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

AN ANATOMY OF
DISSENT & REPRESSION:

The Criminal Justice System and
the 2011 Thembelihle Protest
Acknowledgments
This research report was written by Michael Clark (legal researcher at SERI) and edited
by Jackie Dugard (senior researcher at SERI), Kate Tissington (senior researcher at
SERI), and Lauren Royston (director of research and advocacy at SERI). The eld
research for this report was conducted by Thapelo Tselapedi (research and advocacy
ofcer at SERI). Thanks to the Thembelihle Crisis Committee (TCC), Siphiwe Segodi
and Nicolette Pingo for their helpful participation in the research process.
The cover photo of this report and photos in the text were taken by Phillip de Wet.
Michael Clark
2014
AN ANATOMY OF
DISSENT & REPRESSION:
The Criminal Justice System and
the 2011 Thembelihle Protest
ACRONYMS
ANC African National Congress
ANCYL African National Congress Youth League
CBO Community Based Organisation
DA Democratic Alliance
ISN Informal Settlement Network
TCC Thembelihle Crisis Committee
MMC Member of the Mayoral Committee
MEC Member of the Executive Council
OKM Operation Khanyisa Movement
PR Proportional Representation
POP Public Order Policing
POPCRU Police and Prisons Civil Rights Union
SABC South African Broadcasting Corporation
SAPS South African Police Service
SERI Socio-Economic Rights Institute of South Africa
iv
TABLE OF CONTENTS
Acronyms ...............................................................................................................iv
Executive Summary ..............................................................................................3
1. Introduction ........................................................................................................7
2. Background and Context ............................................................................. 11
2.1 Thembelihle Informal Settlement ........................................................................ 11
2.2 Thembelihle Crisis Committee (TCC) ................................................................ 15
2.3 2011 Local Government Election ......................................................................... 17
3. The Thembelihle Protest of September 2011 ....................................... 21
4. Aftermath of Protest: The Criminal Justice System ........................ 33
4.1 Arrest of Miya ............................................................................................................ 35
4.2 Bail Proceedings ....................................................................................................... 38
4.3 Criminal Prosecution of Thembelihle Protestors ......................................... 47
5. Popular Dissent and Repression in South Africa ............................... 51
5.1 Criminalisation of Protest ..................................................................................... 53
5.2 Increased Police Brutality .....................................................................................54
5.3 Challenges with Public Order Policing ............................................................ 55
5.4 Targeting Local Activists ....................................................................................... 56
5.5 Abuse of the Criminal Justice System ............................................................. 57
6. Conclusion ....................................................................................................... 59
7. Bibliography ..................................................................................................... 61
AN ANATOMY OF DISSENT & REPRESSION
1
2
Executive Summary
Since 2004, and escalating in recent years, South Africa has experienced a signicant
number of local protests in poor urban areas. These protests are often referred to as
service delivery protests as they are frequently related to the inadequate socio-
economic conditions of poor communities, including a lack of basic services and social
amenities. In many respects, these protests can be viewed as a claim for the realisation
of socio-economic rights by poor communities. The week-long protest in Thembelihle,
near Lenasia, Johannesburg in September 2011, was such a case. Frustrated by an
unaccountable and unresponsive local government that frequently disregarded the
communitys on-going demands for access to adequate basic services, Thembelihle
residents took to the streets. Their demands, however, were dismissed by local and
provincial government alike, and met with a forceful police clamp-down. In the aftermath
of the protest, arrest and criminal prosecution (often on frivolous charges) was used
to harass community members and specically to target community leaders, marking
an alarming trend in which the criminal justice system is used by the government to
suppress popular dissent.
This report highlights how these developments contribute to the on-going frustrations
that many local communities experience while attempting to secure their place in South
Africas democracy, and exposes the machinations of the state apparatus, particularly the
criminal justice system, in attempting to silence dissent. By documenting this case study
of protest and repression, the report seeks to understand the protest in Thembelihle
specically, and rising dissent in South Africa more generally. It aims to illustrate the
growing trend of state repression of popular protests in poor urban areas and detail
how the state employs the criminal justice system to vilify, criminalise and suppress local
communities advocating for socio-economic development.
Thembelihle Informal Settlement
The Thembelihle informal settlement is located in the south of Johannesburg. It is densely
populated, with roughly 7000 households living there. For over a decade before the 2011
protest, and led by local CBO the Thembelihle Crisis Committee (TCC), the community
struggled to petition the City of Johannesburg for the provision of basic services at the
settlement, including electricity, water and sanitation services. Little success, however,
came out of their eforts. In February 2011, seeing the upcoming local government
election as an opportunity, Thembelihle residents renewed their petition to the municipal
authority by mobilising through protest and handing over a memorandum of demands.
However, in spite of the election as ward councillor of ANC candidate Janice Ndarala,
3
who had participated in the Thembelihle protest in February, no response came from the
City for the next six months. Relations between the new ward councillor and the TCC
quickly soured, and no negotiations materialised. Only after another protest march in
August 2011 did the City acknowledge receipt of the residents demands. However, even
this acknowledgment was signicantly delayed, and the Thembelihle community and
the TCC became increasingly dissatised with the City and ward councillors apparent
apathy towards their concerns.
The Thembelihle Protest of September 2011
The now infamous Thembelihle protest, which had as many as 1500 participants, began
on 5 September 2011. Protestors blockaded the roads, threw stones at on-coming
motorists, and damaged public property. Some reported that the tension was further
exacerbated with the arrival of the Public Order Policing (POP) unit which red rubber
bullets and tear gas at the crowd, and made multiple arrests. While the police identied
TCC leaders as ring leaders who incited the violence, this allegation was disputed by
TCC members, and the police later recognised that some TCC leaders played a signicant
role in subduing the violence.
The protest continued into the next days, while the TCC attempted unsuccessfully to
meet with government ofcials. However, the MEC for Local Government and Housing
Humphrey Mmemezi, during his visit to the community on the second day of the protest,
outright refused to address the communitys grievances, saying that water and electricity
would not be installed and residents would be relocated. He further suggested that the
communitys grievances were being used by the TCC (whose preferred ward councillor
candidate lost in the local government election), and later said that they would deal with
the protestors. At the same time, the police had begun to clamp down on the protest.
They entered houses and physically and verbally abused various Thembelihle residents.
Several members of the community were arrested. There were also allegations that live
ammunition was red at a community member. Amidst the chaos, criminal elements
began to take advantage of the situation, breaking into shops and destroying property.
On 8 September, the fourth day of the protest, Gauteng Premier Nomvula Mokonyane
condemned the protestors behaviour at Thembelihle, stating: We will not tolerate
anarchy and unruly protestors. The police took the statement as implicit authorisation
for further suppression. After several more arrests, they declared Thembelihle to be
under control.
The Criminal Justice System
On 13 September Bhayi Bhayi Bhayiza Miya, a prominent community leader and
spokesperson of the TCC, was arrested on charges of public violence and intimidation.
While the police alleged that he had been actively avoiding arrest, Miya claimed that he
4
was arrested when he voluntarily attended a meeting scheduled at the police station. In
spite of the scant evidence assembled against Miya, his bail proceedings were protracted.
Indeed, it seems that Miya was singled out for his role in the TCC, being the only arrested
resident denied immediate bail. Additional charges, on which no further evidence was
provided, were also brought against him and it became apparent that the state sought to
detain Miya for his role in the protest. Not only did the prosecution attempt to attribute
all of the negative consequences of the protest to Miya personally, but it also sought
to hold Miya in preventative detention, claiming that his release would result in further
protest action at the settlement. The High Court eventually overturned the trial court
Magistrates decision to deny bail, and ordered Miyas release on bail. By this time, Miya
had spent more than a month in detention.
In the wake of the protest Miya, and 13 other demonstrators (including three minors)
who took part in the protest, faced criminal prosecution on charges of public violence
and malicious damage to property. The criminal proceedings were largely based on
unsubstantiated charges, with little or no evidence linking any of the accused to the
commission of criminal acts. It seemed increasingly likely that the main purpose of
the prosecution was either to punish the residents for having embarked on legitimate
demonstrations, or derail the protest campaign aimed at socio-economic development
at the settlement. After a manifestly unlawful delay in proceeding with the case, including
nine postponements over a period of seven months, the case was struck of the roll.
Popular Dissent and Repression in South Africa
Events at Thembelihle raise several signicant concerns about government responses to
local protests and expressions of popular dissent. Over the past few years, the various
branches and functionaries of government have attempted to suppress such protests
through various means. The line between protests and criminal activity has been blurred,
enabling the government to label protests illegal and allowing the police to react with
increasing brutality. Furthermore, as Miyas arrest and bail proceedings show, local
community leaders are specically targeted for arrest and criminal prosecution. Criminal
charges are often brought against protestors on little or no substantiated evidence, and
proceedings are excessively delayed to prolong detention and intimidate community
activists. The criminal justice system is not so much used for the genuine prosecution of
criminal activity, but is rather employed to deter and suppress popular dissent.
The Thembelihle communitys frustration with the governments failure to engage with
their grievances and demands was exacerbated by the governments suppression of
the protest through the police services and the criminal justice system. It is clear that,
without the guarantee of the civil and political rights to speak out and collectively
mobilise through protest, it will be increasingly difcult for communities to assert their
socio-economic rights.
5
6
Since 2004, and escalating in recent years, South Africa has experienced a signicant
movement of local protests in poor urban areas.
1
These protests have been referred
to as service delivery protests as they are frequently related to the inadequate
socio-economic conditions of poor communities, including a lack of basic services
and social amenities.
2
In many respects, the wave of local protests can therefore be
viewed as a claim for the realisation of socio-economic rights by poor communities.
3

