Protest at your peril
Durban magistrate has sentenced 5 men to 7 years each, setting a new standard for those involved in violent protest
Protests, often violent, have become part of the South African landscape. Barely a day goes by without a building site being stormed, a “lawful” protest turning sour or a road or freeway being barricaded by burning tyres.
This week a Durban magistrate put his foot down.
Anand Maharaj, sitting in the Ntuzuma Regional Court, convicted five men – who were part of an 800-strong mob who burned tyres, looted shops and pelted the police with stones and rocks during a violent xenophobic attack in KwaMashu in 2015 – of public violence.
He sentenced each of them to seven years in prison, creating a new sentencing guideline for future, similar matters.
Legal experts say it’s high time.Legal commentator Dr Llewellyn Curlewis said there was “dire need for this kind of intervention”.
“This is certainly one of the most severe sentences in recent times for the crime of public violence,” he told Times Select. “I am in favour of the courts getting harsh on this type of offence, in light of the seriousness and and increase in violence used in protests.”
In a report titled “At the Heart of the Discontent”, Institute of Security Studies crime and justice hub manager Lizette Lancaster says the right to publicly protest or demonstrate is entrenched in the Constitution, but that right must not infringe on the rights of others.
“In the South African context, groups that commit violent acts can be charged with a whole range of crimes …however during what police term ‘unrest-related incidents’, arrests are often made for the crime of ‘public violence’.
“South Africa’s common law defines public violence as ‘the unlawful and intentional performance by a number of persons or an act or acts which assume serious proportions and are intended to disturb the public peace and order by violent means, or infringe the rights of another’. It is broad and encompasses a range of actions in the public space that may or may not be deemed to be violent,” she writes.Curlewis said many public violence cases were thrown out of court due to lack of evidence “and the practicalities of the numbers of people involved”.
The success in the Ntuzuma matter this week lay in the evidence of several policemen who testified that that they had “marked” the ringleaders and didn’t let them out of their sight.
Because of this, the magistrate rejected their versions that they were “just walking past”.
Said Curlewis: “The dilemma the prosecution faces [in these matters] is from a practical point of view, and taking into account time, effort and money, whether there will be sufficient evidence to convict.
“In most instances, to my knowledge, this is not the case –and that is why there are so few successful prosecutions in these types of matters.”
He said whether or not direct imprisonment was a way to reduce incidence of public violence remains to be seen.“Obviously it must have some deterrent value, although many of my colleagues might disagree. But there is really no other alternative available to our courts other than harsh penalties to send out the message that this behaviour will not be tolerated,” he said.
Lancaster said it was hard to get a proper grip on the number of cases which came before court because the National Prosecuting Authority, in its annual reporting on statistics for “violent protests and industrial actions”, did not say whether these cases were convictions for the crime of public violence or for other crimes such as assault, attempted murder, malicious damage to property or arson.
On the face of it, though, conviction rates were up – “a fact attributed to a closer partnership with the police in these matters and because of use of technology, with SAPS investing in video equipment to gather evidence”.
No information was supplied regarding what sentences were handed down.
“In certain instances, the police will arrest protest leaders or so-called ‘trouble makers’ to defuse the tensions. These people are often released afterwards and not charged,” she said.
She also cautioned that there were various triggers that can lead to this form of violence, the most noticeable when the police – either SAPS or metro police – respond with excessive force or respond too quickly, often with the use of rubber bullets and teargas, to quell the rowdiness of the crowd.
“This can lead to increase tensions and lead to repeated confrontations between the police and community groups, further eroding trust in the police and the government.
“Prison sentences, per se, do not guarantee deterrence. One needs a consistent and effective criminal justice system which will ensure that justice is being done in all cases. In many cases, and it depends on the facts of the case, protesters may feel further alienated by the state which is seen as not responsive to their needs. However, the police should seek to be seen to act in a professional, human-rights-orientated and fair manner when enforcing the law and specifically dealing with criminal actions.”A major issue, especially in KwaZulu-Natal, has been the frequent attempts by various “business forums” to hijack building sites, demanding jobs or a slice of the profits. The companies under attack have turned to the high courts to secure interdicts, rather than laying criminal charges.
Attorney Peter Barnard, who represents many of these companies, said: “We always advise our clients to take criminal action as well, but there is a general reluctance from the police to take the matter seriously.”He said civil action had been successful, although in one matter presently pending before the Durban High Court one site “disruptor” was facing a potential jail sentence for contempt of court after he was photographed back on the site in spite of an interdict.
“Unfortunately the conduct of the forums has not just been limited to the construction sector and has been spilling over into security, cleaning services refuse collection. It seems clear that a sterner approach has to be taken by the courts, by the police and by the community in general in order to prevent this ongoing trend of violence and intimidation which is crippling businesses and service delivery throughout the province,” he said.