Halala Abahlali!
by Abahlali baseMjondolo Tuesday, Feb. 28, 2006 at 9:52 PM

Statement on the vitory over Sutcliffe

ABAHLALI BASEMJONDOLO
KENNEDY ROAD DEVELOPMENT COMMITTEE
PO BOX 26
UMGENI ROAD
DURBAN 4098

PRESS RELEASE

Tuesday, 28 February 2006

(Durban) After winning a high court interdict against the eThekwini
Municipality and the South African Police Service, the Abahlali
baseMjondolo, the Shackdwellers' Movement feels the need to set the facts
straight about yesterday's march. The judgement proves that march was, and
always had been, legal. The police and municipality were in violation of the
law in preventing the march, and from obstructing its participants. The
injunction vindicated Durban's shackdwellers, and indicted the local
authorities. The authorities, in particular the municipal manager Dr Mike
Sutcliffe, rather than learning their lesson, have lashed out in the media
against Durban's poorest people.

"Having lost his case in court, it seems as if eThekwini Municipal manager
Dr Sutcliffe feels he can claw back some dignity in the press, though a
campaign of defamation, misrepresentation and lies," said S'bu Zikode,
Chairperson of the Abahlali. "The fact remains that Dr Sutcliffe has
consistently broken the law, and that the South African Police Service have
enforced his orders, jailing and beating the city's poorest residents for
exercising their constitutional rights to free speech."

Explaining the Regulation of Gatherings Act (Act No. 205 of 1993), Na'eem
Jeenah of the Freedom of Expression Institute's Anti-Censorship programme
said this: "the convenors of a march need to notify the local authorities of
their intention to march not more than seven days before the proposed event.
If the responsible police officer decides that negotiations are necessary,
s/he may arrange a meeting between the convenors of the event and
representatives of various public bodies, including local authorities."

"The most important thing is this: if the convenors have not been called to
a meeting within 24 hours of their having given notification, then the
gathering may take place. In other words, once the appropriate authorities
have been notified, there's no automatic need for a permit or anything else.
It's up for the authorities to decide whether to hold a meeting, and if so,
to let the appropriate people know," Jeenah emphasised. "The only conditions
under which a gathering may be prohibited is either if notice is given less
than 48 hours before the gathering is due to take place or "credible
information on oath is brought to the attention of a responsible officer
that there is a threat" to security. In the second instance, the officer
must then consult with the convenors and only if conditions cannot be put
into place to prevent such threat, may the march be prohibited. Such
prohibition must be conveyed to the convenors in writing."

"But what they've been doing is not contacting us at all, and then banning
the march at the last minute. It is clearly outside the terms of the law."
said S'bu Zikode. "In the past, we have marched many times, successfully,
and legally. There have been no cases of violence or intimidation by the
Abahlali. Unlike the police, our people are disciplined."

Attempts to get clarity around the status of marches have been frustrated by
the municipality's offices. Repeated attempts by Abahlali to contact the
City for confirmation met with no reply. The City called only one meeting,
to claim incorrectly that the Abahlali were not permitted a march, only a
rally. The Freedom of Expression institute have documented this litany of
obstructionism by the City (appendix A & B).

Dr. Richard Ballard, a research fellow at the Centre for Civil Society was
an observer at the Foreman Road informal settlement yesterday, where Supt
Glen Nayager and members of the Sydenham Police Station were charging into
the informal settlements and beating protesters.

"At the time when people were being arrested, I phoned Mike Sutcliffe's
secretary at least three times to find out the legal status of the march - I
was told that he was at a breakfast. I was given two other department
numbers to try, which all led to voicemail. Messages urgently to return my
calls were ignored," said Dr Ballard.

With the assurance from the City manager that their actions are legal, the
South African Police Service have assaulted and beaten shackdwellers,
targeting the leadership and arresting them in their homes. The police have
also intimidated and suppressed the media. The Mercury's Carvin Goldstone
has an outstanding complaint against Spt. Glen Nayager for intimidation, and
Nayager also illegally confiscated the camera of Raj Patel of the Centre for
Civil Society, which has been brought to the attention of the office of the
Public Protector.