While local protests are undoubtedly related to failures of service delivery, they have
also been linked to growing dissatisfaction and frustration within communities as they
struggle to engage an increasingly unresponsive and remote state. In this sense, it has
become apparent that communities feel compelled to resort to informal and more
direct means of engagement, such as protest, in instances where formal participatory
avenues have been closed down.
4
Protests are therefore often symptomatic of various
unsuccessful attempts by local communities to engage with authorities through more
traditional means.
It is in this context that this report aims to document the week-long protest that
erupted in Thembelihle informal settlement near Lenasia, Johannesburg in early
September 2011. For many of the residents of Thembelihle this protest simply marked
the latest turn in long-standing struggles to be heard and to improve living conditions
at the settlement. For others, the protest took on a broader meaning and heralded
a turning point in local community dissent and more repressive state responses. For
the non-governmental organisation, the Socio-Economic Rights Institute of South
Africa (SERI), and civil society more generally, state suppression of the Thembelihle
1
Although some suggest that the current wave of local protests could be traced back to the apartheid
era, most commentators date the beginning of the contemporary movement of protests to 2004. See
P Alexander Rebellion of the Poor: South Africas Service Delivery Protests A Preliminary Analysis
(2010) 37(123) Review of African Politcal Economy p. 25; and J Dugard Urban Basic Services: Rights,
Reality and Resistance in M Langford, B Cousins, J Dugard and T Madlingozi (eds) Socio-Economic
Rights in South Africa: Symbols or Substance? (2014) p. 285. On the rising number of protests, see H
Jain Community Protests in South Africa: Trends, Analysis and Explanatons Community Law Centre
(CLC) Local Government Working Paper Series No 1 (2010); and P Alexander, C Runciman and T Ngwane
Community Protests 2004-2013: Some Research Findings Social Change Research Unit, University of
Johannesburg (2013).
2
Alexander Rebellion of the Poor (2010) Review of African Politcal Economy p. 32; L Sinwell, J Kirshner,
K Khumalo, O Manda, P Pfafe, C Phokela and C Runciman Service Delivery Protests: Findings from Quick
Response Research on Four Hot Spots Piet Retef, Balfour, Thokoza, Diepsloot Centre for Sociological
Research, University of Johannesburg (September 2009) p. 2; Dugard Urban Basic Services in Socio-
Economic Rights pp. 275-277.
3
Dugard Urban Basic Services in Socio-Economic Rights pp. 285-294.
4
T Madlingozi Post-Apartheid Social Movements and Legal Mobilisaton in Langford et al (eds) Socio-
Economic Rights (2014) pp. 95-98.
1. Introduction
7
communitys protest against inadequate services highlighted the intimate relationship
between socio-economic rights and civil and political rights. This is due to the
manner in which the community utilised their civil and political entitlements to local
democratic participation and protest to assert their socio-economic demands, and
was reinforced by the states clamp down on the civil and political rights of protestors
in an attempt to suppress such demands. For SERI, the Thembelihle protest marked
a clear moment in South Africas post-apartheid era when civil and political rights
merged with socio-economic rights, and when it became necessary to engage in
classic human rights defence work.
This research report documents the Thembelihle protest of September 2011, piecing
together the triggers of the protest and the actions of various players in the run-
up to and during the protest. In doing so, the report seeks to analyse the protest
through a wide lens by placing emphasis not only on the moment of the protest but
also on unpacking the complicated series of interactions and unsuccessful attempts
at engagement that gave rise to the protest in the rst place. The report further
examines the consequences of the protest, focusing on the transgression of civil and
political rights in the wake of the protest, including the unlawful arrest and detention
of prominent Thembelihle community leader, Bhayi Bhayi Bhayiza Miya.
In doing so, the report highlights the on-going frustrations that many local
communities experience when attempting to secure their place in South Africas
democracy and exposes the machinations of the state apparatus, and particularly the
criminal justice system, in attempting to silence dissent. By documenting this case
study of protest and repression, the report seeks to contribute towards the historical
record and understanding of the protest in Thembelihle specically, and of the rising
dissent in South Africa more generally. This report thus aims to illustrate the growing
trend of state repression of popular protests in poor urban areas. In particular, it seeks
to detail how the state employs the various functions of the criminal justice system
to vilify, criminalise and suppress local communities advocating for socio-economic
development.
Research for this report was conducted in the wake of the Thembelihle protest over
a number of months in 2012 and 2013. The rst phase of research was a review of
secondary sources, including academic papers, research reports and opinion pieces
related to protest, state suppression, and the operation of the criminal justice system,
with an emphasis on South Africa. Thereafter, the research focused on unpacking the
events that took place during the Thembelihle protest of 2011, and their aftermath,
to draw potential linkages between the Thembelihle case study and broader trends
of popular dissent. This entailed a detailed review of the media articles covering
the Thembelihle protest as well as a comprehensive analysis of the subsequent
8
court proceedings. Finally, the research was based on a number of interviews with
community members, community-based organisations (CBOs), local government
ofcials, the legal representatives of protesting community members and various
other key stakeholders. The interviews included both individual interviews as well as
various focus groups.
Section two of the report sets out the background and the events leading up to the
week-long protest in Thembelihle in September 2011. In doing so, it details the origin
and socio-economic context of the settlement and highlights the long-standing
struggles of the local community, through the CBO the Thembelihle Crisis Committee
(TCC), to engage with local government and further socio-economic development at
the settlement. This section underscores the growing frustration of the community as
their engagements with local government ofcials become increasingly unsuccessful.
In navigating some of these engagements, the report argues that a tense political
relationship existed immediately prior to the eruption of the protest action.
Subsequently, section three sets out a detailed narrative of the Thembelihle protest as
well as the states response through its various political and criminal justice functions
and institutions. This section also outlines the persecution of Thembelihle activists
in the wake of the protest, through a misapplication or abuse of the criminal justice
system.
Section four provides a comprehensive analysis of the use of the criminal justice
system to silence community activists in the aftermath of the Thembelihle protest. In
setting out the arrest and bail proceedings of local community leader Miya, and the
criminal prosecution of various protestors, the report points to a number of serious
concerns with the South African criminal justice system. These events indicate
that there are fundamental issues in how the criminal justice system responds to
protestors. In fact, it is clear that the criminal justice system is increasingly employed
by the police, prosecutors and local authorities as a mechanism to suppress the
legitimate expression of popular dissent. Although this may not be true of all protest
actions, the case study in this report portrays a troubling snapshot of a much larger,
and seemingly growing, trend of abuse in the criminal justice system.
Section ve considers the issues raised from the case study at a macro level. It
analyses the increasing trends of popular dissent and repression using the lens of the
Thembelihle case study. Finally, section six delivers some concluding remarks.
9
10
2. Background and Context
2.1 Thembelihle Informal Settlement
Thembelihle informal settlement is located in the south of Johannesburg, in ward
8 of Region G. Known as Esigangeni (in the bush in isiZulu) in the 1980s, the
settlement is in Lenasia, a formerly Indian Group Area. According to Daniel Bovu,
the rst elected councillor of ward 8 and current member of the mayoral committee
(MMC) for housing in the City of Johannesburg, the area was formed in the mid-1980s
by people working in a brick making company where SA Block is today.
5
Initially,
residents were granted permission to reside in Thembelihle by the government and
given material to construct informal shelters.
6
Even then, and still today, Thembelihles
location far from the City of Johannesburg has meant that residents rely heavily on
Lenasia for any economic opportunities.
The settlement is partially regularised and serviced
7
and very densely populated,
with households said to number between 7 000 and 8 000.
8
Between December
2010 and January 2011, an audit of the settlement found that there were 6775 informal
dwellings,
9
of which 3597 were primary dwellings and 3178 were occupied by sub-
tenants. Moreover, as with all informal settlements, the land on which the settlement
is situated has not been proclaimed a formal township. For this reason, the Citys
electricity distributor, City Power,
10
has not installed electricity at the settlement. This
has led to widespread unlawful electricity connections.
11

Since 1992, when the City undertook a geotechnical survey of the settlement, it has
persistently sought to relocate residents from Thembelihle to the area of Vlakfontein,
some 10 kilometres to the south of Thembelihle. The 1992 survey revealed that much
5
Interview with Daniel Bovu, City of Johannesburg (18 November 2012).
6
Webber Wentzel Bowens Public Interest and Gender Law Department and Social Corporate Responsibility
Annual Report (2006) p. 3.
7
Centre for Housing Rights and Evictons (COHRE) Any Room for the Poor? Forced Evictons in Johannesburg,
South Africa (2005) p. 87.
8
T Tselapedi and J Dugard Reclaiming Power: A Case Study of the Thembelihle Crisis Commitee in Good
Governance Learning Network (GGLN) Actve Citzenship Maters (2013) p. 58.
9
City Press Persuasion over forceful evictons a priority City Press (16 September 2011).
10
City Power is an independent company, wholly owned by the City. City Power is one of the primary
electricity providers servicing the greater metropolitan area of Johannesburg. It runs on the same model
as the Citys other municipal-owned enttes, Pikitup and Johannesburg Water.
11
Interview with Janice Ndarala, ward councillor for ward 8, Thembelihle (15 August 2012).
11
The City approaches the High Court
for an urgent application to evict all
Thembelihle residents, claiming that the
presence of dolomite poses an imminent
threat to the safety of those at the
settlement. The community opposes the
eviction, and the City drops the case after
it fails to take any further steps to secure
the eviction order.
The TCC, along with other CBOs,
form the Operation Khanyisa
Movement (OKM), which contests
local government elections in
areas of Johannesburg.
On the basis of the geotechnical
reports, the City declares
Thembelihle unsuitable for human
habitation due to the presence
of dolomite and formally informs
the community that they will be
relocated to Vlakfontein. There is
a partial relocation to Vlakfontein.
Some residents resist this relocation.
Thembelihle informal settlement
is established by rural migrants
and employees of a brick
manufacturing company.
The City of Johannesburg commissions
a geotechnical survey of the settlement.
The survey reveals that much of the
settlement is located on dolomitic land.
Threats of relocation and eviction begin.
1980s
1992
The City commissions a
further geotechnical survey
that substantially conrms the
ndings of the 1992 survey.
Thembelihle residents form the
Thembelihle Crisis Committee (TCC)
and attempt to engage with the City
through demonstrations, letters,
negotiations and court cases.
BACKGROUND
1998
2001-2011
2002
2003
2006
12
of Thembelihle is located on dolomitic land.
12
These ndings were substantially
conrmed in another survey conducted in 1998.
13
DOLOMITE IN THE GAUTENG PROVINCE
Dolomite refers to the geological phenomena of sedimentary rock under the surface of
land which dissolves, over time, in water, resulting in the formation of sinkholes, making
development potentially risky and expensive. About 25% of Gautengs surface area consists
of dolomitic land.
14
According to Urban LandMark:
Dolomite land is risky for development, but the areas of low risk can be
developed for housing if special raft foundations are used and if there is a risk
management plan in place. The Council for Geoscience identifies different risk
categories for dolomite land: Low risk categories are generally suitable for
residential development (densities of 30 to 60 dwelling units per hectare);
Medium risk categories are generally suitable for low density residential
development (densities of up to 10 dwelling units per hectare for some
categories, and up to 18 dwelling units per hectare for some categories); and
High risk categories are not suitable for residential development (but may be
suitable for other activities).
15
According to Marie Huchzermeyer, professor at the School of Architecture and Planning at the
University of Witwatersrand, although the presence of dolomite poses a potential obstacle
to land development, this obstacle can, in certain instances, be overcome by installing
specialised water management measures or rehabilitating land. She points out that both
of these measures are provided for and funded in terms of the Upgrading of Informal
Settlements Programme (UISP) contained in the Department of Human Settlements 2009
National Housing Code.
16
12
Intraconsult Interim Report to Keeve Steyn Inc on the Engineering Geological Stability Investgatons on
Sectons of Porton 129, Lenasia Report No. IR69 (May 1992) (the 1992 report). See also COHRE Any
Room for the Poor? pp. 86-94.
13
Council for Geo-Sciences (CGS) Engineering Geological Study of the Greater Lenasia Area for the City of
Johannesburg Southern Metropolitan Substructure, Parts 1 and 2 Report No. 1998-0091 (June 1998) (the
1998 report). See also COHRE Any Room for the Poor? pp. 86-94.
14
For more on dolomite generally see M Storie Representatons of Space: A Case of Karst, Community and
Change in the Urban Landscape (September 2011), a paper presented at the African Centre for Cites
(ACC)/Centre for Urbanism and Built Environment Studies (CUBES) Cites Conference, Cape Town, 7-9
September 2011; and M Storie Dolomite Issues in the Gauteng City-Region: Preparing for Community
Engagement (April 2012), a workshop with community leaders of the Protea South setlement and land
planners, 13 April 2012.
15
Urban Landmark Access to Urban Land: A Handbook for Community Organisatons (August 2008) p. 16.
See also M Huchzermeyer The struggle for in situ upgrading of informal setlements: A refecton on
cases in Gauteng (2009) 26(1) Development Southern Africa pp. 59-73.
16
Department of Human Setlements (DHS) Upgrading of Informal Setlements Programme Part 3 Vol
4 of the Natonal Housing Code (2009). See also Huchzermeyer The struggle for in situ upgrading of
informal setlements (2009) Development Southern Africa pp. 59-73.
13
In 2002, on the basis of these two reports, the City declared Thembelihle unsuitable
for human habitation. There has been much debate about the veracity and reliability
of these geological reports. In 2005 the Centre for Housing Rights and Evictions
(COHRE) pointed out that the reports found that large areas of the settlement
are suitable for medium to high density residential development if certain water
management precautions are taken.
17
However, the City argued that the presence of
dolomite meant that the settlement was unsuitable for any residential development
and that the residents of Thembelihle had to be relocated to Vlakfontein as a
result. Thembelihle residents have questioned whether the reports were sufciently
comprehensive as both reports were based on a survey of an insufcient number of
exploratory drilling holes.
18
In the light of the contested interpretation of these reports,
many Thembelihle residents are concerned that the City may be using the dolomite
issue as a convenient rationale for its attempts to relocate poor communities even
further away from the city.
In 2002 the City formally decided to relocate Thembelihle residents to a housing
settlement in Vlakfontein. This move was resisted by the community, who argued
that Vlakfontein was poorly serviced in comparison to Thembelihle.
19
According
to residents, ofcials employed by the City threatened a number of residents
into relocating by claiming that their homes would be demolished if they did not
relocate.
20
The City, however, claims that it held extensive public meetings and gave
assurances that no-one would be forcibly relocated without a court order. Despite
these claims, in June 2002 Wozani Security (colloquially referred to as the Red Ants)
demolished dwellings and relocated a number of households. The City claimed that
the relocations were all voluntary, in stark contrast to Thembelihle residents claims
that the Red Ants attempted to forcibly remove various community members.
21
17
COHRE Any Room for the Poor? pp. 89-90. The 1992 report found that about 60% of the total surface
area of the setlement could be categorised as low to medium risk and was consequently suitable
for housing developments provided that special water management precautons were taken. The 1998
report was even more optmistc fnding that up to 90% of the surface area of the setlement was suitable
for medium or high density housing if special water management precautons were taken. See also
Huchzermeyer The struggle for in situ upgrading (2009) Development Southern Africa pp. 59-73.
18
See M Mabaso Geotechnical report insufcient to remove residents LookLocal (29 June 2012). The
geological reports expressly recognise that further research is required, which would include a further
survey of 82 exploratory drilling holes.
19
The community resisted the move to Vlakfontein for a number of reasons. Chief among these was
the fact that Vlakfontein had fewer social amenites and was located further away from the economic
opportunites ofered by the suburb of Lenasia. COHRE Any Room for the Poor? pp. 89-90; SERI focus
group interview with the TCC, Thembelihle Community Hall (21 July 2012).
20
See City of Johannesburg v Occupiers of the Thembelihle Informal Setlement, South Gauteng High Court,
Case No. 03/10106, Answering Afdavit pp. 10-11; and COHRE Any Room for the Poor? pp. 87-89.
21
Case No. 03/10106, Founding Afdavit p. 6 and p. 11. COHRE Any Room for the Poor? pp. 87-89.
14
In 2003, the City approached the South Gauteng High Court to obtain an urgent
eviction order authorising the eviction of Thembelihle residents.
22
According to the
City, the dolomite risk posed an imminent threat to the safety of those living in the
informal settlement. The community acquired pro bono legal representation and
opposed the eviction application. The City never took any further steps to obtain the
eviction order.
23
However, despite the mobilisation of the community, 647 families
were relocated to Vlakfontein by the City between 2002 and 2003.
24

