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CCS Grant Report, 2005 This report was submitted in fulfilment of a research grant received from the Centre for Civil Society, University of KwaZulu Natal. The Centre for Civil Society Grant Programme was established in 2002 to support research on Civil Society issues in South Africa. It is funded by the Atlantic Philanthropies. CCS Grant Reports are distinct from CCS Research Reports in that Research reports have gone through a peer review process. Grant reports simply make available the report as provided by the author. In effect they are working papers, and comments can be sent directly to the author. For more information on CCS please visit http://www.ukzn.ac.za/ccs/

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A REPORT DRAFTED FOR

THE CENTRE FOR CIVIL SOCIETY

UNIVERSITY OF KWA-ZULU NATAL

JANUARY 2005

A Consideration of the Law as both Objective and Subjective Force

in Shaping Recent Community Movement Struggles in South Africa

Benita Whitcher,

School of Law, Howard College,

University of Kwa-Zulu / Natal

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A Consideration of the Law as both an Objective and Subjective Force in

Shaping recent Community Movement Struggles in South Africa.

Introduction

“Law did not keep politely to a ‘level’ but was at every bloody level”.

E.P. Thompson1

“You must understand, therefore, that there are two ways of fighting:

by law or by force.”

Niccolo Machiavelli2

This paper is divided into two parts. The first looks at various pieces of legislation,

starting with the Constitution, that affect community movements3 resisting water and

electricity disconnections and evictions in South Africa. These laws play an

important role in shaping both struggle forms and outcomes; something that is often

missed by those whose sense of the agency of these movements is more sanguine. It

is therefore important that more is known about the legal provisions and structures

that, as we will see, so profoundly affect and, in part, produce community

movements; from informing demands to creating or narrowing the space to press

them. This is just as much about knowing what various statutes do not say as what

they do; particularly in respect of that most dubiously munificent document, the

Constitution. The research methodology used in this part is largely archival: the

outlay and interpretation of relevant legal texts, coupled with critical commentary.

Some reliance will be placed on interviews with those involved in legal work in

support of community movements as well the results of a questionnaire administered

to participants in community movement struggles in Durban and Cape Town.

1 The Poverty of Theory, London: Merlin Press, 1978, p 96 2 The Prince, London, Penguin, 1995, p 51 3 I have decided to follow Desai’s description of the issue - and community - based groups that have been mobilising against water and electricity disconnections, (including privatisation of these services), and against evictions since roughly 1999 (We Are the Poors, Monthly Review Press, 2002, p 174). They have become widely known as South Africa’s “new social movements” in academic and political writings. Since their scope, politics and aims are particular to the place and issue they contest, I prefer “community” rather than the wider “social” as designation. Further, although some of these entities have a formal organisational structure, there is a remarkable autonomy and even inchoateness in the manner in which they mobilise and relate to each other. I think that “movement” rather than “organisation” more accurately describes these phenomena: hence “community movement”.

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Part Two reverses the angle of enquiry entirely. It approaches the law as a subjective

force; as an internalised, libidinal, affective Real. The idea is to find out from

participants in community movements how they understand and relate to legal

precepts and to see to what extent notions of legality and constitutionality play a role

in the way they conduct and represent themselves. This is not an evaluation of

knowledge or even consciousness, though. There are many such accounts of how

people are mobilised into political action that take as their starting point conscious

investments of class or interest. These include the vulgar economism of certain

Marxist theories and the rank idealism inherent in nationalist and essentialist

discourses. On the positive side, some materialists do demonstrate an appreciation of

the role of desire in politics that is quite sophisticated. I think here of Gramsci’s

notion of “hegemony”: “a lived system of meanings and values, not simply an

ideology, a sense of reality beyond which it is, for most people, difficult to move, a

lived system of dominance and subordination, internalised”4. In an essay, “Ideology

and Ideological State Apparatuses”, Louis Althusser also locates ideological belief

outside consciousness, where it is fired as much by psychic drives as class interests5.

Having come into contact with the ideas of the psychoanalyst, Jacques Lacan,

Althusser came to concede that ideological belief may have very little to do with

consciously held notions. For Althusser:

“Ideology is not a set of ideas or a system of belief; it is not a political

programme through which subjects are indoctrinated. Ideology is rather a

system of representations, a system of images, concepts and above all

structures, which are lived. In short ideology represents a subject’s imaginary

relation to their real conditions of existence”6

Yet, looking at their work as a whole, no matter how micrological Gramsci or

Althusser’s explanations of domination get, it seems to remain, for them, resolutely

within the realm of social relations. As Marxists, it is social realities they seek to

represent and not psychical ones. It is in class interest that even the cleverest

materialists like them eventually find power’s headquarters. While much wisdom can 4 Raymond Williams, Marxism and Literature, Oxford University Press, 1977, p108 5 Lenin and Philosophy and Other Essays, translated by B. Brewster, Monthly Review Press, 1971, p177-184 6 Homer, S., Jacques Lacan, Routledge, 2005, p112

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flow from the many perspectives like these that abound, I do not intend to debate or

follow any of these lines of enquiry. This does not signal a disagreement with every

view that emerges from within the social register of analysis, but is rather an attempt

to introduce explanations and views that come from a different and completely under-

rated register – the psychic – when understanding community movements in South

Africa. And so, instead of conscious investments in class or interest that do obviously

lie behind the way people relate to the legal and illegal, I will look at the unconscious,

libidinal investments of group and desire, not so much for alternative explanations but

for deeper ones. Having said that, certain classical ideas commonly held by social

researchers and social activists, are decisively contradicted by notions that flow from

a psychological reading of community movements. Such a contradiction, in South

Africa, is overdue. An antidote is necessary to the outbreak of “realists’ imbecility” -

the failure and refusal to observe deeper causes and relations between things - that

infects social movement investigation in South Africa. I hope readers will forgive any

overdoses administered in trying to cure “the detectives who have so immutable a

notion of the real”7 that they can see only the motives provided by social reality for

the behaviour of community movements and not lurking beneath - beneath both the

‘social’ and the ‘individual’ - other very compelling forces.

A psycho-dynamic enquiry forms part of a far larger enquiry into the role “desire”8

plays in social change. This wider enquiry takes place in the hope, that is not without

some theoretical foundation, that the political discourse evinced by social movements

can produce psychological effects in a large enough number of people to entail results

at the social level. While, the current study is more limited in scope, it is similarly

desire rather than knowledge that is its the focal point: to understand how the law

moves people.

7 Jacques Lacan, “Seminar on the Purloined Letter”, in The Purloined Poe: Lacan Derrida and Psychoanalytic Reading, eds J. Copjec, D. Hollier and W. Richardson, 1988, Johns Hopkins University Press, p39. 8 Although they do not all use the same nomenclature, theories of desire’s role in politics have been put forward in Friedrich Nietzsche’s Genealogy of Morals; Wilhelm Reich’s Mass Psychology of Fascism; various writings of Michel Foucault; Deleuze and Guattari’s Anti Oedipus-Capitalism and Schizophrenia ; and Guy Hocquenghem’s Homosexual Desire, translated by D Dangoor, Duke University Press, 1993. In recent writing on South Africa, Frank Wilderson’s The Magoba Affair: Semiotics of a Prelate’s War, debate No.1, 1996; Elaine Rumboll’s unpublished 1996 Masters’ thesis, “Lack in the Reconstruction and Development Programme”; and Heinrich Bohmke’s unpublished 1995 paper, “John the Baptist and the RDP: Lessons in Preparing the Way”, are further examples.

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The importance of the law in shaping the demands, conduct and representations of

community movement struggles in South Africa is born out empirically by the data

collected in this study. In particular, we will see evidence of a strong commitment -

and acquiescence - to the Constitution. The general idea that we will be exploring is

how this law has succeeded in interpellating community movement participants as

subjects, or “summoned them to assume a certain subjective (dis)position”9 that we

see unfolding time and again as community movement struggles take their course.

We will see that by invoking some form of desire or by promising the ‘delivery’ of

some desire, a constitutional order that is really very protective of the establishment

comes to constitute the ethical and tactical limit of initially very radical social

movement struggles. It is an almost secret level of explanation for the way

contemporary community movement struggles develop in South Africa, this notion

that while the ideological faith so many display in the Constitution falls outside of

consciousness, it is lodged very firmly within the psyche.

There was a dawning suspicion as this project was written up that the research

methodology did not allow, to excuse the pun, justice to fully be done to the questions

raised above. Nevertheless, a questionnaire designed to elicit some data useful to

such an enquiry was administered by Centre for Civil Society-trained researchers in

Durban and Cape Town among 100 participants in community movement struggles.

The questions were both quantitative and qualitative in nature with provision being

made for them to be filled in privately and anonymously to avoid observational bias

as much as possible. The researchers were from the communities concerned10. An

overall research co-ordinator conducted further interviews with a random sample of

ten persons among those originally surveyed, when it became clear, on evaluating

responses to the questionnaire, that certain follow-up questions were necessary. He

also assisted me in conducting in-depth interviews with persons involved in the legal

side of community movement work and was himself a source of some relevant

information11.

9 Mark Bracher, Lacan, Discourse and Social Change, Cornell, 1993, 19 10 I am indebted to Messrs Brandon Pillay in Durban and to Ashraf Cassiem and Ms Pamela Beukes in Cape Town for this sterling work 11 I am indebted to Mr Heinrich Bohmke for his assistance in the research, editing and drafting of parts of this paper.

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A draft copy of this report was circulated to the principal respondents as well as to a

few academics and social movement activists in November 2004. I also received

several insightful and useful comments from two Centre for Civil Society appointed

peer reviewers. Where appropriate, their comments and criticisms have been

incorporated and addressed in this final version of the research report.

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PART ONE

The Constitution

South Africa is a constitutional democracy. One document, the Constitution of the

Republic of South Africa Act No.108 of 1996, claims absolute supremacy for itself in

all matters of right in law and government. “The Constitution is the supreme law of

the Republic; law or conduct inconsistent with it is invalid, and the obligations

imposed by it must be fulfilled”12. The Constitution obviously binds all organs of

state, public functionaries and spheres of government. Even private bodies, in certain

contexts, have a legal duty to ensure that the constitutional rights of others are

protected and maintained. Life in South Africa is meant to be suffused with the

values contained in the Bill of Rights. When any court or tribunal interprets any law,

whether it came into effect before or after the Constitution, it is bound to do so in a

manner that best gives effect to the spirit, purport and object of the Bill of Rights13.

From section 9 (equality) to section 35 (pertaining to arrested, detained and accused

persons), the South African constitution defines 27 fundamental rights most of which

are available to every person in this country; a few available to citizens only. The

first ten or so rights are better thought of as freedoms. Historically, they are the

individual freedoms asserted after various revolutions against the absolute power of

ancient regimes took place in the West. Examples are the freedom of speech, political

belief, association, religion as well as the rights to privacy, dignity, and life. Rather

than requiring the state to do anything particular, these freedoms are fulfilled the more

the state leaves its citizens alone to get on with their own business.

The rights that are most often invoked during community movement mobilisations are

the rights to housing and water. These are called socio-economic rights and require

positive action on the part of the state for their realisation. Crucially, the very section

that inaugurates these rights anticipates their limitation or even complete absence.

The escape clauses or derogations relate to the availability of resources to fund these

rights. And so, “although human rights are in principle indivisible, in practise their 12 Section 2 13 Section 39 (2)

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fulfilment is necessarily determined by economic conditions”14. In fact if one reads

the sections creating socio-economic rights carefully one notices that the expectation

informing many community movement demands that these rights are immediately

obtainable cannot be founded on a precise legal reading of the Constitution.

Consider the actual wording of the section 26 right, entitled “Housing”.

1. Everyone has the right to have access to adequate housing.

2. The state must take reasonable legislative and other measures, within

its available resources, to achieve the progressive realisation of this

right.

3. No one may be evicted from their home, or have their home

demolished, without an order of court made after considering all the

relevant circumstances. No legislation may permit arbitrary evictions.

(my emphasis)

As is apparent below, this report shows that a large number of persons participating in

community movement struggles believe their constitutional right to housing is

established in the terms above, minus the italics. Section 27, dealing with water is

similarly phrased, similarly qualified and similarly misunderstood.

The Constitutional Court, which lays down the interpretation of the Constitution, has

had cause to expound on when it will order government to fulfil these rights. In the

seminal matter of Government of the Republic of South Africa and Others v

Grootboom and Others15, a group of 899 shack-dwellers had been evicted from land

they had illegally occupied and which was to be developed for low-income formal

housing. Their homes were bulldozed and burnt and they applied to the Cape High

Court for urgent relief as the cold and wet of a Cape winter approached. Such relief

was granted by the Court a quo in terms regarded as being fairly progressive by many

commentators16. The State appealed and the matter ended up in the Constitutional

14 Alta Folsher, “Doing More and Better with Less”, Lessons From the Field: A Decade of Democracy, IDASA, p 14 15 BCLR 1169 (CC) 16 One might have expected a certain startled tone from legal positivists or those whose welfarist expectations were more modest. For them Grootboom would have constituted a dramatic enunciation

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Court where an order far more deferential to the State was made though also in favour

of the community. It is worth noting that by the time the Constitutional Court ruled

many months later, the community had dispersed in bitterness, their legal victory

being hollowed out by political reality.

In its judgment, the Court first expressed its distaste for desperation:

“people should not be impelled by intolerable living conditions to resort to

land invasions. Self-help of this kind cannot be tolerated, for the

unavailability of land suitable for housing development is a key factor in the

fight against the country’s housing shortage”17

of new obligations on the state in favour of the poor. It is doubtful whether the praise heaped upon the judgment from left-leaning scholars is justified, though. In a recent article, (“The Constitutional Implications of Commercialising Water in South Africa”, The Age of Commodity, eds MacDonald and Ruiters, Earthscan; 59), Flynn and Chirwa laud the standard of state accountability they believe Grootboom introduces into our law. In a paper dealing with water rights specifically, they contend that the Constitution can be used to accomplish things ranging from interfering with privatisation, cost recovery and commercialisation to doubling the amount of free water provided by government. Their submissions are, in some remotely arguable sense, founded on the text of the constitution itself. But they are, in the worst sense of the word, academic and take account of no serious counter-arguments. Their analysis is spotlessly ex parte. With a competent opposing counsel, citing policies decided by a democratic government, funded from a limited budget, and parading before a Court loathe to interfere with gross budgetary allocations, a Department of Water Affairs and Forestry Minister that is not necessarily doing the best – but a rational - thing with the money available, one senses that these arguments will quickly come unstuck. Grootboom worked against a respondent that had given absolutely no thought to its conduct in respect of the homeless and could show little rhyme or reason, even after the fact, for its failure to come to their assistance. The conclusion the above authors reach that: “a rich constitutional and legislative framework exists in South Africa which, if used optimally, can help promote the voices and interests of the poor”, is superficially true but not in the cheerful and politically naïve manner they mean. First, primary questions of the tax rate, monetary policy and levels of income transfer to the poor are beyond the Court’s purview. Even the secondary questions of gross allocation by the Treasury to various public service departments has been held to be outside the Court’s jurisdiction. If one considers that Grootboom provides relief for the poor only from miseries induced by acts or omissions at a micro-level that are not rationally (read economically) justifiable, and if one considers with what deference to the executive this test has been interpreted since the ruling, then the judgment provides a rather modest promotion of “the voices and interests of the poor”. This is especially so in a society predicated on a myriad of lawful inequalities, sufferings and acts of exploitation and, assuming there existed a government willing to cure these defects, an extremely limited budget in terms of which to rationally decline to do so. Perhaps the most important indicator that the authors have considerably exaggerated the charms of Grootboom is to be found in the very part of the judgment that they have seen fit to celebrate at the head of their piece. They know the judgment is written by a group of former lawyers and yet they fail to notice the crucial loophole, escape clause, qualification and internal limitation in: “A society must seek to ensure that the basic necessities of life are provided to all if it is to be a society based on human dignity, freedom and equality”(my emphasis) . 17 Butterworths Constitutional Law Report 1169, (CC).

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It went on to find that the state’s primary obligation towards those who could afford

to pay for housing was to “unlock” the system by providing a legislative framework

through which housing stock and finance could be accessed.

For the indigent, the government had a lesser duty of “development and welfare”.

Housing development was not about erecting emergency tents or allowing people to

stay in shacks because they had nowhere else to go. It was about access to adequate

permanent residences with secure tenure that ensured both the external and internal

privacy of residents. These would take time to provide in accordance with

government planning and fiscal policies. In a rather neat twist, by invoking concern

for their security and privacy, the Court was able to disqualify any applications in

respect of the right to housing-proper by persons trying to prevent being evicted from

homes that happened to be shacks18.

What the Court did say however was that it was not “reasonable” for a government’s

housing budget to be entirely devoted to the development of formal housing stock.

Medium and long term goals were not to be compromised but “it is essential that a

reasonable part of the housing budget” be devoted to emergency relief for “desperate

people”, although, not all of these “need receive it immediately”, only a “significant

number”19. Like the proportion of the national budget that goes to housing in the first

place, the precise allocation of the housing budget for emergency relief of those in

“desperate need” is for the national government to decide20.

Plainly any government that has at least budgeted “a reasonable” amount for

emergency relief, (which government gets to determine), and which has already made

a “significant part”, (who knows what this means?) of that available for immediate

relief of desperate people, can avoid what Irene Grootboom thought was her right at

18 The term “home” is used in section 26 (3). Accordingly this subsection would prevent someone being evicted from an informal dwelling that is their home, without a court order. In other words it is permissive of evictions that are effected after due process of law. 19 RSA v Grootboom at para 68 20 Once it has been accepted that for macro-economic reasons international competitiveness in respect to tax rates, tariff barriers and other revenue raising instruments is to be encouraged, a cap is placed on what the Constitutional Court can ever really order, no matter the desperation of those who seek its assistance. There is much talk about the Constitutional Court being sensitive to foreign jurisprudence. The greater influence in writing our constitutional law may in fact be global economics.

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least to emergency housing21. A bit intemperately expressed, perhaps, but a lawyer

doing work for community movements stated it thus: “These are not loopholes in

Grootboom, but big, ugly tears in the fabric of the constitution, leaving all those

shielding themselves behind its supposed progressiveness, a little naked”22

I would disagree on the grounds that the speaker, like many participants in community

struggles, has overestimated what a Constitution is really there to do. Contrary to the

rhetoric about the Constitution being a provider of social good or even the weaker

claim that it ensures that the government provides a defined social good, its legal

function is more modest. As things are panning out at the moment, it is available to

those who can (afford to) litigate to legally compel the state not to unjustifiably permit

a social wrong. As we will see below there are many justifications for social wrong,

not least of which are lack of resources and the competing rights of others.

Let us now call the right by its proper name: the right to access to adequate housing.

As we have seen, this right permits of derogation to the extent that a government

official can demonstrate that, within the responsible government department, a

rationally justifiable allocation of available resources exists that could in time bring

about housing delivery while also dealing with some emergencies on the side23. The

21 The Anti-Eviction Campaign affiliated United Civic Front, using the Grootboom precedent, succeeded in getting the Cape High Court to sanction the continued presence of “squatters” in an informal settlement in Valhalla Park and to order that they be provided with emergency services (Neville Rudolph and 49 Others v the City of Cape Town, Case No WC 8970/0). The basis for this ruling and the rather robust denunciation of the City that appears within this judgment flows from the City’s failure, refusal even, to implement and fund the emergency housing programme that is its obligation per Grootboom. It emerged that the City had taken the view that it would not be implementing such a programme and would be allocating housing strictly on the basis of when a persons name was placed on a waiting list, regardless of desperate circumstances. The order in the Rudolph case, handed down on 7 July 2003, has still not been complied with. When Grootboom has set such deferential, reasonable and easy to fulfil terms and government still refuses to comply, there can hardly be talk of a progressive human rights environment when the Court rows it for not doing so. This is the bare minimum of government accountability. And when even this rowing remains unheeded … . 22 Interview, September 2004 23 In a matter decided in the week this report was being written, concerning an urgent application by the Port Elizabeth Municipality to evict squatters from land and to move them to the outlying area of Walmer, the Court reaffirmed the ratio of Grootboom. While the eviction was not sanctioned, this had more to do with factors such as the fact that the City Council had not first attempted to mediate the dispute, that the actual owners of the land had not joined in the dispute and that the Municipality had sought an urgent interdict having tolerated the presence of squatters for 8 years. The parties were ordered to seek alternative outcomes and the ruling is certainly not any victory for homeless people that some media reports suggest. The Court essentially displaced a determination of the substantive rights of the dispute into the procedural realm describing its role as “managing a stressful situation”. Is it fruitful to begin thinking of the Court as a dispute resolution mechanism? It will be interesting to see

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court does not have to be convinced that the department’s plan is the best or fairest

use of resources, simply that it is rationally justifiable. In a democracy, if the

electorate has put a government in power, so the thinking goes, no Court should usurp

this power. It should rather act as a watchdog intervening only when government’s

actions stray, without some justification, from constitutional imperatives. Why the

defence budget has R63 billion24 allocated to it instead of the housing, health or

education budgets is an enquiry the Constitutional Court has shown itself loathe to

conduct25. These macro issues of policy, economics and gross budgetary allocation

are matters, the Courts have accepted, properly decided by other arms of government,

parliament and the executive and so the justiciability of these rights is really limited to

the most odious and irrational infractions of rights26.