The government's behaviour towards the shackdwellers, towards South Africa's
poorest people, is an indication of their growing contempt for all citizens.
When poor people bring their concerns to the city, the municipality remains
mute. No "yes", no "no". They keep people in limbo. It keeps people hoping,
it prevents people from taking further action against the city. And, in the
case of these marches, when the "No" comes minutes before the start of the
march, the high court has shown this to be illegal.

"I very much hope the punitive costs against the city, which will be
discussed on 13th March, will encourage Sutcliffe to stop wasting everyone's
time and money," said Zikode. "The City manager complains that freedom of
speech is expensive for the city. But this is wrong for three reasons.
First, Abahlali marches take place during office hours, while Zuma protests
and the A1 grand prix are much more expensive. Second, we don't know the
costs to the SAPS, because Sutcliffe won't tell us the figures. Third, even
though they were marching legally, our members are being made to appear in
court to answer charges that will be dismissed, wasting their and court
time. And finally, it's vicious and cruel to say to us 'you can either have
free speech or toilets' when, in fact, we have rights to both and the city
gives us neither."

Although yesterday marked the first time the Abahlali baseMjondolo had taken
their grievances to the high court, it wasn't the first time that the City
had behaved unconstitutionally towards them. Last year, the world's top
constitution scholars were in Durban in November 2005, when Dr Sutcliffe
illegally banned an Abahlali march. The scholars denounced his behaviour in
a petition (appendix C).

This track record of criminality and illegal behaviour towards the poorest
people in Durban must stop. Dr Sutcliffe is responsible, and as such must be
regarded as a criminal, an autocrat, and unfit to be the Manager of our
city. He must resign.

For more information, please contact:
Na'eem Jeenah (FXI Anti-censorship programme) - 084 574 2674.
S'bu Zikode (Abahlali Base Mjondolo) - 083 547 0474.
Richard Ballard (Centre for Civil Society) - 083 789 7108.


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Appendix A

Media Release: Apartheid tactics used by eThekwini Municipality
Issued by the Freedom of Expression Institute
27 February 2006, 11am


Embargo: For Immediate Release


The Freedom of Expression Institute is disgusted by the high- handed,
illegal and brutal attitude of the eThekwini Municipality against shack
dwellers today.


Early this morning, police invaded both the Foreman Road and Kennedy Road
shack settlements in Durban and prevented residents from leaving the
settlements. A number of shack dwellers were arrested. We have just received
reports that some of the detainees have been beaten up by police at the
Sydenham police station.


The military-style operation of police is an attempt to prevent a shack
dwellers march from taking place today. The Shack Dwellers Movement,
Abahlali Base Mjondolo, had planned to march today in protest against the
lack of housing. They were due to hand over a memorandum to the MEC for
Housing in the Kwazulu-Natal Province.


Abahlali fulfilled all the requirements necessary under the Regulation of
Gatherings Act, which governs demonstrations, marches, protests, etc. In
terms of the Gatherings Act, organisers of an event are required to notify
local authorities of their intention to hold the gathering seven days before
the proposed date of the event. On the 3rd February 2006, Abahlali had
notified the municipality of their intention to hold a march on the 20th
February that was 17 days in advance of the event. On the 16th February,
four days before the event and after a letter from the FXI to City Manager
Mike Sutcliffe pointed out that Abahlali had fulfilled its requirements in
terms of the Act and was awaiting a response from the municipality, the
organisers were told that some information was missing from their
notification. In fact, this was information they had submitted on the 3rd
February but which had been returned to them by the police. Abahlali then
submitted all the additional informat!
ion on the 17th February and informed the authorities that three days was
not sufficient for them to organise a march and they therefore would hold
the march on the 27th February today. To date, the organisation has received
no notification prohibiting the march. Thus, in terms of the Gatherings Act,
the Abahlali march today is a legal one if it took place. The march has now
been aborted by the actions of the police.


The violation of basic constitutional rights in this instance is appalling
and is a serious threat to our democracy and to the elections due to take
place in two days time.


