AN ANATOMY OF DISSENT & REPRESSION: The Criminal Justice System and the 2011 Thembelihle Protest

8/21/2019 AN ANATOMY OF DISSENT & REPRESSION: The Criminal Justice System and the 2011 Thembelihle Protest

1/72

AN ANATOMY OFDISSENT & REPRESSION:

The Criminal Justice System andthe 2011 Thembelihle Protest


2/72

Acknowledgments

This research report was written by Michael Clark (legal researcher at SERI) and edited

by Jackie Dugard (senior researcher at SERI), Kate Tissington (senior researcher at

SERI), and Lauren Royston (director of research and advocacy at SERI). The field

research for this report was conducted by Thapelo Tselapedi (research and advocacy

officer at SERI). Thanks to the Thembelihle Crisis Committee (TCC), Siphiwe Segodi

and Nicolette Pingo for their helpful participation in the research process.

The cover photo of this report and photos in the text were taken by Phillip de Wet.


3/72

Michael Clark

2014

AN ANATOMY OFDISSENT & REPRESSION:

The Criminal Justice System andthe 2011 Thembelihle Protest


4/72

ACRONYMS

ANC African National Congress

ANCYL African National Congress Youth League

CBO Community Based Organisation

DA Democratic Alliance

ISN Informal Settlement Network

TCC Thembelihle Crisis Committee

MMC Member of the Mayoral Committee

MEC Member of the Executive Council

OKM Operation Khanyisa Movement

PR Proportional Representation

POP Public Order Policing

POPCRU Police and Prisons Civil Rights Union

SABC South African Broadcasting Corporation

SAPS South African Police Service

SERI Socio-Economic Rights Institute of South Africa

iv


5/72

TABLE OF CONTENTS

Acronyms ...............................................................................................................iv

Executive Summary ..............................................................................................3

1. Introduction ........................................................................................................72. Background and Context ............................................................................. 11

2.1 Thembelihle Informal Settlement ........................................................................ 11

2.2 Thembelihle Crisis Committee (TCC) ................................................................ 15

2.3 2011 Local Government Election ......................................................................... 17

3. The Thembelihle Protest of September 2011 ....................................... 21

4. Aftermath of Protest: The Criminal Justice System ........................ 33

4.1 Arrest of Miya ............................................................................................................ 35

4.2 Bail Proceedings ....................................................................................................... 38

4.3 Criminal Prosecution of Thembelihle Protestors ......................................... 47

5. Popular Dissent and Repression in South Africa ............................... 51

5.1 Criminalisation of Protest ..................................................................................... 53

5.2 Increased Police Brutality .....................................................................................54

5.3 Challenges with Public Order Policing ............................................................ 55

5.4 Targeting Local Activists .......................................................................................56

5.5 Abuse of the Criminal Justice System ............................................................. 57

6. Conclusion ....................................................................................................... 59

7. Bibliography ..................................................................................................... 61

AN ANATOMY OF DISSENT & REPRESSION 1


6/72

2


7/72

Executive Summary

Since 2004, and escalating in recent years, South Africa has experienced a significantnumber of local protests in poor urban areas. These protests are often referred to as

service delivery protests as they are frequently related to the inadequate socio-

economic conditions of poor communities, including a lack of basic services and social

amenities. In many respects, these protests can be viewed as a claim for the realisation

of socio-economic rights by poor communities. The week-long protest in Thembelihle,

near Lenasia, Johannesburg in September 2011, was such a case. Frustrated by an

unaccountable and unresponsive local government that frequently disregarded the

communitys on-going demands for access to adequate basic services, Thembelihle

residents took to the streets. Their demands, however, were dismissed by local and

provincial government alike, and met with a forceful police clamp-down. In the aftermath

of the protest, arrest and criminal prosecution (often on frivolous charges) was used

to harass community members and specifically to target community leaders, marking

an alarming trend in which the criminal justice system is used by the government to

suppress popular dissent.

This report highlights how these developments contribute to the on-going frustrations

that many local communities experience while attempting to secure their place in SouthAfricas democracy, and exposes the machinations of the state apparatus, particularly the

criminal justice system, in attempting to silence dissent. By documenting this case study

of protest and repression, the report seeks to understand the protest in Thembelihle

specifically, and rising dissent in South Africa more generally. It aims to illustrate the

growing trend of state repression of popular protests in poor urban areas and detail

how the state employs the criminal justice system to vilify, criminalise and suppress local

communities advocating for socio-economic development.

Thembelihle Informal SettlementThe Thembelihle informal settlement is located in the south of Johannesburg. It is densely

populated, with roughly 7 000 households living there. For over a decade before the 2011

protest, and led by local CBO the Thembelihle Crisis Committee (TCC), the community

struggled to petition the City of Johannesburg for the provision of basic services at the

settlement, including electricity, water and sanitation services. Little success, however,

came out of their efforts. In February 2011, seeing the upcoming local government

election as an opportunity, Thembelihle residents renewed their petition to the municipal

authority by mobilising through protest and handing over a memorandum of demands.

However, in spite of the election as ward councillor of ANC candidate Janice Ndarala,



8/72

who had participated in the Thembelihle protest in February, no response came from the

City for the next six months. Relations between the new ward councillor and the TCC

quickly soured, and no negotiations materialised. Only after another protest march in

August 2011 did the City acknowledge receipt of the residents demands. However, even

this acknowledgment was significantly delayed, and the Thembelihle community and

the TCC became increasingly dissatisfied with the City and ward councillors apparentapathy towards their concerns.

The Thembelihle Protest of September 2011The now infamous Thembelihle protest, which had as many as 1 500 participants, began

on 5 September 2011. Protestors blockaded the roads, threw stones at on-coming

motorists, and damaged public property. Some reported that the tension was further

exacerbated with the arrival of the Public Order Policing (POP) unit which fired rubber

bullets and tear gas at the crowd, and made multiple arrests. While the police identified

TCC leaders as ring leaders who incited the violence, this allegation was disputed by

TCC members, and the police later recognised that some TCC leaders played a significant

role in subduing the violence.

The protest continued into the next days, while the TCC attempted unsuccessfully to

meet with government officials. However, the MEC for Local Government and Housing

Humphrey Mmemezi, during his visit to the community on the second day of the protest,

outright refused to address the communitys grievances, saying that water and electricity

would not be installed and residents would be relocated. He further suggested that thecommunitys grievances were being used by the TCC (whose preferred ward councillor

candidate lost in the local government election), and later said that they would deal with

the protestors. At the same time, the police had begun to clamp down on the protest.

They entered houses and physically and verbally abused various Thembelihle residents.

Several members of the community were arrested. There were also allegations that live

ammunition was fired at a community member. Amidst the chaos, criminal elements

began to take advantage of the situation, breaking into shops and destroying property.

On 8 September, the fourth day of the protest, Gauteng Premier Nomvula Mokonyane

condemned the protestors behaviour at Thembelihle, stating: We will not tolerate

anarchy and unruly protestors. The police took the statement as implicit authorisation

for further suppression. After several more arrests, they declared Thembelihle to be

under control.

The Criminal Justice SystemOn 13 September Bhayi Bhayi Bhayiza Miya, a prominent community leader and

spokesperson of the TCC, was arrested on charges of public violence and intimidation.

While the police alleged that he had been actively avoiding arrest, Miya claimed that he

4


9/72

was arrested when he voluntarily attended a meeting scheduled at the police station. In

spite of the scant evidence assembled against Miya, his bail proceedings were protracted.

Indeed, it seems that Miya was singled out for his role in the TCC, being the only arrested

resident denied immediate bail. Additional charges, on which no further evidence was

provided, were also brought against him and it became apparent that the state sought to

detain Miya for his role in the protest. Not only did the prosecution attempt to attributeall of the negative consequences of the protest to Miya personally, but it also sought

to hold Miya in preventative detention, claiming that his release would result in further

protest action at the settlement. The High Court eventually overturned the trial court

Magistrates decision to deny bail, and ordered Miyas release on bail. By this time, Miya

had spent more than a month in detention.