A word that even further undermines the sense of constitutional comfort some display

in asserting a right to remain in their houses is the word “adequate”. According to

Brandon Pillay, during the Bayview, Westcliff and Sydenham Heights housing

struggles, Ethekwini Municipality officials threatened to have people evicted from

their council houses or flats for non-payment of rent on the basis that “starter houses

have just been built at a place called Welbedacht, where we will be relocated”. In

English, “welbedacht” means ‘well thought out’. Are these the first feelers stuck out

of a clever legal argument in favour of gentrification of city spaces? Although entire

communities will be uprooted and people relocated to far-off poorly developed areas,

at least they will be provided with housing that is adequate both structurally and to

their social standing.

whether the Constitutional Court will find that the rights to housing of 40000 “squatters” residing on the Modderklip farm outside Benoni have been violated by the State’s failure to provide alternative land for them to occupy or whether it will find for the landowner on the basis that the State was supposed to help evict them. It would be far safer for government and not particularly surprising if the latter were to occur with the “squatters” nevertheless being allowed to remain as a matter of practicality, in the absence of other suitable land, rather than the Court deciding the question head-on and ordering relief flowing from a specifically justiciable right. 24 The price put to South Africa’s controversial arms acquisition deal as at 2002. 25 See Permanent Secretary, Department of Education, Eastern Cape v Ed-U-College Inc 2001 (2) BCLR, 124 – 127. This principal was affirmed in the as yet unreported Cape High Court matter recently, where Economists for Justice seeking to set aside the arms deal were thrown out of Court. 26 See also Scott & Macklem, “Constitutional ropes of sand or justiciable guarantees? Social rights in the new South African constitution (1992), University of Pennsylvania, LR 1

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The fact that socio-economic rights may be derogated does not mean that first

generation rights, such as the right to assembly, demonstration and picket27, are

absolute. Directly after all the rights and freedoms have been quite poetically and

expansively laid down, we find section 36 of the Constitution. This is the limitation

clause of our Bill of Rights which allows for the attenuation of all the preceding 27

fundamental rights. South African political discourse is replete with two-stagisms.

Section 36 is the second stage for any enquiry into whether an act of government

passes constitutional muster or not. When thinking about the constitution, many

respondents seemed to find comfort in the declarations of the first stage. However, a

full four out of five were unaware that, internal to the Bill of Rights, a limitation

clause exists28. And even if they had been aware, section 36 would probably not have

caused alarm, written as it is in abstract, sui generis terms that do not specify what

rights can be taken away and under what circumstances people cannot rely on the

Constitution’s protections.

As Marais J noted:

“the Constitution is not a finely tuned statute designed ad hoc to deal with one

particular subject… It provides, in the main, a set of societal values to which

other statutes and rules of common law conform, and with which government

and its agencies must comply, in carrying out their functions. It is short on

specifics and long on generalisation”29

There is no doubt that the Constitution, for all its generality, has affected life in South

Africa in many instances to the better. This is especially in the brake it places on the

arbitrary and unfair exercise of state power. Many of its precepts are well, albeit

fuzzily, known and are invoked against petty officialdom probably scores of time

every day. Indeed it is the grandiloquent vagueness of the Constitution that makes it

such an effective political and rhetorical tool. While proclaiming in some detail a

number of expansively defined human rights while at the same time holding out in

very general, academic and abstract terms the possibility of limitation, the constitution

27 Section 17 28 Interviews with random sample of 10% of Respondents to the questionnaire, November 2004 29 Nortje v Attorney General of the Cape 1995 2 SA 460 (C) 471 D-F

15

remains pure of soul. It is for individual litigants to be satisfied or disillusioned, one

by one, as particular Judges, on a case by case basis, “give specific content to those

values and principles”30 or as, one interviewee controversially put it, “do the dirty,

ideological work of limitation”31. Indeed, looking at the constitution as a political

symbol or signifier, it can never be associated with homelessness or service cut-offs.

At worst, a particular Judge may make such a finding in a particular case for

complicated reasons. But the constitution itself does not come out and say so.

So let us look now at the manner in which Judges make the calls of limitation that

really constitute the heart of constitutional interpretation. There is no longer much

argument that Judges not only interpret the law but actually make it.

“It sometimes happens that the goal of social and economic changes is reached

more quickly through legal development by the judiciary than by the

legislature. This is because judges have a certain amount of freedom or

latitude in the process of interpretation and application of the law”.32

This extract from a Zimbabwean Supreme Court ruling is salutary because we have

recently seen to what extent the Bench in that country, whose independence is widely

held to be in doubt, has been willing to use interpretive latitude to circumvent

inconvenient laws and constitutional provisions when giving judicial effect to the

political dictates of the government of the day. If we were to pick a clause in the

Constitution of South Africa that permitted the widest possible interpretive latitude, it

would have to be the limitation clause. For it is precisely when competing

‘fundamental’ rights and freedoms are to be balanced - where value judgements can

easily be made one way or the other - that a system of values extraneous to the

constitutional text itself are likely to intrude into the legal decision making process.

Constitutional Court Judge Yvonne Mokgoro acknowledges that, during the limitation

stage, extraneous values will inevitably be taken into account in reaching a decision.

She suggests that the extraneous values that should be taken into account are the

30 Matiso v Commanding Officer, Port Elizabeth Prison 1994 4 SA 592 (SE) 597 31 Interview, September 2004 32 Zimnat Insurance Ltd v Chawanda 1991 2 (SA) 825 (ZSC) 832 H

16

historical contexts in which the constitution itself was adopted33. I think, with respect,

that this last snatch at some final objective legal reference point is implausible.

Critical Legal Studies Movement theorists would point out, contra Mokgoro, that in

practise at this point in the interpretive process, most Judges would revert to type; that

is to say go the way that best conforms with their own subjective, political and social

beliefs and, dare I say, class and career interests34. I find it a persuasive perspective

that when those who have been deemed suitable by the Judicial Services Commission

for judicial appointment are asked to make close-call value-judgements, the

determination of these legal points is, no matter the pretence at value-free legal

reasoning, more often than not based on political considerations in terms of which the

existing political and social balance of power that saw them appointed in the first

place is further consolidated. Robert Tsai calls this the “bureaucratic imperative to

engage in self-preservation or expansion, doctrinal tinkering or ideological

advancement [that] infuses not only case selection and adjudication, but also language

tactics”35

Even if, in deciding how to limit and balance fundamental rights, a Judge decided the

matter with reference to the historical context in which the Constitution purportedly

came into being, can we agree on this context? For one Judge the historical context

was marked by a movement to “a future concerned with openness, democratic

principles, human rights, reconciliation, reconstruction and peaceful co-existence

between the people of the country”36. Why was it not a future concerned with social

justice, the vibrant exercise of rights to protest and collectively organise, the

thorough-going redress of apartheid injustices, human and worker rights, land

restitution and substantive equality in all areas of society?

While it should be clear that section 36 stands out as being particularly open to

interpretation and thus prone to the intrusion of subjective and political factors, it does

set out certain seemingly tough conditions before a limitation of a fundamental right

33 S v Makwanyane 1995 3 SA 391 (CC) 498H 34 On a Bench that has recently been rocked by several quite unseemly outbursts between Judges of the Cape High Court on the question of race and transformation, a litigant in, say, an complicated “affirmative action” dispute may well be excused for thinking that his fate lay in the balance of the luck of the Court Roll to see which (colour) Judge presided. 35 Robert Tsai, Speech and Strife, Law and Contemporary Problems, 83, 2004 36 Qozeleni v Minister of Law and Order 1994 3 SA 625 (E) 634B

17

may occur. A limitation of a constitutional right must be accomplished by a law of

general application provided the limitation is reasonable and justifiable in an open and

democratic society based on freedom, equality and human dignity. In particular,

regard must be had to the following factors in deciding whether to limit a fundamental

right:-

a.) the nature of the right;

b.) the importance of the purpose of the limitation;

c.) the nature and extent of the limitation;

d.) the relation between the limitation and its purpose; and

e.) less restrictive means to achieve the purpose. 37

These are fine words. However, notions of “nature”, “importance”, “purpose” and

“relation” permit as much deference to extra-textual policy considerations and

subjectivity as ever. In one of the most often quoted Constitutional Court cases on

limitation, S v Manamela, Judge Sachs positively anticipates the intrusion of social

settings.

“In essence the Court must engage in a balancing exercise and arrive at a

global judgment on proportionality and not adhere mechanically to a

sequential check-list. As a general rule, the more serious the impact of the

measure on the right, the more persuasive or compelling the justification must

be. Ultimately, the question is one of degree to be assessed in the concrete

legislative and social setting of the measure, paying due regard to the means

which are realistically available in our country at this stage …”38 (my

emphasis)

The implications of this jurisprudentially sound thinking for the justiciability of socio-

economic rights is profound. Government must be seen to be ‘seeking’ to ensure the

basic necessities of life for all. However, as long as the ‘means’ are not available, the

limitation of the right is probably justifiable. Consider the workings of limitation in

areas where budgetary limitations play less of a role. Let me play devil’s advocate. 37 Section 36 (1) 38 2000 (5) BCLR 491 (CC) and paras 32 and 33.

18

Assume that during the World Summit on Sustainable Development held at the

Sandton Convention Centre (SCC), the Anti-Privatisation Forum (APF) seeks to

march to the doors of the SCC to present a memorandum to the Presidency. Their

complaint concerns the lack of development in the very country hosting this

prestigious event. The idea behind the march is to press demands in the most visible

manner possible and, in the embarrassment and disruption that this will cause a

government parading itself as “progressive” on development issues, to ensure

prominence for the view that GEAR is failing among friends and enemies alike. The

police come to know of the march and inform organisers that it may not go ahead as

planned. Instead, there will be an authorised congregation point, 2.5 km from the

Convention Centre in a park where people supporting APF demands can congregate

between 11h00 and 13h00 on the day. Two delegates from the march could then

proceed to hand over the memorandum at the SCC.

This is an obvious limitation of the freedom of association and certainly does not suit

the APF. They feel they are not being taken seriously at all. No-one will see the

march. It will all be much too tame. Indeed, the protest relies on a certain level of

disruption to ordinary life to occur to underscore the seriousness of the issues. There

is even talk of perhaps peacefully blockading the road around the centre for an hour or

two to emphasise the frustrations felt by communities being evicted and having their

water cut. This permutation will now be impossible. Moreover, all the press will be

at the Convention Centre, not at some measly congregation point. After debate, the

organisers refuse the police offer and continue planning for the march. Two days

before the march, they are informed that the march is banned in its entirety and that

any persons attempting to march will be arrested. The limitation of the right to

freedom of association and movement has suddenly become even more profound.

How could the exercise of a fundamental constitutional right become illegal. Easily.

The Regulation of Public Gatherings Act of 1993 is a law of general application; in

other words it was not specifically passed to deal with the APF. The first hurdle to

limitation is therefore crossed. The APF has been timeously informed of the proposed

change and given an opportunity to make representations, one way or another. As it

is not per se a sign of a despotic and inhumane society when a particular march

(20000 neo-Nazis) at a particular time (the first day of school), in a particular place

19

(outside a multi-racial kindergarten) is declined, we need more detail about the way

the application of this law has, in terms of section 36, unjustifiably limited the rights

of APF members. The real and final enquiry in constitutional law is not whether a

right is being ‘violated’ or not, but whether its ‘violation’ is justifiable.

This is the government’s case. In a post 9/11 world there are legitimate fears for the

safety of any congregation of heads of state. In particular leaders of governments

involved in the war in Iraq will be in attendance, thus increasing the threat risk.

Security experts have advised that an explosion closer than 200m to the SCC could

cause death or injury to those inside the venue. There is thus a very important

purpose to the limiting freedom of movement and association of everyone within 200m

of the venue. There is an overhead flight ban, undercover agents, sniffer dog

searches and everyone closer than 200m to the venue is subjected to at least three

searches, any of which would detect an explosive device. Since it is impossible and

impractical to search, monitor and control everyone within a mass march, it is out of

the question that the march progress closer than 200m. There is therefore a relation

between the limitation and its purpose. And are there not intelligence reports from

credible international agencies that a band of violent anarchists have specifically

sought to enter the country and use the march as a platform for violence? Was there

not violence during an illegal and unauthorised march by the very same APF at Wits

three nights before? Violent assemblies enjoy no constitutional protection and even if

this one has not happened yet, there is good reason to believe it will be used to

provoke violence. Will it be that much of an affront to democracy and freedom should

a fringe group (who twice fielded local government candidates and failed to win real

public support) who seek to make an obviously minoritarian criticism of a popular

government by being a nuisance during an event that is extremely important for the

economy of the country – be simply asked to hold their protest a little distance away?

While the nature of the right to freedom of association is to facilitate an exchange of

ideas, it is really the ideas themselves that are important. No one is getting in the way

of these ideas being published or made known. The APF are in the press all the time.

Why did they reject the idea of having two delegates approach the SCC to handover

the memorandum, after being properly searched? Indeed, there is no indication that

the APF have been refused permission to assemble on another day, or on the same

20

day at another location, where the state undertakes to have someone senior from the

Presidency available to accept the memorandum. In fact, the state has on its own

initiative taken steps to limit the extent of the limitation of their freedom to

demonstrate by suggesting the park. Surely the rights of supporters of the APF to

march to a particular venue on a particular day without any restrictions cannot in a

free and democratic society reasonably be said to outweigh the right to life, security

and bodily integrity that could be at issue should anyone be allowed untrammelled

access right up to the doors of the SCC.

Unfortunately congregating directly outside the 200m perimeter but still within sight

of the SCC is also out of the question. The APF cannot expect to be on the private

property of surrounding businesses, restaurants and so on. Or is the APF contending

that it has the right to trample on the section 25 constitutional rights to private

property and rights not to associate of other citizens who have title to these properties

or earn a living there? Right must be balanced. As is apparent from a map of

Sandton, the only public spaces left in the vicinity of the Convention Centre are roads.

Regretfully, these are thoroughfares that must be kept open not only to ferry

dignitaries back and forth and for emergencies but so that ordinary people can get to

work and school and exercise their freedom of movement and occupation and trade.

As it turns out the nearest public space is the park 2.5 km away, the very one offered

to and rejected by the APF. If they had agreed to use this park initially, their right to

march directly on the SCC would have been limited for a good purpose but to a

limited extent. It is true that they would have had to disperse after only two hours of

protest but that is to accommodate other groups that also wish to exercise their rights

to march and congregate on the same day. It is really difficult for the police having to

balance the rights of so many different groups but up till now only the APF has not

cooperated. Why are Cosatu and the ANCYL not complaining about similar

restrictions to their events? Having defied perfectly reasonable limitations imposed

and with the police having received information on affidavit that individuals in the

APF planned to blockade the roads near the SCC should they get anywhere near it,

thus not only breaking the law and compromising security but also damaging the

economy by the message this would send out about South Africa as an international

21

events destination, it is actually in the interests of the wider democracy that the march

be banned altogether.

I have used the above scenario as an example as I am aware that there were moves to

divert the Social Movement Indaba march during the WSSD in 2003. As I hope is

apparent, it would have been quite easy for the state to constitutionally justify any

such deviation. There is no magic in asserting a constitutional right. One has to fend

off all arguments for the limitation of that right before you have anything legally

effective39. I would venture that the state did not back off from banning the SMI

march because of legal threats that were mouthed at the time. The SMI would have

lost its Court bid. They backed off rather because winning in Court would have

provoked illegal action even more inconvenient and unpredictable than allowing a

march up a tactical cul-de-sac near the SCC would.

Crimes

We turn now to consider the legislation and common-law regulatory framework in

which social movements operate.

Public Violence

The common law crime of “public violence” is chillingly relevant to community

movement mobilisations. It has been used widely by the new government, as was the

case with its predecessor, to detain hundreds during the sporadic township protests

across South Africa, against evictions, water and electricity cut-offs.

39 The restriction of water supplies by trickler or hour systems have not been hard to justify constitutionally. The relevant right is to “sufficient” water. The current “expert” consensus is that this is 25 litres per person per day free of charge; a right that must moreover be progressively realised. While these figures are contested by development economists such as Bond and MacDonald, the point remains that, constitutionally, free water is no right. In the Manqele v Durban Transitional Metropolitan Council matter, the Judge even authorised a complete disconnection on evidence that this was the only way to stop repeated illegal reconnections of a consumer with huge arrears and who was guilty of “excessive consumption” during periods of illegal reconnections. While these factual findings and the basis on which they were made has attracted heavy criticism, the fact remains that even a complete water disconnection has been found by a court to be a justifiable limitation of a socio-economic right. Since illegal reconnections are a widespread and physiologically necessary survival strategy, large numbers of people in Durban may fall foul of the Manqele precedent.

22

Since it is what is known as a Schedule One offence, arresting officers lack the

discretion to agree to police bail and everyone so arrested has spent one or more

nights in jail before a formal bail hearing could take place. The Kensington 87 were

detained for more than a week while a bail hearing was interminably drawn out by the

State. Even more outrageous is the treatment of the Anti-Eviction Campaign’s Max

Ntanyana, who spent over two months in jail awaiting trial, inter alia, on public

violence charges

Annexure “A – Public Violence” to this paper sets out the legal definition of this

offence in greater detail for those who would benefit from this information.

Where there may be some room to manoeuvre a defence to this charge is that the

violence or intended violence by the group must assume serious or dangerous

dimensions. The words “serious” and “dangerous” give judicial officers much rope

with which to hang an accused should they, subjectively, be so disposed. Various

factors may cause the conduct to assume serious dimensions. One of the most

important is the number of people involved, although mere weight of numbers is not

conclusive. Other factors include the time, locality and duration of the violence, the

cause of the quarrel, the status of the people engaged in it, the way in which it ended,

whether the participants were armed or not, and whether there were actual assaults on

people or damage to property committed. Other defences could be that people

genuinely believed that the eviction or water disconnection itself was unlawful and

that they were acting in defence of vulnerable members of society. What is most

worrying about this common-law crime is that, while it is seldom persisted with, it

forms the pretext for many an arrest and lengthy detention and so serves to frighten

and repress persons involved in struggle even when no conviction is secured or even

seriously sought by the state.

Incitement to Public Violence

In terms of section 17 of the Riotous Assemblies Act of 1956, a person is deemed to

have committed the offence of incitement to public violence if s/he conducted

themselves in such a manner that it might reasonably be expected that the natural and

probable consequences of their conduct would be the commission of public violence.

23

Their intention is irrelevant. This is obviously even more problematic than the

definition of public violence proper as it enables the arrest of those exercising their

freedom of expression in the absence of any actual violence or even an intention to

encourage such violence. It has been invoked in the Des D’Sa / Ashwin Desai versus

Engen Oil Refinery interdict as well as the arrest and detention of various participants

in the Wentworth strike in 2002.

Sedition

Sedition – (or “oproer” ) occurs when a number of people join together unlawfully

and with the intention of violently defying, undermining or challenging the authority

of the government.

Words usually linked to sedition are riot, rebellion, something in the nature of an

insurrection, “oproer”40. This crime differs from public violence in that it is aimed at

the authority of the state, whereas public violence is aimed at public peace and

security, although sedition often involves a disturbance of public peace, order and

security, and an offender may then be charged with either of these two offences.

Sedition must be accompanied by actual or threatened violence41, although the

gathering need not necessarily be riotous. What is required is mutual conduct by the

group whereby the authority of the state is challenged; for example “peoples’ courts”

that subject others to an unlawful judicial system in defiance of the state’s authority or

the encouragement of “liberated zones” where state revenue raising, bank

repossessions through civil law or an eviction pursuant to court orders are not

permitted to occur through riotous conduct.

Not only those who take part in the gathering but also those who incite, instigate or

arrange it are guilty of the crime, provided that the gathering or “riot” does in fact

follow upon the incitement or instigation (“definition includes the words “causing of a

gathering”). There must be causal connection between the incitement and subsequent

40see C.R. Snyman, Criminal Law,4th ed, Butterworths, 2002, p.321 41 Zwane (3) 1989 3 SA 253 (W) 291

24

riot. If one incites or conspires with others to hold a gathering, but the gathering does

not take place, one can be charged with incitement or conspiracy to commit sedition.

Intention remains a necessary element of the crime – the aim of the gathering or

causing it must be to defy, challenge or resist the authority of the state. The authority

of the state is not limited to its executive arm but may include its judicial organs. It is

not required that they succeed in breaking down the authority of the state: the

intention to do so or to challenge or resist the state’s authority is sufficient.

While prosecutors have not used this crime often, should social movement politics in

South Africa become more confident, successful and adversarial, it is quite likely that

it would be, as evident in the case of the Harrismith 13. On 27 May 2004 the state

raided the stakes in the countrywide protests by charging the 13 with sedition,

labelling the riots and protestors in Harrismith as a “danger to democracy”.

Sedition is a serious offence which falls into the same category as treason. Charging

protestors with sedition could have a chilling effect on legitimate protest. A line of

defence would be to insist that the definition of the proscription is “read down”42 in

line with the constitutional rights to political belief and opinion, freedom of

expression and demonstration, so making defiance less a matter of sedition and more

of normal democratic contestation.

Statutory Crimes

Intimidation Act 72 of 1982

The predecessor of the Intimidation Act was the notorious Riotous Assemblies Act of

1956, which originally regulated employer-employee relations and, in particular, the

use by trade unions of economic muscle and power play. The provisions were later

given universal application by the elimination of the requirement that the intimidatory

or similar conduct had to be in ‘respect of employment’. In 1982 the Intimidation Act

repealed these provisions of the Riotous Assemblies Act and replaced them by a

42 As provided for in section 39 (2) of the constitution

25

single crime. The Intimidation Act was part of a battery of security legislation, for

example the Internal Security Act of 1982, enacted in the days of the ‘total onslaught’.

The Internal Security Act of 1982 was only recently repealed in terms of the long

debated and often changed ‘Anti-Terrorism’ law, now called POCDATACA which

came into effect on 20 May 2005. There is at present no similar move to repeal the

whole Intimidation Act, despite its history. POCDATACA merely makes reference to

the repeal of section 1A. The remaining sections of the Riotous Assemblies Act were

supposedly repealed under the Justice Laws Rationalisation Act 18 of 1996. However

the Act, especially section 17 & 18 thereof still exists in our statute book. There are

several provisions of the Intimidation Act that seem to violate the right to freedom of

expression.

Snyman states that the purpose of the Intimidation Act is to punish people who

intimidate others to conduct themselves in a certain manner, such as not to give

evidence in court, not to support a certain political organisation43, not to pay their

municipal accounts or to support strike action. The crime may overlap with certain

other crimes, such as extortion and assault.