The police, by telling shack dwellers that they have harassed this morning
that the march is banned, are lying to citizens and acting completely
contrary to the South African constitution and the Gatherings Act. We have
received reports that police have informed shack dwellers that the
instruction that the march was banned came from the City Manager, Dr Mike
Sutcliffe. If this is true, then it is of great concern to us that a person
in such a senior position, 1) does not understand the contents of a law (the
Gatherings Act) that is basic to his role and 2) that a person in such a
position acts with such impunity in subverting South African legislation and
the South African Constitution.


Further, the shack dwellers that have been arrested have done absolutely
nothing illegal and there is no reason for them to be arrested. Even if the
march was illegal (it isnt), the detainees were arrested without their
having been part of any gathering. Such Hollywood-style preemptive arrests
of people who have committed no crime set an extremely dangerous precedent
for our legal system. Will the police now believe that they are empowered to
arrest a person who might be thinking of committing a crime? Such
high-handed police action is completely out of tune with a democratic
society and is, rather, reminiscent of the days of Apartheid.


We want to remind the eThekwini Metro Police that their ongoing actions in
various Durban shack settlements are illegal and unconstitutional.


For more information, call:
Naeem Jeenah (FXI Anti-censorship programme) 084 574 2674 / 011 403-8403
Simon Delaney (FXI Legal Unit) 083 397 0057
Sbu Zikode (Abahlali Base Mjondolo) - 083 547 0474

Freedom of Expression Institute
Street Address: 21st Floor Sable Centre, 41 De Korte Street, Braamfontein,
Johannesburg
Postal Address: PO Box 30668, Braamfontein 2017, South Africa
Tel: +27 11 403-8403 Fax: +27 11 339-4109
fxi@fxi.org.za http://www.fxi.org.za

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Appendix B

23 February 2006

Dr Mike Sutcliffe
City Manager
eThekwini Municipality
Fax: (031) 311-2170

Dear Dr Sutcliffe

We at the Freedom of Expression Institute are appalled at your office's
apparent attempt to subvert the South African Constitution and the
Regulation of Gatherings Act. We had written to you on the 16th February
requesting information on the notification to you by Abahlali Base Mjondolo
that they were planning to have a march on the 20th February. We have
received no response from your office to that fax.

Allow us to recount the chronology of this application for your benefit.

* 3rd February 2006: Abahlali handed in, to the office of the Chief
Director of Metro Police, the necessary forms for the notification of a
gathering (the march the organisation wanted to organise) in terms of the
Regulation of Gatherings Act. Note that this was well in advance of the
7-day notification period required by the Gatherings Act. The Chief Director
indicated to them that you would make the decision about whether the
organisation could march. He also did not accept the form from Abahlali's
Lungisani Jama and Mnikelo Ndabankulu, telling them it was not necessary. He
did, however, make notes of the details of the proposed march and asked them
some questions regarding its organisation.
* 9th February: Mnikelo Ndabankulu went to a meeting at the Metro
Police offices, as per request from Metro. He was informed by Inspector
Stevenson that you had said Abahlali could not march but that they should
hold a rally instead. This was conveyed verbally and there was a refusal
from Metro to reduce that decision to writing.
* 9th February: Abahlali's S'bu Zikode sent your office a fax
requesting a response to their notification.
* 15th February: We wrote to you requesting information about the
progress of the notification by Abahlali.
* 16th February: Abahlali received a fax from Metro Police informing
them that permission had been denied for them to march on 20th because they
had not supplied certain necessary information. All the information that was
asked for in this fax had been supplied in the original form, which the
Chief Director of Metro had refused to accept.
* 17th February: Abahlali faxed the form of notification, but changed
the date of the march to the 27th. Clearly, the delay from the authorities
had forced them to abort the event for the 20th and to shift it to a later
date.
* From the 10th February to this morning, I had been calling various
officers at Metro as well as your office to get some clarity about the
march. No such clarity has been forthcoming. We also have received no reply
to our fax.
* Mr S'bu Zikode keeps getting sent between your office and Metro
Police with no one in either place accepting responsibility for conveying
any information to him.
* I just spoke to your secretary * a few minutes ago * who told me
that she thinks "Legal is dealing with the matter" and "I think they are in
touch with the organisers". Of course, no one is in touch with the
organisers. She also informed me that you were out of the office for the
rest of the day and she would therefore not be able to pass on my message to
you before tomorrow.