2.2 Thembelihle Crisis Committee (TCC)
Responding to the threat of relocation, residents formed the Thembelihle Crisis
Committee (TCC) in 2001. The TCC is a membership-based community organisation
whose leadership comprises of ten people elected by the residents of Thembelihle at
an annual general meeting.
The TCC has persistently sought to compel the City, among other things, to undertake
a comprehensive geotechnical study of the Thembelihle land to properly assess the
dolomite threat.
25
The TCC were also instrumental in opposing the eviction order
brought by the City in 2002.
26
Moreover, hoping to secure the broader development
of the settlement, the TCC has consistently campaigned to develop Thembelihle by
drawing the attention of local and provincial authorities to Thembelihles plight.
27

For example, the TCC has engaged City Power to install electricity at the settlement
and housing ofcials to construct state-subsidised housing, and works with local
schools to ensure that learners are admitted to and remain in school.
28
It has also
embarked on numerous protests and written countless petitions to raise the prole
of its struggles. According to Siphiwe Segodi, former chairperson of the TCC, the
22
Case No. 03/10106.
23
COHRE Any Room for the Poor? p. 89; Huchzermeyer The struggle for in situ upgrading of informal
setlements (2009) Development Southern Africa pp. 59-73.
24
See City of Johannesburg Peace setling in Thembelihle (3 March 2010).
25
See COHRE Any Room for the Poor? pp. 86-94; and Huchzermeyer The struggle for in situ upgrading of
informal setlements (2009) Development Southern Africa pp. 59-73.
26
See secton 2.1 of this report.
27
For further reading on the TCC, see Tselapedi and Dugard Reclaiming Power in Actve Citzenship
Maters pp. 57-65; COHRE Any Room for the Poor?; J Dugard, M Ngwenya, K Savage and C Albertyn
Access to Educaton for Learners in Thembelihle Centre for Applied Legal Studies (CALS) Research Report
(2006); Huchzermeyer The struggle for in situ upgrading of informal setlements (2009) Development
Southern Africa pp. 59-73; N Pingo Insttutonalisaton of a Social Movement: The Case of Thembelihle,
the Thembelihle Crisis Commitee and the Operaton Khanyisa Movement and the Use of the Brick, the
Ballot and the Voice Research Report submited for MSc in Development and Planning, University of
Witwatersrand (2013); and SERI Thembelihle: Engaging an Unresponsive State SERI Community
Practce Notes Series: Informal Setlement Upgrading (2014).
28
Tselapedi and Dugard Reclaiming Power in Actve Citzenship Maters pp. 59-60; Dugard et al Access to
Educaton for Learners in Thembelihle.
15
TCC is leading the struggle in resisting the forced removal of the entire informal
settlement. It is fighting for other basic needs such as running water for each
yard, water-borne toilets, a clean environment and development of the area into
a proper township with houses. Most importantly, the TCC also struggles with
raising political consciousness, particularly on the importance of community
control of community issues.
29
The TCCs attempts to get the City to abandon its 2002 decision to relocate the
settlement, as well as to develop the settlement more broadly, have involved a mix of
formal and informal tactics. These range from formal discussions with City ofcials
and bringing urgent applications to court, to unlawfully connecting electricity and
barricading roads as a form of protest.
30
These diverse tactics have been aimed at
resisting relocation and struggling for better municipal services at the settlement.
2.3 2011 Local Government Election
The years of struggle and numerous unsuccessful attempts at engagement have taken
their toll at times. Indeed, after a decade of public demonstrations, letters of demand,
negotiations with ofcials, court cases and the partial eviction between 2002 and
2003 the TCC was losing faith that the City would ever listen to its concerns by 2011.
However, the 2011 local government election re-energised the TCC as political parties,
including the governing African National Congress (ANC), became more receptive to
citizens demands. Capitalising on the political moment, it made sense for the TCC
to scale up engagement, through renewed meetings with City ofcials as well as
organising community meetings to mobilise residents.
On 17 February 2011, thousands of Thembelihle residents gathered at the Citys
municipal ofces to bring their grievances and demands to the attention of the City
government. One of those gathered at the ofces was then local African National
Congress Youth League (ANCYL) chairperson, Janice Ndarala, who was later elected
as an ANC ward councillor in the 2011 local government election, beating the candidate
the TCC supported. A month after receiving the TCCs petition, the City formally
acknowledged receipt in a letter from the Ofce of the Speaker of the City Council.
31

In this letter the Speaker apologised for the Citys late response and informed the TCC
that he had instructed the administration to provide the TCC and the community
29
S Segodi Thembelihle Crisis Commitee contestng electons through Operaton Khanyisa Movement
Democratc Social Movement (30 April 2011).
30
See, generally, Tselapedi and Dugard Reclaiming Power in Actve Citzenship Maters pp. 57-65.
31
City of Johannesburg Various service delivery issues on housing, J Water, City Power by people of
Thembelihle residents (8 March 2011), a leter from the City to the TCC.
16
17 February 2011
18 May 2011
RUN UP TO THE PROTEST
June 2011
22 August 2011
29 August 2011
The TCC petitions the City on
the provision of services and
upgrading of the settlement. The
City acknowledges receipt of the
petition and promises regular
monthly updates on the petition.
However, the City fails to provide
these monthly updates.
The local government election
takes place. Bhayi Bhayi Bhayiza
Miya, a prominent community
leader and TCC spokesperson,
stands for the position of ward
councillor in the area but loses to
ANC candidate, Janice Ndarala.
The City acknowledges
receipt of the memorandum
without responding to the
grievances raised therein. The
TCC criticises the City for not
taking the community seriously
and declares that it has lost
condence in the petition
committee, the City structures,
Region G administration and the
Ofce of the Speaker.
Relations between ward
councillor Ndarala and the
TCC sour over the issue of
sanitation services at the
settlement.
Thembelihle community
organise a protest march to the
municipal ofces to hand over
a memorandum outlining their
grievances and demands to the
City and ward councillor Ndarala.
17
with monthly updates until the petition is declared closed by the Petitions and Public
Participation Committee.
32
However, possibly because ofcials were caught up in the
2011 local government election, no communication was forthcoming from the City
and, on 18 May 2011, the election took place without the City having reverted back to
the TCC.
During this time, the TCC, too, seemed to have been caught up in election fever
as they did not follow up with the City. In the months leading up to the 2011 local
government election the TCC made use of its organisational muscle in the community
to garner votes for the Operation Khanyisa Movement (OKM) ward candidate, Bhayi
Bhayi Bhayiza Miya, who also acted as spokesperson for the TCC. The OKM is an
organisation that was founded in 2006 to contest local government elections in parts
of Johannesburg including Thembelihle and Soweto.
33
The TCC threw its weight
behind the OKM because, according to them, the time had come to ght against
evictions and for basic services from both within and outside local government.
34

The TCCs decision to become more involved in formal politics, through its afliation
with OKM, was taken to get closer to the levers of power and decision makers within
the City and to better understand the processes and systems of local government.
35
The results of the 2011 election were that Miya came in third, winning 450 votes,
36

while Ndarala, representing the ANC, won 52% of the votes (3657 out of a registered
total of 6 968).
37
Though Miya lost the ward councillor seat, another TCC member,
Simphiwe Zwane, was elected as the OKM Proportional Representation (PR)
councillor.
38

Considering that the newly-elected ward councillor participated in the TCC march to
the Citys municipal ofces on 17 February 2011, it might have been expected that the
TCC would be agreeable to her election and that she would be receptive to the TCCs
concerns. Furthermore, Miya and Ndarala had a friendly and agreeable relationship,
both inviting each other to organisational or community meetings and engaging on
32
Ibid.
33
Segodi Thembelihle Crisis Commitee contestng electons through Operaton Khanyisa Movement
Democratc Social Movement. For more on the OKM, see generally Pingo Insttutonalisaton of a Social
Movement pp. 1-127.
34
SERI focus group interview with the TCC, Thembelihle Community Hall (21 July 2012).
35
Tselapedi and Dugard Reclaiming Power in Actve Citzenship Maters p. 60.
36
Independent Electoral Commission of South Africa (IEC) 2011 Municipal Electons: Results Map (2011):
htp://maps.electons.org.za.
37
Ibid.
38
A PR councillor is elected through a party list and is therefore primarily accountable to the party. The PR
system gives partes that are relatvely popular, but not strong enough to win ward seats, a chance to
take part in local government.
18
community issues.
39
However, unfolding events in the months following the election
were to exacerbate tensions rather than consolidate the relationship between TCC
activists and OKM supporters on the one hand, and the new ward councillor and the
City on the other.
In June 2011, just over a month after the election, the TCC claimed that a meeting
scheduled between them, Johannesburg Water (a water services utility company
owned by the City), ward councillor Ndarala, a contractor from Limpopo and
the police, to discuss the installation of sanitation services in the area, failed to
materialise.
40
According to Ndarala, however, residents did meet with the City at a
later date.
41
Whether or not this meeting took place, it is evident that a breakdown in
communication was emerging between the ward councillor and the TCC. Thus in a
short space of time, the relationship between anticipated allies in the development of
Thembelihle had begun to sour and rapidly worsened in the course of the subsequent
months.
39
SERI focus group interview with the TCC, Thembelihle Community Hall (21 July 2012). See also State v
Bhayi Bhayi Miya, Protea Regional Court, Case No. 69/4121/11, Afdavit of Bhayi Bhayi Moses Miya (22
September 2011) para 10.
40
P Ranchod Service delivery protests in Thembelihle LookLocal (9 June 2011).
41
Interview with Janice Ndarala, Thembelihle (15 August 2012). Ndarala claimed that the delay was a result
of the City waitng on a response from Johannesburg Water.
19
20
By August 2011 Thembelihle residents had become increasingly dissatised with
the Citys continued delays in addressing their grievances. As a result, on 22 August
residents once again embarked on a protest march to the municipal ofces to hand
over a memorandum of demands to the local ward councillor.
42
According to Miya,
the march aimed to provide the newly elected ward councillor Ndarala with a clearly
delineated list of Thembelihle residents concerns and demands.
43