The Act creates two offences: in section 1 (1) (a) a formally defined act and in section

1(1)(b) a consequence crime (the causing of a certain condition).

In terms of section 1(1)(a) a person commits intimidation if he assaults, injures or

damages property or threatens any of these or to kill to compel or induce the victim/s

to abstain from any act or support or not support a particular standpoint. Section

(1)(1)(a) requires intention, whereas intention is not required in (b). Section 1 (b) of

the Act reads as follows:

“Any person who acts or conducts himself in such a manner or utters or

publishes such words that it has or they have the effect, or that it might

reasonably be expected that the natural and probable consequences thereof

would be, that a person perceiving the act, conduct, utterance or publication-

43 see C.R. Snyman, Criminal Law,4th ed, Butterworths, 2002,

26

(i) fears for his own safety or the safety of his property or the

security of his livelihood, or for the safety of any other person

or the safety of the property of any other person or the security

of the livelihood of any other person shall be guilty of an

offence and liable on conviction to a fine not exceeding R40

000.00 or to imprisonment or to both such fine and

imprisonment”.

Analysis of Section (1)(1)(b)

An Act like this should be directed at persons who, by words or physical conduct,

intend to and do frighten others in order to influence and/or subdue. It is difficult to

see how section 1 (1) (b) will pass constitutional muster because it is too wide,

unclear and has no rational connection to the real meaning of intimidation.

Intention is not required for a conviction in terms of section 1(1)(b). The words “that

it might reasonably be expected that the natural and probable consequences thereof

would be that…” embodies an objective test, not the subjective test applied to

determine the existence of intention.

The use of the words “that might reasonably be expected” in the paragraph means that

someone railing against pre-paid water meters would be guilty of the crime created in

the paragraph if a reasonable person would have foreseen delicate contractors or

fellow residents feeling scared as a natural and probable consequence of her conduct.

It follows from this that, in order to secure a conviction in terms of this paragraph, it

is sufficient to prove culpability in a form akin to negligence.

In order to obtain a conviction of the crime created in subsection (b) the prosecution

need not necessarily prove that the prohibited result (i.e. that a person fears for his

safety) necessarily ensued. Instead of the actual ensuing of the result, it is sufficient

that “it might reasonably be expected that the natural and probable consequences” of

the conduct would be that a person fears for his safety or that the other possible

consequences which are mentioned ensue. Subsection (b) is wide enough to cover

27

cases where someone has already committed the particular act aimed at intimidating a

certain group of people, but has not yet succeeded in bringing the intimidatory

message to the attention of the group. An example of such action is where X had

drawn up and printed a pamphlet but has not yet succeeded in distributing the

pamphlet among the members of the group of people he wishes to influence.

Subsection (b) is also wide enough to cover cases where, because of the very (alleged)

intimidation, the (alleged) victims of the intimidation are not prepared to come

forward and give evidence that X’s conduct resulted in their fearing for their own

safety or, for example, the safety of their property. 44

In subsection (b) intention is not required. The words “that it might reasonably be

expected that the natural and probable consequences thereof would be that …”

embodies a test which is difficult to square with the subjective test which the courts

apply to determine the existence of intention.45

There is even no requirement that the alleged perpetrator directed his or her act at the

alleged victim or that he or she intended the alleged victim to fear for his or her

safety/property. The provision could further cover activities in which the alleged

perpetrator may not even be aware or reasonably have known that his or her conduct

was making a person fear for his life/property.

Basically the connection in the provision between the perpetrator and victim is very

tenuous and very unclear. It fails to clearly define the conduct it proscribes and is

susceptible to too wide an interpretation. Accordingly it does not provide reasonable

notice to the public of what is prohibited so they can act accordingly. It places in

doubt what can lawfully be done and what cannot. As a result it exerts an

unacceptable “chilling effect” on freedom of speech, since people will tend to steer

clear of the potential zone of application to avoid censure.

The provision is so wide that it technically covers the following situations:

44 see C.R. Snyman, Criminal Law,4th ed, Butterworths, 2002. 45 ibid

28

• A journalist writing a sensational article that a particular country is threatening

to declare war on South Africa and it has nuclear weapons. In this scenario the

public would reasonably fear for their safety and property. Similarly, a

journalist who writes a sensational article that the high murder/rape/robbery

rate in South Africa is on the increase and the state is failing to solve the

problem.

• Community members who verbally and through pamphlets threaten to stage an

unlawful strike/protest/sit-in in respect of a particular company.

For what it is worth the following proposed amendments would probably attract

support even from the legal establishment. The legislature should restrict the

provision to something similar to:

“Any person who utters or publishes words which are intended to and have the effect

of instilling fear in another person or persons for his or her life or property in order to

influence the person/s conduct or subdue the person/s shall be guilty of an offence…”.

The Ebb and Flow of Illegality in Community Movements - Intimidation One of the conundrums faced by social movements is that the success of the tactics

they need to employ in a typical first mobilisation depends on diverting various

officials from exercising technical functions that they are perfectly legally carrying

out. Even if a function is itself being carried out illegally, such officials must be

stopped by legal action, not force, according to the law. These functions include

serving papers, disconnecting or restricting services, laying pre-paid water meters or

installing trickler devices, removing furniture and guarding an empty house or

convening rival political meetings. The dynamic of community movements is that

they “absolutely depend”46 on thwarting these initials attacks before these movements

can become credible vehicles for community disaffection or desire later. The process

of initial growth is quite rapid but depends on “dramatic victories, dramatic acts.”47

46 Interview, Ashwin Desai, August 2004 47 Interview, Ashwin Desai, October 2004

29

Since they must be most effective when they are smallest and youngest to have a good

chance of survival, it may be inevitable that those on the scene first compensate for

poor numbers and planning by being aggressive. In other words they might

“intimidate” in terms of section 1(1)(a) of the Act. Since there is nothing

constitutionally wrong with this section, falling foul of it becomes a risk of struggle

for many involved in the very first, founding engagements with the authorities. The

“Battle of Bayview” in Durban, “Glenn’s eviction” in Athlone and “Ashraf Cassiems’

beating” in Tafelsig are frequently, almost reverently, cited examples of these

moments where, in bloody praxis, the scope of the struggle and its demands were

conveyed in a manner wide, radical and illegal48, almost certainly involving

intimidation and public violence..

Strangely, once these initial mobilisations have been successful and a much larger,

more visible and powerful organisation comes into being, which allows for the

pursuance of demands by more forceful and proactive methods, there seems most

times, instead, to be a ‘regression’ into a legalism and proceduralism insofar as the

substance of the demands are concerned too. This is a point made by activists

involved in legal work in both Johannesburg and Durban49. One of them makes the

point that a particular struggle was “almost entirely conceived around the Council not

following due process of law in announcing a rental increase in Sydenham Heights.

Even the mobilisations were functional to the Housing Tribunal hearing and it was

CCF (Concerned Citizens Forum) leaders who talked the thing up into a broader

social issue of gentrification.”50 Another respondent noted that a struggle against

evictions by the Unicity “became consumed by demands that the ward councillor

must go because he failed to do x, y and z, completely minor things”51.

The difficulty for community movements is that bringing the substance (as opposed to

the form) of their demands within the law cannot actually satisfy the original needs

and desires underlying the mobilisation. As we have seen above, an eviction can be

perfectly lawful and constitutional, so can a disconnection or restriction of a service.

48 Responses to question 10.2 of the questionnaire. 49 Interviews September and November 2004 50 Interview November 2004 51 Interview, September, 2004

30

The evocative language of struggles that initially radically re-imagined social

citizenship is, according to one interviewee, often poorly captured in the official

demands or self-representation of the community movements that arise. This retreat

into “disputations of law” is something an interviewee who provided legal advice to

community movements saw as “being more than just a defensive move”52. For him, it

was often the leadership thrown up by a particular social struggle that “even at the

height of power” seemed unable to stomach the idea that their demands could

probably not be successfully pursued in court. Specifically, there was denial and

resistance to the idea that most of the original demands went beyond the realm of

what the Constitution would guarantee. After receiving advice to this effect, he

reports that “some organisations embraced the necessity of consistent illegality, others

died and some just changed their demands to a list of bureaucratic infractions they

could have fixed”53.

Certainly there are often very good reasons to retreat. The Western Cape Anti-

Eviction Campaign, in particular, has suffered incredible repression with some of its

leaders spending long periods in jail, others suffering savage beatings, allegedly being

physically threatened by SANCO members54 and being singled out for the special

attention of a dedicated police unit. It would make absolute sense for the AEC to

portray itself for a while as the epitome of lawfulness and moderation under these

conditions. What is being commented upon is a tendency to get involved in

‘disputations of law’ when these conditions do not apply. The dilemma is precisely

that those movements that continue to state their demands and represent themselves in

extra-legal terms either “burn out” or bureaucratise in order to absorb the negative

attention they receive55. Those that focus on attaining due process rights come to be

viewed as failures at best, sell-outs at worst because “when justice is served it falls

short”56. Since the demands have now been foreshortened in substance, tone and the

manner in which they pressed, this is not surprising. By the time this is realised it

could well be too late to recapture the spirit of earlier actions. We will return to these

points at the end of Part One.

52 Interview, September 2004 53 Interview, September 2004 54 Interview, October 2004 55 I am grateful to the APF’s Ahmed Veriawa for this insight. 56 Interview, October 2004

31

NATIONAL KEY POINTS ACT 102 OF 1980

In terms of section 2(1) of this Act the minister may, whenever it appears that a place

or area is so important that its loss, damage, disruption or immobilisation may

prejudice the Republic, or whenever he considers it necessary or expedient for the

safety of the Republic or in the public interest, declare that place or area a national

key point.

Basically the law is designed to protect places and premises deemed to be of strategic

interest against sabotage or other forms of attack. The Act also makes the Protection

of Information Act relating to prohibited places applicable to National Key Points.

This means that in general the disclosure of information carries the penalties provided

for in the Protection of Information Act. The anti-disclosure provisions in the Act

make it a crime to “furnish” without legal obligation or right, or without the authority

of the minister, any information relating to:

(a) the security measures applicable at a key point;

(b) the composition, duties, movements and methods of security personnel who

operate there; or

(c) any incident that occurred there (my emphasis). “Incident” means “any

occurrence arising out of or relating to terrorist activities, sabotage, espionage

or subversion”.

The press may not publish any news relating to the incident unless the publication is

authorised by the minister. A person may not comment on these issues as well. This

drastically curtails the right to report on political campaigns deemed “terrorist” or

“subversive” by the state. And since there is no proper definition of “terrorist” acts at

present and the proposed definitions are extremely wide, controversial and uncertain,

this limitation of the right to freedom of expression, information and demonstration

may be disproportionate and thus unconstitutional.

32

This Act also requires further examination because many “Key Point” plants or

companies are embroiled with local communities and organisations over

environmental and occupational hazard issues, especially in Wentworth, Durban. In

an interview with a local community and environmental organisation, it was clear that

the companies are using the National Key Points Act to avoid communicating

information and news regarding these issues57.

The Act also provides, under certain circumstances, for the exclusion of any protest

action within a radius of 500m from the National Key Point. These provisions have

been used to interdict protests against Engen during the Wentworth community strike

so vividly narrated by Desai58. Ironically this would have meant excluding any

protest action in the backyards of many community members themselves, who live

across the road from the oil refinery.

While the entire Act itself is not per se unconstitutional, certain sections do lend

themselves to unconstitutional restrictions to flows of information as well as protest

action. The problem is that these challenges will have to be made on a case by case

basis. Rushing to court to secure the right to protest will often result in a Phyrric

victory for the tactical momentum would have been lost by the time a ruling is

achieved.

By all accounts, this Act has played a significant role in inhibiting and containing

struggles against Engen in Wentworth. “Local police are phoned when we protest.

They’re given a copy of the Key Points Act. They don’t want to hear anything about

how the constitution changes this law. They look at the words in black and white

which say we must move and then they order us to move”59

Desai also talks about the dramatic arrest of strike leaders by a special police unit

after the end of a peaceful rally. The reason was that, at the rally, as a show of

solidarity, everyone handed in their work badges. Desai and others contend that they

were keeping the bag safe until after the strike. During the rally a chant had gone up,

57 Interview, Des D’Sa, September 2004. 58 We Are the Poors, Monthly Review Press, 2002 59 Des D’Sa, Interview, October 2004

33

“Fuck Engen”. “Suddenly, we were swooped on like terrorists weilding dangerous

weapons”60. The official reason was that this group were in unauthorised possession

of documents belonging to a National Key Point after a meeting in which violence

had, supposedly, been incited (“Fuck Engen”) against the plant61.

MUNICIPAL SYSTEMS ACT 32 of 2000

Section 119 of this Act read with section 101 makes it an offence punishable by a

prison sentence of up to a year for anyone to interfere with meter-reading, restrictions

or disconnections of services or in any other way to prevent municipal officials from

carrying out duties incidental to these tasks. The effect of the creation of this specific

offence is, it may be argued, to empower magistrates or judges to send to jail or fine

persons whose conduct may earlier have attracted warnings or suspended sentences

under the common-law. More likely than not, a range of behaviour not likely to have

risen to the level worthy of prosecution under common-law crimes such as public-

violence or statutory ones such as intimidation, has now been criminalized. It is no

longer violence or fear that must be established but mere interference with the

carrying out of municipal duties.

REGULATION OF GATHERINGS ACT 205 OF 1993

In the struggle for liberation, protests, assemblies, “rolling mass action” and

demonstrations played a pivotal role. Obvious examples in this regard include the

ruthlessly suppressed mineworkers’ strike of 1946, the Sharpeville massacre, the

Soweto riots of 1976. Since the (black) communities were deprived of virtually all

other democratic rights of political participation “the majority of South Africans had

but one mode of political participation available to them: at the right time and place

they could ‘vote with their feet’, they could toyi toyi, they could demonstrate”. 62

60 ibid. 61 see Desai, We Are the Poors, Monthly Review Press, 2002 62 Woolman and de Waal “Freedom of Assembly: Voting with their feet” in Rights and Constitutionalism (eds) van Wyk et al 292.

34

Now that SA has a democratic government, demonstrations and mass action are, some

believe, no less important as tools of political advancement for disadvantaged people

in South Africa. Few would disagree that communities and workers still have pressing

and bona fide political and economic interests to pursue.

Section 17 of the Constitution states that: “Everyone has the right, peacefully and

unarmed, to assemble, to demonstrate, to picket and to present petitions”. The

purpose of the right is to protect assembly as a means of communicating opinion. It is

protected because it is essential to democracy and facilitates the collective voicing of

grievances and demands. Assemblers are much more likely to get their message

across than individuals. Demonstrations or pickets may be the only way to urge

government into action or to discourage it from implementing certain plans and

policies. They also form a counterweight to the power given to the government.

Despite its recognised status as a distinct and demarcated constitutional right, freedom

of assembly has been dealt with as “a less important category of free speech”. 63 The

reason for the diminished protection of this right is that it is perceived as a form of

conduct which is “a condition for freedom of speech, and that it is the nature and

content of speech itself which is thought to be of paramount importance”. (ibid.) For

some, political protest can at times be anathema to democracy. If we have a

democracy, so the thinking goes, and everyone can say what they like and stand for

public office, surely only those who are unable to attract majority support for their

views will need to toyi-toyi. The winners, the majority will be legislating, the

undemocratic minorities, protesting.

The meaning of assembly

The term in the constitution covers meetings, picketing, protest marches and

demonstrations, and the right extends to all activities associated with the holding of an

assembly. These include the preparation for, the organisation and administration of -

the assembly (advertising, arranging the venue, speakers and transport and

determining the order of the proceedings).

63 Woolman in The Constitutional Law of South Africa (eds) Chaskalson et al 21-6l

35

The right to assemble is not unqualified. There is, what may be called, an internal

modifier to the right to assemble and demonstrate. . The assembly must be “peaceful”

and “unarmed” in order to qualify for constitutional protection. The effect of these

qualifications is different from that of a limitation on the right. Actions or laws aimed

against armed or violent assemblies will not constitute an infringement of the right to

assemble and therefore need not be justified in terms of the limitation clause of the

constitution. The fact that armed or violent assemblies are not constitutionally

protected does not mean that they are illegal. It simply means they are not

constitutionally protected. Failure to comply with the qualifications (“peaceful” and

“unarmed”) pre-empts the application of the proportionality of state action tests 64,

quite possibly removing from the ambit of constitutional protection particularly

‘militant’ marches and gatherings.

Below, in “Annexure B – Public Gatherings”, further jurisprudential attention is given

to the meanings of peaceful and unarmed for those who are interested.

Assuming that a gathering is in fact peaceful and unarmed we turn now to consider

under what circumstances it may be limited or prohibited. The restrictions of

activities that fall within the scope of protection afforded by the right to assemble,

must be sanctioned by a law of general application that meets the criteria of section 36

of the Constitution. The Gatherings Act is meant to serve this purpose and its sole

purpose is control of assembly65.

Many forms of police action against assemblers are not directed at protected activities

and will therefore not have to be justified. The right to assemble offers no protection

to perpetrators of crimes such as malicious injury to property (digging up water

meters) or assault (chasing away security guards). However, if construed broadly,

64 De Waal et al, p232, The Bill of Rights Handbook (4th ed). 65 Incidentally, the Internal Security Act 74 of 1982 is still in the statute books and also regulates gatherings in terms of section 46(3). In terms thereof, the Minister of Safety and Security has the power – if he or she thinks it necessary or expedient in the interests of state security, public peace or to prevent hostility between population groups – to ban any gathering and for any period of time. The Act is clearly unconstitutional and arguably may not be used because the objective of the Gatherings Act is to draw together and codify the law on assembly. It will probably be repealed by the Anti-Terrorism Act due to be promulgated soon.

36

some common law crimes such as public violence or statutory ones such as terrorism

and sabotage and the intimidation or incitement to public violence, may affect

assembly as a means of communicating opinion (see the Intimidation Act 72 of 1982,

the Prevention of Public Violence and Intimidation Act 139 of 1991 and the Riotous

Assemblies Act 17 of 1956; sections 54(3) and 54(1) of the Internal Security Act 74

of 1982). Where possible these criminal offences must be construed, in the way

indicated by section 39(2) of the Constitution, to avoid such a result. 66

Of crucial importance for social movements is the distinction drawn by the Gatherings

Act between “gatherings” and “demonstrations”. A gathering is defined as an

assembly on a public road or open-air public place at which 15 people or more aim to

communicate a message. A demonstration consists of fewer than 15 people

propagating a cause or action. 67

The Act does not regulate indoor assemblies. The police may use their ordinary

powers to prevent injury to persons or damage to property, but they have no power to

disperse the meeting. Special provisions apply to demonstrations and gatherings on

weekdays in the vicinity of courts, Parliament and the Union Buildings. Assemblies at

these venues are prohibited, unless permission is obtained from, respectively, the

magistrate of the district, the Chief Magistrate of Cape Town or the Director-General:

Office of the President. 68 As fourteen residents of Mt Moriah found out, the

Electoral Act also prohibits public gatherings on voting day, except with special

permission.

These caveats aside, the Act does not provide for the prohibition of demonstrations in

advance. However the provisions relating to the conduct of assemblers, the powers of

the police and liability for riot damage applies equally to gatherings and

demonstrations.

In respect of the regulation of all outdoor assemblies (of 15 persons or more), the Act

envisages a role for three parties: the assemblers, the relevant local authority and the

66 De Waal et al; 337). 67 section 1 of the Gatherings Act. 68 Section 7 of the Gatherings Act.

37

police. The assemblers must appoint “a convenor”, the local authority, “a responsible

officer” and the police “an authorised member”. Notice of the details of a gathering

(for example the place, time, nature, objective and numbers of participants) must be

given by the convenor to the responsible officer seven days in advance. This is not a

request for permission. It is hard to quantify the inhibitory effect the common

mistake in many community movements that permission is necessary for an assembly

planned a week in advance has caused. Nor is it known how many times public

authorities have purported to decline permission when it has been sought and how

many gatherings have either not occurred or taken place under a cloud of illegality.

“Of course I would be more comfortable in a legal march where we had permission. I

wouldn’t look over my shoulder”69, said one interviewee. Another, a single mother

said, “ I can’t go on a illegal march because what if I get arrested”70.

Given that demonstrations are very often a passionate and immediate response to a

particular controversial issue, it can convincingly be argued that seven days is an

unreasonable period to wait. This provision may be in conflict with both sections 16

and 17 of the Constitution, as it may prevent persons and political parties from

registering their opposition to a particular policy or conduct of government or other

relevant person or body before it becomes a fait accompli or have a chilling effect on

spontaneous demonstrations 71

There is a somewhat of an alternative however since, if the demonstrators are

prepared to submit to more circumscribing conditions, notice of merely 48 hours will

suffice in terms of section 3(2) of the Gatherings Act. If the notice is given less than

48 hours before the gathering, the responsible officer appears to have an unfettered

discretion to prohibit (ban) the assembly in terms of section 3(2) of the Act. Failure to

comply with section 3(2) arms the local authorities with virtually untrammelled

discretion to effect blanket prohibitions.

69 Interview, October 2004 70 Interview, November 2004 71 de Waal et al; 228.

38

This discretion must, however, in terms of section 39(2) of the Constitution, be read

down to conform with the requirements of the section 33 right to just administrative

action, which will probably require a hearing before and the giving of reasons after

the decision is made. (Of course, to enforce these rights in Court will effectively mean

the protest does not legally happen on these tight time-frames). The right to freedom

of assembly itself will require those reasons to be persuasive, which may be the case

when there is not enough time to avert a serious disruption of traffic or the possibility

of injury to persons or damage to property. Administrative inconvenience, I would

suggest, may never be a reason for banning an ill-timed march. The costs of policing

an assembly or the free economic activity of others may justify limitations on time,

place and manner of assembly, but may not easily be a ground for its banning.