The conduct of the officials of eThekwini Municipality in this matter is
extremely disturbing and smacks of an arrogance and disdain for the people
the municipality should serve. Not to mention that it is unconstitutional
and illegal.

The Constitution states, "Everyone has the right, peacefully and unarmed, to
assemble, to demonstrate, to picket and to present petitions". The
Regulation of Gatherings Act No 205 of 1993 ("Gatherings Act") gives effect
to this fundamental right.

We hope that your office and the eThekwini Metro Police understand the
provisions of the Regulation of Gatherings Act. The Act neither empowers
your office nor the police to "deny permission" for a gathering (or march)
to take place. Nor does it empower your office to instruct people how they
should protest (by, for example, telling them to have a rally rather than a
march). Indeed, all the Act requires of the applicants is "notification",
not the seeking of "permission". That your office and Metro Police are
interpreting the Act in the latter manner violates not only the legislation
but also the Constitution. In fact, Abahlali having fulfilled all the
requirements required of them in the Act, they are now entitled to march on
the 27th February and their waiting for a response from your office is
simply a courtesy on their part.

Section 5 (1) of the Regulation of Gatherings Act only permits the
prohibition of a gathering (or march, in this instance) if there is a
"*threat that a proposed gathering will result in serious disruption of
vehicular or pedestrian traffic, injury to participants in the gathering or
other persons, or extensive damage to property, and that the Police and the
traffic officers in question will not be able to contain this threat*".
Unless you can provide written "credible information on oath" (as per the
Act) that such threat exists, we believe that Abahlali is legally within its
rights to march on Monday, 27th February.

We are concerned that an organisation that represents some of the poorest
people in your city is so flagrantly denied their right to free expression
and with such impunity. It is quite telling that Abahlali applied for their
march 17 days ahead of the date of the event but your authorities responded
4 days before the event to ask them for more details. It was because of this
delay on your part that Abahlali was forced to reschedule the march to the
27th February. And by today, 23rd February, one working day before the
march, neither your office nor Metro Police has informed Abahlali of any
decision. Surely you do not expect that the organisation can, in this short
space of time (assuming you reply to them today), train marshals, brief
their members, organise all the logistics, make payments for arrangements,
etc. Since this cannot reasonably be expected of the Shack Dwellers
Movement, one can only assume that your office is deliberately delaying this
process in order to subvert Abahlali's constitutional right to gather and
protest.

The Constitution guarantees everyone the right to administrative action that
is lawful, reasonable and procedurally fair. Your repeated delays and last
minute information are both unfair and unreasonable; your notification of
the prohibition of the march was given only 2 working days before the date
of the march, which is manifestly unfair.

It is of extreme concern to us that the officials of a municipality are this
disrespectful of our Constitution, laws and citizens. We hope that you
realise that if this intransigence results in violence, it will be the
responsibility of your office to accept blame. For surely those who have
followed the letter of the law cannot be blamed for your disregard.

We hope to receive an urgent reply from your office.

Yours sincerely



______________ _____________
Na'eem Jeenah Simon Delaney
Head: Anti-censorship Programme Head: Legal Unit




Appendix C

Petition to the Premier of KwaZulu-Natal from Delegates to the Comparative
Constitutionalism and Rights: Global Perspectives Conference


While in Durban we have come to learn that on the Thursday 10 November 2005
the eThekwini Municipality sent a fax illegally banning a proposed march on
the Mayor organised by the Foreman Road Development Committee, the elected
representatives of one of the poorest shack settlements in Durban. Two
reasons were given for banning the march. The first was that "Officials from
the Mayor's Office have advised us that they have no feedback for your
organisation". The second was that "The Mayor's Office labour is unable to
assist you and there will be no representative there to meet you." The
respected Freedom of Expression Institute issued a statement condemning the
ban as "a flagrant violation of the Constitution and the Regulation of
Gatherings Act". The statement went on to explain that the reasons given by
the Municipality for banning the march were "absurd" and without any legal
basis.