In the wake of the protest Miya, and 13 other demonstrators (including three minors)

who took part in the protest, faced criminal prosecution on charges of public violence

and malicious damage to property. The criminal proceedings were largely based onunsubstantiated charges, with little or no evidence linking any of the accused to the

commission of criminal acts. It seemed increasingly likely that the main purpose of

the prosecution was either to punish the residents for having embarked on legitimate

demonstrations, or derail the protest campaign aimed at socio-economic development

at the settlement. After a manifestly unlawful delay in proceeding with the case, including

nine postponements over a period of seven months, the case was struck off the roll.

Popular Dissent and Repression in South AfricaEvents at Thembelihle raise several significant concerns about government responses tolocal protests and expressions of popular dissent. Over the past few years, the various

branches and functionaries of government have attempted to suppress such protests

through various means. The line between protests and criminal activity has been blurred,

enabling the government to label protests illegal and allowing the police to react with

increasing brutality. Furthermore, as Miyas arrest and bail proceedings show, local

community leaders are specifically targeted for arrest and criminal prosecution. Criminal

charges are often brought against protestors on little or no substantiated evidence, and

proceedings are excessively delayed to prolong detention and intimidate community

activists. The criminal justice system is not so much used for the genuine prosecution of

criminal activity, but is rather employed to deter and suppress popular dissent.

The Thembelihle communitys frustration with the governments failure to engage with

their grievances and demands was exacerbated by the governments suppression of

the protest through the police services and the criminal justice system. It is clear that,

without the guarantee of the civil and political rights to speak out and collectively

mobilise through protest, it will be increasingly difficult for communities to assert theirsocio-economic rights.



10/72

6


11/72

Since 2004, and escalating in recent years, South Africa has experienced a significantmovement of local protests in poor urban areas.1These protests have been referred

to as service delivery protests as they are frequently related to the inadequate

socio-economic conditions of poor communities, including a lack of basic services

and social amenities.2In many respects, the wave of local protests can therefore be

viewed as a claim for the realisation of socio-economic rights by poor communities.3

While local protests are undoubtedly related to failures of service delivery, they have

also been linked to growing dissatisfaction and frustration within communities as they

struggle to engage an increasingly unresponsive and remote state. In this sense, it hasbecome apparent that communities feel compelled to resort to informal and more

direct means of engagement, such as protest, in instances where formal participatory

avenues have been closed down.4Protests are therefore often symptomatic of various

unsuccessful attempts by local communities to engage with authorities through more

traditional means.

It is in this context that this report aims to document the week-long protest that

erupted in Thembelihle informal settlement near Lenasia, Johannesburg in early

September 2011. For many of the residents of Thembelihle this protest simply marked

the latest turn in long-standing struggles to be heard and to improve living conditions

at the settlement. For others, the protest took on a broader meaning and heralded

a turning point in local community dissent and more repressive state responses. For

the non-governmental organisation, the Socio-Economic Rights Institute of South

Africa (SERI), and civil society more generally, state suppression of the Thembelihle

1 Although some suggest that the current wave of local protests could be traced back to the apartheid

era, most commentators date the beginning of the contemporary movement of protests to 2004. SeeP Alexander Rebellion of the Poor: South Africas Service Delivery Protests A Preliminary Analysis(2010) 37(123) Review of African Polical Economyp. 25; and J Dugard Urban Basic Services: Rights,Reality and Resistance in M Langford, B Cousins, J Dugard and T Madlingozi (eds) Socio-EconomicRights in South Africa: Symbols or Substance?(2014) p. 285. On the rising number of protests, see HJain Community Protests in South Africa: Trends, Analysis and Explanaons Community Law Centre(CLC) Local Government Working Paper Series No 1 (2010); and P Alexander, C Runciman and T NgwaneCommunity Protests 2004-2013: Some Research Findings Social Change Research Unit, University ofJohannesburg (2013).

2 Alexander Rebellion of the Poor (2010)Review of African Polical Economy p. 32; L Sinwell, J Kirshner,K Khumalo, O Manda, P Pfae, C Phokela and C Runciman Service Delivery Protests: Findings from QuickResponse Research on Four Hot Spots Piet Reef, Balfour, Thokoza, Diepsloot Centre for SociologicalResearch, University of Johannesburg (September 2009) p. 2; Dugard Urban Basic Services in Socio-

Economic Rightspp. 275-277.3 Dugard Urban Basic Services in Socio-Economic Rightspp. 285-294.4 T Madlingozi Post-Apartheid Social Movements and Legal Mobilisaon in Langford et al (eds) Socio-

Economic Rights(2014) pp. 95-98.

1. Introduction



12/72

communitys protest against inadequate services highlighted the intimate relationship

between socio-economic rights and civil and political rights. This is due to the

manner in which the community utilised their civil and political entitlements to local

democratic participation and protest to assert their socio-economic demands, and

was reinforced by the states clamp down on the civil and political rights of protestors

in an attempt to suppress such demands. For SERI, the Thembelihle protest markeda clear moment in South Africas post-apartheid era when civil and political rights

merged with socio-economic rights, and when it became necessary to engage in

classic human rights defence work.

This research report documents the Thembelihle protest of September 2011, piecing

together the triggers of the protest and the actions of various players in the run-

up to and during the protest. In doing so, the report seeks to analyse the protest

through a wide lens by placing emphasis not only on the moment of the protest but

also on unpacking the complicated series of interactions and unsuccessful attempts

at engagement that gave rise to the protest in the first place. The report further

examines the consequences of the protest, focusing on the transgression of civil and

political rights in the wake of the protest, including the unlawful arrest and detention

of prominent Thembelihle community leader, Bhayi Bhayi Bhayiza Miya.

In doing so, the report highlights the on-going frustrations that many local

communities experience when attempting to secure their place in South Africas

democracy and exposes the machinations of the state apparatus, and particularly thecriminal justice system, in attempting to silence dissent. By documenting this case

study of protest and repression, the report seeks to contribute towards the historical

record and understanding of the protest in Thembelihle specifically, and of the rising

dissent in South Africa more generally. This report thus aims to illustrate the growing

trend of state repression of popular protests in poor urban areas. In particular, it seeks

to detail how the state employs the various functions of the criminal justice system

to vilify, criminalise and suppress local communities advocating for socio-economic

development.

Research for this report was conducted in the wake of the Thembelihle protest over

a number of months in 2012 and 2013. The first phase of research was a review of

secondary sources, including academic papers, research reports and opinion pieces

related to protest, state suppression, and the operation of the criminal justice system,

with an emphasis on South Africa. Thereafter, the research focused on unpacking the

events that took place during the Thembelihle protest of 2011, and their aftermath,

to draw potential linkages between the Thembelihle case study and broader trends

of popular dissent. This entailed a detailed review of the media articles covering

the Thembelihle protest as well as a comprehensive analysis of the subsequent

8


13/72

court proceedings. Finally, the research was based on a number of interviews with

community members, community-based organisations (CBOs), local government

officials, the legal representatives of protesting community members and various

other key stakeholders. The interviews included both individual interviews as well as

various focus groups.

Section two of the report sets out the background and the events leading up to the

week-long protest in Thembelihle in September 2011. In doing so, it details the origin

and socio-economic context of the settlement and highlights the long-standing

struggles of the local community, through the CBO the Thembelihle Crisis Committee

(TCC), to engage with local government and further socio-economic development at

the settlement. This section underscores the growing frustration of the community as

their engagements with local government officials become increasingly unsuccessful.

In navigating some of these engagements, the report argues that a tense political

relationship existed immediately prior to the eruption of the protest action.

Subsequently, section three sets out a detailed narrative of the Thembelihle protest as

well as the states response through its various political and criminal justice functions

and institutions. This section also outlines the persecution of Thembelihle activists

in the wake of the protest, through a misapplication or abuse of the criminal justice

system.

Section four provides a comprehensive analysis of the use of the criminal justice

system to silence community activists in the aftermath of the Thembelihle protest. In

setting out the arrest and bail proceedings of local community leader Miya, and the

criminal prosecution of various protestors, the report points to a number of serious

concerns with the South African criminal justice system. These events indicate

that there are fundamental issues in how the criminal justice system responds to

protestors. In fact, it is clear that the criminal justice system is increasingly employed

by the police, prosecutors and local authorities as a mechanism to suppress the

legitimate expression of popular dissent. Although this may not be true of all protest

actions, the case study in this report portrays a troubling snapshot of a much larger,

and seemingly growing, trend of abuse in the criminal justice system.

