The law, like the suburban American house, is designed to order a particular pattern of relationships, many of them oriented around the heterosexual nuclear family. For real people in contemporary circumstances to inhabit the house the law built, one has to find side doors and discreet corners, while the dominant space changes little and the façade remains unaltered. The two big L.G.B.T.-rights Supreme Court victories that came before Bostock—Windsor and Obergefell—did exactly that: they carved out a place for monogamous same-sex couples who want to marry (statistically, these are more apt to be white middle-class people like the plaintiffs) in the house of the American nuclear family.
The attempt by our government to criminalise the Marikana miners and the actions of Julius Malema seems to be aimed at protecting the political hegemony and authority of the ANC as governing party. How different is this from the outright political repression of dissent, something which only seems to anger most middle-class South Africans when they believe they are the ones being silenced?
It is easy to respect the rights of those we agree with and to insist that the state must protect their rights. It is far more difficult – but even more important in a constitutional democracy – for us to respect the rights of those we do not agree with and to insist that the state protect their rights. If we fail to do so, we acquiesce in the destruction of the constitutional order and we prepare the ground for the increased abuse of power by state institutions and our government, the flouting of the law and, ultimately, the infringement of our own rights.
As former Chief Justice Arthur Chaskalson wrote in the Makwanyane judgment in which the Constitutional Court declared invalid the death penalty:
The very reason for establishing the new legal order, and for vesting the power of judicial review of all legislation in the courts, was to protect the rights of minorities and others who cannot protect their rights adequately through the democratic process. Those who are entitled to claim this protection include the social outcasts and marginalised people of our society. It is only if there is a willingness to protect the worst and the weakest amongst us, that all of us can be secure that our own rights will be protected.
The muted response from various quarters to the vilification of striking Marikana miners and of former ANC Youth League president Julius Malema by government ministers and their spokespeople, and to the questionable use of the police and the army to intimidate the miners, to break their strike and to prevent Malema from speaking to the miners, suggest that many South Africans do not feel strongly about the protection of our constitutional order and (at least tacitly) agree with the abuse of human rights – as long as it will bring the crisis to an end.
On Tuesday the police prevented Malema from speaking to striking miners, who were gathered peacefully and with the necessary permission at Wonderkop to hear him speak and to discuss their wage demands. It is unclear on what legal basis the police prevented Malema from addressing a peaceful gathering. As far as I can tell, there was no legal basis for the actions of the police. By preventing Malema from addressing the miners, the police took the law into their own hands (therefore acting like criminals themselves) and had flouted the rights of both the miners and of Malema.
In our constitutional democracy, everyone has the right to assemble peacefully, to protest, to strike, to speak freely and to listen to those they have invited to speak to them.
It is true that there are limits to the enjoyment of these rights. One is not allowed to assault or kill anyone while taking part in a protest – although the Cosatu members who attacked DA protest marchers a few months ago did not adhere to this injunction – and one is not allowed to engage in violence and damage the property of others. One is also not allowed to incite others to commit a criminal offence when addressing them.
I was out of the country for the past few days, so I might have missed something, but as far as I can tell, we have not been told of anyone being assaulted or killed by striking Marikana workers after the police killed 34 of their comrades a few weeks ago. If there have been assaults or killings, we have not been told what the names of these victims are or what evidence linked any assault on these victims to any one of the striking miners. Neither have we been told whether any miners have been arrested for engaging in criminal acts and, if so, what crimes they are suspected of having committed and what evidence there is that might secure a conviction in a court of law. Neither have we been told what exact crime Julius Malema might have tried to incite the miners to commit.
In South Africa, it is not a crime to take part in a strike – even an unlawful one. Neither is it a crime to incite miners to strike or to incite them to be critical of the government or the friends of the government who own the mines. And neither is it a crime spontaneously to gather in a group to take part in a protest or to listen to a speech of somebody who happens to be critical of the government or of the economic system that the government supports.