On the day of the scheduled march, three thousand people met in the Foreman
Road settlement, and decided to stage an act of passive resistance against
this attack on their basic democratic rights in the form of a peaceful
demonstration. It has been widely reported that the police responded with
extreme force and that at least two police officers fired live ammunition. A
number of protestors sustained serious injuries. Journalists and academics
have stated that police officers threatened them with violence if they
reported what they had seen and that cameras were confiscated by the police.
The Freedom of Expression Institute issued a statement declaring that the
Institute "condemns the eThekwini Municipality's blatant disregard for the
rights of marginalized communities to exercise their freedom of expression"
The statement described the police action as illegal on two grounds. The
first was that no warning was given to disperse before the police attacked
and the second was that there was no justification for the degree of force
used in the police attack. The Mercury newspaper lodged a formal complaint
against the intimidation of one of it journalists by the police.

We, the undersigned, delegates to the Comparative Constitutionalism and
Rights: Global Perspectives conference would like to register our deep
concern at these reports of the eThekwini Municipality's violation of
various laws governing the right to freedom of speech, freedom of assembly
and the right to peaceful protest. We strongly recommend that your office
urgently conduct an official enquiry into these alleged violations of basic
democratic rights.

Name Institution Position Country
D. Greschner University of Laverne Professor USA
Sandra F. Joireman Wheaton College Associate Professor USA
Q. Mirza University of East London Senior Lecturer UK
Beth Goldblatt CALS, Wits Univsersity Senior Researcher South Africa

Leslye Obiora University of Arizona Professor of Law USA
Erika George University of Utah Professor of Law USA
Emma C. Jordan Georgetown Professor of Law USA
Jeanne Woods Loyola University Distinguished Professor of Law USA
Mark Keude Drake University Professor of Law USA
Nicola Franklin Sydney University of Law Senior Lecturer
Australia
Diane Geraghty Loyola University Chicago Professor of Law USA
Peggy Marsel Florida International University Professor of Law USA
Susan Bazilli International Women's Rights Project Co-Director Canada/
South Africa
Brilliant Mhlanga Center for Communication & Media Studies Postgrad
Zimbabwe
Khauyisela Moyo University of Ulster PhD Research Fellow
Northern Ireland
Munyonzwe Hamalengwa Lawyer Canada
Patrick Bond UKZN Development Studies Professor South Africa

Paul Brietzke Valparaiso University Law School Professor USA
Angela Harris University of California Professor USA
Paul Gangsei New York Bar Association Attorney USA
Daria Roithmayr University of Illinois Law Professor USA
Barbara Stark Hofstra University Law Professor USA
Karl Klare Northeastern University Law Professor USA
Bernadette Atuahene Chicago-Kent Law School Assistant Professor
USA
Meetali Jain Constitutional Court Law Clerk South Africa
Michael Osbore Cape Town Bar Advocate/ Barrister South Africa
Rosemary Lyster University of Sydney Associate Professor
Australia
Chris Gale University of Bradford Professor, Director of Legal Studies
UK
Carlton Waterhouse Florida International University Assistant Professor
USA
W. Pettifer College of Law, London Solicitor, Practice Teacher UK
Jon Stubbs University of Richmond Professor USA
M. Lynch QUB Northern Ireland
S. Sibanda Wits University Lecturer South Africa
I. Nader Oxford University Student UK
A. Contsoudis Oxford University Student UK
M. Wesson University of Leeds Lecturer UK
A. Stewart UKZN/ Bar Advocate South Africa
K. Hofmeyr Oxford University Student UK
Jana McLean Lawyer Canada
Taunya Banks University of Maryland Law School Professor USA
Seth Racusen Anna Maria College Assistant Professor USA
Marilou McPhedran University of Victoria Co-Director, Women's Rights
Canada
David Hulme UKZN Senior Lecturer South Africa
George Devenish UKZN Hon R Assoc South Africa
Michael Plaxton University of Aberdeen Lecturer UK
Dwight Newman University of Saskatchewan Assistant Professor of Law
Canada
Bevekel Selassi UNC- Chapel Hill Professor USA
Trevor Ngwane Centre for Civil Society, UKZN Student South Africa

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