Section five considers the issues raised from the case study at a macro level. It

analyses the increasing trends of popular dissent and repression using the lens of the

Thembelihle case study. Finally, section six delivers some concluding remarks.



14/72

10


15/72

2. Background and Context

2.1 Thembelihle Informal SettlementThembelihle informal settlement is located in the south of Johannesburg, in ward

8 of Region G. Known as Esigangeni (in the bush in isiZulu) in the 1980s, the

settlement is in Lenasia, a formerly Indian Group Area. According to Daniel Bovu,

the first elected councillor of ward 8 and current member of the mayoral committee

(MMC) for housing in the City of Johannesburg, the area was formed in the mid-1980s

by people working in a brick making company where SA Block is today.5Initially,

residents were granted permission to reside in Thembelihle by the government and

given material to construct informal shelters.6Even then, and still today, Thembelihles

location far from the City of Johannesburg has meant that residents rely heavily on

Lenasia for any economic opportunities.

The settlement is partially regularised and serviced7and very densely populated,

with households said to number between 7 000 and 8 000.8Between December

2010 and January 2011, an audit of the settlement found that there were 6 775 informal

dwellings,9of which 3 597 were primary dwellings and 3 178 were occupied by sub-

tenants. Moreover, as with all informal settlements, the land on which the settlementis situated has not been proclaimed a formal township. For this reason, the Citys

electricity distributor, City Power,10has not installed electricity at the settlement. This

has led to widespread unlawful electricity connections.11

Since 1992, when the City undertook a geotechnical survey of the settlement, it has

persistently sought to relocate residents from Thembelihle to the area of Vlakfontein,

some 10 kilometres to the south of Thembelihle. The 1992 survey revealed that much

5 Interview with Daniel Bovu, City of Johannesburg (18 November 2012).6 Webber Wentzel Bowens Public Interest and Gender Law Department and Social Corporate Responsibility

Annual Report(2006) p. 3.7 Centre for Housing Rights and Evicons (COHRE)Any Room for the Poor? Forced Evicons in Johannesburg,

South Africa(2005) p. 87.8 T Tselapedi and J Dugard Reclaiming Power: A Case Study of the Thembelihle Crisis Commiee in Good

Governance Learning Network (GGLN)Acve Cizenship Maers (2013) p. 58.9 City Press Persuasion over forceful evicons a priority City Press(16 September 2011).10

City Power is an independent company, wholly owned by the City. City Power is one of the primaryelectricity providers servicing the greater metropolitan area of Johannesburg. It runs on the same modelas the Citys other municipal-owned enes, Pikitup and Johannesburg Water.

11 Interview with Janice Ndarala, ward councillor for ward 8, Thembelihle (15 August 2012).



16/72

The City approaches the High Court

for an urgent application to evict all

Thembelihle residents, claiming that the

presence of dolomite poses an imminent

threat to the safety of those at the

settlement. The community opposes the

eviction, and the City drops the case after

it fails to take any further steps to secure

the eviction order.

The TCC, along with other CBOs,

form the Operation Khanyisa

Movement (OKM), which contests

local government elections in

areas of Johannesburg.

On the basis of the geotechnical

reports, the City declares

Thembelihle unsuitable for human

habitation due to the presence

of dolomite and formally informs

the community that they will be

relocated to Vlakfontein. There is

a partial relocation to Vlakfontein.

Some residents resist this relocation.

Thembelihle informal settlement

is established by rural migrants

and employees of a brick

manufacturing company.

The City of Johannesburg commissions

a geotechnical survey of the settlement.

The survey reveals that much of the

settlement is located on dolomitic land.

Threats of relocation and eviction begin.

1980s

1992

The City commissions a

further geotechnical survey

that substantially confirms the

findings of the 1992 survey.

Thembelihle residents form the

Thembelihle Crisis Committee (TCC)

and attempt to engage with the Citythrough demonstrations, letters,

negotiations and court cases.

BACKGROUND

1998

2001-2011

2002

2003

2006

12


17/72

of Thembelihle is located on dolomitic land.12 These findings were substantially

confirmed in another survey conducted in 1998.13

DOLOMITE IN THE GAUTENG PROVINCE

Dolomite refers to the geological phenomena of sedimentary rock under the surface ofland which dissolves, over time, in water, resulting in the formation of sinkholes, making

development potentially risky and expensive. About 25% of Gautengs surface area consists

of dolomitic land.14According to Urban LandMark:

Dolomite land is risky for development, but the areas of low risk can be

developed for housing if special raft foundations are used and if there is a risk

management plan in place. The Council for Geoscience identifies different risk

categories for dolomite land: Low risk categories are generally suitable for

residential development (densities of 30 to 60 dwelling units per hectare);

Medium risk categories are generally suitable for low density residential

development (densities of up to 10 dwelling units per hectare for some

categories, and up to 18 dwelling units per hectare for some categories); and

High risk categories are not suitable for residential development (but may be

suitable for other activities).15

According to Marie Huchzermeyer, professor at the School of Architecture and Planning at the

University of Witwatersrand, although the presence of dolomite poses a potential obstacle

to land development, this obstacle can, in certain instances, be overcome by installing

specialised water management measures or rehabilitating land. She points out that both

of these measures are provided for and funded in terms of the Upgrading of Informal

Settlements Programme (UISP) contained in the Department of Human Settlements 2009

National Housing Code.16

12 Intraconsult Interim Report to Keeve Steyn Inc on the Engineering Geological Stability Invesgaons on

Secons of Poron 129, LenasiaReport No. IR69 (May 1992) (the 1992 report). See also COHRE AnyRoom for the Poor?pp. 86-94.13 Council for Geo-Sciences (CGS)Engineering Geological Study of the Greater Lenasia Area for the City of

Johannesburg Southern Metropolitan Substructure, Parts 1 and 2Report No. 1998-0091 (June 1998) (the1998 report). See also COHREAny Room for the Poor?pp. 86-94.

14 For more on dolomite generally see M Storie Representaons of Space: A Case of Karst, Community andChange in the Urban Landscape (September 2011), a paper presented at the African Centre for Cies(ACC)/Centre for Urbanism and Built Environment Studies (CUBES) Cies Conference, Cape Town, 7-9September 2011; and M Storie Dolomite Issues in the Gauteng City-Region: Preparing for CommunityEngagement (April 2012), a workshop with community leaders of the Protea South selement and landplanners, 13 April 2012.

15 Urban LandmarkAccess to Urban Land: A Handbook for Community Organisaons(August 2008) p. 16.See also M Huchzermeyer The struggle forin situ upgrading of informal selements: A reecon on

cases in Gauteng (2009) 26(1)Development Southern Africapp. 59-73.16 Department of Human Selements (DHS) Upgrading of Informal Selements Programme Part 3 Vol4 of the Naonal Housing Code (2009). See also Huchzermeyer The struggle for in situupgrading ofinformal selements (2009) Development Southern Africapp. 59-73.



18/72

In 2002, on the basis of these two reports, the City declared Thembelihle unsuitable

for human habitation. There has been much debate about the veracity and reliability

of these geological reports. In 2005 the Centre for Housing Rights and Evictions

(COHRE) pointed out that the reports found that large areas of the settlement

are suitable for medium to high density residential development if certain water

management precautions are taken.17

However, the City argued that the presence ofdolomite meant that the settlement was unsuitable for any residential development

and that the residents of Thembelihle had to be relocated to Vlakfontein as a

result. Thembelihle residents have questioned whether the reports were sufficiently

comprehensive as both reports were based on a survey of an insufficient number of

exploratory drilling holes.18In the light of the contested interpretation of these reports,

many Thembelihle residents are concerned that the City may be using the dolomite

issue as a convenient rationale for its attempts to relocate poor communities even

further away from the city.