In a decision of the Lesotho Court of Appeal, Seeiso v Minister of Home Affairs 1998

(6) BCLR 765 (LesCA), Steyn JA held that a court “should be loath to give a strained

or extended meaning to a statue which would through such an interpretation seek to

confer power to abridge or curtail the right to assembly. The narrower interpretation,

which excluded the power to ban a meeting, was preferred”. The court also stressed

that the mere assertion by the executive that the security of the state or the protection

of the public interest necessitates a banning was not enough. Clear, unambiguous and

factually precise submissions were necessary to discharge the onus imposed by the

Constitution on the state. Perhaps jurisprudence such as this will be replicated in

South Africa.

The real difficulty lies not in being allowed to march, but when, where, how;

especially if when these questions mean the difference between a powerful and

disruptive action and a damp squib. The parties may meet beforehand and endeavour

to reach agreement on the details (time, place etc). If there is no agreement, the

responsible officer may, if there are reasonable grounds, unilaterally impose

conditions to ensure traffic is not disrupted, access to property and the workplace is

not impeded and injury to persons or property is prevented. 72

72 section 4 of the Gatherings Act

39

Prohibition of the gathering can only occur if there is credible information on oath

that the gathering may seriously disrupt traffic or lead to injury to persons or

extensive damage to property and the police will not be able to contain the threat. In

that case, the responsible officer may prohibit the gathering. Before doing so, the

officer must first meet with the other two parties and discuss ways of averting the

danger through the imposition of conditions73.

Any condition or prohibition may be set aside by a magistrate, but the application

must be brought within 24 hours after the responsible officer has given notice of his

decision. No costs shall be made in respect of such an application74. Again this

imposes a considerable skills, financial and organisational burden on many

community movements for whom access to a court is dependent on securing an

attorney. Parties may appeal the decision or vary any condition imposed in the High

Court, an even more time consuming, expensive and technically involved process. In

the world of realpolitik, it probably makes sense for authorities to set conditions that

they know will be overturned later, when it is too late to march anyway.

In ruling on the validity of prohibitions or conditions, the following test applies: the

limitation must be proportionate to the objective it seeks to achieve. A court must

consider whether the limitation on the right to assemble is rationally connected to one

of the grounds in the Gatherings Act. Also the limitation must be the least infringing

alternative available. So, where time, place or manner restrictions will suffice, the

state may not ban the gathering. Further, the benefit society derives from the

limitation must outweigh the cost to the assemblers.

Conduct at the gatherings and demonstrations is the responsibility of the convenor of

a gathering who must appoint marshals to ensure that the gathering proceeds

peacefully and in accordance with any conditions imposed by the responsible officer

and/or specifications in the notice. Incitement of hatred or violence is prohibited75

73 section 5 of the Gatherings Act 74 section 6 of the Gatherings Act

75 section 8 of the Gatherings Act

40

Provisions concerning the powers and responsibilities of the police at gatherings and

demonstrations set out that they must ensure that the assemblers do not deviate from

the route specified in the notice and obey any conditions. If notice was not given 48

hours before the gathering, the police may restrict the gathering to a place so as to

minimise disruption. The police must also take reasonable steps to protect persons and

property.76

Dispersion of the gathering may now occur if a member of the police above the rank

of Inspector has reasonable grounds to believe that there is danger to persons and

property that cannot be averted by other steps. He or she may then call on the

assemblers to disperse. If the assemblers do not disperse, the officer in charge may

order the police to use force. Force must be used moderately and must be

proportionate to the circumstances of the case and the object to be attained. They may

not use weapons likely to cause serious bodily injury or death. The use of weapons,

including firearms may only be ordered if there is a threat of serious injury to persons

or serious damage to valuable property, and only when it is clear that no other method

would be effective or appropriate to avert the danger.

Chapter 4 of the Act imposes civil liability for riot damage on the organisation

responsible for the gathering, the convenors and the participants together with the

persons who caused the damage. The convenors may escape liability if they can show

that they did not intend or permit or foresee such and they took all reasonable steps to

prevent such. This must inevitably have a dampening or chilling effect on the use of

demonstrations for public protest. The question is whether this provision of the Act

falls within the parameters of the limitation clause embodied in section 36 of the

Constitution.

The Gatherings Act may well produce a chilling effect on protest. The chilling effect

doctrine according to de Waal77 arose in American jurisprudence. It comes into being

when an expressive action is chilled when persons whose conduct or speech is

76 section 9 of the Gatherings Act

77 de Waal et al, 238

41

constitutionally permissible are intimidated in order to coerce them to retreat from

their intended conduct by virtue of a “vague” or “overbroad” law. 78

Another concept, that of chilling conduct, is also apposite. Some forms of police

observance may be necessary to facilitate freedom of assembly. However if the

observation is intended to intimidate rather than to facilitate, it amounts to chilling

conduct, and is impermissible. This is, by some accounts, a feature of the way protest

action is handled in Johannesburg where authorities seem particularly hostile to the

APF. Certainly, the notion that “permission” is necessary for a gathering is chilling.

To avoid the chilling effect and to ensure restrictions on freedom of assembly are

reasonable as required by the limitation clause, it can legitimately be asked whether

the restrictions are designed in a manner free from untrammelled or excessive official

discretion, or unwarranted arbitrariness, and not wittingly or unwittingly capable of

intimidating persons desiring to exercise their rights. If so, these restrictions are liable

to be set aside. Of course, even if there is undue pressure from authorities, it will take

Court action to relieve; an often academic and mostly belated exercise.

BAIL – THE RIGHTS OF ARRESTED PEOPLE As in the past, communities and organisations involved in protest action are

increasingly finding themselves arrested on various charges, including public violence

and offences relating to illegal gatherings, and contrary to their theoretical rights, are

forced to spend long spells in detention before being released; if they are released.

This section looks at some of the reasons why this is so.

Section 35 of the Constitution and the Criminal Procedure Act 51 of 1977,

particularly sections 50 and 60 to 72, sets out the substantive and procedural rights of

arrested people

78 Although the two concepts are similar and may overlap, they are conceptually distinguishable.

42

To be brought to court within 48 hours

An arrested person has the right to be brought before a court as soon as is reasonably

possible, but not later than 48 hours after the arrest. However, if arrested on a

Thursday or Friday afternoon he or she may only be brought to court on the following

Monday. In urgent cases application may be made for a bail hearing on the weekend

but this is exceptionally difficult to arrange.

Release from detention on bail or on warning

The arrested person has the right to be released from detention on bail or on warning

if the interests of justice permit, subject to reasonable conditions. The wording “in the

interests of justice” essentially fetters the right to be released. Bail is a deposit paid to

the State, purportedly to make sure the person will come to court during the trial.

There are two kinds of bail: police and court bail. If the charge is not serious79, the

police may release the person on bail decided by them or “on warning” (by warning

the person when to appear in court). If the arrested persons are under 18 years old a

senior police officer may release them “on warning” into the care of their parents. If

the person is not released on police bail or “warning”, the person will have to wait

until he or she is taken to court and then the person can apply to the magistrate for

same.

After hearing representations from the accused and the prosecutor, the magistrate will

determine whether the arrested person may be released, and if so whether on bail or

“on warning”. Regarding the former, the magistrate may consider factors such “public

order”, the interests of the community”, whether the accused will evade trial (is a

flight risk), is likely to intimidate witnesses, destroy evidence or endanger anyone.

Regarding the latter, the magistrate should consider the financial position of the

accused. Release “on warning” into the custody of parents should generally be applied

to young people.

79 Serious charges include crimes like public violence, murder, culpable homicide, rape, kidnapping, robbery, arson, assault with a dangerous weapon, housebreaking, theft of more than R20 000, crimes relating to drugs, treason and sedition.

43

Section 60(11) of the Criminal Procedure Act singles out for more stringent treatment

applicants for bail arrested for schedule 6 offences80. It contemplates an exercise in

which the balance between the liberty of accused and the interests of society in

denying the accused bail will be resolved in favour of a denial of bail, unless the

accused adduces evidence to satisfy a court that “exceptional circumstances” exist

which permit his or her liberty.

If the magistrate refuses bail or sets an unreasonably high amount of bail or

irrationally refuses release on warning, the accused may appeal to the High Court.

Contradictions between the law and reality

People who favour release before trial on bail or warning (as opposed to refusing

either) say that it prevents accused persons being punished before they are found

guilty by a court and it prevents first time accused persons mixing with hardened

prisoners in jail and overcrowded jails. In the past, statistics have shown that only

25% of accused persons who were kept in prison before trial received a prison

sentence by the court once they were found guilty. There are usually about 60 000

prisoners a year waiting to go to trial in South Africa.81

Although the law prescribes what a court must look at in determining whether to

release arrested persons on bail or on warning (as set out above), the practical reality,

as shown by the statistics, is different. Frequently an unaffordably high amount of

bail is set which, particularly in mass-arrests, is impossible for a small community

movement to raise. And so people arrested even on non–schedule 6 charges, often

remain detained for long periods because of the considerable financial burden placed

on the accused to attain his or her release.

The recent experience of the Kennedy Road community in Durban show a more

sinister side to the fate of arrestees. On 19 March 2005 after staging a protest about

housing on a main highway, 14 members of the community were arrested and charged

80 These include murder, rape, robbery with aggravating circumstances and indecent assault with aggravating circumstances. The schedule does not include public violence. 81 Street Law, 2nd edition, page 113

44

with public violence. The arrested included at least two school going females under

the age of 18 years old. Despite the legal principle that arrested persons under 18

years old should be released “on warning” onto the care of their parents, this was not

even considered by the police. Since the 14 were arrested on a Saturday and Monday

was a public holiday they were only brought to court on Tuesday 22 March 2004.

Without hearing or asking for any representation from the arrested, the court

remanded the matter to 29 March 2005 because the police docket was not in the court

file. In other words, because the investigation officer had not bothered to appear in

court or furnish the prosecutor with the docket, the 14, without one word uttered from

their side, were dispatched back to prison for another week. It bears repeating that this

was despite the charge sheet indicating at least two 17 year old accused. On 29 March

2005, when the accused appeared the magistrate refused to permit the accuseds’ legal

representative to address her on their case because the legal representative had not,

prior to court commencing, attended the magistrate’s chambers to introduce herself

according to custom.82 Only the prosecutor was permitted to address the court, and

again the court was told that the docket had not been furnished by the police. The

matter was remanded to 5 April 2005; meaning the accused were to be sent back to

prison until their next appearance on 5 April 2005. Only after a grovelling

intervention by a colleague and profuse apologies in chambers, did the magistrate

agree to recall the case and give the accused an opportunity to be heard. Ironically the

delay and drama facilitated behind-the-scenes haggling and negotiation between the

magistrate, prosecutor and accuseds’ legal representatives in a more conciliatory

manner, and the accused were, against precedent and prior expectations, released “on

warning” on 29 March 2005. They had spent 10 days in prison without a hearing.

How the state bars media and public scrutiny of protest in action

82 In other words a custom, extraneous to the law, determined the liberty and merits of the case of the accused.

45

Section 13 of the Police Act 68 of 1995 the police can declare an area a crime scene,

and in this way bar access to it. The relevance of this is that the state can and has used

this provision to bar media access to the scene and, therefore, scrutiny of their actions.

The police used this provision during the Diepsloot protests in July 2004. The

provisions of this Act may increasingly facilitate state repression in the future.

The Protection of Constitutional Democracy Against Terrorism and Related

Activities Act, 33 of 2004 (the “POCDATARA”)

The new terrorism Act came into effect on 20 May 2005. The definition of “terrorist

activities” is central to this piece of legislation and the controversy it has caused as it

went through Parliament. The Act replaces the Internal Security Act 74 of 1982 and

forms part of a battery of new and additional security legislation such as the Financial

Intelligence Centre Act 38 of 2001 and the Regulation of Interception of

Communications and Provision of Communications-related Information Act 70 of

2002.

Following protests that the broad and vague definition of “terrorist acts” in the

preceding bills would effectively turn many of the activities of workers and social

movements into terrorist acts, the state introduced into the Act, a disingenuous

exclusion clause, section 1(3), which purportedly excludes advocacy, protest or

industrial action from the definition of “terrorist activity”.

However the devil is in the grammar and cross referencing of the different parts of the

definition. A proper reading of the exclusion clause, together with the still wide and

sweeping definition of “terrorist activities”, discloses that advocacy, protest, dissent

and most community movement campaigns will, by definition, constitute “terrorist

activities”. This is because the intent of such activities will always be “to induce”

government “to adopt or abandon a particular standpoint, or to act in accordance with

certain principles (this intention forms part of the elements of the crime of “terrorist

activities” in terms of the Act), and furthermore, as recent experience has shown,

these protests may often become violent or involve damage to property or a disruption

of some service. In terms of the exclusion clause, protest and advocacy will only be

46

exempt if such activities do not involve the “use of violence by any means” or a

“disruption” of any service, essential or not, or damage to any property”. It does not

matter that the violence concerned is minor, unintended, unplanned and/or involves

isolated spontaneous incidents.

Such acts of violence and damage to property are already punishable under the

ordinary law and the state has liberally used these laws to contain the recent protests

by arresting, holding without bail and charging hundreds of people with public

violence, damage to property and even sedition. It may well be argued that bringing

these ordinary criminal acts within the ambit of “terrorist activities”, which attracts

sentences from 5 years to life imprisonment, is sheer political extravagance.

A further concerning aspect of the Act is that people can, by “omission” be deemed to

have committed a “terrorist activity”. Sections 3 and 4 also make it an offence to

facilitate, assist or possibly enhance the likelihood of “terrorist activities”, even if the

person did not intend or reasonably foresee such an outcome or even know that he or

she was facilitating such an outcome. This obviously will cover organisers of protests

in which any violence or damage or disruption of services occurs.

The Act also places a positive duty on all citizens to report on each other and actively

investigate any suspicions of “terrorist activities” or “associated activities”. Failure to

do so constitutes an offence under the Act.

The drafters may argue that when applying the Act, the state and courts will apply

judicial constraint and common sense and target only “real” terrorists. This is because

the judiciary is independent and no prosecution under the Act may be instituted

without the written authority of the National Director of Public Prosecutions. The

problem with this defence is that, while the upper echelons may sometimes be capable

of judicial constraint, it is a chilling thought that, on the ground, there are far less

discerning functionaries: the police and local government officials. The sweeping

definition of “terrorist activities” theoretically means that these functionaries, when

faced with protests can use the Act to arrest and threaten protestors. Considering that

hundreds of the protestors recently arrested in community movement mobilisations

have been forced to spend time in jail because they cannot afford bail, it means that

47

activists and protestors would have spent long spells in jail before the upper echelons

exercise their judicial common sense and release such people.

The Act also allows wide-ranging and secret infringements of privacy in investigating

persons supposedly involved in terrorist activities. It is not hard to imagine telephone

tapping orders (interception directions) being granted against organisers of WSSD

type marches or direct actions.

The point is that the Act gives the state the latitude, should they wish to use it, to

crush protest and civil movements. There are already allegations of a cynical use of

the law by the state in political protests action such as by charging of protestors with

sedition and bringing the NIA into disputes. The uses to which this Act are put need

to be closely monitored.

Comparative Legal Strategies

Space allows for only but the most potted comparison of legal strategies employed by

and against one other social movement in South Africa; the Treatment Action

Campaign. The TAC, an organisation fighting for the right to health care of persons

living with HIV/Aids, is quite litigious. There was an inconclusive application

against pharmaceutical companies to lower their prices. This was followed up by the

very well known and successful Constitutional Court challenge to the Ministry of

Health’s refusal to make nevirapine, an anti-retroviral drug efficacious in the

prevention of mother to child transmission of the HI virus, available at public

hospitals. A number of subsequent Court applications have been made, mainly to

enforce extremely reluctant and tardy compliance by the Ministry of Health with the

court orders the TAC have achieved.

Because of their high profile legal success that has lead, inter alia, to the nomination

of one of their leaders, Zackie Achmat, for a Nobel Peace Prize, this organisation is

often held up by human rights activists as a prime example of what can be achieved

48

through tactical human rights advocacy83. I do not have enough time to do justice to

this question but perhaps we need to ask: what have they achieved?

By their own calculation 600 AIDS related preventable deaths occur in South Africa

per day. Their spokespeople have called this “genocide” and “murder”. Many

months after their successful court victory, only a fraction of the sites that the

National Department of Health was on terms to have up and running, are functioning.

There are all sorts of continuing acts and pronouncements from government

undermining the supposed change in policy the Court challenge achieved. Recent

developments even suggest that a growing counter-mobilisation by certain mass-

based civil-society groupings sympathetic to government’s denialism is being

planned. Traditional healers who have a stake in peddling so-called natural remedies

are a natural and potentially vocal ally of government opponents of anti-retro-virals

and in certain Western Cape townships, leaders within the South African National

Civics Organisations have made statements vividly critical of the TAC84. Meanwhile,

there appears to be a decided lull in “outrage” or direct democratic pressure consonant

with the scale of the catastrophe. Instead, we have seen the displacement into the

bureaucratic and legal realm of the emergency. Perhaps, this is temporary and the

floodgates of delivery of medicine flowing from the earlier decision to legalize the

struggle for provision of medicines is about to happen. On the other hand, questions

need to be asked about whether the struggle for, specifically, life saving Aids

medicines has, despite its formal legal successes, become ossified, defensive and, one

hesitates to say, inadvertently complicit in the Aids no longer being treated as the

emergency it is.

83 Many vaunt the Constitution for its socio-economic progressivity in that it was able to be used to the benefit of people living with Aids. The argument, by extension, is that similar benefits for the poor in respect of other socio-economic rights should be as easy to come by. Legally speaking, the TAC application was a walk in the park. The Department of Health had little budgetary or other justification for its not allocating a measly R26 per application of nevirapine at public hospitals with results as odious as the deaths of infants in store should no provision for roll-out be made. The government’s (in)actions would have fallen foul of any half-decent constitution, not just the South African one. While President Mbeki is quite wrong to use the dichotomy between Aids and poverty in the way he does, there is some sense in the suggestion that ordinary day to day grinding poverty does not attract the same level of outrage as the Aids pandemic. It certainly does not attract the same outrage from the Courts. 84 Interview, October 2004.

49

This question is urgent because, if this specific struggle can be conducted in a manner

better and faster able to realise demands, it is literally a matter of life and death for

thousands of people. And since the organisation most powerfully associated with the

cause of HIV-positive persons may well have floundered in a complex and time-

consuming legal strategy, it is very difficult for more radical and direct social agents

to emerge and operate on this blocked terrain. As much as ever in the past, people

succumbing to Aids are dying without holding their fate in their hands.

In 1999, the TAC, in its frustration with a denialist President and the tragedy of

thousands dying mooted “rolling mass action” and even the smuggling of drugs into

the country to treat what in any terms was a catastrophe of horrifying proportions.

They mounted a number of impressive actions that put the government’s policies on

the front page of newspapers around the world, caused ructions within the Tripartite

Alliance and made the call “Anti-Retrovirals – Now” the basis of an oppositional

politics which was intolerant of any excuse or delay. It is not for me to predict what

staying this initial, radical, uncompromising course would have achieved; either in

conjunction with legal challenges or in the mode of the quasi-insurrection that many

people felt to be entirely justifiable. Certainly, with the numbers of people affected

across all sectors and locations of the country, there would have been a massive social

base with which to work in direct action. For various reasons, not least of all a

sustained attack by the ANC on the bona fides of its leaders, a calculation was made

by these leaders to pull back from this fully oppositional mode. Over the last two

years, the TAC has softened its rhetoric and its tactics significantly and piled most of

its energies into legal and lobbying work.

The problem with not shaking the government politically, or in the words of Adam

Habib, causing political “uncertainty”, but only placing upon government certain legal

obligations, is that those in government opposed to roll-out were not beaten on a

terrain they took seriously and where they were vulnerable. Government could

continue to frustrate, as many argue it has, the outcome of the Court case because the

TAC had neither transformed its membership into a political constituency nor

encouraged or permitted them to “run wild” on their own. While it may have been

more dangerous and less glamorous, a sustained campaign of protest action in the

mode of civil disobedience-illegality coupled with a credible threat to hurt the ANC at

50

the polls, would either have been crushed or, I would submit, delivered real turn-

around in government policy far sooner. The legal challenge was always available as

a parallel line of attack. Many would argue that the stakes made the risk of failure as

well as personal cost to the leadership worthwhile. While there is undoubtedly a

trickle of delivery of anti-retrovirals, there is also a general lull on the Aids front; with

the distinct possibility that the TAC itself may soon come under attack by other social

movements. The terms of the Aids struggle seem to have been confined somehow to

the terms of the Court case, while there is still massive under-spending by government

and over-pricing by pharmaceutical companies in respect of the disease. The

leadership of the TAC have won plaudits as responsible, even matyr-like citizens and

an array of clever legal and media people have been attracted to the cause, but there is

some doubt as to whether all of this has translated into effective counter-power. The

benefit of a wider, more militant political campaign would have been that pressure

could have been applied in areas where the law cannot provide relief or only provides

relief too late for tens of thousands. In other words, remembering Machiavelli, the

“fight” would have consisted of “law” and “force”.

While keeping in mind that Aids activists are drawn from a wide variety of political

traditions and that compromises in style and strategy would inevitably have had to be

made to keep the TAC together, there is certainly a case to be made that there has

been a significant strategic failure of leadership in the Aids resistance in this country.

Principally this has been in a course and style of operation that has sought to prevent

the enmity that usually arises when one group acts in a way that, directly or indirectly,

causes the death of another group. Instead, while the leader of this organisation

proclaims himself a proud member of an organisation whose President and Minister

of Health he has called “murderers”, we have seen the campaign he leads project itself

as the paragon of responsible and law abiding citizenship. Would other methods, if

the history of this country is anything to go by, not have produced more direct and

abiding effects? Or maybe this is the issue. With the coming into being of a

constitutional democracy, the TAC’s eschewal of radical discourses and practices

reveals a tacit acceptance that, no matter the outrage, only strategies which are

consistent with the legal order are truly acceptable.