The TCC viewed the memorandum of demands as establishing a participatory mandate
for the councillors tenure.
44
It is unclear how the councillor viewed the mandate
and in particular the extent to which this conicted with the mandate of her party,
the ANC. On paper, the needs and demands outlined by the TCC could probably be
reconciled with that of the local ANC. However, the demands were politically charged
given that both the ANC and TCC claimed to represent the community. Adding fuel
to the re, the march was led jointly by the TCC and recently elected PR councillor,
Simphiwe Zwane.
In the memorandum to the City and councillor Ndarala, the TCC pleaded with her to
rectify the issue of the supply of water in the community, and made various other
demands, including:
y The urgent installation of electricity in the settlement by City Power, as the
community was willing to pay for electricity;
y The continued maintenance of public lighting by City Power, to constrain
increasing criminal activity;
y The provision of water and urgent attendance to the issues related to water
pressure in the settlement by Johannesburg Water, as these issues meant that
many residents were unable to access water services;
y For the City to investigate possible corruption in the allocation of state-
subsidised housing and land and that the culprits be brought to book;
y That Johannesburg Water maintains sewage pipes in the settlement and
rectify any water leaks;
42
K Naick March to Municipal ofces LookLocal (23 August 2011).
43
Interview with Bhayi Bhayi Bhayiza Miya (23 August 2012).
44
3. The Thembelihle Protest
of September 2011
21
Miya distances himself from the
sporadic eruptions of violence that
continue to take place at the settlement,
as criminal elements are increasingly
taking advantage of the protest.
Last day of protest.
Fifth day of protest. The police
clamp-down on the protest,
declaring it under control.
First day of protest. Thembelihle
residents embark on a large-
scale disruptive protest,
barricading roads, throwing
stones at oncoming motorists
and damaging public property.
The police respond with a severe
clamp-down, ring rubber
bullets at protestors and making
multiple arrests.
Second day of protest. The MEC
for Local Government and Housing,
Humphrey Mmemezi, addresses the
community. He states that services
cannot be installed at the settlement due
to the presence of dolomite and that
residents will be relocated to Vlakfontein
and Lehae. Later, he is heard on radio
stating that the authorities will deal
with protestors.
5 September 2011
6 September 2011
Third day of protest. Residents
resolve to march to the Protea
Regional Court to protest
the arrest of the Thembelihle
protestors. The TCC noties
the police of their intention to
march. The police claim that
their protest will be illegal.
Fourth day of protest. 50 protestors
convene at the Protea Regional Court in
deance of the police. Criminal elements
take advantage of the relative chaos in
the settlement and loot shops. Gauteng
Premier Nomvula Mokonyane, referring
to the Thembelihle protest, states: You
must know that when they [the police]
are provoked they may go to extremes.
We will not tolerate anarchy and unruly
protestors.
PROTEST
7 September 2011
8 September 2011
9 September 2011
12 September 2011
15 September 2011
22
y That speed humps, trafc lights or a pedestrian bridge be installed on the K43
road as people are being killed almost every day; and
y That all households that are still without the Ventilated Pit Latrines, notoriously
known as VIP toilets be guaranteed the services before the departure of the
contractor that was meant to ensure that this happen[ed] in Thembelihle.
45
As evidence of growing divisions between the TCC and councillor Ndarala, the
memorandum read: [I]t is not true they [the Thembelihle community] do not know
how expensive electricity is as the incoming ward councillor was quoted in one of
the local newspapers.
46
Demanding that electricity be installed, the TCC maintained
that they had always been prepared to pay for electricity.
47
Councillor Ndaralas
statements to the media about the ignorance of the community clearly struck a nerve
with the TCC.
Perhaps unsurprisingly then, given the deteriorating relationship between the
ward councillor and the TCC, tensions ran high at the presentation of the August
memorandum. Much later, during Miyas bail application (see section 4.2 below) the
investigating ofcer opposing Miyas release on bail alleged that at this meeting Miya,
along with PR councillor Zwane and two other people, sought to intimidate the ward
councillor.
48
According to the police, Miya had threatened her by stating that if the
police had not been present he would have assaulted her. The police further claimed
that councillor Zwane shouted out that if councillor Ndarala did not respond to the
memorandum by 31 August 2011 or if the demands were not met they would burn
the home of the councillor.
49
As indicated below, Miya denies that anyone made
these statements at the August march. It is evident that only a few months after the
local government election, the relationship between the TCC and the newly-elected
ward councillor had grown increasingly tense.
On 29 August the City acknowledged receipt of the TCCs memorandum of demands.
50

The TCC criticised the City because it had responded in seven days instead of the
three days mentioned in the memorandum. According to the TCC, this delay in
acknowledging the memorandum indicated that the City did not take the community
45
TCC Follow up memorandum of grievances and demands from the community of Thembelihle (August
2011).
46
Ibid.
47
48
State v Bhayi Bhayi Miya, Protea Regional Court, Case No. 69/4121/11, Opposing Afdavit of Lillian
Kedibone Ndlovu (22 September 2011) p. 2.
49
Kedibone Ndlovu (22 September 2011) pp. 2-3. Miya disputes this claim. In support of this statement he
refers to the long-standing and apparently friendly relatonship between him and councillor Ndarala.
50
TCC Ward 08 Acknowledgement of receipt for a petton (30 August 2011).
23
seriously.
51
The TCC further stated in their response that because the City had kept
the community in the dark for six months following the 17 February 2011 petition and
despite having promised to provide regular updates it had lost condence in the
petitions committee, the City structures, Region G administration and the Ofce of
the Speaker, amongst others.
52
The online newspaper, the Daily Maverick, describes
the long history of broken promises, a paternalistic attitude towards residents from
provincial ofcials, the trumpeting of development stories that always seem to come
from elsewhere, the better lives lived by richer communities in close proximity, the
seeming inefectiveness of democratic channels, inappropriate spending priorities
and poor communication
53
as contributing to the palpable frustration of many
residents of Thembelihle as well as the TCC. Rising animosity between the TCC and
the ward councillor resulted, reecting a growing distrust and breakdown of the
relationship between the community and the City more generally.
It was against this tense backdrop that, in the early hours of the morning of Monday
5 September 2011, Thembelihle residents embarked on a large scale protest to exert
direct pressure on the City. According to media reports, to heighten the impact, stick-
wielding youths prevented motorists and pedestrians from accessing roads around
the settlement by barricading it with rocks and trash, leading to the closure of Zodiac
Primary School as well as Azara Secondary School,
54
and residents blockaded the
K43 and surrounding roads with boulders and burning tyres.
55

Hemmed in by the barricades, the police failed to curb the waves of stone throwing
by residents as the running battles continued throughout the morning.
56
As the
protest escalated, Lieutenant Colonel Levy Mere, the Operational Commander at the
Public Order Policing (POP) unit in Johannesburg, reported that he had seen 1500
protestors at the settlement.
57
The POP unit had been called in by the Lenasia branch
of the South African Police Service (SAPS), but at that point several sub-power
stations and other public property had already been vandalised and burnt down
by protestors. It was reported that residents set re to three load centres, causing
damage of R1.5 million and depriving most of Lenasia Extensions 9 to 11 of power
from Monday night to 3am on Wednesday.
58
However, according to a participant
51
Ibid.
52
Ibid.
53
P de Wet Five lessons from Thembelihle Daily Maverick (7 September 2011).
54
Naick March to Municipal ofces LookLocal.
55
K Naick Protests cause havoc LookLocal (5 September 2011).
56
Ibid.
57
State v Nkosi and Others, Protea Regional Court, Case No. 43/01308/2011, Statement of Levy Tsheko
Lesego Mere (5 September 2011) para 4.
58
City Press Thembelihle residents block roads City Press (9 September 2011).
24
in the SERI focus group, it was the presence of the POP unit that exacerbated an
already tense situation at the settlement.
59

According to one newspaper, the protest was volatile for most of the day [5
September], with police opting to re rubber bullets and tear gas at the crowd.
At this point, many children who did not go to school were in the forefront of the
protest.
60
It was also reported that one ofcer was hit in the head with a rock,
while a boy, an 11 year old, was shot in the face with a rubber bullet. The boy was at
home with his mother when a group of armed police ofcers entered their shack and
started shooting.
61
It thus seemed that, by this point, the police and the Thembelihle
community were fast becoming embroiled in a pitched battle, which had also
begun to draw in non-protesting residents who were on their way to work. Leaving
Bangalore Drive, some residents from Extension 11A became frustrated at the inability
of the police to contain the protest.
62

During the course of the afternoon on that rst day of protest, the police made
several arrests as protestors continued to throw stones at oncoming vehicles. A
senior police ofcer and head of visible policing, Colonel Sarah Brunce of the Lenasia
SAPS, was allegedly told that if she did not release the arrested, Lenasia was going
to burn.
63
She does not remember the name of the individual who told her this but
she identied Miya and PR councillor Zwane, as well as former leader of the TCC,
Nhlakanipho Wizer Lukhele, and TCC secretary, Phetogo Ghetto Gopane, as the
supposed ring leaders, because they were the ones whom she alleges managed the
crowd.
64
However, during Miyas bail proceedings (see section 4.2 below) it became
clear that Miya and various other TCC members in fact sought to ensure that the
protest remained non-violent and, according to the police, Miya was instrumental is
subduing the violence at various points during the day.
65

By the end of the rst day, police spokesperson Katlego Mogale, summed up the
events as follows: [I]t seems the protest was sparked by the local municipality who
have yet to respond to residents memorandum of demands following their march
59
SERI focus group interview with TCC members, Thembelihle Community Hall (21 July 2012).
60
S Tau Rubber bullets fred in Lenasia protest The Citzen (5 September 2011).
61
Ibid.
62
Naick Protests cause havoc LookLocal.
63
State v Nkosi and Others, Protea Regional Court, Case No. 43/01308/2011, Statement of Sarah Johanna
Magdelena Bunce (undated).
64
State v Nkosi and Others, Protea Regional Court, Case No. 43/01308/2011, Statement of Sarah Johanna
Magdelena Bunce (undated).
65
Kedibone Ndlovu (22 September 2011) p. 4; State v Bhayi Bhayi Miya, Protea Regional Court, Case No.
69/4121/11, Transcript of the Court Proceedings before Magistrate Morton (29 September 2011) p. 11.
See also secton 4.2 of this report.
25
on August 22.
66
As Miya later explained, the community had simply had enough and
he warned that should the City fail to address their concerns, more protest action
would follow: Our people are very angry, because we have been ghting for service
delivery and it seems that our calls have been falling on deaf ears. We will continue
protesting until our demands are met.
67
Indeed, the protest continued late into the
night with protestors allegedly throwing stones at cars.
On Tuesday 6 September, the second day of the protest, it was reported that residents
red live ammunition at police, a school and a councillors house.
68
In response, the
police red rubber bullets damaging cars, trafc lights and electricity meters.
69

During the course of the day, the police arrested two young men who they thought
had hurled stones at them. The two were paraded in front of the crowd gathered 100
metres away and told to exhort fellow protestors to calm down. They were then set
free, to the applause of a non-violent group of mostly women nearby. 16 other people
were arrested on this day.
70
Addressing the community on the second day of protest, MEC Humphrey Mmemezi
said that people were being sore losers in the local government election, suggesting
that peoples grievances were being used by those who had lost out politically.
71

According to a participant in the SERI focus group, Mmemezi was later heard on
a local radio station allegedly stating that they would deal with the protestors.
72

Resisting protestors demands, he further went on to say that water and electricity
could not be installed at the settlement because of the presence of dolomite and that
people would be relocated to Lehae Phases 1, 2 and 3 and Vlakfontein Extensions
1, 2 and 3.
73
In relation to these claims, a participant in the SERI focus group said:
[Politicians] send the police out on us to inconvenience us and our programmes
which mean they pit us against the police.
74