In 2002 the City formally decided to relocate Thembelihle residents to a housing

settlement in Vlakfontein. This move was resisted by the community, who argued

that Vlakfontein was poorly serviced in comparison to Thembelihle.19 According

to residents, officials employed by the City threatened a number of residents

into relocating by claiming that their homes would be demolished if they did not

relocate.20The City, however, claims that it held extensive public meetings and gave

assurances that no-one would be forcibly relocated without a court order. Despite

these claims, in June 2002 Wozani Security (colloquially referred to as the Red Ants)

demolished dwellings and relocated a number of households. The City claimed that

the relocations were all voluntary, in stark contrast to Thembelihle residents claims

that the Red Ants attempted to forcibly remove various community members.21

17

COHREAny Room for the Poor? pp. 89-90. The 1992 report found that about 60% of the total surfacearea of the selement could be categorised as low to medium risk and was consequently suitablefor housing developments provided that special water management precauons were taken. The 1998report was even more opmisc nding that up to 90% of the surface area of the selement was suitablefor medium or high density housing if special water management precauons were taken. See alsoHuchzermeyer The struggle for in situ upgrading (2009)Development Southern Africapp. 59-73.

18 See M Mabaso Geotechnical report insucient to remove residents LookLocal (29 June 2012). Thegeological reports expressly recognise that further research is required, which would include a furthersurvey of 82 exploratory drilling holes.

19 The community resisted the move to Vlakfontein for a number of reasons. Chief among these wasthe fact that Vlakfontein had fewer social amenies and was located further away from the economicopportunies oered by the suburb of Lenasia. COHRE Any Room for the Poor? pp. 89-90; SERI focusgroup interview with the TCC, Thembelihle Community Hall (21 July 2012).

20

See City of Johannesburg v Occupiers of the Thembelihle Informal Selement, South Gauteng High Court,Case No. 03/10106, Answering Adavit pp. 10-11; and COHREAny Room for the Poor? pp. 87-89.

21 See City of Johannesburg v Occupiers of the Thembelihle Informal Selement, South Gauteng High Court,Case No. 03/10106, Founding Adavit p. 6 and p. 11. COHRE Any Room for the Poor? pp. 87-89.

14


19/72

In 2003, the City approached the South Gauteng High Court to obtain an urgent

eviction order authorising the eviction of Thembelihle residents.22According to the

City, the dolomite risk posed an imminent threat to the safety of those living in the

informal settlement. The community acquired pro bono legal representation and

opposed the eviction application. The City never took any further steps to obtain the

eviction order.23

However, despite the mobilisation of the community, 647 familieswere relocated to Vlakfontein by the City between 2002 and 2003.24

2.2 Thembelihle Crisis Committee (TCC)

Responding to the threat of relocation, residents formed the Thembelihle Crisis

Committee (TCC) in 2001. The TCC is a membership-based community organisation

whose leadership comprises of ten people elected by the residents of Thembelihle at

an annual general meeting.

The TCC has persistently sought to compel the City, among other things, to undertake

a comprehensive geotechnical study of the Thembelihle land to properly assess the

dolomite threat.25The TCC were also instrumental in opposing the eviction order

brought by the City in 2002.26Moreover, hoping to secure the broader development

of the settlement, the TCC has consistently campaigned to develop Thembelihle by

drawing the attention of local and provincial authorities to Thembelihles plight.27

For example, the TCC has engaged City Power to install electricity at the settlement

and housing officials to construct state-subsidised housing, and works with localschools to ensure that learners are admitted to and remain in school.28 It has also

embarked on numerous protests and written countless petitions to raise the profile

of its struggles. According to Siphiwe Segodi, former chairperson of the TCC, the

22 See City of Johannesburg v Occupiers of the Thembelihle Informal Selement, South Gauteng High Court,Case No. 03/10106.

23 COHRE Any Room for the Poor? p. 89; Huchzermeyer The struggle for in situ upgrading of informal

selements (2009) Development Southern Africapp. 59-73.24 See City of Johannesburg Peace seling in Thembelihle (3 March 2010).25 See COHREAny Room for the Poor? pp. 86-94; and Huchzermeyer The struggle for in situ upgrading of

informal selements (2009) Development Southern Africapp. 59-73.26 See secon 2.1 of this report.27 For further reading on the TCC, see Tselapedi and Dugard Reclaiming Power in Acve Cizenship

Maers pp. 57-65; COHRE Any Room for the Poor?; J Dugard, M Ngwenya, K Savage and C AlbertynAccess to Educaon for Learners in Thembelihle Centre for Applied Legal Studies (CALS) Research Report(2006); Huchzermeyer The struggle for in situ upgrading of informal selements (2009) DevelopmentSouthern Africapp. 59-73; N Pingo Instuonalisaon of a Social Movement: The Case of Thembelihle,the Thembelihle Crisis Commiee and the Operaon Khanyisa Movement and the Use of the Brick, theBallot and the Voice Research Report submied for MSc in Development and Planning, University ofWitwatersrand (2013); and SERI Thembelihle: Engaging an Unresponsive State SERI Community

Pracce Notes Series: Informal Selement Upgrading (2014).28 Tselapedi and Dugard Reclaiming Power inAcve Cizenship Maers pp. 59-60; Dugard et alAccess to

Educaon for Learnersin Thembelihle.



20/72

TCC is leading the struggle in resisting the forced removal of the entire informal

settlement. It is fighting for other basic needs such as running water for each

yard, water-borne toilets, a clean environment and development of the area into

a proper township with houses. Most importantly, the TCC also struggles with

raising political consciousness, particularly on the importance of community

control of community issues.29

The TCCs attempts to get the City to abandon its 2002 decision to relocate the

settlement, as well as to develop the settlement more broadly, have involved a mix of

formal and informal tactics. These range from formal discussions with City officials

and bringing urgent applications to court, to unlawfully connecting electricity and

barricading roads as a form of protest.30These diverse tactics have been aimed at

resisting relocation and struggling for better municipal services at the settlement.

2.3 2011 Local Government Election

The years of struggle and numerous unsuccessful attempts at engagement have taken

their toll at times. Indeed, after a decade of public demonstrations, letters of demand,

negotiations with officials, court cases and the partial eviction between 2002 and

2003 the TCC was losing faith that the City would ever listen to its concerns by 2011.

However, the 2011 local government election re-energised the TCC as political parties,

including the governing African National Congress (ANC), became more receptive tocitizens demands. Capitalising on the political moment, it made sense for the TCC

to scale up engagement, through renewed meetings with City officials as well as

organising community meetings to mobilise residents.

On 17 February 2011, thousands of Thembelihle residents gathered at the Citys

municipal offices to bring their grievances and demands to the attention of the City

government. One of those gathered at the offices was then local African National

Congress Youth League (ANCYL) chairperson, Janice Ndarala, who was later elected

as an ANC ward councillor in the 2011 local government election, beating the candidate

the TCC supported. A month after receiving the TCCs petition, the City formally

acknowledged receipt in a letter from the Office of the Speaker of the City Council.31

In this letter the Speaker apologised for the Citys late response and informed the TCC

that he had instructed the administration to provide the TCC and the community

29 S Segodi Thembelihle Crisis Commiee contesng elecons through Operaon Khanyisa MovementDemocrac Social Movement (30 April 2011).

30 See, generally, Tselapedi and Dugard Reclaiming Power inAcve Cizenship Maers pp. 57-65.31 City of Johannesburg Various service delivery issues on housing, J Water, City Power by people of

Thembelihle residents (8 March 2011), a leer from the City to the TCC.

16


21/72

17 February 2011

18 May 2011

RUN UP TO THE PROTEST

June 2011

22 August 2011

29 August 2011

The TCC petitions the City on

the provision of services and

upgrading of the settlement. The

City acknowledges receipt of the

petition and promises regular

monthly updates on the petition.

However, the City fails to provide

these monthly updates.

The local government election

takes place. Bhayi Bhayi Bhayiza

Miya, a prominent community

leader and TCC spokesperson,

stands for the position of ward

councillor in the area but loses to

ANC candidate, Janice Ndarala.

The City acknowledges

receipt of the memorandum

without responding to the

grievances raised therein. The

TCC criticises the City for not

taking the community seriously

and declares that it has lost

confidence in the petition

committee, the City structures,

Region G administration and the

Office of the Speaker.

Relations between ward

councillor Ndarala and the

TCC sour over the issue of

sanitation services at the

settlement.

Thembelihle community

organise a protest march to the

municipal offices to hand over

a memorandum outlining their

grievances and demands to the

City and ward councillor Ndarala.

17


22/72

with monthly updates until the petition is declared closed by the Petitions and Public

Participation Committee.32However, possibly because officials were caught up in the

2011 local government election, no communication was forthcoming from the City

and, on 18 May 2011, the election took place without the City having reverted back to

the TCC.