51

Conclusion

We have considered the way the law may shape, inhibit and enable the forms and

outcomes of certain struggles of South African community movements. This has

largely been a jurisprudential enquiry; that is to say we have conceived of the law as

an external, state-driven system of thought and control, often hostile, that detains,

interdicts, arrests, declares, authorises, orders, permits and denies certain acts, certain

people and, indeed, certain ideas through the intervention of the courts, sheriffs,

police and other apparatuses of state. For example, because the definitions of

“intimidation” and “public violence” are as highly subjective as they are in our law, it

is relatively easy for authorities at the scene of an average anti-eviction protest to

quite plausibly make arrests on these charges and for prosecutors to successfully press

these charges. In so doing it is within their power to change the entire dynamic of a

particular struggle, even crushing it, without being brazenly and illegally repressive.

Even more ominous is the strategically debilitating manner in which charges like

sedition or even worse, terrorism can be interpreted against people involved in

vigorous protest action. In a similar vein we have understood South Africa’s much

vaunted Constitution to be permissive as much of “justifiable” acts of subjugation,

coercion and indignity - as it is of certain freedoms and rights deemed affordable,

expedient and important by the interpreters of the constitution. In all of this we have

considered the effects of the law bearing down upon struggle from the outside and

from the state.

The extrinsic force of an Act of Parliament do not stop with its plain meanings

however. Error and obfuscation are often the very stuff of politics, certainly

government. The well-developed notion within South African community

movements, (sponsored by the authorities in many instances) that “permission” needs

to be sought before a “gathering” may take place is, although, false, chillingly real in

its effects. As we have seen above, the particular construction and reliance placed on

this Act by authorities in Johannesburg, while almost certainly not sound in law, has

in practise caused the APF, in the words of the co-ordinator of their legal sub-

committee, Ahmed Veriawa, to have to operate “in a sense like one of the prescribed

52

organisation of the 1980’s”85. The National Key Points Act was trotted out in the

same way during struggles against Engen in Wentworth, Durban86 just as public

violence and sedition were in the recent Free State protest actions. Similarly, the idea

- held by many participants in community movements that the Constitution actually

guarantees them proper housing, scrapping of arrears, free electricity, free water, jobs,

dignity and a generally “better, brighter life”87 and, consequently, that evictions and

disconnections constitute a breach of the law by authorities88 - is another fallacy that

nevertheless informs the strategic perspective of many operating within social

movements. For persons captive of this error, activism is essentially be about “telling

people who are still a little uneducated about their rights”89 and then legal advocacy

work to claim those rights. It need not be more. Community movements may invoke

constitutional rights as a palliative to most of the social ills that affect them in the new

South Africa; principally because the new Rechtsstaat is founded on the progressive

found in South Africa’s constitution. By bringing rational arguments to bear -

whether in lobbying, mass action or in Court if necessary – community movements

may cause government to be persuaded or ordered to conform to an objectively

determinable standard of human rights practise.90 Again, the notion that state power is

being applied in violation or misunderstanding of legal norms and that this could be

corrected through the proper assertion of constitutional rights before the Courts, treats

ideas about what is lawful or not as something objectively discoverable. And so the

task to prevent water disconnections, pre-paid meters and evictions becomes to

challenge the state on what it believes its legal obligations are.

Another interesting variant of the thinking that sees the incomplete – or mis -

application of the constitution as the principal cause of continued social distress are

the sizeable minority of respondents who invoke first generation constitutional 85 Interview, November 2004 86 Submission made in Founding Affidavit of the Durban High Court Case, Engen v Des D’Sa and One Other, 2001. 87 Sample of responses to questions 2.2.1 – 2.4.2 in questionnaire dated, 16 April 2004. 88 85% of respondents to question 5.2 of the questionnaire “strongly agreed” that when authorities performed evictions and disconnections they were necessarily breaking the law. 89 Gaynor Boom, Tafelsig, response to question 11.1 of questionnaire. In similar vein we have Sally Coetzee’s view that the main problem facing communities is that “some people do not know their rights and feel inferior towards government”, response to question 11.1 of questionnaire. 90 An example of such an approach would be the opposition to pre-paid water meters in Phiri and Orange Farm presently being attempted by the APF in association with the Centre for Applied Legal Studies at Wits University, admittedly among other strategies, in the form of a novel constitutional law challenge.

53

freedoms, (especially the rights to protest, free speech and association) rather than the

socio-economic rights when talking about the value of the constitution. Although

they all identify free housing, water and electricity as absolute rights, there seems to a

tacit recognition that these will not be ceded in any meaningful form by the state

without protest action. Rather, the constitutional umbrage they take is at perceived

violations of their right “to protest”, to “stand up for rights”, to “be there”, to “fight

them back”, to “go on”, “not (to) be stopped”, and “to stand up and be heard”91. This

perspective is legally far less naïve, primarily because first generation freedoms are

non-derogable. This means that they are not internally subject to limitation because

of funding inadequacies. A question that remains unanswered and which the

questionnaire unfortunately does not provide sufficient data even for speculation, is

whether these respondents would still see repression of the first generation rights they

claim as essentially a legal mistake or violation on the part of authorities that can be

corrected by court action. Or whether, as one respondent put it, “the constitution is

not worth the paper it is written on when it comes to our struggles and lives, only

organisation”. In other words, that rights and freedoms are practices that no Bill of

Rights can guarantee and that it is a constant contestation between various social

forces, for which the constitution simply provides more of a regulatory than an

actually enabling framework. It follows that for those that hold this view, when and if

the constitution is publicly validated, this would be somewhat cynically done, a

strategy meant to hustle as much space as possible for “organisation”, for force.

Another manner in which the law is often experienced as an objective, external force

is in the inactions of those supposed to give effect to legal processes. A telling

example cited by a participant in Anti-Eviction Campaign mobilisations is that

whenever the banks in Khayelitsha allege that a house has been illegally re-occupied

this allegation always secures “priority policing”. On the other hand a woman who

has been assaulted and chased out of her home by an abusive husband is “virtually

ignored” when she approaches the police. The former complainant “has a task force

appointed” while the latter “will be dismissed at the charge-office”92. The refusal by

prosecuting authorities, up until now, to prosecute the two Ethekwini Municipal

policemen identified as using excessive force by a Committee of Investigation into the 91 Sample of responses to questions 4.4.2 – 4.8.2 in questionnaire 92 Interview, September 2004.

54

Bayview shootings on 9 February 2000 as well as the tardiness in respect of

concluding the investigation into the Marcel King killing on 24 July 2004 are further

instances where it seems that political considerations reverse the normal unfolding of

the processes of law. A last and perhaps most profound example of the force of the

absence of law is to be found in the periodic demands by the Landless Peoples’

Movement for new legislation to enable state-driven land-redistribution. This is

because there are no vigorous laws and policies in South Africa providing for

expropriation of land from those not utilising it for the purposes of satisfying

immense Black land hunger. This absence affects social struggles as much as the

presence of laws against trespassing, “land invasions” and illegal squatting because it

means that the most powerful form of achieving a social good; that of simply living or

appropriating it, will always be illegal93.

In Part Two we look at the law as a subjective, intrinsic force, turning the telescope

the other way around. But while we are still thinking of the law as an external

imposition, it is worth noting Michel Foucault’s point about government not being:

“a matter of imposing laws on men, but rather of disposing things, that is to

say to employ tactics rather than laws, and if the need be to use the laws

themselves as tactics”94.

As successful as social movement mobilisations have been, especially in securing

respite from evictions and water disconnections in many areas across South Africa, it

must also be recognised that from the side of government calculated decisions have

been made not to impose the full might of the law in some areas and to deploy

enormous crushing resources in others. Since radical community movements are

quite insular and present in relatively few areas, the state can afford to displace its

cost-recovery efforts to other areas or wait for a more opportune moment in the

electoral cycle for a crackdown. Or it can target people in Indian areas first and play

the race card if and when protests occur95. Similarly the “ultra-left”, “third-force” or

“secret agenda” card is available to be played against non-ANC social actors at any 93 Contrast this with the idea of il-legality dealt with at the conclusion of Part 2 on page 66 below. 94 Governmentality, Ideology & Consciousness No. 6 (1979), p 13 95 In Desai’s, We Are the Poors, he relates how community members in Chatsworth rejected such a race-baiting tactic in 2000.

55

time. In areas like Khayelitsha key activists are being kept busy to the point of

exhaustion in court cases and legal fund raising96. Anecdotally, rival, sweetheart civic

organisations are meanwhile sponsored. In Johannesburg, authorities picked one area,

Phiri, to experiment with the installation of pre-paid water meters rather than taking a

chance with a Soweto-wide uprising. They have also entered the public domain by

loudly arguing and justifying their policies in the press and over radio. In all of the

above, there are legal battles to be fought. Not all of them can be won. Nor does it

seem that these struggles can at all times be perfectly legal. Some crimes, seemingly,

need to be committed. But, in all of this, to take the application of law at face value

and not to organise on the basis of overarching government tactics is to remain weak

and reactive.

As far as the Constitution is concerned, its protections and benefits are limited. As we

have seen above, to buttress the general social order, the Courts will often stand in

forbidding indifference to particular cases of desperation; they will enforce the letter

but not the spirit of the law. One gets the sense that once this is understood, it will

unshackle community movements from the strategically and tactically paralysing idea

that the Constitution serves as either legitimisation or guarantor of their struggles and

demands. Sometimes to pose themselves as threat enough to order, social peace and

governability will be the only way to exact concessions in social policy from

government and to think beyond appeals to a broader social-justice the Constitution

and the courts quite simply cannot show.

Unfortunately, as we will see in Part Two, it is not going to do any good simply trying

to re-educate people about the real workings of the Constitution to break this tendency

to legalism and proceduralism in struggle identified above. While the Constitution

may be seen to keep a tight lid on things socially, its workings at a psychical level are

even more profoundly inhibitory.

96 Several respondents from Cape Town, such as Fatima Kellerman of Tafelsig identified their “worst experience” with the law to be the constant running up and down to court as their matter was remanded again and again. Response to question 11.3 in questionnaire.

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Part Two

“What you aspire to as revolutionaries is a Master. You will have one!”97

Jacques Lacan

“The State is desire that passes from the head of the despot to the heart of its

subjects”98

Gilles Deleuze & Felix Guattari

As important as approaching the law as an external, objective, molar force may be, a

valuable and under-researched angle into the way it works would be to look at the law

as an internal, local and diffused, molecular, often unconscious, system of thought and

control, a grammar; a subjective force that generates, inhibits, projects, transfers,

disavows, internalises, denies and author-ises certain acts, certain discourses and

ideas. In other words to consider how legal rules and processes at play when

community movements mobilise are experienced, felt and desired by participants in

these movements themselves. And how and to what extent, in turn, the law finds

purchase in the subjectivities of those struggling for proper housing, free water and

electricity?

This study in no way comes close to dealing with these questions comprehensively. In

the first instance, it pays no attention to anything but the law as statutes that govern.

Space simply does not allow a consideration of the scores of regulations and

surveillances that discipline people in the communities surveyed. In respect of the

statutes it does look at, this study proceeds down only a few alleyways catching

glimpses of moments when personal notions of what is good or effective in struggle

coincide or deviate from notions of what it is lawful to do rather like the moment a

street-kid ponders whether to take the loaf and run or purchase it with the few coins

he has. Where notions of Right and Law coincide, it is worth considering how such a

co-incidence came about. Are there universally applicable rules of natural justice at

play? Do the relevant laws reflect the ‘will of the people’? But what if the workings

97 Le Seminaire, Livre XVII, unpuplished sesson of 3 June 1970, quoted in Bracher, Lacan, Discourse and Social Change, Cornell, 1993 98 Anti-Oedipus:Capitalism and Schizophrenia, University of Minnesota Press, 1985, p221

57

of some of the laws are manifestly against the interests of those who nevertheless

invest in them, how does one explain that? Are social-contract deals being made? Or

does the seemingly ‘irrational’ co-incidence that arises in a situation where a

discourse that hurts in one register and yet is adopted by its victims, stem from that

fact that the same discourse satisfies and affirms in another more influential register?

The specific hypothesis of this Part relates to the last question: while the constitution

and the law have been relatively poor signifiers for social justice, bodily integrity and

a sense of joy and fulfilment for respondents at an economic level, considerable

investments have been made in the idea that the law is there to protect, serve and

please at a psychological level. Investment enough, that even the most advanced and

radical social actors in post-apartheid South Africa remain captive of a discourse that

plainly is not addressing their material needs: human rights and constitutionality.

The interplay between public and private registers plays an important, poorly

understood and often disavowed role in understanding the way in which people

conduct and represent themselves during social struggles. Consider, for example,

where the outrage provoked by an eviction flows from the fact that no notice was

given before the Sheriff moved in and a family would have to sleep on the street that

night. This sense of wrong coincides exactly with provisions in the Promotion of

Administrative Justice Act that require proper notification of any act by an organ of

state that may adversely affect the rights and interests of another person. If this

remains the felt basis of the opposition to the eviction or even if it is merely the terms

in which the grievance is communicated to others, it creates an easily satisfied

precondition for capitulation and demobilisation. All the authorities need to do is

retreat and issue proper notice. Then evict. Once they have complied with the law

they have also righted the social wrong. Indeed, about half the respondents in Cape

Town identify inadequate notice periods or lack of consultation about evictions as a

prominent aspect of their cause. For some of these an act of eviction or disconnection

is “only valid once you have been to court and you know before hand about the cut-

off”99. An excellent documentary on the work of the Anti-Eviction Campaign,

Delaying the Inevitable, shows, in particularly striking terms, how such a complaint

99 Nicholas Frank, Response to question 3.5.1 of questionnaire

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forms the heart of the injustice complained of by a family threatened with eviction100.

It creeps in time and time again also when talking to community movement leaders

who delineate the implementation of a policy which they oppose and then add the

rider “without consultation”101. This echoes the opposition expressed by a Phiri

resident against pre-paid water meters: “No, you see, if there was proper consultation

there would not be all this chaos” 102.

While it may be argued that the insistence on consultation or due process means an

insistence that agreement be reached, one interviewee sees this often as a simple

demand for “the observance of a courtesy”. The same respondent motivates further:

“We have all been in mass meetings, time and time again, when an unpopular

decision is taken which could never have been rammed through. But on the

strength of all of us feeling flattered that the leadership have taken the time

and come to consult and persuade us, the same decision goes through, no

problem. Ja, one or two will heckle, but in South African struggle culture you

can get very far as a leader by going through the motions”. 103

This warning about the ability to ward of substantive criticism by focussing on form,

especially in a political culture where the figure of the leader counts for so much, is

important. Certainly, in law, the word “consultation” has little substantive meaning.

It usually imposes a procedural duty to listen to the other side but in no way removes

the prerogative to act in accordance with one’s own interests thereafter, as long as

these are lawful interests. The view has been expressed by interviewees above that

there is a tendency for social movement demands formulated in the “dramatic” initial

moments of struggle to be replaced with demands that focus on legal form. One must

wonder why, besides as a “delaying tactic” raised in Court papers or other defensive

rearguard battles, casting the wrong of an eviction or disconnection in these

procedural terms ever occurs in the discourse of community movements. It reveals a

particularly narrow, brittle and uninspiring basis for generating struggle; one that can,

100 Interview with Mr and Mrs Mitchell in Delaying the Inevitable – Evictions and the TAEC, produced and edited by Aoibheann O’Sullivan, independent video production, October 2004. 101 Interviews, November 2004 102 Harvey, E,”Managing the Poor by Remote Control”, quoted in MacDonald & Ruiters, p 6. 103 Interview August 2004

59

moreover, usually be met without the other side giving anything meaningful away.

Another example of the same demand for procedural propriety is the manner in which

the demand for houses to be built that arises every winter in South Africa, becomes

deflected into “proper channels” such as the management of a waiting list, distribution

of temporary aid or a meeting with an MEC.

This fairly frequent lowest-common-factor approach to framing demands and

adopting a course of action under the auspices of seeking legal rights is, I would

suggest, not a strategic flaw to be corrected by “political education”. There is

certainly merit in drawing attention to the broader macro-economic conditions

causing oppression in the hope that a change in single-issue consciousness is

achieved. One may make something of the broken promises and systematic lies told

by politicians that should cause the conscious, learned realisation that any promise of

consultations are a fob-off and nothing more. There is sense in trying to explain how

recourse to a procedural language facilitates further oppression and exploitation. One

may even spend one’s time exposing, through counter-ideology, the fuzzy logic and

strategic error that underlies the expectation of a kind of “municipal socialism” to be

achieved by through negotiations and pact or even electoral contestation. Those

debates are old and boomerang around in Left circles, cyclically. However, could it

be that many subjects participating in community movements are not dupes when it

comes to their oppression but “actively consent” to it (Gramsci) or “desire” it

(Wilhelm Reich)? If so, the tendency to envelope the struggle in legal rights (that

cannot actually be successfully asserted against a “rationally” budgeting government

and are in any event obviously undeliverable under present macro-economic

constraints) is not usefully approached as a strategic mistake to be remedied by

education or wiser and more democratic leadership.

In looking at the results of the research, it became clear that a theory that accounted

for community movement choices that are not conscious or subject to rational debate

was needed to shed light on the pernicious and stubborn, commitment to ideas that

over a period of ten years, were not delivering to those who held them so dear. In

fact it is more than a change of theory that is needed but a change from the

sociological to the psychological register if indeed, unconscious forces are

contributing to the rise and fall of community movements. The particular theorist that

60

provided the particularly rich insights in this regard was Jacques Lacan. For him the

propensity to support a discourse that harmed the supporter flows from an

unconscious tendency within all subjects to act in a way consistent with what he calls

their Master Signifiers. No matter how hard the left-ideological drum is beat, “the

people” are actually also “subjects” answering to the internal bugle-cry of their

desires. We will look at these notions in greater detail below. For now, it is enough

to say that it is the “master signifiers” of the Constitution, the Nation and the Law,

that create signifying chains along which the desire of large numbers of subjects

involved in community struggles is channelled in directions that are entirely

unthreatening to the status quo and not very helpful to them.

A discrepancy between experience and attitude

The discrepancy between the lived experience of - and attitude towards - the

constitutional order is marked in the responses to the questionnaire. Although only a

few agreed with the submission that the Constitution practically protects poor

people104, a great majority of 84% of respondents were of the view that the evictions

and disconnections occurring in their community were, in fact, unconstitutional and

illegal105. The Constitution was not being properly applied. The fault lay variously

with:

104 Response to question 5.1 of questionnaire. 105 Response to question 5.2 of questionnaire

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National Government 10%

City Council bureaucrats 17%

White civil servants 11%

The legacy of apartheid 23%

Policies of the World Bank and/or IMF 20%

Failure of community to assert rights 10%

Not Sure 2%

While almost all respondents confessed to antipathy towards President Mbeki

(94%)106 and only 8% believed that the youth of today lived in better conditions than

the generation past107, a follow-up interview with a random sample of those originally

surveyed revealed that 9 out of 10 felt “proud” to be South African. All sampled

believed that the best way to make decisions if there was no consensus was through

“democratic” means and 93% of respondents indicated that they would vote for a

party that addressed their concerns108. 88% strongly agreed or agreed with the

submission that that such a party would wield power to end disconnections and

evictions109 if given the chance, electorally, to do so. Roughly seven out of ten

respondents to the questionnaire either agreed or strongly agreed that laws are passed

by a body elected by the people of South Africa110. While there are economic

challenges, South Africa is democratic and that, at least, is a good thing. It also has a

constitution about which most people, as we have seen in Part One, feel

overwhelmingly positive, even if this feeling is based on a number of misreadings of

the document.

There are dangers in trying to stitch all of the above together too neatly and, in

hindsight, the questionnaire needed to be a far sharper instrument to properly measure

things. But what does seem to emerge is quite a significant level of investment in the

106 Responses to question 7.1 of questionnaire 107 Response to question 9.3. Although the questionnaires were administered in areas in Durban and Cape Town that are predominantly inhabited by Indian and coloured people, not too much weight ought to be given to a racial or minority sense of alienation since half the respondents in Chatsworth were African as were roughly one quarter in the townships around Cape Town. 108 Response to question 8.5 109 Response to question 8.6 110 Responses to question 6.3

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institutions, particularly juridical ones, that underlie the established order of which

they are if not the victims, then anything but the beneficiaries. This is

notwithstanding both the lack of delivery as well as the reduction in both income

transfers and job opportunities since 1994 that people in some of the surveyed

communities had access to (even) under apartheid111. There are certainly explanations

for the disjuncture between support for institutions that have hitherto failed to address

acute social distress (or even made it worse after an eviction or disconnection) in

terms vested in consciousness: ‘patience’, ‘lack of information’, ‘having been

misled’, ‘repression’, ‘gratitude’, ‘poor leadership’, ‘chauvinist nationalism’ and

‘racial solidarity’. I am however interested in investigating the workings of these

institutions at an unconscious level. The “new South Africa”, “the law”, and “the

Constitution” seem to operate, to import a useful concept from the depth psychology

of Lacan, as “Master Signifiers”.

Master Signifiers

To understand how master signifiers operate it is necessary to have recourse to the

pre-eminent psychological construct: the unconscious. Just as the discovery and

nomination of “surplus value” allowed people to explain many of the social realities

of capitalist life, so did the discovery and nomination of the “unconscious” enable

various explanations for individual behaviour; particularly psychopathology. Indeed

the existence of the unconscious made the very idea of the “individual” problematic.

There was no unified “self” but various intrinsic forces making their way through

psychic apparatii that constituted the “subject”. For Freud, the unconscious was a sort

of repository of psychic energy; a cesspool of often conflicting drives and desires,

some of which bubbled up into the conscious part of a subject but only in an indirect,

disguised, censored manner. Some of the unconscious’ impulses were so taboo, in the

interests of civilisation, they were altogether repressed. For Freud, what happened in

this unknowable domain constituted the better part of all mental activity, like the

submerged part of an ice-berg.

111 Desai, amongst others, makes the point that cost-recovery strategies for water and electricity provision were not effected in most urban areas under apartheid. Further since the early 1980’s, for political reasons, rent evictions were seldom successful.

