

Your comment was as follows:

Dear Mr Jeemah

Helen Zille was informed of your open letter by her colleagues and has asked me to respond on her behalf (I am her spokesperson in the mayor’s office in Cape Town). According to our office records, your letter dated June 8 was referred to the City of Cape Town’s director of legal strategy, Mr Lungelo Mbandazayo, for a response. At the time, he was the official who held the delegation for handling notifications for marches. I see that you refer to his comments in your letter, so I assume that he did respond as requested by the mayor.

The mayor herself is not in a position to interfere with the authorised official, hence the decision to have your complaint sent to his office. However, the delegation to deal with gatherings has since been transferred to another official. The mayor has also asked this official to take cognisance that people do not have to seek “permission” to march, and she has asked them to emphasise this fact in future consultations with the SAPS on gatherings.

However, in terms of the Regulation of Gatherings Act, anyone who wants to march is required to provide notification. This is to balance the rights of our citizens to march, with the rights of other citizens to freedom of movement and safety in public places. It is also true, though, that the Act clearly states that there must be a very good reason for prohibiting a gathering (for example, the SAPS or metro police would have to provide affadavits [sic] to show that there is a real danger posed to the participants, or to the public, if the gathering went ahead, or that they do not have the operational capacity to provide adequate security).

You are also correct when you say that the police cannot charge someone criminally for being part of a spontaneous march, unless they do something unlawful while they are in that march. And the Act also states that if, and only if, there is a real physical danger to people involved, can the police use force to disperse a march.

The mayor thanks you for your input in this regard, and our officials have been duly briefed on the important issues you have raised.

Robert Macdonald
Spokesperson for the mayor

Firstly, Mr Macdonald, the name is Jeenah, not Jeemah. Fortunately, I am not one to be offended by the misspelling or mispronunciation of my name; it happens all the time. Besides, noting that that was not the only spelling error in your comment makes me feel better.

But, more importantly, allow me to deal with the substance of your comment. I am pleased to receive the mayor’s thanks for my letter and your assurance that your officials have been “duly briefed about the important issues [I] have raised”. I find it quite strange, however, that the necessary duly-briefings did not take place when the original letter from the Freedom of Expression Institute was sent.

Further, I also find it strange that the mayor of a large metro like Cape Town ignores a letter sent to her by a reputable organisation like the Freedom of Expression Institute, but chooses to reply to it via a comment on a blog site in response to a posting by an employee of said institute. Does the mayor not have sufficient respect for the FXI to reply to it directly? According to a comment by Pieter Boshoff, the webmaster of Ms Zille’s website, she replies extensively to questions and queries posted on her website. That probably takes up so much of the mayor’s time that she is unable to reply to detailed submissions by organisations like the FXI. I suppose we all have our priorities.

Your office records, Mr Macdonald, seem to be incomplete. Yes, the FXI did send a letter to the city’s director of legal services on June 8 2007. That letter was penned by the FXI’s law clinic attorney, Simon Delaney. In addition, the institute also sent a letter to the mayor on the same day. That letter was penned by me. The letter to the mayor received no response, neither from her nor from any of her spokespersons. The letter to the director of legal services did receive a response, but there was no mention there of the letter to the mayor. The FXI, therefore, still awaits a response from the mayor herself.

You say that you “assume” that the director of legal services, Mr Mbandazayo, “did respond as requested by the mayor”. Actually, he did not respond; his PA did. It was a rude and insulting reply that he, you and the mayor should feel thoroughly ashamed of. I hope this is not the manner in which all queries are responded to by the city. And I am hoping that, in fact, the response was not “as requested by the mayor”. Mr Mbandazayo’s PA, Nomvana Nobatana, said in the shameful email:

Dear Delaney

The contents of your e-mail addressed to my office are noted.

We have no intention of debating this issue and interpretation of the provision of the Gathering Act with you, but if you and your organisation are conversant with the Gatherings Act, any party agrieved by the refusal can approach the Magistrates Court to set aside the prohibition.

We will only then deal with any issues regarding the interpretation of the provision of the Gathering Act.

Yours sincerely
Nomava Nobatana
PA to the Director
Legal Services

Let us ignore the fact that that much shorter email than your comment contains more spelling errors than yours does, and let us ignore the rude “Dear Delaney”. Do you, Mr Macdonald, honestly think that this is a decent, appropriate response from a public official? How would you react if an official of some national government department sent you an arrogant reply such as this to a lengthy and detailed submission or complaint?

I think this attitude is exactly the one that the police have adopted towards the mayor in respect of her anti-drugs march. It is sad. But the reality is that when such arrogance is allowed to take root in the public service, it easily becomes pervasive. And, it can then undermine democracy and democratic practices — as the mayor has discovered. I really think that, after reading this reply from the office of your head of legal services, the mayor must place herself “in a position to interfere with the authorised official”. Otherwise, we will be justified in assuming that she condones the behaviour of this official who is her subordinate, behaviour that is rude, arrogant, shameful and shows a complete disregard for the citizens who this official is supposed to serve.

I must say that I am very glad that the mayor has informed the new official in charge of gatherings “to take cognisance that people do not have to seek ‘permission’ to march”. This is most certainly welcome. I do not know of any other mayor who has thus instructed city officials. I expect that we will now see a new attitude from the metro police and SAPS towards protesters on the streets of Cape Town? I am sure the residents of Joe Slovo, who recently faced the might of police repression, will be happy to hear of this development.

I am also pleased to note that we agree on our interpretation of what the Regulation of Gatherings Act says. Well, most of it. One of the differences is that I do not understand the Act to say that it is a sufficient reason for prohibiting a gathering that the police might not “have the operational capacity to provide the necessary security” as you suggest.

Section 5(1) states: “When credible information on oath is brought to the attention of a responsible officer that there is a 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, he shall forthwith meet or, if time does not allow it, consult with the convener and the authorised member, if possible, and any other person with whom, he believes, he should meet or consult, including the representatives of any peace committee or police community consultative forum in order to consider the prohibition of the gathering.”

And, as you can see, in the case where the kind of threat contemplated by the Act does exist, the responsible officer is bound by the RGA to consult with the convener “to consider the prohibition of the gathering” (my emphasis). The responsible officer cannot, as often happens, simply ban a gathering without consulting the convener or without giving reasons. I hope that the mayor’s new instructions will result in a change in this pattern as it has existed in Cape Town.

Finally, Mr Macdonald, allow me to say that just as this blog posting is not an official letter from the Freedom of Expression Institute to the mayor of Cape Town, your comment can also not be regarded as an official response from the mayor to the FXI’s letter of June 8 2007. The FXI, thus, still awaits the mayor’s response.

Yours faithfully
Na’eem Jeenah