During this time, the TCC, too, seemed to have been caught up in election fever

as they did not follow up with the City. In the months leading up to the 2011 local

government election the TCC made use of its organisational muscle in the community

to garner votes for the Operation Khanyisa Movement (OKM) ward candidate, Bhayi

Bhayi Bhayiza Miya, who also acted as spokesperson for the TCC. The OKM is an

organisation that was founded in 2006 to contest local government elections in parts

of Johannesburg including Thembelihle and Soweto.33 The TCC threw its weight

behind the OKM because, according to them, the time had come to fight against

evictions and for basic services from both within and outside local government.34

The TCCs decision to become more involved in formal politics, through its affiliation

with OKM, was taken to get closer to the levers of power and decision makers within

the City and to better understand the processes and systems of local government.35

The results of the 2011 election were that Miya came in third, winning 450 votes,36

while Ndarala, representing the ANC, won 52% of the votes (3 657 out of a registered

total of 6 968).37Though Miya lost the ward councillor seat, another TCC member,

Simphiwe Zwane, was elected as the OKM Proportional Representation (PR)councillor.38

Considering that the newly-elected ward councillor participated in the TCC march to

the Citys municipal offices on 17 February 2011, it might have been expected that the

TCC would be agreeable to her election and that she would be receptive to the TCCs

concerns. Furthermore, Miya and Ndarala had a friendly and agreeable relationship,

both inviting each other to organisational or community meetings and engaging on

32 Ibid.33 Segodi Thembelihle Crisis Commiee contesng elecons through Operaon Khanyisa Movement

Democrac Social Movement. For more on the OKM, see generally Pingo Instuonalisaon of a SocialMovement pp. 1-127.

34 SERI focus group interview with the TCC, Thembelihle Community Hall (21 July 2012).35 Tselapedi and Dugard Reclaiming Power inAcve Cizenship Maersp. 60.36 Independent Electoral Commission of South Africa (IEC) 2011 Municipal Elecons: Results Map (2011):

hp://maps.elecons.org.za.37 Ibid.38 A PR councillor is elected through a party list and is therefore primarily accountable to the party. The PR

system gives pares that are relavely popular, but not strong enough to win ward seats, a chance totake part in local government.

18


23/72

community issues.39However, unfolding events in the months following the election

were to exacerbate tensions rather than consolidate the relationship between TCC

activists and OKM supporters on the one hand, and the new ward councillor and the

City on the other.

In June 2011, just over a month after the election, the TCC claimed that a meeting

scheduled between them, Johannesburg Water (a water services utility company

owned by the City), ward councillor Ndarala, a contractor from Limpopo and

the police, to discuss the installation of sanitation services in the area, failed to

materialise.40According to Ndarala, however, residents did meet with the City at a

later date.41Whether or not this meeting took place, it is evident that a breakdown in

communication was emerging between the ward councillor and the TCC. Thus in a

short space of time, the relationship between anticipated allies in the development of

Thembelihle had begun to sour and rapidly worsened in the course of the subsequent

months.

39 SERI focus group interview with the TCC, Thembelihle Community Hall (21 July 2012). See also State vBhayi Bhayi Miya, Protea Regional Court, Case No. 69/4121/11, Adavit of Bhayi Bhayi Moses Miya (22

September 2011) para 10.40 P RanchodService delivery protests in Thembelihle LookLocal(9 June 2011).41 Interview with Janice Ndarala, Thembelihle (15 August 2012). Ndarala claimed that the delay was a result

of the City waing on a response from Johannesburg Water.



24/72

20


25/72

By August 2011 Thembelihle residents had become increasingly dissatisfied with

the Citys continued delays in addressing their grievances. As a result, on 22 August

residents once again embarked on a protest march to the municipal offices to hand

over a memorandum of demands to the local ward councillor.42According to Miya,

the march aimed to provide the newly elected ward councillor Ndarala with a clearly

delineated list of Thembelihle residents concerns and demands.43

The TCC viewed the memorandum of demands as establishing a participatory mandate

for the councillors tenure.44 It is unclear how the councillor viewed the mandateand in particular the extent to which this conflicted with the mandate of her party,

the ANC. On paper, the needs and demands outlined by the TCC could probably be

reconciled with that of the local ANC. However, the demands were politically charged

given that both the ANC and TCC claimed to represent the community. Adding fuel

to the fire, the march was led jointly by the TCC and recently elected PR councillor,

Simphiwe Zwane.

In the memorandum to the City and councillor Ndarala, the TCC pleaded with her to

rectify the issue of the supply of water in the community, and made various other

demands, including:

y The urgent installation of electricity in the settlement by City Power, as the

community was willing to pay for electricity;

y The continued maintenance of public lighting by City Power, to constrain

increasing criminal activity;

y The provision of water and urgent attendance to the issues related to water

pressure in the settlement by Johannesburg Water, as these issues meant that

many residents were unable to access water services;

y For the City to investigate possible corruption in the allocation of state-

subsidised housing and land and that the culprits be brought to book;

y That Johannesburg Water maintains sewage pipes in the settlement and

rectify any water leaks;

42 K Naick March to Municipal oces LookLocal(23 August 2011).43 Interview with Bhayi Bhayi Bhayiza Miya (23 August 2012).44 SERI focus group interview with the TCC, Thembelihle Community Hall (21 July 2012).

3. The Thembelihle Protestof September 2011



26/72

Miya distances himself from the

sporadic eruptions of violence that

continue to take place at the settlement,

as criminal elements are increasingly

taking advantage of the protest.

Last day of protest.

Fifth day of protest. The police

clamp-down on the protest,

declaring it under control.

First day of protest. Thembelihle

residents embark on a large-

scale disruptive protest,

barricading roads, throwing

stones at oncoming motorists

and damaging public property.

The police respond with a severe

clamp-down, firing rubber

bullets at protestors and making

multiple arrests.

Second day of protest. The MEC

for Local Government and Housing,

Humphrey Mmemezi, addresses the

community. He states that services

cannot be installed at the settlement due

to the presence of dolomite and thatresidents will be relocated to Vlakfontein

and Lehae. Later, he is heard on radio

stating that the authorities will deal

with protestors.

5 September 2011

6 September 2011

Third day of protest. Residents

resolve to march to the Protea

Regional Court to protest

the arrest of the Thembelihle

protestors. The TCC notifies

the police of their intention to

march. The police claim that

their protest will be illegal. Fourth day of protest. 50 protestors

convene at the Protea Regional Court in

defiance of the police. Criminal elementstake advantage of the relative chaos in

the settlement and loot shops. Gauteng

Premier Nomvula Mokonyane, referring

to the Thembelihle protest, states: You

must know that when they [the police]

are provoked they may go to extremes.

We will not tolerate anarchy and unruly

protestors.

PROTEST

7 September 2011

8 September 2011

9 September 2011

12 September 2011

15 September 2011

22


27/72

y That speed humps, traffic lights or a pedestrian bridge be installed on the K43

road as people are being killed almost every day; and

y That all households that are still without the Ventilated Pit Latrines, notoriously

known as VIP toilets be guaranteed the services before the departure of the

contractor that was meant to ensure that this happen[ed] in Thembelihle.45

As evidence of growing divisions between the TCC and councillor Ndarala, the

memorandum read: [I]t is not true they [the Thembelihle community] do not know

how expensive electricity is as the incoming ward councillor was quoted in one of

the local newspapers.46Demanding that electricity be installed, the TCC maintained

that they had always been prepared to pay for electricity.47 Councillor Ndaralas

statements to the media about the ignorance of the community clearly struck a nerve

with the TCC.

Perhaps unsurprisingly then, given the deteriorating relationship between the

ward councillor and the TCC, tensions ran high at the presentation of the August

memorandum. Much later, during Miyas bail application (see section 4.2 below) the

investigating officer opposing Miyas release on bail alleged that at this meeting Miya,

along with PR councillor Zwane and two other people, sought to intimidate the ward

councillor.48According to the police, Miya had threatened her by stating that if the

police had not been present he would have assaulted her. The police further claimed

that councillor Zwane shouted out that if councillor Ndarala did not respond to the

memorandum by 31 August 2011 or if the demands were not met they would burn

the home of the councillor.49As indicated below, Miya denies that anyone made

these statements at the August march. It is evident that only a few months after the

local government election, the relationship between the TCC and the newly-elected

ward councillor had grown increasingly tense.