This statement reveals an interesting perspective from the community which views
the police not as the target of their frustrations but rather that, as agents of local
authorities and the state they have the very real potential of standing in the way
of the TCCs struggle for recognition and development of the settlement. As such,
66
Tau Rubber bullets fred in Lenasia protest The Citzen.
67
Ibid.
68
South African Press Associaton (SAPA) Heavy police contngent remains in Thembelihle IOL News (7
September 2011).
69
Ibid.
70
L Sidimba Thembelihle wants more City Press (10 September 2011).
71
SERI focus group interview with TCC members, Thembelihle Community Hall (21 July 2012).
72
Ibid.
73
LookLocal Thembelihle riots contnue LookLocal (6 September 2011).
74
Interview with Siphiwe Zwane, TCC actvist and OKM PR councillor, Thembelihle (9 August 2012).
26
the police are viewed by the TCC as instrumental to the widening or narrowing of
democratic space, which includes the right to protest.
MEC Mmemezis visit to the settlement signalled both a lack of political engagement
and a failure to address the concerns of the community by the local and provincial
state. Thereafter, the police began to shut down democratic space in a more coherent
manner. The City, and the state more broadly, had closed down avenues of public
participation and the police were left to treat the protest as a purely criminal matter.
As a result, the police started clamping down on alleged instigators and specically
targeting community activists, including TCC members.
Nonetheless, responding to MEC Mmemezi, the TCC sought to engage government
and attempted to meet with him. Despite these attempts at engagement, TCC
spokesperson Miya warned that if we do not get a positive outcome; we are going
back to the street.
75
Miya told the media that residents would be meeting that evening
to discuss a plan of action.
76
A witness in the later bail application of Miya (see section
4.2 of this report) alleged that at this meeting she heard Miya with a loudspeaker
rallying residents to burn the councillors house because she was moved out of the
house anyway.
77
The witness further alleged that Miya told the crowd that there were
councillor impipis (sell-outs) in the community, giving out information to the ward
councillor, and that he allegedly named her as one of the impipis.
78
This allegation
was later discounted in court, where the investigating ofcer who opposed Miyas bail
application expressly disavowed any reliance on her statement.
79
Miyas version of
the meeting is that he tried to dissuade the community from burning the councillors
house by stating that it would be of no use to burn the councillors house.
80
Later in the evening of 6 September, the police returned to the settlement and
allegedly began to harass community members for supposedly participating in
the protest action. Among those who were harassed included Dimakado Mokoena
and Isaac Nishwaxu.
81
According to Mokoena, the police forced their way into their
dwelling, assaulted her and Nishwaxu, and were verbally abusive. She claims that the
police dragged Nishwaxu outside where they proceeded to assault him and red
75
A Deklerk Lenasia residents take up Lenasias cause Mail and Guardian (13 September 2011).
76
LookLocal Thembelihle riots contnue LookLocal.
77
State v Bhayi Bhayi Miya, Protea Regional Court, Case No. 69/4121/11, Afdavit of Nomthandazo
Merriam Bembe (29 September 2011).
78
Ibid.
79
State v Bhayi Bhayi Miya, Protea Regional Court, Case No. 69/4121/11, Notce of Appeal (5 October
2011) paras 9-10. See also secton 4.2 of this report.
80
State v Bhayi Bhayi Miya, Protea Regional Court, Case No. 69/4121/11, Transcript of Court Proceedings
before Magistrate Morton (29 September 2011) p. 11.
81
See State v Nkosi and Others, Protea Regional Court, Case No. 43/01308/2011, Statement of Dimakado
Mokoena, pp. 1-2. See also State v Nkosi and Others, Protea Regional Court, Case No. 43/01308/2011,
Statement of Isaac William Nishwaxu, pp. 1-3.
27
rubber bullets at him at close range.
82
Thereafter, they arrested Nishwaxu, allegedly
for participating in the protest.
83
Another community member, Lloyd Loyiso Baloyi
was shot in the groin and admitted to Chris Hani Baragwanath Hospital the following
day.
84
Baloyis brother claimed that a cartridge from a live round was found outside
his brothers shack: He was shot at night at around 11pm but, because of the unrest,
we could not nd transport to take him to hospital until 8am the next day.
85

On the third day of protest, Wednesday 7 September, Thembelihle residents resolved
to march to the Protea Regional Court to protest the arrest of various Thembelihle
residents. The TCC notied the police of their intention to march but were, at the last
minute, denied permission to gather, on grounds that arrangements for the march
had not been nalised.
86
On this day, there was a heavy police presence at the ward
councillors house although she was not there.
A number of factors, including the absence of government representatives in the
area, led to the police treating the protest as a set of criminal activities to be stamped
out. During the week they began to search for the main protagonists and instigators
of the protest. According to Miya, he was aware police were seeking his arrest, and
that he planned to hand himself over but he was adamant that he had not instigated
any violence and that, on the contrary, he had been trying to calm down protestors
and had been on local radio stations during the protests making announcements
and advising motorists which routes to avoid because of the barricades and the
stoning of cars.
87

On Thursday 8 September, the fourth day of the protest, the Daily Maverick, reported that:
[P]atterns have started emerging. Criminals within the township have taken
advantage of the relative chaos. These are mostly young men who tend to
emerge at night or after trouble has already started. Young women, on the other
hand, are constantly at the coal face, and tend to be mightily militant.
88

82
State v Nkosi and Others, Protea Regional Court, Case No. 43/01308/2011, Statement of Dimakado
Mokoena, pp. 1-2.
83
It is worth mentoning that no formal charges were brought against Nishwaxu.
84
A Deklerk Residents up in arms over shootng Mail and Guardian (9 September 2011). See also State v
Nkosi and Others, Protea Regional Court, Case No. 43/01308/2011, Statement of Lloyd Baloyi, pp. 1-2.
85
Deklerk Residents up in arms over shootng Mail and Guardian.
86
The notfcaton procedure provided for in the Regulaton of Gatherings Act 205 of 1993 (the Gatherings
Act) is frequently misinterpreted as a permission-seeking procedure. This approach has been rejected
by the Supreme Court of Appeal (SCA) in Garvis v South African Transport and Allied Workers Union
2010 (6) SA 280 (WCC) para 12. Johnson and Grifths state that the SCA made clear that conveners
of a gathering are not applying to the relevant local authority [or police] for permission ... but [are]
rather simply advising of their intenton to [gather]. See M Johnson and J Grifths The Regulaton of
Gatherings Act 205 of 1993 LegalCity (27 July 2012).
87
P Tau Arrested man said to be peaceful protester The Star (15 September 2011).
88
P de Wet Thembelihle: A breakdown of ingredients for a service-delivery riot Daily Maverick (8
September 2011).
28
Indeed, criminal elements exploiting the state of un-governability that seemed to
have taken hold of the informal settlement looted Somali and Pakistani shops.
At the same time, the protest gained momentum when 50 protestors converged at
the Protea Regional Court in deance of the polices refusal to grant them permission
to protest.
89
A number of residents were subsequently arrested outside the court.
90

According to Miya, the TCC was marching in solidarity with the arrested protestors
because it wanted to show its support in the same way ANC members did during
President Jacob Zumas rape trial.
91
And, according to Miya, the following day would
see intensied protest in response to the alleged police shooting of Loyiso Baloyi.
92
On the fth day of the protest, Friday 9 September, the Informal Settlement Network
(ISN), which describes itself as an agglomeration of settlement-level and national-
level organisations of the urban poor,
93
went into Thembelihle to assist those residents
who were injured and in need of either medical and/or legal support. Attending a
meeting of 400 residents, ISN listened as community leaders relayed their issues.
A turning point in the protest occurred on this day, as provincial government
representatives and the police intensied eforts to halt the protest. During her
discussion of Gautengs crime statistics the day before, Gauteng Premier Nomvula
Mokonyane mentioned the Thembelihle protest, commenting that it was unfortunate
when protesters threw stones at police and undermined their authority and providing
this warning: You must know that when they [the police] are provoked they may
go to extremes. We will not tolerate anarchy and unruly protesters.
94
Mokonyane
appealed to local residents to help identify those responsible for violence during the
protest.
95
This implied authorisation was enough motivation for the police to escalate
their clamp down, giving rise to more arrests and, by the end of the day the police
claimed that protests in Thembelihle were under control.
96
However, responding to the clamp down and criminalisation of the protest, it was
reported that a section of Thembelihle residents angry with the repressive response
from the authorities, allegedly began to plan further disruptive action at the
settlement.
97
Acknowledging the stand-of created by the absence of government
89
See note 86 above.
90
K Sibanda ISN acton plan for Thembelihle residents afer bloody service delivery protests Shack / Slum
Dwellers Internatonal (SDI) South African Alliance (9 September 2011).
91
Deklerk Residents up in arms over shootng Mail and Guardian.
92
Ibid.
93
Sibanda ISN acton plan for Thembelihle residents afer bloody service delivery protests SDI South
African Alliance.
94
SAPA Thembelihle protests under control: Police The Citzen (9 September 2011).
95
Ibid.
96
Ibid.
97
Sidimba Thembelihle wants more City Press.
29
representatives on the ground in Thembelihle, along with the Citys intransigence
regarding the communitys concerns, a community member, Elvis Pebane, called for
an urgent and senior-level intervention from government: Our ward councillors have
failed us; therefore we are calling on President Zuma, or the Premier of Gauteng
Nomvula Mokonyane, to address the residents.
98
By this time it must have been
apparent to the TCC and the community that, without the presence of political
leadership and government ofcials on the scene, the only interaction they would get
was from the police, meaning that their socio-economic concerns were no longer on
the radar. At the same time, the criminal justice system was in full swing attempting
to quell the criminal elements at work, as well as the legitimate protest of residents.
Indeed, by this time it had become quite difcult to distinguish the two elements
and it is likely that at this point the TCC was no longer in control of the protest. As
a result, on Monday 12 September Miya stopped attending public gatherings and
began to distance himself from the protest. At the same time, the media attention on
Thembelihle had created a snowball efect, with residents of Chiawelo (a suburb of
nearby Soweto) using tactics similar to the Thembelihle residents to protest against
electricity disconnections.
99

In Thembelihle, the violence seemed to dissipate to a large degree, with the police
seemingly having regained control of the settlement. The police had begun working
with the SAPS Crime Intelligence division to identify and arrest protest suspects.
In addition, an elaborate criminal case was developed against identied community
activists, including Miya, as well as other community members (including three
minors).
On Tuesday 13 September, while the protest continued, the police arrested Miya on
charges of public violence and intimidation. Two contradictory accounts of how
Miyas arrest occurred exist, bringing into question the reliability of both accounts.
100

Miya rst appeared in court on Thursday 15 September, with the public prosecutor
resisting bail being awarded. Despite resisting bail on a number of grounds (described
below in section 4.2) the prosecution could not proceed with the bail hearing on the
grounds that the investigating ofcer in charge of Miyas case was not available.
101