The Regulation of Gatherings Act of 1993 does provide for the regulation of gatherings. The Act moved away from the Apartheid-era regime in which one had to get permission from the police to hold a gathering or face arrest for attending an “illegal gathering”. Unlike in the Apartheid years, one is currently NOT required to obtain permission from the police to hold a gathering or protest march, as this is a right entrenched in the Constitution. The Act does place a duty on the organisers of a gathering or protest march to consult and negotiate with the authorities about various aspects of a protest march or gathering. It places a similar obligation on the police to negotiate and consult with the organisers of a gathering or protest march.
It is true that Section 5 of the Act allows the responsible officer to prohibit a protest march or gathering, but only if he or she has received credible information on oath that there is a threat that a proposed gathering will result in, amongst other things, injury to participants in the gathering or other persons, or extensive damage to property. Even then, the police cannot prohibit a gathering before meeting with organisers to try and negotiate the conditions which would prevent injury or damage to property. It is only when such negotiations fail, and after notice has been given to the organisers, that such a gathering can be prohibited.
Moreover, Section 12(2) of the Act makes clear that where a gathering took place spontaneously and there was no possibility for the organisers and the police to negotiate, those organising and attending the gathering will not be committing a criminal offence.
This means that unless the police had received credible information provided on oath that allowing Julius Malema to speak to miners would lead to injury to people or to damage to property, and unless they had then imposed a formal restriction on the gathering to prevent Malema from speaking, their actions yesterday were clearly unlawful.
But what, I hear you say, about the possibility that miners might carry “dangerous weapons” such as sticks, pipes and even pangas? After all, Section 2(1) of the Dangerous Weapons Act of 1968 (yes, an Act which was passed by the Apartheid Parliament during the Prime Ministership of that great lover of freedom and respecter of human rights, BJ Vorster) prohibits any person from possessing a dangerous weapon, which is defined as “any object, other than a firearm, which is likely to cause serious bodily injury if it were used to commit an assault”. This would include a bread knife or a kitchen fork, which means the police could arrest every Sandton housewife for possession of dangerous weapons.
I would therefore cast serious doubts on the constitutionality of this piece of legislation as it is currently formulated.
In terms of this Act, all of us who own bread knives or forks or other sharp objects would potentially be exposed to a criminal conviction in terms of this Act, and could be convicted and sentenced to a two-year prison sentence unless we were able to prove that we at no time had any intention of using such weapon or object for any unlawful purpose. Would any unhappy housewife whose husband was cheating on her be able to prove this?
In other words, the Act presumes that all of us in possession of a “dangerous weapon” were guilty of a crime; and if we were to be arrested, the onus would be on us to prove that we were not criminals.
No wonder the Constitutional Court cast serious doubt over the constitutionality of similar pieces of legislation still in place in the former Transkei and Ciskei, in the case of S v Thunzi, stating that:
this case has called into question the constitutionality of the very existence of the multiple Dangerous Weapons Acts that continue to operate in South Africa. The constitutional validity of this legislative scheme clearly requires consideration by this Court, and indeed Parliament.
In this case, the question about the constitutionality of the various Dangerous Weapons Acts arose because of the fact that different Acts – some of them passed by Bantustan “Parliaments” – still regulated the possession of “dangerous weapons” in South Africa; but in other judgments, the Constitutional Court had frowned upon criminal laws which subverted the constitutional guarantee that we should all be presumed innocent until proven guilty.
All of this raises serious questions about the moves by the government to try and criminalise the strikers and those who are trying to incite them to continue with their strike. As far as I can tell, the strikers (and Malema) are not engaging in any criminal activity. Unless the strikers assault or kill somebody, what they are doing is to exercise their constitutionally guaranteed right to strike, to protest and to express criticism of the economic system supported by our government.
The attempt to criminalise their actions, so it seems to me, comes perilously close to an attempt to criminalise certain forms of political expression that threaten the hegemony and authority of the ANC as governing party. How different is this from the outright political repression of dissent, something which only seems to anger most middle-class South Africans when they believe they are on the receiving end of it?
PS: In Marikana on Tuesday 11th Septemebr the police have found a dead body of the rock drill operator and NUM’s shop steward Dumisani Mthinti.BACK TO TOP