On 29 August the City acknowledged receipt of the TCCs memorandum of demands.50

The TCC criticised the City because it had responded in seven days instead of the

three days mentioned in the memorandum. According to the TCC, this delay in

acknowledging the memorandum indicated that the City did not take the community

45 TCC Follow up memorandum of grievances and demands from the community of Thembelihle (August2011).

46 Ibid.47 SERI focus group interview with the TCC, Thembelihle Community Hall (21 July 2012).48 State v Bhayi Bhayi Miya, Protea Regional Court, Case No. 69/4121/11, Opposing Adavit of Lillian

Kedibone Ndlovu (22 September 2011) p. 2.49

State v Bhayi Bhayi Miya, Protea Regional Court, Case No. 69/4121/11, Opposing Adavit of LillianKedibone Ndlovu (22 September 2011) pp. 2-3. Miya disputes this claim. In support of this statement herefers to the long-standing and apparently friendly relaonship between him and councillor Ndarala.

50 TCC Ward 08 Acknowledgement of receipt for a peon (30 August 2011).



28/72

seriously.51The TCC further stated in their response that because the City had kept

the community in the dark for six months following the 17 February 2011 petition and

despite having promised to provide regular updates it had lost confidence in the

petitions committee, the City structures, Region G administration and the Office of

the Speaker, amongst others.52The online newspaper, the Daily Maverick, describes

the long history of broken promises, a paternalistic attitude towards residents from

provincial officials, the trumpeting of development stories that always seem to come

from elsewhere, the better lives lived by richer communities in close proximity, the

seeming ineffectiveness of democratic channels, inappropriate spending priorities

and poor communication53 as contributing to the palpable frustration of many

residents of Thembelihle as well as the TCC. Rising animosity between the TCC and

the ward councillor resulted, reflecting a growing distrust and breakdown of the

relationship between the community and the City more generally.

It was against this tense backdrop that, in the early hours of the morning of Monday

5 September 2011, Thembelihle residents embarked on a large scale protest to exert

direct pressure on the City. According to media reports, to heighten the impact, stick-

wielding youths prevented motorists and pedestrians from accessing roads around

the settlement by barricading it with rocks and trash, leading to the closure of Zodiac

Primary School as well as Azara Secondary School,54and residents blockaded the

K43 and surrounding roads with boulders and burning tyres.55

Hemmed in by the barricades, the police failed to curb the waves of stone throwing

by residents as the running battles continued throughout the morning.56As the

protest escalated, Lieutenant Colonel Levy Mere, the Operational Commander at the

Public Order Policing (POP) unit in Johannesburg, reported that he had seen 1 500

protestors at the settlement.57The POP unit had been called in by the Lenasia branch

of the South African Police Service (SAPS), but at that point several sub-power

stations and other public property had already been vandalised and burnt down

by protestors. It was reported that residents set fire to three load centres, causing

damage of R1.5 million and depriving most of Lenasia Extensions 9 to 11 of power

from Monday night to 3am on Wednesday.58However, according to a participant

51 Ibid.52 Ibid.53 P de Wet Five lessons from Thembelihle Daily Maverick(7 September 2011).54 Naick March to Municipal oces LookLocal.55 K Naick Protests cause havocLookLocal(5 September 2011).56

Ibid.57 State v Nkosi and Others, Protea Regional Court, Case No. 43/01308/2011, Statement of Levy TshekoLesego Mere (5 September 2011) para 4.

58 City Press Thembelihle residents block roads City Press(9 September 2011).

24


29/72

in the SERI focus group, it was the presence of the POP unit that exacerbated an

already tense situation at the settlement.59

According to one newspaper, the protest was volatile for most of the day [5

September], with police opting to fire rubber bullets and tear gas at the crowd.

At this point, many children who did not go to school were in the forefront of the

protest.60 It was also reported that one officer was hit in the head with a rock,

while a boy, an 11 year old, was shot in the face with a rubber bullet. The boy was at

home with his mother when a group of armed police officers entered their shack and

started shooting.61It thus seemed that, by this point, the police and the Thembelihle

community were fast becoming embroiled in a pitched battle, which had also

begun to draw in non-protesting residents who were on their way to work. Leaving

Bangalore Drive, some residents from Extension 11A became frustrated at the inability

of the police to contain the protest.62

During the course of the afternoon on that first day of protest, the police made

several arrests as protestors continued to throw stones at oncoming vehicles. A

senior police officer and head of visible policing, Colonel Sarah Brunce of the Lenasia

SAPS, was allegedly told that if she did not release the arrested, Lenasia was going

to burn.63She does not remember the name of the individual who told her this but

she identified Miya and PR councillor Zwane, as well as former leader of the TCC,

Nhlakanipho Wizer Lukhele, and TCC secretary, Phetogo Ghetto Gopane, as the

supposed ring leaders, because they were the ones whom she alleges managed the

crowd.64However, during Miyas bail proceedings (see section 4.2 below) it became

clear that Miya and various other TCC members in fact sought to ensure that the

protest remained non-violent and, according to the police, Miya was instrumental is

subduing the violence at various points during the day.65

By the end of the first day, police spokesperson Katlego Mogale, summed up the

events as follows: [I]t seems the protest was sparked by the local municipality who

have yet to respond to residents memorandum of demands following their march

59 SERI focus group interview with TCC members, Thembelihle Community Hall (21 July 2012).60 S Tau Rubber bullets red in Lenasia protest The Cizen(5 September 2011).61 Ibid.62 Naick Protests cause havoc LookLocal.63 State v Nkosi and Others, Protea Regional Court, Case No. 43/01308/2011, Statement of Sarah Johanna

Magdelena Bunce (undated).64 State v Nkosi and Others,Protea Regional Court, Case No. 43/01308/2011, Statement of Sarah Johanna

Magdelena Bunce (undated).

65 State v Bhayi Bhayi Miya, Protea Regional Court, Case No. 69/4121/11, Opposing Adavit of LillianKedibone Ndlovu (22 September 2011) p. 4; State v Bhayi Bhayi Miya, Protea Regional Court, Case No.69/4121/11, Transcript of the Court Proceedings before Magistrate Morton (29 September 2011) p. 11.See also secon 4.2 of this report.



30/72

on August 22.66As Miya later explained, the community had simply had enough and

he warned that should the City fail to address their concerns, more protest action

would follow: Our people are very angry, because we have been fighting for service

delivery and it seems that our calls have been falling on deaf ears. We will continue

protesting until our demands are met.67Indeed, the protest continued late into the

night with protestors allegedly throwing stones at cars.

On Tuesday 6 September, the second day of the protest, it was reported that residents

fired live ammunition at police, a school and a councillors house.68In response, the

police fired rubber bullets damaging cars, traffic lights and electricity meters.69

During the course of the day, the police arrested two young men who they thought

had hurled stones at them. The two were paraded in front of the crowd gathered 100

metres away and told to exhort fellow protestors to calm down. They were then set

free, to the applause of a non-violent group of mostly women nearby. 16 other people

were arrested on this day.70

Addressing the community on the second day of protest, MEC Humphrey Mmemezi

said that people were being sore losers in the local government election, suggesting

that peoples grievances were being used by those who had lost out politically.71

According to a participant in the SERI focus group, Mmemezi was later heard on

a local radio station allegedly stating that they would deal with the protestors.72

Resisting protestors demands, he further went on to say that water and electricity

could not be installed at the settlement because of the presence of dolomite and that

people would be relocated to Lehae Phases 1, 2 and 3 and Vlakfontein Extensions

1, 2 and 3.73 In relation to these claims, a participant in the SERI focus group said:

[Politicians] send the police out on us to inconvenience us and our programmes

which mean they pit us against the police.74

This statement reveals an interesting perspective from the community which views

the police not as the target of their frustrations but rather that, as agents of local

authorities and the state they have the very real potential of standing in the wayof the TCCs struggle for recognition and development of the settlement. As such,

66 Tau Rubber bullets red in Lenasia protest The Cizen.67 Ibid.68 South African Press Associaon (SAPA) Heavy police conngent remains in Thembelihle IOL News(7

September 2011).69 Ibid.70 L Sidimba Thembelihle wants more City Press(10 September 2011).71

SERI focus group interview with TCC members, Thembelihle Community Hall (21 July 2012).72 Ibid.73 LookLocal Thembelihle riots connue LookLocal (6 September 2011).74 Interview with Siphiwe Zwane, TCC acvist and OKM PR councillor, Thembelihle (9 August 2012).