As a result, the prosecution was awarded a postponement until 22 September (one
week later), when Miyas bail application would be heard. This marked the beginning
98
S Tau Free leader, or Lenasia protests contnue The Citzen (2011).
99
P de Wet Thembelihle vs Chiawelo: A story of power and the cables that bring it Daily Maverick (13
September 2011).
100
See secton 4.1 of this report.
101
State v Bhayi Bhayi Miya, Protea Regional Court, Case No. 69/4121/11, Transcript of Court Proceedings
before Magistrate Morton (15 September 2011) p. 1.
30
of protracted bail proceedings, which served to detain Miya for over a month. These
proceedings are outlined in more detail below, where the arguments raised during
the bail proceedings will be analysed to illustrate how the criminal justice system was
used to punish Miya for participating in the protest.
While the Thembelihle protest continued with sporadic gatherings until Thursday 15
September, the unrest and violence had largely ceased. However, the transgression
of civil and political rights in the wake of the protests, as detailed in section 4 below,
demonstrate how the state has become increasingly repressive in its response to
community mobilisation and popular dissent.
31
32
4. Aftermath of Protest: The
Criminal Justice System
The unsettling events that occurred in Thembelihle informal settlement during the
protest of September 2011, as well as the aftermath, point to a number of serious
concerns with the South African criminal justice system. These events suggest that
there are fundamental challenges in how the criminal justice system responds to
protestors.
Abuses of power are prevalent, both in the enforcement arm of the criminal justice
system, where many protestors are subject to forceful conduct and increasing
brutality by police ofcers, as well as in the investigative arm, with protestors often
being arrested on frivolous charges.
102
This, in turn, renders many protestors subject
to long periods in detention and potentially lengthy criminal cases. These actions are
pursued by the state despite the fact that the vast majority of criminal charges laid
against demonstrators are likely to be withdrawn or dismissed for lack of substance
and evidence.
103
Moreover, the targeting of community leaders or activists in the wake
of protests raises doubts about the legitimacy of criminal prosecution of protest-
related ofences, particularly public violence.
In this section of the report the persecution and prosecution of activists in the
aftermath of the Thembelihle protests is unpacked, with a specic focus on how
the criminal justice system is utilised more broadly as a tool to criminalise often
legitimate protest action and to silence dissent. First, section 4.1 considers the arrest
of TCC spokesperson and community activist Bhayi Bhayi Miya. It canvasses the
contradictory accounts of Miyas arrest and the community reaction to his arrest.
Section 4.2 sets out Miyas protracted bail proceedings, highlighting how the criminal
justice system and misapplication of the rules related to bail applications were used
to keep Miya in prison, despite the overwhelming lack of evidence against him. Finally,
section 4.3 narrates the criminal prosecution of the Thembelihle protestors.
102
R Pithouse On State Violence South African Civil Society Informaton Service (SACSIS) (10 May 2011);
D Bruce The Road to Marikana: Abuses of Force During Public Order Policing Operatons SACSIS (12
October 2012); J Duncan The Criminal Injustce System SACSIS (18 February 2013).
103
Duncan The Criminal Injustce System SACSIS (18 February 2013).
33
The High Court nally orders Miyas
release on bail, stating that Miya should
not spend another day in prison. By
this time Miya has been in detention for
over a month.
Despite a signicant lack of
evidence, Miya is denied bail in
the Protea Regional Court. Miyas
legal representatives appeal this
decision in the High Court.
Miya is arrested on charges of
public violence and intimidation.
The Thembelihle community begins
to mobilise against Miyas arrest and
detention.
13 September 2011
14 September 2011
Miya appears in court for the rst
time. The prosecution opposes
Miyas release on bail. His bail
proceedings are delayed as the
investigating ofcer handling his
case is not available.
The prosecution opposes Miyas bail
application on various grounds and
charges him with arson and malicious
damage to property.
CRIMINAL JUSTICE SYSTEM:
MIYAS ARREST AND BAIL PROCEEDINGS
15 September 2011
22 September 2011
30 September 2011
20 October 2011
34
4.1 Arrest of Miya
As stated above, on Tuesday 13 September the police arrested Miya on charges of
public violence and intimidation. There are two contradictory accounts of Miyas
arrest, which are largely irreconcilable, bringing the accuracy of both accounts into
question.
According to Miya, he voluntarily went to the Lenasia police station to attend a
meeting with a police ofcer, Colonel Barnes.
104
The meeting was arranged to discuss
strategies to increase school attendance, as many students had failed to attend during
the protest. Once at the police station, Miya states that he was arrested. The police,
however, claimed that Miya evaded arrest for a week despite being aware that they
sought to apprehend him.
105
They argue that Miyas arrest had been coincidental as
they had merely been at the right place at the right time.
106
It is hard to believe that
Miyas arrest occurred coincidentally, given the full scale police search party, involving
the SAPS intelligence unit, which was underway. The police further claimed that an
unlicensed rearm was found concealed in the police vehicle that transported Miya
to the police station. Despite this claim, no further evidence or charges in relation to
the rearm were mentioned at the bail or criminal proceedings brought against Miya.
The Thembelihle community reacted with condemnation and surprise at Miyas arrest.
As one of the protestors stated: [Miya] is just one of us, a concerned resident who
just happened to have been there during the protests ... [He was] mostly calming
down the community, and asking them to refrain from any violent acts.
107
Some
described Miya as a peaceful man who was concerned about Thembelihle like all
of us and was unlikely to get involved in any act of violence.
108
Another resident,
Nesta Hadebe, expressed shock at Miyas arrest, saying he was being victimised.
109

The community alleged that Miya had been persecuted and specically targeted as
the police considered him to be a leader of the protest and a chief instigator of
the violence. A community resident, Elvis Pebane, stated that many protestors were
aware that police have a list of people perceived to be leaders in the protests who
they want to arrest.
110

104
State v Bhayi Bhayi Miya, Protea Regional Court, Case No. 69/4121/11, Afdavit of Bhayi Bhayi Moses
Miya (22 September 2011) para 10.
105
Kedibone Ndlovu (22 September 2011) pp. 5-6.
106
Ibid.
107
Tau Arrested man said to be peaceful protester The Star.
108
Ibid.
109
Ibid.
110
Ibid.
35
These allegations of a police list targeting community activists were reiterated in
an article published by the ISN. According to the article, women who had gone to
the Lenasia police station were informed by the station commander that the police
have three members that are on their wanted list and all of them [are] community
leaders.
111
According to Thembelihle residents, the police have a history of harassing
and arresting residents living in section F of Thembelihle where many of the TCC
leadership reside.
112
This was largely why the local DA branch requested the TCC to
limit their protest routes to section F when they embark on protest action.
113

The targeting of specic individuals was criticised by the community. One protestor
asked whether it was wrong for communities to take to the streets to ght for their
basic rights?
114
Another resident said that she had been doing the same thing and
wouldnt be surprised if they come back to arrest her for ghting for the rights of
the community.
115
The arrest of Miya seemed to garner solidarity in the community.
Turning the heat away from Miya, another resident said that Miya did not give any
instructions, but has been supportive of the communitys call for service delivery
because he is also afected.
116
Miyas brother said that he is a peaceful man: [H]e
might have been there during the protests but would not get involved in any act of
violence. It is hard to imagine how he could have done whatever is alleged of him.
117

Just as it looked like the police were gaining control on the ground, the arrest of Miya
mobilised the community into further action. On Wednesday 14 September Miyas
arrest became a rallying point for the broader Thembelihle community. When the
police became aware of the impending community mobilisation, police ofcers told
residents that any gathering at the taxi rank would be considered unlawful. But a
community leader responded that that is our place, theyll have to kill us to get
there.
118
On Thursday 15 September, two days after Miyas arrest and the nal day of
the Thembelihle protest, community leader Momotlwawa Sebai, said to SABC News
that Comrade Bhayiza does not deserve to be in jail, he deserve[s] to be here with us
to make sure that the struggle of basic services is successful.
119
A small group of local
residents, consisting mainly of young people, staged a protest march to a nearby
highway chanting struggle songs. The protestors also hoisted placards stating: Bring
back our Bayza, if you arrest him alone you might as well come back and arrest the
111
Sibanda ISN acton plan for Thembelihle residents SDI South African Alliance.
112
SERI focus group interview with DA members in Thembelihle, Thembelihle Community Hall (11 August
2012).
113
Ibid.
114
Tau Arrested man said to be peaceful protester The Star.
115
Ibid.
116
Ibid.
117
Ibid.
118
Tau Free leader, or Lenasia protests contnue The Citzen.
119
SABC News Another protest looms in Thembelihle SABC News (15 September 2011).
36
rest of us.
120
In a warning to City ofcials, a protestor said that our people here are
very angry, and if the police do not release him [Miya] I am afraid we will denitely
see more violent protest action.
121
At this point the potential for further protest and
unrest was palpable.
However, according to Phillip de Wet, a journalist with the Daily Maverick, it seemed
that cooler heads invariably prevailed, but if the police presence had been any
smaller, any less visible, or police had been perceived to not be in control after Miyas
arrest,
122
the situation could potentially have spiralled out of control. De Wet further
stated that though theyve had rocks thrown at them and barricades erected against
them, the police have not been targeted in any serious way during this uprising. Some
[community members], in fact, respected their restraint and professional manner. On
Wednesday night, however, when Miya was arrested, for the rst time, it seemed that
could change.
123

De Wets overview is consistent with what some TCC members stated about their
relationship with the police being generally good. One participant in a SERI focus
group argued that he never had an incident where police will start shooting us,
it has never happened.
124
Another participant stated that the relationship with the
police, even during protests, was largely without conict: [W]e support them as
POPCRU, because the police are part of us, weve got policemen who are staying in
Thembelihle...
125
According to one resident, whenever there are protests the police
will arrive, many at 3am or 4am, and the police will allow us to barricade the street,
but theyll tell us not to hit or stone cars.
126
This relationship is further cemented
by the fact that the local police are aware of the socio-economic conditions in the
area and, according to participants in a SERI focus group, the police are aware when
Thembelihle residents unlawfully connect electricity.
127

However this contrasts with the actions of the police who targeted and arrested
protest suspects, and one gets a picture of an uncoordinated and possibly
compromised police force, with some elements amenable to promoting political
interests. The seemingly tolerant relationship between the community and police
clearly broke down during the 2011 protest. As one participant put it, the big Nyala
[POP unit van] is the problem when they arrived last year they just started shooting
120
Tau Free leader, or Lenasia protests contnue The Citzen.
121
Ibid.
122
De Wet Thembelihle: Arrestng a protest Daily Maverick (15 September 2011).
123
Ibid.
124
125
Ibid.
126
Ibid.
127
Ibid.
37
as soon as they arrived. Thats when we started defending ourselves.
128
It seems that
the public order policing (POP) unit ofcials, who are often external to the protests,
are quick to shoot before properly assessing the situation.
129