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As analysts Freud and Lacan both treated patients with a range of psychological

symptoms, employing theories of how the unconscious worked. Freud and Lacan

agreed on many aspects of what this agency was and how it operated. For both of

them the unconscious was, as it were, pre-ontological and thus a concept that, at first

glance, would not be productive of political or philosophical insights, most of which

take matters of being or non-being very seriously. One knew of the existence of the

unconscious, further, not through any grand manifestations but rather during moments

when consciousness waned or weakened. Through the sometimes banal disruptions

of ordinary experience we could see its workings: in dreams, jokes, slips of the tongue

and, of course, psychological symptoms. The unconscious was, as Freud so simply

and evocatively put it, “another scene” from which the drives that sponsored our

intentional, ego-driven activity sprang but whose content was nothing at all like we

took ourselves to be. A key disagreement between the two, however, was Lacan’s

insistence that the unconscious was not the wild and unstructured terrain that Freud

made it out to be. For Lacan, the unconscious, although not directly knowable, was

structured very much like a language. Lacan stripped this notion of any biological

overtones. Its power was not in the fact that it housed and contained libidinal drives

or energies but that it signified. The unconscious was the effect or impact upon the

subject of a trans-individual symbolic order. And it is in relation to this outside

symbolic order in general and specific Others in particular that unconscious desires

play themselves out.

“The subject, confronted with the enigma of the desire of the Other, tries to

verbalise this desire and thus constitutes itself by identifying with the

signifiers in the field of the Other, without ever succeeding in filling the gap

between sbject and Other. Hence the continuous movement from signifier to

signifier, in which the subject alternately appears and disappears”112

As appears above, desire is, for Lacan, at the very core of our being and for reasons

that we do not need to go into here, it is essentially a relation to lack. Indeed desire

and lack are completely interwoven for him. Based, inter alia, on his clinical

112 Verhaeghe, P., “Causation and Destitution of a Pre-Ontological Non-Entity: On the Lacanian Subject”, in D Nobus (ed), Key Concepts of Lacanian Psycholoanalysis, 1998, London, Rebus Press, p164

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experience Lacan theorised a subject, riven with lack, that was particularly attentive to

the desire of the Other. The medium through which the subject related to the outside

symbolic order or to the desire of a particular Other was through signifiers. If the

Other was perceived to want a man, the subject would seek to have the signifiers of

manliness attach to him - spurs on his heels, a wide-brimmed hat, a swagger, a gun –

whatever the codes for masculinity provided by the symbolic order of his age were.

For Lacan, a certain kind of signifier has a particularly strong hold over a subject.

Master signifiers. According to Lacan, master signifiers are identity bearing words113.

For present purposes I will avoid a complicated rendition of the Lacanian topography

and say simply that the power of master signifiers is that being identified with them

gives subjects a sense of temporal continuity and a coherence to identity114 when the

ordinary back and forth movement between signifiers offers only a fleeting sense of

self. Master signifiers are therefore the primary elements that give discourse purchase

on a subject, the subject that the fix. Since they are signifiers in which a subject has

invested his or her identity, when they are deployed in political discourse they make

that message meaningful, they give it enormous impact. This is easily accomplished

since these signifiers can be reproduced and communicated. Simply to dwell in the

Constitution’s associational loop containing words like “the law”, “responsible”, “due

process” “proper”, “disciplined”, “upstanding”, “good” and “patriotic” provides

psychological satisfaction. At the same time they ward off the psychological threat of

antonyms such as “illegal”, “bad”, “outlaw”, “irresponsible”, “dangerous”,

“troublemaker”, “arrest”, “selfish” and so on. The former are body and self-affirming

notions that operate at the very depth of a subject’s being. Thus, paraphrasing

Deleuze and Guattari above, while master signifiers may be invoked in the mouths of

authority, they find their way into the hearts of subjects where they do their real work

in maintaining the psychic and societal status quo.

113 See Bracher, Lacan Discourse and Social Change, pg 13. The are 3 registers to Lacan’s depth psychology: the Imaginary, the Symbolic and the Real. The are, in turn, four levels of desire; passive and active narcissistic desire and passive and active anaclitic desire, rendering 12 forms of desire operating, for Lacan, in discourse. 114 Elsewhere Lacan identifies master signifiers with the ego-ideal, a provider of self-esteem. It is because the individual is, for psychoanalysts a construct constituted and produced, at least theoretically, by the interplay between different psychic apparatuses that the term subject is used rather than individual or person.

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According to Lacan, master signifiers also ‘represent’ a subject. But this is not

representation as in portrayal, it is representation as in stand-in, envoy and

ambassador. Our sense of being and identity is dependent to a large extent “by what

happens to those signifiers that represent us – our master signifiers – particularly the

alliances they form with and the wars they wage on other signifiers”115 .

The implications of this for an understanding of political discourse as an interpellative

force in the Symbolic realm, is profound. The beauty of master signifiers is that they

permit of no rational challenge. “Senders of master signifiers use them as the last

word, the bottom line, the term that anchors explains, or justifies the claims or

demands contained in the message”116. One might say that the art of politics, in

elaborating master signifiers or casting one’s own rhetoric within an associational

chain of existing master signifiers, is to either allow or prevent subjects from feeling

good117. Since feeling good occurs when we dwell within circuits of discourse

controlled by our master signifiers, naturally, the trick is to cast a political programme

and the institutions necessary to bolster it as much as possible within the purview of

those signifiers, their synonyms, metaphors and metonyms118.

Or as Bracher puts it:

“What we seek is the repeated dominance of those signifiers that represent us.

Discourses that offer this dominance usually give us a sense of security and

well-being, the sense that we have a definite identity, that we are significant,

that our existence matters”119

115 Bracher, ibid, p25 116 ibid. 117 I would suggest that it is usually passive narcissistic gratification that is armed by political desire. 118 Bracher provides an interesting analysis of the way Ronald Reagan’s campaign rhetoric worked that seems to be at play in some of the ANC’s messages as well. For him Reagan was able to offer subjects not only the protection and recognition that flowed from the master signifiers he invoked but bliss and jouissance as well. “The insistent identification with certain ‘basic values’ or ‘concepts’ as the ‘foundation’ and ‘centre of our lives’ constitutes them as master signifiers, which simultaneously repress all lack and fantasy and call for systematic embodiment in the System of law, which in turn produces … jouissance. … In Reagan’s discourse, loss of jouissance is seen to result from failure to embrace master signifiers absolutely, rather than, as is actually the case, precisely the embrace of those master signifiers”; Bracher, Lacan Discourse and Social Change, Cornell, 1993, p 120 119 ibid, p27

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Asked to describe the most inspiring moment in the last few years of struggle, a

respondent said: “When I went to City Council and told them how they violated my

constitutional rights (the look of surprise on their faces)”120. Another responded to the

same question by saying:

“When handing in my affidavit which was done by AEC – LCC to the court

and the attorneys. Then I was more calm and there was no stress like there

was nothing on my shoulders and I felt better as the estate agent did not come

on that day and I knew that there was justice on my side and my battle for my

house can be won”121.

Yet another speaks of the time: “I went to the City Council and told them my rights

and they met me halfway with my arrears”122. Another respondent describes her

worst experience with the law being the disillusionment she felt “knowing that

somehow they are there to protect us we still feel unprotected”123. Although noting a

specific failure of law, what is revealed is an idealised expectation of a generally

benevolent and protective law. These are direct and telling examples of the operation

of the Constitution as a master signifier.

There are of course many respondents whose most inspiring moment involved:

“fighting”; “thousands of people supporting our ten-rand campaign”; “the meeting

between SA activists and the picqueterros when we discovered we all had the same

enemy”; “when Gary was evicted, we stood up for him”; “resistance”; the “Battle of

Bayview” and so on. However, even activities that seem more expressive of

immanence and militancy and which seem to rely on no transcendental signifier such

as the law to sanctify the struggle, can come under the glow of the law. “When we

marched for our constitutional rights and something was done about it, it made me

proud” or “[b]ecause government have forgotten about the people they have liberated

we have taken them to court. We were exercising our rights … as good citizens”124

are a few examples of a fairly widespread tendency to (need to) associate the content

120 Response to question 10.1, Glenn Williams, Silvertown, November 2004. 121 Response to question 10.1, Fatima Kellerman, Cape Town, November 2004 122 Response to question 10.1, Nicholas Frank, Athlone, November 2004 123 Gaynor Boom. Response to question 11.2 of questionnaire. 124 Response to question 11.4 of the questionnaire.

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of the struggle with the Constitution even during moments of protest that seem quite

radical and uncompromising.

It is difficult to miss in the responses to the questionnaire above the sense of

validation and protection that comes from being associated with the master signifier

of the Constitution or the Law. This is particularly after the first moment of crisis in

the community has passed: when the Sheriff has been warded off, or the water

reconnected. As outlined by an interviewee above, once the immediate threat to body

has been warded off, most often in a manner that is resolutely illegal and in terms that

are radical, the time comes to devise proactive strategies, demands and ways of

representing the struggle to others. It is here, after the first radical, founding,

“dramatic acts” of which Desai speaks and which bring community movements into

being that the desire to dwell within the more judicious glow of constitutional and

procedural signifiers seems to set in.

When breaking the law is not breaking the Law.

More often than not, community movements project themselves as seekers of

rights125. It is worth pausing to consider the ambiguity of the word “right”. The

notion of “right” is at once a claim to a social good that can be made against a state,

government or other dominant entity as well as a moral or ethical judgement.

Interestingly, lawyers have long removed the first “e” from judg(e)ment when talking

about Court orders, awards or rulings. This is done to signify the social - as opposed

to moral - normativity that flows from a court ruling. It is suggested that, to a

significant degree, for those involved in social struggles in Chatsworth, Khayelitsha

and Soweto there is a complex and politically productive conflation of what the law

says and a Court may rule on the one hand (“Law”) and what is privately or

communally felt to be righteous on the other (“Right”). Importantly, this is but a

partial conflation. Sometimes notions of ethical and political right match legal

definitions exactly and at other times there is a seeming departure. Both the

125 See, for example, “Top Award for Rights Group”, Daily News, 7 December 2004, describing the work of the Bayview Flat Residents Association, one of the oldest and most successful of the new community movements.

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conflations and departures may have as much to do with affect, group and desire as

they do with knowledge, class and interest.

Every single respondent described themselves as “law abiding”126 and the

overwhelming majority (78%) saw the breaking of the law to be justifiable only:-

1. after legal methods to address serious issues like an eviction or disconnection

had been tried and failed; and

2. if these illegal methods were “peaceful” in the sense that while they might

provoke police violence, they did not in fact start hostilities.

A related question: “the way I would protest now differs a lot from the way I would

protest under apartheid”127, yielded the following results:

Responses to Question 5.10 of Questionnaire

0

1020

3040

5060

Stronglyagree

Agree Unsure Disagree StronglyDisagree

Percent

Of the 60% of those who strongly agreed that the way they would protest now

differed from the way they would protest under apartheid, eight of ten agreed that

their preferred new protest style would be “less militant”128. When these results are

evaluated against that of the 96% of respondents who agreed or strongly agreed that

life in their communities had become worse since the end of apartheid129, it suggests

that something other than improved material conditions accounted for a change in

126 Response to question 6.6 in questionnaire. 127 Question 5.10 of questionnaire 128 Interview with sample of 10 respondents to questionnaire. 129 Responses to question 8.3 of questionnaire.

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protest attitude and tactic. In follow-up questions put to the same random sample of

10 respondents who strongly agreed to with the statement in question 5.10:

• five stated, in effect, that the reason for their adopting less militant tactics of

protest was because the government was now democratic and they could

apply pressure differently.

• one respondent stated that she feared arrest,

• two were unsure why they would behave differently,

• one thought the struggle would lose public support if the struggle became

“too hot” although she personally thought this was called for;

• and one reversed his original answer saying he now believed community

struggles needed to be as militant as in the past.

While there are undoubtedly many other factors at play, including the lack of context

in the questions asked, it seems safe to say that as far as employing violence as a

political tactic is concerned, Law and Right coincide for roughly 4 out of 5 of the

participants in South African community movements. Such a finding should be quite

interesting for those who have debated what else could have been done to “sharpen

contradictions” and spice up the antiquated tactic of memorandum-presentation that

many lament as being the bane of the new community movements’ tactics. Here I

have in mind specifically debates that came up at the barricades, so to speak, during

the World Conference Against Racism in 2001130 and, I suppose, before the massive

march on Sandton during the World Summit on Sustainable Development in 2002. If

the statistics generated by this study are reflective at all, it seems clear that what could

metaphorically be called ‘storming the barricades’ would not have drawn the active

support of 78% of the march. I am not aware of similar studies during the apartheid

era but anecdotal evidence about attacks on policemen and other law enforcement

officers, the ‘necklacing’ of people associated with “the system”, the destruction of

local government offices and so on, seem to suggest that violent tactics of protest

were more acceptable then. There is thus some support in this study for the idea that

participants in community movements feel that less “militance” is called for in present

day struggles. Could it be that the idea of radicalism which, in the past, seemed most

130 See Desai, We Are the Poors, 2002, p140

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authentically demonstrated by displays of violent insurgency during mass protests is,

for the meantime, unpalatable to most of whom compose the mass?

At first glance the appetite for peaceful illegality seems undiminished however.

Should a march be “banned”, a court order an eviction or a Uni-City official

disconnect electricity there seems to be very little hesitation among those surveyed to

attend the march, block the eviction or reconnect the electricity supply131. The threat

of arrest and a possible sentence deterred a mere 3% of respondents. In addition, one

respondent also declined, indicating that “the police is a institution of the state and we

have to abide by the law and the constitution”132. For the other 96% stopping an

eviction or disconnection through collective action was fine. Before too much is read

into this, it bears recalling that a substantial majority of respondents also believe that

an eviction or disconnection is per se illegal133 or, at the very least, that there are good

constitutional arguments against it. The same goes for the right to protest. Responses

to a question testing whether it was right to resist an eviction or disconnection if the

police were effecting it, elicited a few statements in open defiance of the law. But

most were of the following tenor: “Because what they are doing is illegal we can stop

them”134, “Yes, because majority of the time police are not aware or informed about

your rights and the process”; or “it is our constitutional right the police is violating, so

yes”135. It flows from this that many participants in community movement

mobilisations are likely to feel bolstered in their activism by the notion that they are

not only in the Right but also within the Law. It is thus difficult to read off of the

readiness to “break the law” any particular level of rejection of the Law. Indeed, the

opposite may be the case. Acting in a superficially illegal manner may be what is

demanded by the Law. Breaking the letter of the law does not mean one is not in the

thrall of its spirit. And it is exactly this spirit of the supreme law, the Constitution,

that seems to constitute a master signifier for so many community movement

members.

131 Responses to questions 3.1 – 3.7 of questionnaire 132 Glenn Williams, Response to question 3.4.2 of the questionnaire. 133 Responses to question 5.2 of the questionnaire reveals that 84% of respondents hold this view. 134 Nicholas Frank, Response to question 3.4.2 of questionnaire 135 Responses to question 3.4.2 of questionnaire.

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In the short time passed since the development of community movements in post-

apartheid South Africa, some writers were prepared to acknowledge ‘human rights’

discourses as the sine qua non of the struggles they undertook136. It may be that but

for expectations of dignity, housing, water and other human rights observances, the

struggles of Bayview, Tafelsig, Soweto and so on would never have been born. But,

four years on, even with recent sporadic upsurges in a number of townships, now may

be the time to ask whether it is precisely these constitutionalist underpinnings to the

new struggles that have kept them so isolated, brittle and occasional, and so prone to

deflection and disregard. For at their heart, they are as protective of the constitutional

order as the policies they oppose.

If this is the case it could go some way in explaining the fragility of the new social

movements. Certainly shortcomings at a political level play their part: leadership

failures, repression, ideological uncertainty and the organisational difficultie in

keeping single-issue movements alive. However it is also worth considering the

psychological material with which community movements must work: much of it

conservative, neurotic and under the spell of one of the most powerful symbols

upholding the status quo, the Constitution.

Interestingly, an interviewee points out that authorities in all three Uni-Cities have not

“devoted much effort to disillusioning township dwellers about exactly how limited

the constitutional rights they think they enjoy actually are. We don’t have Masondo

[Johannesburg Uni-City Mayor] going around saying, stop protesting guys, even the

constitution can’t help you. Their propaganda is full of economics and and political

morality but not much constitutional law”137. While the failure to address this ‘sense

of entitlement’ by revealing the limitations of the constitution may cause authorities to

have to deal occasionally with protestors fuelled by an inflated sense of validation, the

same interviewee felt that undermining even inconvenient myths about the

Constitution seemed to be something from which public authorities shied away. This

was “lest the whole rhetoric of democracy and transformation by which everyone in

one of the most unequal societies on earth is kept in their place, begins to unravel”138.

136 See Desai, We Are The Poors, 2003, Monthly Review Press, pg 137. 137 Interview, September 2004 138 ibid.

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By never positing the Constitution as either enabling - or failing to avert - attacks on

the body, this document remains “pure of soul”: a symbol capable of conferring

bodily integrity, the love and recognition of a powerful Other and, in the long term,

greater joy and well-being. Its status as a master signifier is insulated from attack.

The Passivity and Punishment of a Court Case

Not only does the law operate as a master signifier but just like a god or a king, it

demands that those who appear before it undertake elaborate rituals to underscore the

power it has over them. It is hard to exaggerate how alienating a Court case can be.

South Africa has a highly specialised legal system; its procedural law deriving from

English law and its substantive common law based on Roman-Dutch principles. The

sources of this law goes back centuries and are mostly not codified but derived from

previous judgments of Courts and authoritative legal commentary. The statutes that do

regulate conduct in a Court or set out the rights and wrongs of, say, an eviction are

complex, difficult to read and open to (mis)interpretation. What specialisation means

is that one must manoeuvre through forms, processes and rules that are foreign in

style, highly technical, complicated, abstract and often abstruse in order to assert a

right in a South African Court. Someone challenging an eviction, for example, must

draw up a filing notice and a notice of motion setting out in some detail the factual

and legal allegations upon which they rely. They must exactly state what relief they

require from the particular Court they approach. An urgent interdict is even more

difficult to launch, requiring specific submissions to excuse not waiting in the queue

for the case to be heard in the normal course months down the line. These documents

all have a specific format and must be served and filed on all interested parties within

certain strict time limits from an address within the Court’s jurisdiction. Before an

Application to court may be heard, the other side must be given an opportunity to

compose an answer. If they are legally represented, (and the banks and local

government always are), it can be expected that the answering affidavit will be

lengthy and will deal with the facts in a contentious, strategic and sometimes tricky

way. The affidavit will further be replete with legal jargon and quite a few Latin

terms. A particular intimidating and effective litigation device is the point in limine

with which the opposition would have the court dispense with the case without

hearing the merits of the matter for technical or jurisdictional reasons. These are sure

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to crop up with a lay-person having drafted a founding affidavit. It is not unheard of

or an Applicant to be kicked out of Court without even being heard for technical non-

compliance with rules.

Should these hurdles be overcome, the actual appearance in Court to argue the merits

of the matter is daunting. From knowing which Court to appear in, at what time, to

where to stand, how and when to address the Judge and the representatives from the

other side, what kind of submissions may be made “from the bar” and how to respond

to questions and points raised, often of a jurisprudential nature or demanding a

thorough knowledge of case law and legislation - all of this is enough to make a even

an intelligent layperson feel cowed and appear unconvincing.

While most cases will be won or lost based on the submissions made in the Founding

and Answering affidavits - in other words, the case will be decided entirely on paper -

in some circumstances a matter concerning an eviction or water disconnection could

end up in a trial. Here things get even more complicated. Trials are conducted

according the rules of evidence. Often items of information that clearly establish the

truth of a fact are excluded from court because the form in which that fact is contained

is, legally, inadmissible. Examples are hearsay, opinion or similar fact evidence.

Certainly most of the sociological and political “truths” put forward in the

questionnaires to argue against a water disconnection (such as water comes from God)

would be regarded as inadmissible, irrelevant and irritating in a Court of law.

Moreover, even an honest witness can be made to look unreliable by a good cross-

examiner. With the deep pockets the state and banks have to procure legal counsel of

the highest calibre, it is not hard to imagine a good case falling apart because of

concessions elicited under cross-examination by a competent litigator.

Using the law marks the bodies of community movements; often making them even

more susceptible to its claims of mastery. It has been, for all of the reasons cited

above, impossible to approach a court for assistance in stopping an eviction, allowing

a march to go ahead or applying for bail without professional legal assistance and

representation. Nine times out of ten, this has meant the community movements

themselves approaching an attorney to plead and argue their case. Often the attorney,

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in turn, has instructed an advocate to do the actual appearance work in motion or

criminal Court. Once court action has begun, particular hierarchies start developing

in community movements too. In the first instance, a lot of often menial but precise

administrative work goes into preparing an application or trial. One or two people,

usually with the time, resources and aptitude to do this work would suddenly become

central to the movement. Although, as the client, they ‘instruct’ the attorneys, their

job is usually to instruct their own members on what to do and say to win the case.

They also need to make an array of snap decisions about the conduct of the matter that

it would impractical to debate and decide in a mass meeting.

To use the distinction so neatly rendered by Peter Dwyer, running a Court case would

tend to involve and empower the “city based activists”139 and, among them, those

with some legal know-how and, to be blunt, cultural capital. This is because, as all

interviewees reported, there was never near enough money to afford legal

representation. Besides running up personal debts, those individuals within

community movements with friends, acquaintances, colleagues or family in legal

practise would be asked to rely on these personal connections when legal help was

sought. This is not per se a bad thing and I do not mean to criticize those who

performed what many respondents recognised as the thankless running-around which

helped reduce or avoid the suffering of an arrest, an eviction or service disconnection.

