In the wake of yesterday’s protest march over poor service-delivery, two local academics have spoken out against what they called the Makana Municipality’s “unlawful conduct” in banning a recent protest. It is reported that before their protest march two weeks ago, the municipality failed to make clear to the residents of Phaphamani township that their application for a public gathering had been denied.
Professor Jane Duncan, of the Rhodes School of Journalism and Media Studies, said: “The resort to unlawful conduct by the protesters [in Phaphamani township]seems to have been in response to the unlawful conduct of the municipality. This is so often the case when protesters resort to illegal measures: they often do so in response to state violence and illegality, or the closing down of democratic space.”
On 10 February Phaphamani residents burnt tyres and dug up parts of a newly tarred road. Activists Ayanda Kota, Xola Mali and Nombulelo Yami of the Unemployed People’s Movement were arrested on charges of public violence and released on bail the next day. Their bail conditions stipulate that they can't instigate or take part in any march or protest action, including blocking public roads, and can’t damage any state property.
“The first two conditions are clearly unconstitutional,” said Duncan, “as they violate the accused’s rights to freedom of expression, assembly, demonstration and picket. They do not lose their basic human rights simply because they are accused of a crime.”
Richard Pithouse, an international studies lecturer at Rhodes University, said, “It is entirely unacceptable for the state to illegally withdraw basic rights, such as the right to protest. The movements should be commended for going ahead with their protest in defiance of the unlawful ban from the Makana Municipality and the escalation in tensions should be laid, clearly, at the door of the municipality.” On February 9, residents marched to the Magistrate’s Court and staged a sit-in inside the City Hall. They were told by police that the municipality had not permitted them the march or sit-in, and told them to leave. When the protesters remained defiant, they were forcibly removed by police. They then carried on their protest outside City Hall, until Ntombi Baart, the municipal manager, promised that Mayor Vumile Lwana would meet with residents within 48 hours.
The next day, in Phaphamani township, residents burned tyres and dug trenches in the township’s main road. Police reacted by using stun grenades and rubber bullets. Lieutenant Colonel Monray Nel, addressing the media after clashes between residents and police ended, said the municipality had not granted permission for either the march or sit-in. According to Nel, police, who were also present during the residents’ sit-in at the City Hall, had decided not to give the protesters the benefit of the doubt and didn’t arrest anyone.
At a media briefing on February 15, Baart said: “If the Unemployed People’s Movement wants to stand as a political party, they are at liberty to do so. They’ll register with the IEC and contest accordingly. But what will not be tolerated is illegal marches that disturb the harmony and peace of the republic at large.”
Baart said permission for public protests could only be granted by the director of corporate services, Thabiso Klaas.
“I explained to them,” Baart said, “that their application had been denied.”
However, it appears Klaas never informed the residents that their application to protest had been denied.
Xola Mali, a spokesperson for the UPM, said the protesters had been within their rights to stage a sit-in and protest outside the City Hall.
“We submitted our application for a public gathering to the municipality seven days before February 9, the day we planned to stage our march,” said Mali. “According to Section 4 of the Regulation of Gatherings Act of 1993, we were supposed to have been called into a meeting within 24 hours of submitting the application, if, and only if, they were rejecting our application.
"But this never happened. We never received a call, no letter, no form of correspondence between us and the municipality.”
During the sit-in, Klaas was not able to confirm whether the protesting residents had been informed that their application had been denied prior to their showing up on 9 February at City Hall.
Pithouse, who conceded that “occupying a government building is trespassing and damaging a road is not lawful” said “there is a very important distinction between civil disobedience by protesters and state illegality aimed at denying basic rights. Popular dissent has rapidly been criminalised across South Africa by the state and some of the NGOs allied to the ANC”.
Duncan said: “People cannot be expected to live with these problems forever. There is another factor in why service delivery protests use illegal tactics. They work. They get attention.”
Mali said: “People now feel that enough is enough.”