26


31/72

the police are viewed by the TCC as instrumental to the widening or narrowing of

democratic space, which includes the right to protest.

MEC Mmemezis visit to the settlement signalled both a lack of political engagement

and a failure to address the concerns of the community by the local and provincial

state. Thereafter, the police began to shut down democratic space in a more coherent

manner. The City, and the state more broadly, had closed down avenues of public

participation and the police were left to treat the protest as a purely criminal matter.

As a result, the police started clamping down on alleged instigators and specifically

targeting community activists, including TCC members.

Nonetheless, responding to MEC Mmemezi, the TCC sought to engage government

and attempted to meet with him. Despite these attempts at engagement, TCC

spokesperson Miya warned that if we do not get a positive outcome; we are going

back to the street.75Miya told the media that residents would be meeting that evening

to discuss a plan of action.76A witness in the later bail application of Miya (see section

4.2 of this report) alleged that at this meeting she heard Miya with a loudspeaker

rallying residents to burn the councillors house because she was moved out of the

house anyway.77The witness further alleged that Miya told the crowd that there were

councillor impipis(sell-outs) in the community, giving out information to the ward

councillor, and that he allegedly named her as one of the impipis.78This allegation

was later discounted in court, where the investigating officer who opposed Miyas bail

application expressly disavowed any reliance on her statement.79Miyas version of

the meeting is that he tried to dissuade the community from burning the councillors

house by stating that it would be of no use to burn the councillors house.80

Later in the evening of 6 September, the police returned to the settlement and

allegedly began to harass community members for supposedly participating in

the protest action. Among those who were harassed included Dimakado Mokoena

and Isaac Nishwaxu.81According to Mokoena, the police forced their way into their

dwelling, assaulted her and Nishwaxu, and were verbally abusive. She claims that thepolice dragged Nishwaxu outside where they proceeded to assault him and fired

75 A Deklerk Lenasia residents take up Lenasias cause Mail and Guardian(13 September 2011).76 LookLocal Thembelihle riots connue LookLocal.77 State v Bhayi Bhayi Miya, Protea Regional Court, Case No. 69/4121/11, Adavit of Nomthandazo

Merriam Bembe (29 September 2011).78 Ibid.79 State v Bhayi Bhayi Miya, Protea Regional Court, Case No. 69/4121/11, Noce of Appeal (5 October

2011) paras 9-10. See also secon 4.2 of this report.80 State v Bhayi Bhayi Miya, Protea Regional Court, Case No. 69/4121/11, Transcript of Court Proceedings

before Magistrate Morton (29 September 2011) p. 11.81 See State v Nkosi and Others,Protea Regional Court, Case No. 43/01308/2011, Statement of DimakadoMokoena, pp. 1-2. See also State v Nkosi and Others,Protea Regional Court, Case No. 43/01308/2011,Statement of Isaac William Nishwaxu, pp. 1-3.



32/72

rubber bullets at him at close range.82Thereafter, they arrested Nishwaxu, allegedly

for participating in the protest.83Another community member, Lloyd Loyiso Baloyi

was shot in the groin and admitted to Chris Hani Baragwanath Hospital the following

day.84Baloyis brother claimed that a cartridge from a live round was found outside

his brothers shack: He was shot at night at around 11pm but, because of the unrest,

we could not find transport to take him to hospital until 8am the next day.85

On the third day of protest, Wednesday 7 September, Thembelihle residents resolved

to march to the Protea Regional Court to protest the arrest of various Thembelihle

residents. The TCC notified the police of their intention to march but were, at the last

minute, denied permission to gather, on grounds that arrangements for the march

had not been finalised.86On this day, there was a heavy police presence at the ward

councillors house although she was not there.

A number of factors, including the absence of government representatives in the

area, led to the police treating the protest as a set of criminal activities to be stamped

out. During the week they began to search for the main protagonists and instigators

of the protest. According to Miya, he was aware police were seeking his arrest, and

that he planned to hand himself over but he was adamant that he had not instigated

any violence and that, on the contrary, he had been trying to calm down protestors

and had been on local radio stations during the protests making announcements

and advising motorists which routes to avoid because of the barricades and the

stoning of cars.87

On Thursday 8 September, the fourth day of the protest, the Daily Maverick, reported that:

[P]atterns have started emerging. Criminals within the township have taken

advantage of the relative chaos. These are mostly young men who tend to

emerge at night or after trouble has already started. Young women, on the other

hand, are constantly at the coal face, and tend to be mightily militant.88

82 State v Nkosi and Others, Protea Regional Court, Case No. 43/01308/2011, Statement of DimakadoMokoena, pp. 1-2.

83 It is worth menoning that no formal charges were brought against Nishwaxu.84 A Deklerk Residents up in arms over shoong Mail and Guardian(9 September 2011). See also State v

Nkosi and Others,Protea Regional Court, Case No. 43/01308/2011, Statement of Lloyd Baloyi, pp. 1-2.85 Deklerk Residents up in arms over shoong Mail and Guardian.86 The nocaon procedure provided for in the Regulaon of Gatherings Act 205 of 1993 (the Gatherings

Act) is frequently misinterpreted as a permission-seeking procedure. This approach has been rejectedby the Supreme Court of Appeal (SCA) in Garvis v South African Transport and Allied Workers Union2010 (6) SA 280 (WCC) para 12. Johnson and Griths state that the SCA made clear that convenersof a gathering are not applying to the relevant local authority [or police] for permission ... but [are]rather simply advising of their intenon to [gather]. See M Johnson and J Griths The Regulaon of

Gatherings Act 205 of 1993 LegalCity(27 July 2012).87 P Tau Arrested man said to be peaceful protester The Star(15 September 2011).88 P de Wet Thembelihle: A breakdown of ingredients for a service-delivery riot Daily Maverick (8

September 2011).

28


33/72

Indeed, criminal elements exploiting the state of un-governability that seemed to

have taken hold of the informal settlement looted Somali and Pakistani shops.

At the same time, the protest gained momentum when 50 protestors converged at

the Protea Regional Court in defiance of the polices refusal to grant them permission

to protest.89A number of residents were subsequently arrested outside the court.90

According to Miya, the TCC was marching in solidarity with the arrested protestors

because it wanted to show its support in the same way ANC members did during

President Jacob Zumas rape trial.91And, according to Miya, the following day would

see intensified protest in response to the alleged police shooting of Loyiso Baloyi.92

On the fifth day of the protest, Friday 9 September, the Informal Settlement Network

(ISN), which describes itself as an agglomeration of settlement-level and national-

level organisations of the urban poor,93went into Thembelihle to assist those residents

who were injured and in need of either medical and/or legal support. Attending a

meeting of 400 residents, ISN listened as community leaders relayed their issues.

A turning point in the protest occurred on this day, as provincial government

representatives and the police intensified efforts to halt the protest. During her

discussion of Gautengs crime statistics the day before, Gauteng Premier Nomvula

Mokonyane mentioned the Thembelihle protest, commenting that it was unfortunate

when protesters threw stones at police and undermined their authority and providing

this warning: You must know that when they [the police] are provoked they may

go to extremes. We will not tolerate anarchy and unruly protesters.94Mokonyane

appealed to local residents to help identify those responsible for violence during the

protest.95This implied authorisation was enough motivation for the police to escalate

their clamp down, giving rise to more arrests and, by the end of the day the police

claimed that protests in Thembelihle were under control.96

However, responding to the clamp down and criminalisation of the protest, it was

reported that a section of Thembelihle residents angry with the repressive response

from the authorities, allegedly began to plan further disruptive action at thesettlement.97Acknowledging the stand-off created by the absence of government

89 See note 86 above.90 K Sibanda ISN acon plan for Thembelihle residents aer bloody service delivery protestsShack / Slum

Dwellers Internaonal (SDI) South African Alliance(9 September 2011).91 DeklerkResidents up in arms over shoong Mail and Guardian.92 Ibid.93 Sibanda ISN acon plan for Thembelihle residents aer bloody service delivery protests SDI South

African Alliance.94

SAPA Thembelihle protests under control: Police The Cizen(9 September 2011).95 Ibid.96 Ibid.97 Sidimba Thembelihle wants more City Press.