4.2 Bail Proceedings
After Miyas arrest, a protracted set of bail proceedings followed, which bear
testament to the manner in which the criminal justice system is increasingly being
used to silence community activists.
LAW IN RELATION TO BAIL PROCEEDINGS IN SOUTH AFRICA
The purposes of bail proceedings are twofold. First, bail proceedings are an important
mechanism to ensure the attendance of the accused at their criminal trial. Second, bail gives
expression to the presumption of innocence by ensuring that the liberty of the accused is
respected pending their trial. The general principle in bail proceedings is that an accused
should be released on bail unless the interests of justice require the accused to be held in
detention.
130
Bail should thus only be refused in exceptional circumstances.
In determining whether bail should be granted, the presiding officer is required to balance
the interests of justice (generally understood to mean the interests of society) against the
interests of the accused.
131
In South Africa, this weighing exercise is codified in sections
60(4) to 60(9) of the Criminal Procedure Act. These provisions set out various factors
that either militate in favour or against the granting of bail. Section 60(4) is of particular
importance as it provides that the interests of justice would warrant a refusal to grant bail
if one or more of the grounds listed in the section have been established.
132
These grounds
include: that the accused is likely to endanger the safety of the public if released on bail,
that the accused is likely to evade their trial if released on bail, that the accused is likely to
influence or intimidate witnesses or conceal evidence, that the accused would jeopardise
the objectives or proper functioning of the criminal justice system if released on bail, or that
128
Ibid.
129
This arguably confrms the negatve impact that amendments to secton 49 of the Criminal Procedure Act
51 of 1977 have had during protests. The amendments to secton 49 granted the police greater leeway in
relaton to the use of frearms during the course of their dutes. In this regard, see M Dawson Resistance
and Repression: Policing Protest in Post-Apartheid South Africa in J Handmaker and R Berkhout (eds)
Mobilising Social Justce in South Africa: Perspectves from Researchers and Practtoners (2010) pp. 101-
136
130
See secton 60(1) of the Criminal Procedure Act. This provision was enacted to give efect to the
consttutonally enshrined right to accused and arrested persons as contained in secton 35(1)(h) of the
Consttuton. See also E du Plessis, FJ de Jager, A Paizes, AS Skeen and S van der Merwe Commentary on
the Criminal Procedure Act (Service 49, 2002) p. 9-12.
131
S v Hudson 1996 (1) SACR 431 (W) 433e-f; S v Dlamini; S v Dladla and Others; S v Joubert; S v Schietekat
1999 (2) SACR 51 (CC) para 48. See also E du Plessis et al Commentary on the Criminal Procedure Act
(Service 49, 2002) p. 9-31.
132
See secton 60(4) of the Criminal Procedure Act.
38
in exceptional circumstances the accused will disrupt the public order or undermine public
peace and security if released on bail (so-called preventative detention). Section 60(4)
is supplemented by sections 60(5) to 60(8), which set out detailed considerations that
should be taken into account when determining whether or not to grant bail. Section 60(9)
further deals with the personal interests of an accused and sets out grounds that weigh in
favour of the granting of bail.
Another vitally important consideration in bail proceedings is whether the prosecution has
shown that it has a prima facie case against the accused. This means that the prosecution
must establish that it has a case against the accused that would, unless significant
contradictory evidence is presented during the criminal trial, lead to a conviction. If the
prosecution fails to make out such a case, bail should generally be granted. If it does make
out such a case, bail may still be granted provided that none of the factors mentioned above
warrant a refusal of bail.
Miya rst appeared in court on 15 September, where he was represented by a lawyer
from SERI. SERI became involved in the matter after it became clear that the arrest
and criminal prosecution of Miya was related to his involvement and participation
in the recent protest for improved socio-economic conditions at the Thembelihle
informal settlement. From the outset Miya was singled out by the prosecution, as he
was the only protestor denied immediate bail. Initially he faced charges of intimidation
and public violence. However, when bail proceedings were heard on 22 September,
the prosecutor brought two additional charges against him that had not initially been
mentioned. Therefore in addition to intimidation and public violence, Miya was now
charged with malicious damage to property and arson. These charges were brought
despite the fact that no further evidence relating to the commission of these crimes
was presented at the hearing.
The implications of these additional charges are important. It appears that this was
a deliberate strategy to catch Miyas legal representatives of guard, and to ensure
that he would be denied bail. Because Miya had a previous conviction for theft, this
rendered the charge of public violence a Schedule 5 ofence in terms of the Criminal
Procedure Act.
133
This brought his bail application under the purview of section 60(11)
(b) of the Criminal Procedure Act, which provides that:
133
Schedule 5 of the Criminal Procedure Act provides that: Any ofence referred to in Schedule 1 and the
accused has previously been convicted of an ofence referred to in Schedule 1. Miyas charge of public
violence (ordinarily a Schedule 1 ofence) was therefore deemed to fall within the purview of Schedule
5 due to his previous convicton for thef (also a Schedule 1 ofence). However, the magistrates decision
that Miyas charge of public violence fell in Schedule 5 was problematc. This is due to the fact that the
thef charge sprouted from Miya being unable to repay a debt. As the purpose of Schedule 5 in relaton
to secton 60(11)(b) is to subject bail applicatons for violent crimes to more vigorous scrutny, it is
problematc for the charge of public violence to be deemed a Schedule 5 ofence in these circumstances.
39
Notwithstanding any provision of this Act, where the accused is charged with
an offence referred to ... in Schedule 5 ... the court shall order that the accused
be detained in custody until he or she is dealt with in accordance with the law,
unless the accused, having been given a reasonable opportunity to do so,
adduces evidence which satisfies the court that the interests of justice permit
his or her release.
The efect of this provision is to alter the ordinary rules relating to bail proceedings.
Instead of the supposition that bail should generally be granted unless the prosecution
proves that the interests of justice would be prejudiced, section 60(11)(b) presumes
that the accused should be detained unless the accused can prove that the interests
of justice favour his release.
134
Essentially, this provision shifts the burden of proof
from the prosecution to the accused.
135
This is a substantial encumbrance on an
accused, requiring considerably more preparation and evidence. It is for this reason
that the provision requires that an accused be provided a reasonable opportunity
to prove that he should be granted bail.
Springing two additional charges on Miya without prior notice calls into question
whether he was genuinely aforded a reasonable opportunity to prove that he
should be awarded bail. In the seminal Constitutional Court case S v Dlamini; S v
Dladla; S v Joubert; S v Schietekat (Dlamini),
136
the Court emphasised the importance
of the phrase having been given a reasonable opportunity in this provision.
137
The
Court held that a court may be required to order that certain information be released
to the accused to ensure that an accused is capable of satisfactorily meeting the
standard of proof required by section 60(11)(b).
138
As the prosecution withheld any
information related to these additional charges until the bail hearing, Miya was wholly
unaware that he should have to prepare a case related to the additional charges.
Consequently, he was at a disadvantage from the outset of the proceedings.
In relation to the criminal charges, the police claimed that Miya had been part of a
group of people who had allegedly threatened councillor Ndarala at her home on 22
August 2011.
139
He was alleged to have stated that he would have assaulted Ndarala
had the police not been present.
140
This was the only allegation that directly implicated
134
For a detailed discussion of secton 60(11) of Criminal Procedure Act, see E du Plessis et al Commentary
on the Criminal Procedure Act (Service 49, 2002) pp. 9-53 9-88.
135
The standard of proof required from an accused in terms of secton 60(11) is proof on a balance of
probabilites. E du Plessis et al Commentary on the Criminal Procedure Act (Service 49, 2002) p. 9-55.
136
S v Dlamnini; S v Dladla; S v Joubert; S v Schietekat 1999 (2) SACR 51 (CC).
137
Ibid paras 80 and 84.
138
E du Plessis et al Commentary on the Criminal Procedure Act (Service 49, 2002) p. 9-55.
139
Kedibone Ndlovu (22 September 2011) p. 2. This was the opposing afdavit of the investgatng ofcer.
140
Ibid p. 2.
40
him. According to the police, other members of this group further threatened to burn
down the ward councillors home. Miya emphatically denied these allegations.
141
In
support of this defence, he indicated that he had a friendly and respectful relationship
with the ward councillor as was evidenced by their long-standing and collaborative
work in the community.
142

141
Miya (22 September 2011) para 11 (the accused).
142
Ibid para 10.
41
The police also made further allegations in relation to the protest in Thembelihle
between 5 and 7 September. The police set out in detail the turbulent days of the
protest and specically focused on the role that Miya played in subduing the violence
on 5 September.
143
These claims were presumably aimed at providing a foundation
for the charges of public violence, arson and malicious damage to property, as well
as portraying him as the leader of the protest and, consequently, the instigator of
the violence.
144
However, none of the allegations specically alleged Miyas direct
involvement in the commission of any crime. Instead, the police seemed to attribute
the entire protest and all potentially violent consequences that owed from the
protest to Miya personally.
145

The polices case against Miyas bail was also decient in a number of respects. There
was no conrmatory afdavit from councillor Ndarala in support of a refusal of bail.
Miyas defence argued that the failure to assist the police in this regard brought into
question whether she had genuinely feared violence against her person. If she had
legitimately feared for her safety, it was suggested that she would have taken more
active steps to prevent bail being awarded to Miya.
146
In fact, she persistently failed
to provide an afdavit throughout the bail proceedings. This was despite an explicit
request by the Magistrate for such an afdavit. The police also failed to produce
statements from other witnesses to conrm or detail specic events referred to in the
opposing afdavit of the investigating ofcer. Moreover, the statement of a witness
annexed to the opposing afdavit of the investigating ofcer was not referred to
at all in the opposing afdavit. Its inclusion in the afdavit was therefore puzzling.
The investigating ofcer also disavowed any reliance on the statement in court. The
statement should consequently have been disregarded.
147
In setting out its case against granting bail to Miya, the prosecution attempted to
prove that one of the grounds in section 60(4) of the Criminal Procedure Act had
been met. In accordance with section 60(4)(b), the prosecution submitted that
Miya was likely to evade his trial if he were released on bail. In support of this claim,
the prosecution relied on two core arguments raised by the police. First, the police
143
144
Ibid pp. 4 and 8-9.
145
See State v Bhayi Bhayi Miya, Protea Regional Court, Case No. 69/4121/11, Transcript of the Court
Proceedings before Magistrate Morton (29 September 2011) p. 6. The defence also indicated that no
common purpose had been made out in relaton to the protestors. The controversial common purpose
rule provides for the conduct of a perpetrator to be atributed or imputed to other partcipants who
share the common purpose. For more on this rule, see J Burchell Principles of Criminal Law 3 ed (2006)
pp. 155-156.
146
State v Bhayi Bhayi Miya, Protea Regional Court, Case No. 69/4121/11, Transcript of the Court
Proceedings before Magistrate Morton (29 September 2011) p. 12.
147
State v Bhayi Bhayi Miya, Protea Regional Court, Case No. 69/4121/11, Notce of Appeal (5 October
2011) paras 9-10.
42
argued that Miya had evaded arrest for a week while knowing that the police sought
to apprehend him.
148
Miya disputed this claim and argued that he had travelled to the
police station of his own volition in order to attend a meeting scheduled with a police
ofcer.
149
The purpose of the meeting was to discuss strategies to increase school
attendance among children in the community as many students had failed to attend
class during the protest that swept through Thembelihle. Once he was present at
the police station, he was arrested. The inconsistencies and vagueness of the polices
version of the arrest clearly raised concerns about its authenticity.
150
Even if these
concerns were not clearly articulated, the accused should have been granted the
benet of the doubt in the situation where a factual dispute was evident.
The second core argument raised by the police was that Miya owned no valuable
assets and resided in an informal dwelling in an informal settlement. According to the
police, these factors indicated that he was likely to evade his trial.
151
This argument
was founded on the fact that a shack could easily be dismantled and re-erected at a
diferent location overnight.
152
This logic should clearly not have been entertained
in a constitutional democracy which reveres equality, as it would disproportionately
prejudice residents of informal settlements who face criminal charges. To suggest
that any resident of an informal settlement should not be awarded bail simply by
virtue of the fact that they are unable to secure formal accommodation is an afront
to fundamental rights and the criminal justice system. These arguments were also
articial in light of the fact that other Thembelihle demonstrators had been arrested
on similar charges during the protests and had been released on bail prior to Miyas
bail proceedings.
153
In response to the prosecutions arguments, Miyas defence asserted that he would
not evade his trial as his family resides in Thembelihle and he also did not possess
any travel documents.
154
Finally, Miya indicated before the court that he would even
148
149
150
The police stated that Miya had been arrested coincidental[ly] by merely [being] at the right place
at the right tme. The police also suggested that he may have been carrying a frearm on him when he
was apprehended, but no further evidence in this regard was adduced. State v Bhayi Bhayi Miya, Protea
Regional Court, Case No. 69/4121/11, Opposing Afdavit of Lillian Kedibone Ndlovu (22 September
2011) pp. 5-6.
151
Ibid p. 6.
152
Ibid p. 6.
153
154
Miya (22 September 2011) paras 5 and 7.
43
be willing, as a condition of his bail, to relocate to his brothers home outside of
Thembelihle for the duration of his trial.
155
In addition to the above, the prosecution tried to prove that Miya was likely to
inuence or intimidate witnesses if he were released on bail.
156
In relation to this
claim the police stated that he could potentially manipulate state witnesses as
he was a respected and inuential member of the community.
157
However, as his
defence argued, Miya was wholly unaware of the identity of the state witnesses or
the details of the police investigation.
158
As a result, it was untenable that he would
have attempted to interfere with state witnesses. The defence further argued that
the court could instruct him not to engage with state witnesses as a condition of his
bail. Such instruction would be in accordance with long-standing practice, and would
arguably have been a sufcient precautionary measure in the circumstances.
The prosecution also argued that Miya was likely to jeopardise the proper functioning
of the criminal justice system and would disturb the public order if he were released on
bail.
159
In support of this argument, the prosecution relied on various vague statements
made by police ofcers. According to the police, Miyas continued detention was
crucial to maintaining the peaceful atmosphere in Thembelihle that had been brought
about after his arrest.
160
The police considered Miya to be the leader of the protest
and thus capable of inciting mass violence.
161
They argued that his release would
result in a re-emergence of violent protest and for this reason he should be remanded
in custody as a form of preventative detention.
162
Despite making these bold claims,
the police adduced no further evidence afrming that Miya had orchestrated the
violence in Thembelihle.
In response, the defence argued that Miya had only organised peaceful protest
actions.
163
The violent actions perpetrated by others in the community could not be
imputed to him, nor could he be held personally liable for such actions. According to
the defence, the police sought to represent the community as a homogenous mass
incapable of individual thought. This, they argued, was clearly a fallible representation
which sought to attribute the violence solely to Miya. Moreover, the violence had
155
Ibid para 17.
156
See secton 60(4)(c) of the Criminal Procedure Act.
157
Kedibone Ndlovu (22 September 2011) p. 7.
158
159
See secton 60(4)(d) and (e) of the Criminal Procedure Act.
160
161
Ibid pp. 8-9.
162
Ibid pp. 8-9.
163
44
largely dissipated from 8 September, almost a week prior to his arrest.
164
Thus the
assertion that Miyas detention maintained public order in the community was argued
to be false. In fact, as the police had explicitly attested, he had even been instrumental
in maintaining public order and subduing the violence on 5 September.
165
Miyas defence also argued that his continued detention would result in considerable
prejudice to him and his dependants. This evidence is crucial to the consideration of
bail and is provided for in terms of section 60(9) of the Criminal Procedure Act. One
of the factors that need to be weighed in terms of section 60(9)(d) is the nancial
loss an accused may sufer due to continued detention. On this basis, Miyas defence
showed that he was the sole breadwinner in his family of ve people.
166
In order to
sustain his family he collected bottles for the purposes of recycling, which provided
him an income of approximately R350 a month.
167
The defence also stated that it would
not be opposed to the court setting conditions for Miyas bail if this would ensure that
the interests of justice would not be prejudiced.
168
Miya specically indicated that he
would adhere to any bail conditions the court considered appropriate.
On 30 September, Magistrate Morton ruled that the interests of justice did not permit
Miyas release on bail, stating that he had not satisfactorily discharged the burden of
proof imposed on him by section 60(11)(b). The courts decision was, however, legally
and factually problematic for a number of reasons. These reasons informed Miyas
appeal to the South Gauteng High Court. During this appeal, Miyas defence argued
that the Magistrate had erred in reaching the conclusion that the interests of justice
required Miyas continued detention. According to the defence, the Magistrate had
taken irrelevant considerations into account, including having regard to newspaper
articles and other protests that were entirely unconnected and immaterial to Miyas
bail application.
169
The defence further argued that the Magistrate had failed to
disregard a witness statement, despite the fact that the investigating ofcer had
disavowed reliance on the statement and had not referred to it in her opposing
afdavit.
170
The Magistrate had further failed to recognise that there was no direct
evidence indicating that Miya had been involved in the commission of any criminal
164
Ibid p. 11.
165
Kedibone Ndlovu (22 September 2011) p. 4; State v Bhayi Bhayi Miya, Protea Regional Court, Case No.
69/4121/11, Transcript of the Court Proceedings before Magistrate Morton (29 September 2011) p. 11.
166
Miya (22 September 2011) paras 4-5. See also State v Bhayi Bhayi Miya, Protea Regional Court, Case No.
69/4121/11, Transcript of the Court Proceedings before Magistrate Morton (29 September 2011).
167
Miya (22 September 2011) paras 4-5.
168
Ibid paras 16-17.
169
State v Bhayi Bhayi Miya, Protea Regional Court, Case No. 69/4121/11, Appellants Notce of Appeal (6
October 2011) para 7.
170
Ibid paras 9-10.
45
act. In fact, all the evidence the Magistrate had regard to in her decision was hearsay
evidence or rumour.
171
The defence also stated that no direct evidence had been
adduced to show that the ward councillor had genuinely been intimidated by Miyas
alleged threats.
172
In this regard, a negative inference could be drawn from the
polices failure to produce a conrmatory afdavit from councillor Ndarala. Finally,
the defence argued that a range of bail conditions could have provided sufcient
precautionary protection against the courts concerns.
173