It must however be noted that this bureaucratic and technical centrality enables a

disproportionate influence to be wielded by those who come to run the Court case or

liaise with lawyers. It is not a nefarious influence but one that nevertheless, as we

will see below seeks to subordinate the conduct and representation of the community

movement to the bourgeois institutionality of a court case. This means putting a

heavy legal gloss on past and future events, from toning down struggle demands so

that they can be represented as legally justifiable to sometimes requiring community

complicity in the creation of a narrative of struggle awash with images of

immisseration and exemplary citizenship on affidavit or in public pronouncement.

The pleadings in the Manqele v Durban Transitional Metropolitan Council matter

paint the applicant, an executive member of the Westcliff Flat-Dwellers Association 139 “The Contentious Politics of the Concerned Citizens Forum”, Centre For Civil Society, October 2004

75

and, by all accounts, militant community member140, as a wretched single-mother,

widow and disabled citizen who tolerated her water disconnection for days drawing

water from a polluted stream before, mysteriously, having had her water reconnected

for her by someone else. Similarly, testimony before the Committee of Enquiry into

the Bayview shootings seems to have portrayed, at times improbably, Council

security guards as the sole source of hostility on the day. Community members were

the perfect, passive victims, subjected to merciless attacks in their own homes141

when, from video-footage of the scene, the truth seems closer that the police were

overwhelmed and routed.

There were probably, at the time, tactical reasons for gilding the lily in both these

ways and adopting the demeanour of the victim of human rights abuse. However, it

can become politically debilitating when representations like these are, are

internalised and form the basis of how the struggle is perceived by those participating

in it as well as potential allies outside. This is a dominant theme in representation of

community movements of late: notable exceptions being those communications not

content to note a litany of human rights abuses suffered but focus rather on

celebrating acts of defiance and struggle. It is easy to see how the Law is strongly

underwritten each time a court case is launched; especially when other discourses of

struggle are suspended to allow the ‘legal strategy’ to unfold. It is further easy to see

how legal advocacy may unwittingly assist in installing the Constitution or the law as

a master signifier and invite persons who might otherwise be very militant to adopt a

subjective disposition towards these signifiers that is submissive, ingratiating and

difficult to escape when the case is over. As far as inspiring solidarity and generating

resistance is concerned, one can only get so far with forms of desire invoking pity and

pleading for human rights observances.

With reference to the epic Wentworth community strike of 2000, an interviewee noted

“once things were in the hands of our lawyers at mediation, we stopped debating what

… course to take. It just became, like, to beat this interdict and get some guys back to

140 Interview, September 2004 141 In a rendition of the events during the Battle of Bayview, one interviewee, in a rather suggestive phrase, refers to the police action as domestic violence.

76

work we must congregate at Island View.142” A member of the CCF legal team takes

it a step further. He describes the process of settling the interdict brought by Engen

against individual leaders of the Wentworth strike and the Construction and

Engineering Industries Workers Union (CEIWU):

“Look, we had decided we needed to defeat this thing, the interdict. But I

found myself chewing my nails every time [X] got up to speak or old man [Y].

I kept thinking what if someone like [Z] is here taping things. We’d definitely

lose in court, with costs, because [X] wasn’t speaking like the moderate,

responsible official we’d made him out to be. You could see the ou’s wanted

him say something, to tear up the agreement. There’d be chaos and the strike

would start all over but then we’d have lost the case and it was my job to see

we won. We needed to look weak, like we were the victim, not shouting

‘Fuck Engen!’ and storming police-stations143”

In this regard, it is no easy task translating the earnestly felt political, ideological and

ethical issues that motivated the social action into arguments that are, either in style or

substance, likely to impress a Court. For reasons that have been dealt with above,

there are very few good legal arguments to put forward to stop an eviction or service

cut-off completely. What are usually offered are procedural quibbles such as there

was no adequate notice of the disconnection or the Sheriff failed to produce a Court

order authorising an eviction. The inability to forthrightly argue the, frankly, socialist

politics of an eviction within the legal framework causes a radical disjuncture in the

way an Applicant and community is presented to Court and the way such an

Applicant or community thinks of themselves or is perceived by others. There is thus

a certain cynicism that creeps into human rights advocacy because one is often trying

to cram the flesh and blood Applicant into the shape of a pristine and hapless victim

of a human rights abuse to be successful in Court.

There is, of course, nothing wrong with playing the legal game. As Desai points out,

the law provides many defensive vantage points during a struggle144. However, it is

142 Interview September 2004 143 Interview October 2004 144 We Are The Poors, Monthly Review Press, 2002

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when cynicism wanes and sincerity creeps in; when the representation of the self and

the struggle for purposes of litigation becomes the way in which participants in the

struggle come to think about themselves, that, to return to Lacan, the discourse of the

hysteric, arises. This is the presentation to a superior Other of a Self worthy of love

and approval, or even just recognition. At both an individual and collective level,

hysterics would act in a way that, far from challenging a perceived authority (unless,

of course, it wants them too), repress their own unconscious drives that push for

liberation from physical and psychological domination. What I mean to suggest here

is that the tendency to prefer legal strategies of struggle stems not so much from a

poor understanding of what the law can deliver but rather from an unconscious need,

even in moments of physical and class – distress, to present oneself in a way

acceptable to authority. I wish to suggest that the Constitution as well as the signifiers

“democracy” and “nation” that it formally guarantees, are exactly the signs of

authority that come to constitute the ethical and tactical limits for community

movement struggles that initially seem to be very radical.

Space does not admit a fuller exploration of Lacan’s notion of the ‘cure’ of an

individual hysteric in psycho-analysis so that we may attempt to theorise how, at a

mass-psychological level the same process of by-passing debilitating master signifiers

may be accomplished. I wish simply to stress that - if the insights of a century of

depth psychology since Freud’s 1905 publication of The Interpretation of Dreams is

anything to go by - the social change community movements seek relies not only on

changing laws and policies but in altering the ideals and desires of a significant

number of people who make up these very movements. Winning a court case, (as is

the case with a successful march in which a memorandum is handed over to the

authorities), may seem a commendable way of expending activism and revolutionary

energy. However, lurking beneath this there is a profound passivity where, at the

Symbolic level, an accommodation with the master signifiers of power is reached that

ultimately bolsters power rather than undermines it. It is disturbing that 95% of

respondents stated that they believe it is more important to win demands than to focus

on the way they are won145. For without attention to the latter, movements may, from

time to time, make some headway in undermining oppressive economic and political

145 Responces to questionnaire.

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structures but without collective psychological change these victories will remain

tenuous, dissonant and subject to sudden spates of either populist or apathetic,

seemingly irrational roll-back.

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Towards Fantastic Signifiers

“In reality, Genet steals because he is a thief and because he has no other

means of existence.; in the imaginary, he steals in order to become a thief.”146

Jean-Paul Sartre

“Destroy the meter. Enjoy the water!”147

Anti-Privatisation Forum slogan

There are practices within South African social movements that seem able to avoid

the toils and snares mentioned above. A psychologically and politically radical

activity taking place in Bayview, Westcliff, Soweto, Tafelsig and Khayelitsha has

nothing to do with protest in the usual understanding of the word. This consists of the

by now well-entrenched practises of appropriation of social income in the form of

(illegal) water and electricity reconnections and the restoration of evicted families to

their homes148. While many of those who have practical experience of these

manoeuvres admit to taking reasonable steps to conceal their involvement, thus

suggesting some sensitivity to how the law would view them, these acts take place

within a discourse resolutely il-legal. What I mean to convey by il-legal is not that

they are breaking the law, (this they plainly are), but that their acts prefigure and,

indeed, institute a future law149, a law that does not require their suffering, submission

or repression of desire. They do so in terms of a set of values that are hyper-

constitutional. What makes these protests distinguishable, an interviewee argues,

from “constitution-thumping” is that:

146 Saint Genet, George Braziller, 1963, p350 147 quoted in Bond, Patrick, Talk Left, Walk Tight, University of Kwa-Zulu Natal Press, 2004, p144 148 Interview, Ashwin Desai, October 2004. Desai perceptively points out that these struggles are often not noticed at all or else are not seen for the exceptionally radical, active and effective interventions that they are. 149 I have adapted this idea from Oscar, in his unpublished paper, “Chronometrics Argentino: The Time of the Rule of Law, 2004”

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“they do not rely for their effect on holding up any set of transcendent legal

values but by holding up monkey-wrenches, insulated pliers and crow-bars.

People are not demanding that they be given what, rightly or wrongly, they

take their constitutional rights to be. They are taking millions of rands worth

of housing, electricity and water. It is a de facto, not de jure engagement of

Umgeni Water, Eskom and the big four Banks”.

Their demands can thus not be refused, ignored, mediated or processed. Strictly

speaking they pose no demands, nor ask for any recognition, protection or

accommodation from the law. Their existence, drinking, cooking and taking shelter is

their politics. Communities who act in such a way can either be left alone in

enjoyment of their existence or be attacked. And if they are attacked, something must

be taken away from them by the Law, right where they live, something which is part

of their everyday life, and that would seem to entail a different kind of struggle. It

now becomes the state that must struggle. Struggle to take away, deprive, evict,

dispossess, evict, discontinue and even, in the case of Marcel King, kill. This is far

harder for them to do than accepting a memorandum or policing a protest. Obviously,

when the attack comes, the dangers of lapsing into human rights mode or, on the other

hand, being defeated still exist. But, it would seem that, whatever its other dynamics,

these acts of appropriation, of existence-as-victory, do not suffer the mastery of the

Law very kindly150. Indeed the APF slogan quoted above could well be rendered:

“Destroy the Law, Enjoy the Water”, thus opposing enjoyment and law and, as far as

that speech-act is concerned, deposing the law as the master signifier that may well

bring the water. In Lacanian terms, we might ask whether their acting in the Real

prompted by the needs of the body has not enabled a reconfiguration of the flow of

desire in the Imaginary which avoids the master signifiers we have mentioned and

inspires actions revolutionary in both ideological content and unconscious form.

Of course, every deposition is followed by an imposition. It is true that the

oppositional discourses spawned by anti-privatisation and anti-eviction activity are 150 Naturally sentiments that glorify popular illegality are to be deplored by all who believe that development can only be sustained by economic growth in a stable body politic in which the rule of law in unflinchingly applied. While there are doubts even about this developmentalist economic model, I make the above points not as legal advice in which illegality is condoned but as political analysis of already existing phenomena in which the breach of the law has occurred in order to meet bona fide social needs.

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replete with their own master signifiers. Water comes from God. The Poors are

exploited and oppressed and shall arise. Families and the Working Class are noble

and suffering and the Community has decided enough is enough. This is to a large

extent unavoidable. As long as these new signifiers do not demand acquiescence in

their own suffering from subjects or promise protection and recognition in return for

passivity and the repression of a desire for social good, these new master signifiers

can temporarily facilitate and enable radical social change. While, it is important to

note that any signifier can be roped into paranoiac or neurotic forms of desire, such as

the telling admonishment by Minister of Defence, Terror Lekota, for the social-

movement poor to demonstrate “revolutionary discipline”, I do not mean to suggest

community movements strip themselves of all myth, inspiration, icons or sense of

grand narrative. I simply get the sense that in evaluating the strength and weaknesses

of community movements, we have been looking in the wrong places all along; for

instance, at the size of marches, victory in court cases, rousing ideological utterances

and successes in changing policy. Could it be that the actions of those who have, in

the first instance, simply, quietly and informally opted out of paying but who are still

consuming, who are in effect recommune-ing their local spaces, are the better

measure compared to those whose politics is shot through with demands, no matter

how radically put, that they be allowed to do so?

Beyond the street corners of Chatsworth and Phiri, there are also acts taking place in

courtrooms across the Cape Peninsula that reveal a subjective disposition vis a vis the

laws that is radical both politically and psychologically. This is the work of the Legal

Co-ordinating Committee (LCC) of the Tafelsig Anti-Eviction Campaign (TAEC)151.

To some, Ashraf Cassiem, Pamela Beukes and their committee of fellow LCC

activists may make unlikely juris prudentes. They have not a days law school

between them, wear no silky robes during the day time and, importantly, have no

illusions about the law actually delivering anything to their constituency in the long-

The work of the Legal Co-ordinating Committee of the Tafelsig Anti-Eviction Campaign is well-researched. A documentary by independent film-maker, Aoibheann O’Sullivan, called Delaying the Inevitable is particularly insightful. The information below is drawn from extensive interviews with Ashraf Cassiem, a perusal of a magistrate’s ruling on an eviction, most of which is devoted to decrying Cassiem and Beukes’ court room “antics”, the documentary mentioned above as well as an interview with a Cape Town attorney who has witnessed Cassiem in court.

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run152. Yet they do regularly appear in Courts across the Western Cape. Cassiem, in

particular, is somewhat of the phantom of the Cape High Court in Keerom Street

where he, about once a fortnight, stands disruptively behind a lectern and is, per force,

addressed as “my learned friend” by expensive advocates hired by exasperated banks.

What he is doing there is now legendary in South African social movement circles.

He is litigating on behalf of scores of families from working class areas whom either

Absa, Standard Bank, First Rand, or Nedbank are seeking to evict for not being able

to make bond repayments on the low-income homes in which they live. He has

succeeded in obtaining adjournments, recissions and withdrawal of actions; as well as

reviewing and setting aside Magistrate Court ejectment orders. There have been

fourteen cases in all so far with another 45 in various stages of pre-trial ripeness. The

average delay a day of dealing with Ashraf in court occasions his opponent is five

months. Since the typical monthly bond repayment is R900, Cassiem and his band

have re-appropriated R63000 worth of housing so far this year with about a quarter of

a millions’ rands worth to come. There are also several matters pending in the High

Court, where Cassiem will, if novel legal arguments he intends making prevail, run a

full trial raising constitutional law defences to prevent an eviction as if he was a

lawyer with full rights of appearance.

Cassiem and Beukes do all of this by exploiting provisions in the Constitution,

specifically section 38, which allow class action suits on behalf of an association to be

pursued when the constitutional rights of the association’s members are threatened.

They are also aware of provisions in the Prevention of Illegal Evictions and

Prohibition of Unlawful Squatting Act (PIE) that requires an enquiry into the personal

circumstances of a prospective evictee. These include the effect of the eviction on

any children or people with disabilities. If the state is evicting it needs to satisfy the

court that alternative accommodation is available. In instances where the banks seek

an order in a magistrates court, this has meant the suspension of proceedings on the

152 Cassiem has been known to say the opposite and to say it pretty convincingly: i.e., that the problems in his area can be solved by the better inclusion of the community into the labour market on the one hand and the legal framework on the other. In other words, the demand is for jobs and the equal protection of the law. I do not mean to try to resolve these contradictions by suggesting Cassiem vaunts the law when talking to lawyers or posits micro-economic reform in an application for research funding. Perhaps there is even a part of him that sincerely believes in the efficacy of the law as an instrument to alleviate the conditions of those around him. But there is another side to Cassiem, independent of who he actually is in biographical totality, which I want to isolate and highlight because it stands as a useful symbol of another approach to activism altogether.

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merits of the eviction while the constitutional law and PIE points are considered in the

High Court. The way it works is that Cassiem “represents” homeowners as an official

of an organisation they join sometimes only days before. This organisation has an

acronym he is proud is as hard to swallow as he is proving to be: The Campaign for

the Recognition of the Fundamental Right to Housing. “They have to write it out

each time in their affidavits It takes more than a one line to fill and, shit, its fun to see

them stumble over our name when they attack us in Court”153

And it is precisely being attacked that Cassiem is so suited to handling. Cassiem

speaks of the minute humiliations he must suffer as an intruder into a realm where is

not supposed to be. This begins with the magistrate berating him in chambers before

an eviction application is heard when he introduces himself as the person seeking to

represent the homeowner. Although greeting the magistrate beforehand is a ritual

observed by lawyers only, Cassiem seems to seek out this opportunity to attract

opprobrium. And this, he receives. Magistrates are variously outraged and perplexed

that he - obviously in dress, language and demeanour a layperson – has assumed

rights of appearance and they tell him so. The stock response to this is: “Can we

decide this issue formally in Court please, on the record.”

And so the court case begins. Attorneys and advocates representing the banks affect

indignation at Cassiem and Beukes’ presence. There are snorts and stares of scorn,

often accompanied by threats to have them physically ejected from court by orderlies.

This is the moment, according to Cassiem, to “hug a microphone” and begin talking.

In the short time available before contempt of court provisions are invoked, Cassiem

outlines, on the record, the basis of his interest and rights of representation in the

matter. This is that he is raising a constitutional point on behalf of a member of his

association, the CFRFRH. While saying all this, he waves a membership form around

signed by the defendant. Although, at this point, both the magistrate and legal

representatives of the banks are usually looking scandalised, they mostly realise he

has a point and an adjournment for these preliminary constitutional and jurisdictional

issues to be decided in the High Court is obtained. Sometimes, Cassiem and Beukes

are prevented from speaking altogether, the matter goes ahead and an eviction order is

153 Ashraf Cassiem, Interview, October 2004.

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granted. This makes for excellent grounds to take the ensuing order on review in the

High Court on the basis that the CFRFRH was improperly excluded, (thus suspending

the order’s operation), and actually securing two further adjournments.

In the High Court, Cassiem is treated with greater circumspection by Judges but the

attacks from his opponents are just as fierce. A dossier accusing him of

impersonating a lawyer was compiled and submitted to the Cape Law Society for

action. Other than confirming that he was not an attorney, Cassiem refused to

participate in any enquiry. What he did do was point out to the Society that their

disciplinary committee could do nothing meaningful with the complaint against him,

since he was not a lawyer. The inescapable circularity of this argument must have

impressed them and the complaint was dismissed. In a particular High Court matter,

Cassiem was accused of fraud by counsel referring to a sheath of affidavits submitted

by Cassiem in other matters which made the same averments as in the case before

Court that day. How could all the defendants have exactly the same vaguely defined

family considerations to mitigate against eviction? Cassiem pointed out in reply that

all the banks’ founding affidavits advanced exactly the same cause of action. The

Judge agreed and lectured the advocate on the political traditions of pro forma

administrative law applications. The advocate was forced to apologise to a winking

Cassiem.

Above I have tried to capture how alien and intimidating standing alone in Court can

be and how this could well feed into the mastery of legal symbols and norms over

fundamental drives and desires. Noticeably, when Cassiem talks about the

humiliations and slights he suffers, it is with a smile. This is not the behaviour or

morality of a slave. He also does not adopt the typical persona of the left-wing

activist confronting authority: earnest, sanctimonious, self-possessed and, if thwarted

by officialdom, quick to cry injustice and repression. Of course, there is injustice at

play but Cassiem and Beukes seem to actively seek it. At all stages along the way,

they could make things far smoother or more pleasing to their egos. They could write

to the banks’ lawyers beforehand setting out the nature of their representation of a

defendant. Proper research would reveal no basis to really avoid it and Cassiem and

Beukes would acquire the gratitude of ‘colleagues’ in the legal game who would have

advance notice that the matter would not proceed. The banks’ lawyers could send an

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articled clerk to court for the inevitable adjournment instead of wasting costs on

attorneys and advocates. Instead the two of them litigate by ambush. Similarly,

Cassiem and Beukes could politely explain to the magistrate in chambers what they

have come to do exactly rather than bait him or her into throwing them out of court,

on the record. They could dress differently, talk differently,show that they understand

civil law and be civil about practising it.

Cassiem and Beukes are incredibly self-effacing about their legal accomplishments.

Cassiem refers to himself as “an ordinary lay-person”, a “fool”, “saying any old

thing”, “with no idea what [he] was doing” and “not taking [himself] seriously”154.

He describes going to court as “catching a hiding”, “trying my luck”, being “chowed

heavily”, “mak[ing] them angry”, or being “humiliated” despite the fact that on a

number of occasions lawyers for the banks have sauntered into court expecting to

have their way only to have a legal point raised by Cassiem upheld by the magistrate

or Judge. In fact, Cassiem and Beukes have a thorough knowledge of eviction law

and could easily demonstrate this by drawing their opponents into a managed process

of compliance with the law. Instead, Columbo-style, they appear unsure of

themselves, making the legally necessary submissions (for a later appeal) but without

much attempt to persuade or engage the Court in debate. They appear to want to lose,

to go on review, appeal, to test the system’s ability not so much to accommodate them

as to stomach them to the utmost.

There are, of course, sound tactical reasons for behaving this way. It is up to their

opponents to figure out how, for example, to practically comply with the duty to

consider the personal circumstances of illegal occupiers. In reality this is mainly a

procedural impediment155 but it now involves a trip out to Mitchell’s Plein by the

banks’ attorneys to obtain this information rather than an exchange of correspondence

with the LCC. Cassiem and Beukes are not going to supply any information that the

banks simply have to spend time discounting. This guerrilla approach to the law is

unique among South African social movements, many of whom take legal debate

quite seriously. It must have been quite tempting to do the same for the community

154 Interview, October 2004 155 It is hard to imagine how dire the circumstances will have to be to allow the private property rights of banks to be substantively interfered with by illegal occupiers for any length of time.

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movements operating in the Western Cape who have always had to scramble

frantically for legal assistance through wave upon wave of arrest, bail application,

eviction, disconnection and banned march156. While they were able recently to link

up with the estimable Mike Murphy, a lawyer who helped them for free, legal

representation and guidance has, by and large, been secured by way of hourly rates

from fee-driven lawyers. A situation such as this was bound to sponsor invention;

they have invented their own lawyers. But it is interesting to see that Cassiem and

Beukes have not begun operating within the discursive field of the law. Informing the

current mode of operation is a realisation that the “law is not there for the poor”157.

Constitutional points will be raised and personal circumstances considered, court

adjournments will be granted and spent but eventually “the banks will get it right”158.

The job of the Legal Coordinating Committee is “to clog the system”159 not valourise

it.