34/72

representatives on the ground in Thembelihle, along with the Citys intransigence

regarding the communitys concerns, a community member, Elvis Pebane, called for

an urgent and senior-level intervention from government: Our ward councillors have

failed us; therefore we are calling on President Zuma, or the Premier of Gauteng

Nomvula Mokonyane, to address the residents.98 By this time it must have been

apparent to the TCC and the community that, without the presence of politicalleadership and government officials on the scene, the only interaction they would get

was from the police, meaning that their socio-economic concerns were no longer on

the radar. At the same time, the criminal justice system was in full swing attempting

to quell the criminal elements at work, as well as the legitimate protest of residents.

Indeed, by this time it had become quite difficult to distinguish the two elements

and it is likely that at this point the TCC was no longer in control of the protest. As

a result, on Monday 12 September Miya stopped attending public gatherings and

began to distance himself from the protest. At the same time, the media attention on

Thembelihle had created a snowball effect, with residents of Chiawelo (a suburb of

nearby Soweto) using tactics similar to the Thembelihle residents to protest against

electricity disconnections.99

In Thembelihle, the violence seemed to dissipate to a large degree, with the police

seemingly having regained control of the settlement. The police had begun working

with the SAPS Crime Intelligence division to identify and arrest protest suspects.

In addition, an elaborate criminal case was developed against identified community

activists, including Miya, as well as other community members (including three

minors).

On Tuesday 13 September, while the protest continued, the police arrested Miya on

charges of public violence and intimidation. Two contradictory accounts of how

Miyas arrest occurred exist, bringing into question the reliability of both accounts.100

Miya first appeared in court on Thursday 15 September, with the public prosecutor

resisting bail being awarded. Despite resisting bail on a number of grounds (describedbelow in section 4.2) the prosecution could not proceed with the bail hearing on the

grounds that the investigating officer in charge of Miyas case was not available. 101

As a result, the prosecution was awarded a postponement until 22 September (one

week later), when Miyas bail application would be heard. This marked the beginning

98 S Tau Free leader, or Lenasia protests connue The Cizen(2011).99 P de Wet Thembelihle vs Chiawelo: A story of power and the cables that bring it Daily Maverick(13

September 2011).100 See secon 4.1 of this report.101 State v Bhayi Bhayi Miya, Protea Regional Court, Case No. 69/4121/11, Transcript of Court Proceedings

before Magistrate Morton (15 September 2011) p. 1.

30


35/72

of protracted bail proceedings, which served to detain Miya for over a month. These

proceedings are outlined in more detail below, where the arguments raised during

the bail proceedings will be analysed to illustrate how the criminal justice system was

used to punish Miya for participating in the protest.

While the Thembelihle protest continued with sporadic gatherings until Thursday 15

September, the unrest and violence had largely ceased. However, the transgression

of civil and political rights in the wake of the protests, as detailed in section 4 below,

demonstrate how the state has become increasingly repressive in its response to

community mobilisation and popular dissent.



36/72

32


37/72

4. Aftermath of Protest: TheCriminal Justice System

The unsettling events that occurred in Thembelihle informal settlement during the

protest of September 2011, as well as the aftermath, point to a number of serious

concerns with the South African criminal justice system. These events suggest that

there are fundamental challenges in how the criminal justice system responds to

protestors.

Abuses of power are prevalent, both in the enforcement arm of the criminal justice

system, where many protestors are subject to forceful conduct and increasing

brutality by police officers, as well as in the investigative arm, with protestors oftenbeing arrested on frivolous charges.102This, in turn, renders many protestors subject

to long periods in detention and potentially lengthy criminal cases. These actions are

pursued by the state despite the fact that the vast majority of criminal charges laid

against demonstrators are likely to be withdrawn or dismissed for lack of substance

and evidence.103Moreover, the targeting of community leaders or activists in the wake

of protests raises doubts about the legitimacy of criminal prosecution of protest-

related offences, particularly public violence.

In this section of the report the persecution and prosecution of activists in the

aftermath of the Thembelihle protests is unpacked, with a specific focus on how

the criminal justice system is utilised more broadly as a tool to criminalise often

legitimate protest action and to silence dissent. First, section 4.1 considers the arrest

of TCC spokesperson and community activist Bhayi Bhayi Miya. It canvasses the

contradictory accounts of Miyas arrest and the community reaction to his arrest.

Section 4.2 sets out Miyas protracted bail proceedings, highlighting how the criminal

justice system and misapplication of the rules related to bail applications were used

to keep Miya in prison, despite the overwhelming lack of evidence against him. Finally,

section 4.3 narrates the criminal prosecution of the Thembelihle protestors.

102

R Pithouse On State Violence South African Civil Society Informaon Service (SACSIS) (10 May 2011);D Bruce The Road to Marikana: Abuses of Force During Public Order Policing Operaons SACSIS(12October 2012); J Duncan The Criminal Injusce System SACSIS(18 February 2013).

103 Duncan The Criminal Injusce System SACSIS (18 February 2013).



38/72

The High Court finally orders Miyas

release on bail, stating that Miya should

not spend another day in prison. By

this time Miya has been in detention for

over a month.

Despite a significant lack of

evidence, Miya is denied bail in

the Protea Regional Court. Miyas

legal representatives appeal thisdecision in the High Court.

Miya is arrested on charges of

public violence and intimidation.

The Thembelihle community begins

to mobilise against Miyas arrest and

detention.

13 September 2011

14 September 2011

Miya appears in court for the first

time. The prosecution opposes

Miyas release on bail. His bail

proceedings are delayed as the

investigating officer handling his

case is not available.

The prosecution opposes Miyas bail

application on various grounds and

charges him with arson and malicious

damage to property.

CRIMINAL JUSTICE SYSTEM:

MIYAS ARREST AND BAIL PROCEEDINGS

15 September 2011

22 September 2011

30 September 2011

20 October 2011

34


39/72

4.1 Arrest of Miya

As stated above, on Tuesday 13 September the police arrested Miya on charges of

public violence and intimidation. There are two contradictory accounts of Miyas

arrest, which are largely irreconcilable, bringing the accuracy of both accounts into

question.

According to Miya, he voluntarily went to the Lenasia police station to attend a

meeting with a police officer, Colonel Barnes.104The meeting was arranged to discuss

strategies to increase school attendance, as many students had failed to attend during

the protest. Once at the police station, Miya states that he was arrested. The police,

however, claimed that Miya evaded arrest for a week despite being aware that they

sought to apprehend him.105They argue that Miyas arrest had been coincidental as

they had merely been at the right place at the right time.106It is hard to believe that

Miyas arrest occurred coincidentally, given the full scale police search party, involving

the SAPS intelligence unit, which was underway. The police further claimed that an

unlicensed firearm was found concealed in the police vehicle that transported Miya

to the police station. Despite this claim, no further evidence or charges in relation to

the firearm were mentioned at the bail or criminal proceedings brought against Miya.

The Thembelihle community reacted with condemnation and surprise at Miyas arrest.

As one of the protestors stated: [Miya] is just one of us, a concerned resident who

just happened to have been there during the protests ... [He was] mostly calming

down the community, and asking them to refrain from any violent acts. 107 Some

described Miya as a peaceful man who was concerned about Thembelihle like all

of us and was unlikely to get involved in any act of violence.108Another resident,

Nesta Hadebe, expressed shock at Miyas arrest, saying he was being victimised.109

The community alleged that Miya had been persecuted and specifically targeted as

the police considered him to be a leader of the protest and a chief instigator of

the violence. A community resident, Elvis Pebane, stated that many protestors were

aware that police have a list of people perceived to be leaders in the protests who

they want to arrest.110

104 State v Bhayi Bhayi Miya, Protea Regional Court, Case No. 69/4121/11, Adavit of Bhayi Bhayi MosesMiya (22 September 2011)

AN ANATOMY OF DISSENT & REPRESSION: The Criminal Justice System and the 2011 Thembelihle Protest

Documents

Transcript of AN ANATOMY OF DISSENT & REPRESSION: The Criminal Justice System and the 2011 Thembelihle Protest