As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
Protest is the “only language government understands”
Today SERI launched a new research report entitled An Anatomy of Dissent and Repression: The Criminal Justice System and the 2011 Thembelihle Protest.
At the event the author of the report, SERI researcher Michael Clark, explained how in September 2011 residents of Thembelihle informal settlement in Lenasia took to the streets, frustrated by an unaccountable and unresponsive local government. Their demands were dismissed and instead they were met with a forceful police clamp-down. In the aftermath of the protest, arrest and criminal prosecution were used to harass and intimidate community members and to target community leaders.
Bhayiza Miya, former spokesperson of the Thembelihle Crisis Committee (TCC), spoke at the event about how he was arrested by the police during the protest, after visiting the police station on another matter, and charged with public violence and intimidation. Additional charges, on which no further evidence was provided, were also brought against him. He was singled out for his role in the TCC, being the only arrested resident denied immediate bail.
According to Miya “The decision to prosecute me was clearly political and coming from elsewhere.”
The prosecution attempted to attribute all of the negative consequences of the protest to Miya personally. They held him in “preventative detention” claiming that his release would result in further protest action at the settlement. The High Court eventually overturned the Magistrate’s decision to deny him bail, and ordered Miya’s release. By this time, he had spent six weeks in detention at Sun City prison. After an extremely long delay in proceeding with the case, including nine postponements over a period of seven months, his case and was struck off the roll.
Miya also highlighted the frustrations of community residents over their appalling living conditions and the unresponsiveness of government officials and politicians to their plight. According to him, despite what many think “People in informal settlements don’t just wake up one day from sleeping and decide to protest.” He explained how the government simply ignored issues raised during peaceful protests earlier in the year, putting it bluntly – “Real protest is the only language government understands.”
Former deputy editor of the Daily Maverick Phillip de Wet spoke about his experience covering the Thembelihle protest as well as more generally about media coverage of protests. He offered a pessimistic view of the media’s appetite or ability to cover protests at all, let alone in a more nuanced manner. Simply put, according to De Wet, “audiences don’t care” and are tired of hearing about issues like corruption and protest. He warned that while state responses to protests will most likely become more repressive, with the criminalisation of protestors, “The media may well not be there to cover this.”
According to Stuart Wilson, SERI’s executive director: “The role of the media in covering issues facing informal settlement communities is critical. Currently much of the media uncritically perpetuates the worst kind of racial and class stereotypes. This needs to change.”
Michael Clark, legal researcher at SERI: email@example.com / 011 356 5874 / 082 535 6209