Five Kliptown activists convicted after 18 month ’trial’

On the 3rd September 2007 more than twenty community activists were arrested in community protests organised by the Anti Privatisation Forum against the slow or non-delivery of services in Soweto (Kliptown and Protea South). Fourteen comrades were arrested in Protea South though only four of those charged were taken to the Protea Magistrate’s court on the 4th of September 2007 and the others were released after being held captive for more than 24 hours without any charges being laid. In Kliptown, twelve comrades were arrested for public violence including five juveniles (underage, school-going children) and have been appearing in court since September 2007. After more than twenty appearances and almost two years, five were found guilty of ‘public violence’. The five activists are: Thabo Modisane, Charlie Nyatumba, Sibongile Maphalale, Ricardo and Oscar. Yet, all the activists and the community were doing was exercising their right to protest and make legitimate demands for long-awaited housing and basic service delivery. The convictions are an outrage and an insult to any notion of real justice.

Criminalisation of protest

Since the African National Congress government took over power in 1994, there have been tens of thousands of protests in the country because of slow and non-delivery of services. Poor communities have had to resort to using the same tactics that were used to overthrow the apartheid government to have their voices heard - by taking to the streets! In some cases, such as Khutsong, such protests have succeeded in having the demands of the community met. But, for most others, including Kliptown, this has not been the case.

In South Africa, public violence is regarded as a criminal charge, which allows the state to demand higher bail amounts from the very poor people. Communities have called on their elected local ward councillors to account for the non-delivery of basic services and they have also conducted innumerable marches and handed over countless un-answered memorandums and petitions. Provincial and local governments have failed to communicate their progress reports in terms of development with the community.

Over one and a half years ago, the Kliptown defendants were released on R500 bail each. The reason given by the magistrate for this excessive bail was that communities have to be discouraged from taking to the street to demand service delivery while there remain other options for their voices to be heard. On 14th August 2007 - less than a month before their arrest - the Kliptown community handed over a petition together with a memorandum to the Eldorado Municipal Offices, demanding the recall of the useless ward councillor and further demanding that the Department of Housing address their housing needs. No response to the memorandum was received from either the municipality or the Housing Department. And now, twenty court appearances later and with no material evidence being presented of “public violence”, five community activists are convicted for “public violence”.

This should make it clear that the state’s plan all along was to ignore the legitimate demands of the community for housing and basic services and to put a chill on community protest by making an “example” out of the five Kliptown activists. The state never had enough evidence to mount a serious prosecution of the accused but the magistrate convicted them regardless, to send a ‘message’ to other community activists and organisations and to cover up the delivery failures of the ANC government. While so much is said about the independence of the judiciary from the state and ruling party, this case (as with many others) gives lie to this claim.

Problems with Legal Assistance: A Call for (non-commodified) Justice

Criminalising legitimate protests of poor communities like the Kliptown one, makes it extremely difficult to find free legal representation. It is simply far too expensive to hire private lawyers in general and even more so in a case that has consisted of twenty different hearings spread out over a year and a half. The huge class/wealth divide in our country makes it impossible for the poor to access adequate legal defence. Justice has been commodified.

While the APF managed to initially secure the services of a pro-bono lawyer, the length and demands of the case unfortunately resulted in the lawyer having to excuse himself. As a result, the accused were subsequently represented by an attorney from the state’s Legal Aid Board. In the past, the community has had no trust in the use of Legal Aid Board lawyers given experiences where defendants have been effectively forced to submit guilty pleas so that they could get suspended sentences. However, through engagements between poor communities organised by the APF and the Legal Aid Board, the relationship with the Legal Aid Board has taken a more positive turn. Nonetheless, securing committed and affordable legal assistance/aid for community members arrested for legitimate social and political protest remains a huge challenge for organisations of the poor.

The APF renews its call for progressive lawyers to step up and be counted in the struggle of the poor for their basic rights. Those struggles cannot simply be treated as ‘civil/political rights legal cases. The reality of the state’s criminalisation of legitimate protest makes it imperative that progressive lawyers take up these so-called ‘criminal’ cases. In the specific case of the Kliptown 5, we appeal for lawyers to offer their services pro-bono so that we can appeal against the convictions and any sentence that is to be handed down this coming Friday (13th March 2009).