But Cassiem’s masochistic modus operandi, a grinding battle against an enemy that

will eventually prevail, goes far beyond tactics. To win respectability for themselves

and their cause, he could easily infuse his demeanour in the court with the “if you

pleases” and “with respects” that constitute courtroom etiquette. But he remains

unpalatable in style, skirting embarrassment, exposure and the punishment of a

contempt of court finding or an order de bonis propriis160. An extreme example of

this is his habit of leaving court immediately after an adjournment and refusing to

have any dealings with his opponents except “on the record”. This extends even to

not discussing dates suitable to both parties for the resumption of the matter;

something regarded as the height of bad form in legal circles and bound to provoke

nothing short of enmity from opponents and judges alike. In another matter, a

magistrate devoted 16 pages of a 32 page ruling quite intemperantly denouncing the

manner in which Cassiem and Beukes behaved in Court. They had spoken out of

turn, scuttled back and forth across the Court ostensibly to noisily take instructions

156 These events, constituting some of the most oppressive and pitiless treatment of people living in townships by the post-apartheid government, are dealt with by Pithouse and Desai, But We Were Thousands (2002). 157 Ashraf Cassiem, Interview, October 2004 158 ibid. 159 Interview with Pamela Beukes in A. O’Sullivan, Delaying the Inevitable, independent video production, 2004 160 In terms of which a representative of a party is personally ordered to pay the (considerable) costs of a court case for conducting himself in a frivolous or vexatious manner.

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from each other and their “client”, wasted time, behaved offensively to colleagues by

repeatedly using inappropriate forms of address such as “broer” and “hey” and shown

a “general but total disregard” for court procedure. However since the magistrate

evidently could not make up his mind whether the disruption stemmed from

incompetence or contempt, he was unable to effectively deal with Cassiem’s

behaviour. All of this points to the fact that there is no way Ashraf Cassiem will ever

be allowed to “take himself seriously” in the legal field. He will be subject to

constant hostility, contempt, derision and punishment. Differently to the vast majority

of other community movement leaders, he does not project himself in a manner

designed to dispel the view that he is unreasonable, quixotic and ridiculous, nor does

he court the respect and civility of society beyond that of the place and people where

he operates. In his own words, “the more they hate me, the stronger I feel161.”

In Male Subjectivities at the Margin, Kaja Silverman162 theorises the psychological

attributes best suited to subjects seeking to overturn the symbolic economy163 of their

day. One way of thinking about this task is as a challenge to the psychological

underpinnings (or “dominant fictions”) of the status quo, one of which this study has

argued is the master signifier of the Constitution. From historical personages such as

T.E. Lawrence, to ruined male characters in post World War II film-noir, Silverman

identifies certain exemplary subjectivities most likely to pursue such rupture. Neither

space, ethical propriety nor expertise admits my scrutinising respondents such as

Cassiem in this way. Suffice it to say that one may think of the masochisms,

schizophrenias and extraordinary sexualities of which Silverman speaks as the

psychological equivalents of being considered “revolutionary” at a political level.

There is thus no offence intended in the suggestion that some of these marginal forms

of desire are at play in the way Cassiem conducts himself. While it is overdue that we

come up with a concept analogous to class-struggle or being ‘revolutionary’ with

which to convey the psycho-dynamic task of transforming the ideological system by

means of our relation to the symbolic order, I will leave things right here for now.

Perhaps future research could contrast these forms of exemplary revolutionary desire

from the high doses of narcissism and sometimes terrifying psychic dominations that

161 Interview, October 2004. 162 Silverman, Male Subjectivity at the Margin, Polity, 1992

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seems to power much leadership, as much in community movement politics as

anywhere else.

Legal activists in other community movements were slow to support or understand

Cassiem’s strategy. Says one: “As admirable as Ashraf’s ventures into Court are, I

thought they were ad-hoc acts of desperation, revolutionary misrepresentation and

blind luck that could not last. Its hard to win socio-economic rights cases in court”. It

seems, though, that this was not the LCC’s aim at all. They were not demanding,

sincerely, the right to housing but demanding, cynically, the right of access to court,

thereby sending a potentially unmanageable number of cases through the system.

This strategy has powerful political and literary resonance. South Africa’s passive

resistance campaign in the 1940’s and the American civil rights movement used a

similar spectacular logic, especially when irate Judges refused to process these cases

in the usual way, often ignoring due process, thus showing themselves to be incapable

of showing proper indifference to each case coming before them but acting as crude

instruments of government instead.

When the response to an inconvenient assertion of rights is to change or ignore the

rules by which those rights are normally claimed, the legal system as a whole is

brought into question164. Should the LCC tactic become any more widespread than it

is at the moment one can fully expect a politico-juridical intervention; a Commission

of Enquiry, contempt of court proceedings, perhaps even an attenuation of civil

procedure rights in respect of these applications. Terry Eagleton suggests that the

character Shylock in Shakespeare’s, The Merchant of Venice was trying to do exactly

this in demanding his pound of flesh from a Venetian court.

“Shylock is triumphantly vindicated even though he loses the case: he has

forced the Christians into outdoing his own ‘inhuman’ legalism. Indeed it is

tempting to speculate that Shylock never really expected to win in the first

place; he is hardly well placed to do so, as a solitary, despised outsider

confronting a powerful, clubbish ruling class. One can imagine him waiting

with a certain academic interest to see what dodge the Christians devise to let 164 Political scientists identify these moments as potentially constituting the triumph of notions of ‘legitimacy’ over ‘legality’: in short revolutionary moments.

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one of their own kind off the hook…It is almost as though Shylock is defying

the court to deny him in order to expose its own hollowness. Either way he

will win: by killing Antonio, or by unmasking Christian justice as

mockery.”165

We, in turn, might speculate about whether the LCC’s legal dealings contain, at heart,

the same impulse as Shylocks. It is tempting to do so, especially in light of

Silverman’s suggestion that certain masochistic lines of attack on power may allow a

renegotiation of our relationship to the symbolic order166. What is for sure though is

that those approaching the LCC for assistance do not display any such impulse: they

seek protection and self-preservation, first from the LCC and, through them, from the

constitution (in which we have seen, they mostly tend to believe). The LCC is no

revolutionary organisation for those who seek it out. It is a poor man’s law firm. It is

understandable that this dynamic is at work for people about to lose their homes. It

would take a cool hand indeed to experiment with the rejection of the master signifier

of the law with the sheriff at the door. But once the LCC has warded off this

emergency, are they in a position to infect their members with their own cavalier

attitude towards the law when what those whom they represent most want is help to

assert their legal rights as effectively as possible?

This is the essential conundrum of all single-issue community movements. For, in

mass-psychological terms, is that only when it dawns on people that these rights are

chimeras, when they have ‘worked through’ the fact that the Law is not there to

protect, recognise or provide enjoyment to the likes of them, that they are truly

available to a radical politics. Even then there are other master signifiers that must be

deposed; nationalist ones, for example. Should such unshackling of identity from

conservative master-signifiers not occur, acts of rebellion are going to be half-hearted

and confined to moments of emergency. Certainly when these emergencies have

passed people will likely drift away from the perversity of their revolt back into

normative patterns of behaviour sanctioned by the Law and the promises of the

Constitution.

165 Eagleton, “Shakespeare and the Letter of the Law”, in The Eagleton Reader, edited by S Regan, Blackwell Publishers, 1998, p 69 166 Silverman, K, Male Subjectivity at the Margins, 1992, Routledge, p 50-51

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This brings me to the question of leadership. What is to be done about master-

signifiers? There are important criticisms to be made of the leadership of community

movements especially those individuals whose own orientation re-inscribes

psychologically conservative discourses: such as “constitution-thumping”167, as one

interviewee described it. Even the ‘radicals’ who are able to trenchantly denounce

law, nation, party may, perhaps unknowingly, become mini-master signifiers

themselves168. They may conduct themselves in such a way that their Word becomes

the final say. Conduct consistent with their favour and interests is “good”. The rest is

“unstrategic”, “problematic”, “cowardly”, “reckless”, “dangerous”, “lacking nuance”:

to whit, “bad”. A sensitivity to the workings of desire in politics allows one to realise

that politically revolutionary enunciations at the level of consciousness may mask

psychologically reactionary drives.

Is the solution then uncompromising spontaneity and utter immanence? This Part

does not suggest an escape from master signifiers is possible nor that organisation,

which often relies on instituting master-signifiers, is necessarily bad. What it does

suggest is that at any particular moment in time there are particular discourses that

enable subjects to become aware of the inner workings of power and, thus, to allow a

choice of identity-bearing words and ideas that do not permit or require their

continued oppression or demand disavowal of desires for “a better, brighter life”. For

Lacan, the end of psychoanalysis occurs when the ‘fundamental fantasy’ becomes the

drive. In the present world-economic and political order, there is surely no greater

social fantasy than that tentatively put forward by community movements: the

enjoyment of a life not subsumed by the commodity form. It is when the repressed

desire embodied in this fundamental social fantasy “achieves a more overt and direct

expression as a result of a new master signifier that accommodates the previously

repressed desire” that the idea of fundamental political cure becomes plausible.169

167 Interview, September 2004 168 When asked what the right thing to do is when a leader insists that a gathering disperse when everyone else wishes to continue, a respondent stated: “I’ll obey the leader and trust his command”. S. Sulaiman, Response to question 4.10.2 of questionnaire. A number of similar responses where provided. 169 Bracher, Lacan, Discourse and Social Change, Cornell, 1993, p73

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Psycho-dynamically then, leadership, whatever shade of understanding of this term

one has, is about creating what I will call fantastic signifiers. Before considering

what this means, it is worth noting how difficult it might be. To participate in such a

project assumes that ‘leaders’ themselves have undergone a sort of psycho-politico-

analysis. Just like old loves and hurts are laid out before a shrink to be looked at from

every angle, all the old psycho-politico baggage must be laid out to be left behind.

Circularly, the heaviest baggage is the priority given in left-politics all these years to

ideology, ego, consciousness, education, rationality and class interest. How many

could do what Cassiem has done: leave behind old notions of activism and militance

that made one a revolutionary because of oppression and exploitation, and instead

embrace the desire to throw off oppression and exploitation in order to become a

revolutionary?

We live in times that provide Weimar-like opportunities and dangers. In questioning

embarrassing figures of unemployment in South Africa, Minister of Finance, Trevor

Manuel recently scoffed that if these figures were true there would be a revolution by

now. Economically, “the poors” of South Africa are living in revolutionary times

though. Unemployment rates do exceed 40%, land-hunger affects millions,

preventable deaths occur by the thousand and glaring inequalities between rich and

poor expand. In this context, explanations for social mobilisation in this country are

trite. What needs to be explained is why there are not widespread uprisings. Manuel

got it wrong. The economic conditions are ripe for severe social discord, the

psychological ones not. The understand this phenomenon one must turn to a mass-

psychology something along the lines I have attempted in this Part. It is important to

confront economic exploitation and social oppression. Leadership and ideological

problems do exist. But when the “masses” are, even in the midst of political

upsurges, still as powerfully bonded psychologically to the establishment’s

institutions, it seems unfair to lay the blame for community movement weaknesses on

“leadership”. It seems equally pointless to try to remedy ideological confusion by

mere political education. What ought to be focussed on, firstly, is provoking the twin

processes of alienation and separation from master-signifiers that Lacan suggests

constitute the transformative efficacy of psychoanalysis. This is not achieved by

imposing readings of the Constitution or the political economy on subjects in order to

promote the disillusionment with the law and other master signifiers that is so very

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necessary. Rather the specific manner in which non-manifest, collective, subjective

factors are appealed to by discourses of human rights or nationalism must be clearly

identified. This is fairly precise work if one accepts Lacan’s topography, demanding

an analysis of the workings of discourse across three registers: the Imaginary,

Symbolic and Real. Even if one simplifies or uses other theoretical perspectives,

what is required is an entirely new politics. The key learning in such a politics would

be that all political interventions must be psychologically insurgent ones too, designed

as much to transform the ideological system as to actively intervene in the formation

and deformation of the dominant fiction at the level of representation and

signification. For such a double-barrelled mechanism to work, we must become

comfortable with notions like the symbolic-order, the unconscious and desire as much

as we are with the Gini-co-efficient, class and surplus value. Our strategies must, in

essence, “reveal to subjects that what they are asking for (and perhaps think they are

getting) in their values, ideals, conscious wishes and identifications is not … the most

truthful embodiment of what they really desire or find gratification in.”170 While the

views of Bracher immediately above relate to the purpose of cultural criticism, I

would contend that the purpose of a sustainably radical politics needs to be similarly

psychically confrontational. In other words it is not only about changing someone’s

attitude towards the World Bank or the ANC or even winning a particular demand,

but rather creating an impetus for people in community movements to produce new

master signifiers of the kind that accommodate their “fundamental fantasies”. For, the

suggestion is, struggles powered by the setting loose of these desires are likely to be

far more transformative of both the symbolic and political economy than relying on

the fossil-fuel of class-interest alone. This mode of operation may require activities

that are, for example, actively masochistic in psychological content rather than

passive-narcissistic or hysterical; of which assuming the role of the victim of human

rights abuses or the wretched of the nation are the worst examples. It certainly means

to avoid as much as possible discourses and practices of struggle that are neurotic or

paranoiac in the forms of desire that underlie them, no matter if ‘victory’ lies that

way171.

170 ibid. 171 I would imagine that the “defensive” battles that need to be fought in courts such as to ward off an eviction, obtain bail and so on are examples of unavoidable recourses to law. However, the dangers that lie this way must be acknowledged and avoided.

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It is very difficult and certainly beyond the scope of this paper to speculate what such

a new politics would look like in any detail. But, inchoate as these ideas are, I have

the feeling that in such a politics: a mural may be more important than a march; the

burlesque of a glamorous-gran competition taking first prize over a WTO workshop;

losing a case worth more than winning; appropriating a commons better than

protesting the disconnection of a service, (the same goes for land); and a Diwali party

stronger than a Workers one. I am sure better examples of events that have left

participants feeling more connected to each other and better ready to stand their

ground could be imagined by persons more actively involved in community

movements. Those committed to radical outcomes would, I suspect, find value in

giving greater attention to the forms of desire enabled or disabled by the political

discourses, acts and strategies they therefore pursue so that it is these feelings that

predominate. This may make all the difference in the end because undermining

oppressive structures and promoting fundamental social change could very well

depend on promoting collective psychological change.

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ANNEXURE A – PUBLIC VIOLENCE

Public violence consists in the unlawful and intentional commission, together with a

number of people, of an act or acts which assume serious dimensions and which are

intended forcibly to disturb public peace and tranquillity or to invade the rights of

others.172 Public violence overlaps with a number of other crimes, such as assault,

malicious injury to property, arson and robbery. At one of these crimes is usually

committed in the course of the commission of public violence, yet because of the

dangerous dimensions of the conduct X is charged, not with one of these crimes, but

with public violence. 173

The participants in the conduct must act in concert, that is, with a common purpose.

Once it is established that X knowingly took part in a disturbance which had as its

aim the endangering of public peace or security, it is unnecessary to prove specifically

what particular act of violence was committed by her or by each of the individual

participants.

“On the other hand nobody should be found guilty of the crime merely

because some acts of violence have been committed by some members of the

crowd, unless it is shown that he was a party to those acts” 174

No premeditations or preconceived plan is required. The common purpose may

evolve spontaneously or tacitly. Instances of conduct constituting public violence

(according to the cases) have been:-

• faction fighting175;

• violent resistance to the police by a mob, provided the police are acting

lawfully176;

• rioting177;

172 see S v Mlotswha 1989 4 SA 787 (W) 794; CR Snyman Criminal Law, 4th ed, p319. 173 Snyman, p 320. 174 S v Cele 1958 1 SA 144 (N) 153B-C. 175 S v Xybele 1958 1 SA 157 (T) 176 S vSegopotsi 1960 2 SA 430 (T); Samaai 1986 4 SA 860 (C) 177 S v Dingiswayo 1985 3 SA 175 (Ck)

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• a case of political uproar178;

• forcible coercion by strikers of other workers179; and

• the breaking up and taking over of a meeting 180

The conduct may take place on either private or public property181 and it is not

necessary that the participants be armed182 or for there actually even to be violence.

Threats of violence will do. 183 The crime can further be committed even though there

is no actual disturbance of public peace or security, or invasion of the rights of others.

It is sufficient if the conduct is intended to disturb the peace or invade rights184.

According to Xyela 185and Segopotsi 186a mere show of strength, which must clearly

lead to general fear and clashes, is sufficient to constitute the crime.

178 S v Khumalo 1991 4 SA 310 (A) 179 S v Cele 1958 1 SA 144 (N) 180 S v Wilkens 1941 TPD 276; Claasens 1959 3 SA 292 (T); Snyman, Criminal Law, 4th ed, Butterworths, 2002, p 321. 181 S v Cele supra 152F; Segopotsi supra 436-437 182 in Wilkens supra the accused were unarmed 183 Cele supra 152G; Mei 1982 1 SA 299 (O) 302B-C. 184 Cele supra 153C-E; Xybele 1958 1 SA 157 (T); Segopotsi supra 433E; Snyman, pg 321 185 Snyman, p.159 186 supra, p.433

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ANNEXURE B – PUBLIC GATHERINGS

The Meaning of “Peacefully”

Even peaceful demonstrations may be restricted, even banned, if the requirements of

the limitation clause are met. An assembly will only be considered violent when

serious acts of physical violence against persons or property are perpetrated or

threatened.187 If it is apparent that the demonstrators intend to provoke a violent

response from the police and are gearing themselves for a forceful reaction, the

assembly will probably not qualify as peaceful and therefore not enjoy protection

either.

Random acts of violence (eg when some of the demonstrators throw stones at the

police) when the majority of the participants remain peaceful, are not enough to make

the protest violent. Although whether an assembly is peaceful must be objectively

determined, the intentions and conduct of the organisers and participants are

important factors to consider. If the perpetrators of violence are encouraged by the

rest, the whole assembly may be characterised as violent. The same is true when it is

no longer possible to distinguish between the perpetrators of violence and other

peaceful participants because the former make no attempt to distance themselves from

the latter.188

In Germany the police are obliged to act solely against the recalcitrant minority.

Should the police not be able to distinguish between them, they have the discretion to

disperse the assembly. The police should however, endeavour to prevent armed

participants from involvement before the assembly as a whole is prohibited. It is

instructive to note that the Germans have prohibited the use of protected devices such

as shields and helmets by the police because they apparently incite provocative

behaviour among participants and spectators. 189

187 De Waal et al, p335 188 ibid. 189 De Waal et al, The Bill of Rights Handbook (4th ed )p233.

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Sit-ins and blockades are covered by the term “assembly”. However if the objective of

such assemblies is not to communicate the beliefs of the assemblers, but rather to

obstruct in order to force compliance with demands, then the assembly will not be

considered peaceful and conceivably not be protected. On the other hand, an

obstruction of a road by protesters, in order to draw attention to their beliefs, is

protected, but may be broken up by the police if the requirements for the limitation of

the right are met. This will mean that, in the case of a public road, the assemblers will

be afforded enough time to get their message across, but they will not be allowed to

disturb the free flow of traffic for a longer period of time. 190 In Acting

Superintendent-General of Education of KwaZulu-Natal v Ngcobo 1996 (3) BCLR

369 (N), the court held that right to assemble does not extend further than is necessary

to convey the demonstrators’ message.

There is no South African Constitutional Court jurisprudence on this subject but the

German Federal Constitutional Court made the ruling that sit-ins to obstruct

entrances, roads and railways lines could be constitutionally protected if they were not

constructively violent by virtue of being demonstratively coercive. There is a

qualification, namely that when the obstruction becomes the principle objective of the

assemblers in order to coerce compliance with their demands the protection of

freedom of assembly will fall away. The element of coercion negates the requirement

of peaceful assembly191.

The same foreign Court will tolerate a disruption of traffic if it is an unavoidable and

incidental effect of the exercise of the freedom to assemble. In balancing conflicting

interests this court uses the principle of proportionality and reciprocal interaction192.

Many would hope that the term “peacefully” will be interpreted broadly or in favorem

libertatis to prevent the state from exploiting this requirement in order to thwart

unpopular and unruly demonstrations which, by their very nature, are provocative,

robust and assertive manifestations of the popular will, intended to challenge

authority. A South African legal scholar states that “a genuine democracy must be 190 De Waal et al 335. 191 see 73 B VerfGE 206, 248 and 250 192 see 69 BverfGE 315, 352-4

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open to vociferous protest and responsive to vigorous and even hostile criticism to its

policies and its authority, provided that protest is exercised within the parameters of

the law and constitution”.193 While this general sentiment is sensible, it is precisely

these parameters that can so easily narrowed by Judges during the limitation stage of

constitutional interpretation, in accordance with extra-curial factors. Critical Legal

Studies Movement adherents would say that relying on the good faith and without-

fear-and-favour neutrality of the judiciary in any country is naïve. Without

suggesting dishonesty on their part, at heart, adjudicators are partisans all in the socio-

economic issues that come before them; radical partisans because unlike the poor, any

answer to a social problem they provide must ultimately be consistent with the

existing local and international political economy and the laws and orders they

elaborate.

The US Supreme Court has underlined the challenge that applies in exercising a right

that must invariably be exercised, if it is to be politically effective, in a robust and

unconventional way, so that, for instance, the government finds it uncomfortable and

displeasing. Justice Douglas described why this is necessary in Adderly v Florida 385

US 39 (1996):

“Conventional methods …may be, and often have been shut off to a large

group of citizens. Legislators may turn a deaf ear; formal complaints may be

routed endlessly through a bureaucratic maze; courts may let the wheels of

justice grind very slowly … Their methods should not be condemned as tactics

of obstruction and harassment as long as the assembly … is peaceable” 194

The Meaning of Unarmed

The second qualification corresponds closely to the first. Armed assemblies are not

constitutionally protected because they have the potential to become violent. They do

not seek to communicate ideas, but rather to intimidate in order to ensure compliance

with demands. When it is clear that the demonstrators intend to provoke a violent 193 de Waal et al; 230 194 De Waal et al, p 231

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response from the police or the public and are gearing themselves for a reaction, the

assembly will not be protected since it will not qualify as peaceful. 195

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195 De Waal et al, p336