#BopheloHouse94 – Briefing Document This briefing document briefly explains the #BopheloHouse94 case and its context. The matter will be heard before a full bench (three judges) in the Bloemfontein High Court on 20 June. SECTION27 and Webbers Attorneys represent the #BopheloHouse94 and the Treatment Action Campaign. Rudolf Mastenbroek and Byron Morris are counsel and will argue the matter. Facts The Free State health care system, under MEC Benny Malakoane’s leadership, is one of the worst and fastest worsening in the country. The People’s Commission of Inquiry into the Free State Healthcare System found that “the healthcare system is not functioning in a way that is ordinarily understood as operational. Instead it 1
is failing those people who rely on it .” Community Health Workers (CHWs) are a critical cadre of workers. They are in intended to be the backbone of the healthcare system. However, their conditions of employment are not dignified, safe or acceptable. There is 2
a need for standardised, formal employment for CHWs across the country. On 16 April 2014, MEC Malakoane issued a circular that, in effect, dismissed all CHWs in the Free State. The dismissal came without warning and the MEC did not provide any reasons for it. In June of 2014, the #BopheloHouse94, a group of CHWs accompanied by a smaller number of TAC activists, engaged in a night vigil (and/or a smaller vigil the following morning) outside of Bophelo House, the Free State health department’s office in Bloemfontein, in protest of the dismissal of the CHWs and the state of the healthcare system. They were arrested and charged with violating the Regulation of Gatherings Act 205 of 1993 (the RGA). All of the #BopheloHouse94 are now TAC members. Most are poor and most remain unemployed. The majority are women and many are elderly. They are from various parts of the province. They are, however, well organised thanks to extensive efforts by organisers on the ground. Trial and conviction The #BopheloHouse94 attended court for six preliminary hearings and nine days of trial. They were convicted on 1 October 2015 and sentenced on 2 October 2015. They were convicted under section 12(1)(e) of the RGA, which provides an offence for: “Any person who in contravention of the provisions of this Act convenes a gathering, or convenes or attends a gathering or demonstration prohibited in terms of this Act” (Emphasis added) The only piece of this provision relevant to our case is the underlined part. The key issue in our case is whether a gathering for which no notice is given is a “prohibited gathering.” 1
“Free State in Chains” report of the Commission of Inquiry available at: http://www.tac.org.za/news/evidence-­‐submitted-­‐
peoples-­‐commission-­‐inquiry 2
SECTION27, led by Violet Kaseke and Thuthukile Mbatha, with the TAC and networks of CHWs, is advocating for such a policy. 3
The RGA requires conveners of gatherings to provide notice to authorities. It was common cause that notice was not provided for the #BopheloHouse94 gathering. The prosecution argued that an un-­‐notified gathering is a prohibited gathering and therefore the #BopheloHouse94 were guilty of attending a prohibited gathering, an offense in terms of the underlined part of section 12(1)(e) above. The #BopheloHouse94 argued that an un-­‐notified gathering is not prohibited and that the concept of an “automatically prohibited” gathering, as the prosecution called it, would be unconstitutional. The magistrate agreed with the prosecution, convicted the #BopheloHouse94 and sentenced them all to imprisonment for three months or a fine of R600. The magistrate suspended the penalties for three years on the condition that the #BopheloHouse94 not be again convicted of an offence under section 12(1)(e) during those three years. Consequences for the right to protest The #BopheloHouse94 case has thus become one of, if not the, most important cases on the right to protest in 4
post-­‐apartheid South Africa. The case comes also in a context of increasing clampdown from the state on the right to protest. Organisers from almost anywhere in South Africa can tell their own stories about how police, prosecutors, government departments and corporations prevent them from protesting. A variety of tactics such as complex processes and fees for “applications” and the imposition of unreasonable conditions on gatherings keep people from voicing their concerns. Because the right to protest empowers people to claim other rights, the fight for the right to protest is a fight for all rights. Worse than apartheid laws Apartheid-­‐era legislation reveals the apartheid government’s obsession with controlling gatherings. But the magistrate’s ruling makes the RGA, in an important way, even more restrictive of the right to protest than was the apartheid government’s Internal Security Act. This is because the Internal Security Act required that any prohibition of a gathering be announced in public notices. It did allow for “automatic prohibition” of gatherings. Making criminals of activists and chilling the use of the right to protest There are major practical consequences that flow from the two competing interpretations. If the #BopheloHouse94 are right, and an un-­‐notified gathering is not a prohibited gathering, only a small handful of people involved in an un-­‐notified gathering are guilty of a crime—the individuals who convened it (because 5
section 12(1)(a) of the RGA makes it a crime to convene a gathering without notifying police. ) If the court agrees with the prosecution and the magistrates’ court, and a gathering is indeed “automatically prohibited” if notice is not given, then every single person who attends the gathering is guilty of a crime. This would be a major restriction on the right to protest and would in all likelihood scare people from exercising their rights. 3
See RGA section 3 The Constitutional Court has dealt with the RGA only one time, in South African Transport and Allied Workers Union v Garvis and Others 5
The Social Justice Coalition, represented by the Legal Resources Centre, is challenging the constitutionality of section 12(1)(a). 4
This is especially so because people who attend protests can’t be certain whether notice has been provided. The prudent person, unsure of whether she would be breaking the law by attending a gathering, is likely to play it safe and stay home, thereby sacrificing her right to protest in the interest of caution. This “chilling effect” has consequences for the right to health. Read how the Constitutional Court, South Africa’s highest court, described the importance of the right to protest: The right to freedom of assembly is central to our constitutional democracy. It exists primarily to give a voice to the powerless. This includes groups that do not have political or economic power, and other vulnerable persons. It provides an outlet for their frustrations. This right will, in many cases, be the 6
only mechanism available to them to express their legitimate concerns. 7
The #BopheloHouse94 are the type of people the Court is talking about. They, poor themselves, worked in inhumane conditions to try to bring a little more humanity and dignity into a broken health system, a system that robs the poor, hundreds of thousands of them, of rights, health and life. There are millions of other ordinary people across the country who also see organising and protest as the only means by which to claim their rights and survive. An important difference between the #BopheloHouse94 and most is they had the rare fortune of securing free legal representation. Most are not so lucky. Most cannot fight when the state sends police to silence their voices. If the #BopheloHouse94 succeed, it will be a victory for the right to protest and the millions who must use the right to claim other rights. 6
7
South African Transport and Allied Workers Union v Gavers and Others, at para 61 See moving accounts of the life circumstances in the BopheloHouse94 trial record at the mitigation phase, p.704 – p.770