The High Court appeal was thus based on the fact that the Magistrate took irrelevant
considerations into account, that she failed to attribute sufcient weight to various
factors that should be considered during the adjudication of bail, and that she
seemingly ignored the considerable lack of any direct evidence against Miya in
relation to the charges he faced.
On 20 October the High Court ordered Miyas release on bail pending his criminal
trial. In delivering her judgment, Judge Kathree-Setiloane stated that Miya should
not spend another day in prison.
174
At this point, he had spent more than a month in
detention. The High Court also consolidated his case with the case of thirteen other
protestors who had been arrested on a number of similar charges related to the
Thembelihle protest of September 2011.
4.3 Criminal Prosecution of Thembelihle Protestors
On Wednesday 7 September 13 protestors (including three minors) appeared in the
Protea Regional Court facing criminal prosecution on charges of public violence
and malicious damage to property. These charges were all connected to their
participation in the protest of September 2011.
175
The criminal proceedings were
largely based on unsubstantiated charges, with very little concrete evidence linking
any of the accused to the commission of criminal acts. SERI stepped in to represent
the accused protestors when it seemed increasingly likely that the main purpose of
the prosecution was either to punish the residents for having embarked on legitimate
171
Ibid para 5.
172
Ibid para 6.
173
Ibid para 16.
174
See the case summary of State v Bhayi Bhayi Miya and access various court papers on the SERI website:
htp://www.seri-sa.org/index.php/litgaton-9/cases/19-litgaton/case-entries/95-state-v-bhayi-bhayi-
miya.
175
Although numerous arrests were made during the protest, only 14 protestors were eventually charged
with the commission of any crime. As mentoned above in secton 4.2 of this report, Miyas case was
consolidated with the cases of the 13 other protestng community members afer he was awarded bail.
46
13 protestors (including
three minors) rst appear
in the Protea Regional
Court on charges of public
violence and malicious
damage to property.
After having been aforded
nine postponements over
seven months, the prosecution
remains unable to proceed with
the case due to incomplete
charge sheets. The Magistrate
criticises the unreasonable
delay in prosecution and strikes
the case from the roll.
7 September 2011
10 April 2012
The matter against the
Thembelihle protestors is
re-enrolled and the trial set
down for 6 August. The
case is again struck from
the roll as the state fails to
serve most of the accused
with summons informing
them to appear in court.
CRIMINAL PROSECUTION OF PROTESTORS
6 August 2012
47
demonstrations, or to derail the protest campaign aimed at improvements in the
socio-economic realities of settlement residents.
176
The criminal prosecution of the Thembelihle protestors was a protracted afair,
with numerous delays due to inadequate and incomplete charge sheets and lack
of evidence.
177
The charge sheets against the accused failed to provide details or
descriptions of the alleged ofences.
178
It also became clear that the state lacked
any real evidence against the accused protestors. The state eventually conceded as
much when it acknowledged that it could produce only one witness in relation to the
alleged ofences.
179

The continued prosecution of the protestors despite the substantial absence of
detailed criminal charges or evidence is highly disconcerting and indicates that the
prosecutions were essentially political in nature.
180
According to Jackie Dugard, SERIs
executive director at the time:
The states endless foot-dragging in this case is clear evidence that this
prosecution was brought, not to punish crime, but to stifle legitimate
community protest in Thembelihle. The prosecution, and the way it has been
pursued, is yet another example of the abuse of the criminal justice system in
aid of silencing the real and legitimate grievances of people living in informal
settlement communities.
181
On 10 April 2012, after having been aforded nine postponements over a period of
seven months to prepare for its case against the accused, the prosecution sought
another postponement claiming that it remained unable to proceed with the case due
to incomplete charge sheets. In opposition to this motion, the defence submitted that
the prosecutions conduct had created a manifestly unreasonable delay in bringing
the matter to trial. The defence argued that the state had taken a casual approach to
the case. Its dilatory conduct had caused the accused residents emotional, nancial
and educational harm and the matter should consequently be struck from the roll in
terms of section 342A(3)(c) of the Criminal Procedure Act.
182

176
See the case summary of State v Nkosi and Others, and access various court papers on the SERI website:
htp://www.seri-sa.org/index.php/litgaton-9/cases/19-litgaton/case-entries/106-state-v-nkosi-and-
13-others-thembelihle. See also SERI Magistrate strikes Thembelihle case from the roll (11 April 2012).
177
State v Nkosi and Others, Protea Regional Court, Case No. 43/01308/2011.
178
Ibid.
179
SERI Magistrate strikes Thembelihle case from the roll (11 April 2012).
180
Ibid.
181
Ibid.
182
Ibid. Secton 342A(3) of the Criminal Procedure Act enables a court to issue any order it deems ft in
order to eliminate the delay or prejudice arising from [an unreasonable delay in criminal proceedings].
This would include an order striking proceedings from the roll.
48
Caption for photo
comes here
The presiding ofcer in the Protea Regional Court, Magistrate Mpofu, agreed with
SERIs arguments that any continued prosecution was manifestly unfair in the
circumstances, stating that it was unreasonable to expect the accused persons to
keep coming to court for no purpose given that the state was unable to provide
any particulars of the charges against them.
183
As a result, the Magistrate struck the
case from the roll.
Perhaps unsurprisingly, the matter was later re-enrolled by the state and the trial set
down for 6 August 2012. On this day it was again struck from the roll as the state
failed to serve most of the accused with summons informing them to appear in court.
183
SERI Magistrate strikes Thembelihle case from the roll (11 April 2012).
49
50
5. Popular Dissent and
Repression in South Africa
In an address to over 280 high level municipal ofcials and politicians in October
2009, President Jacob Zuma forewarned a more aggressive response to expressions
of popular dissent, stating that:
I wish to take the opportunity to state without any ambiguity: this government
will not tolerate the destruction of property, the violence and the intimidation
that often accompanies protests.
184
These comments, made two years before the Thembelihle protest, appear as a
caution to civil society of the governments growing intolerance towards the wave
of popular dissent that has characterised the Zuma presidency.
185
Indeed, in recent
years, the states response to the increase in service delivery protests has ranged
from overtly brutal repression, including the use of disproportionate and sometimes
lethal force, to suppression through more subtle or less visible means.
186
These
micro-brutalities
187
include unduly restrictive interpretations of the legislation
governing protests, curbing spontaneous protests, exploiting the legal frameworks
related to protest in various ways and the abuse of the criminal justice system.
Yet protests have been granted constitutional protection by the inclusion in
the Constitution of the right to peacefully assemble, demonstrate and present
petitions.
188
The related rights to freedom of association and freedom of expression
further underscore the importance of protests in the constitutional scheme.
189

184
President J Zuma Opening address at the presidental meetng with mayors and executve mayors (20
October 2009), a speech made at the presidental meetng with Executve Mayors and Mayors to discuss
improving service delivery in municipalites in Khayelitsha, Cape Town. See also Bruce The Road to
Marikana SACSIS (12 October 2012).
185
There has been a signifcant increase in popular protests since July 2004. See Jain Community Protests
in South Africa: Trends, Analysis and Explanatons Community Law Centre (CLC) Local Government
Working Paper Series No 1 (2010); Internatonal Network of Civil Libertes Organizatons (INCLO) Take
back the streets: Repression and criminalizaton of protest around the world (2013) p. 45; Pithouse On
State Violence SACSIS (10 May 2011). See also, Alexander Rebellion of the Poor (2010) Review of
African Politcal Economy pp. 25-40.
186
INCLO Take back the streets pp. 1 and 63.
187
Pithouse On State Violence SACSIS (10 May 2011).
188
Secton 17 of the Consttuton of the Republic of South Africa, 1996 (the Consttuton) protects the
right to assemble, demonstrate, picket and present pettons provided that the assembly is conducted
peaceful and unarmed.
189
Secton 16 of the Consttuton protects the right to freedom of expression that does not amount to
war propaganda or hate speech, while secton 18 of the Consttuton protects the right to freedom of
associaton.
51
Protests are legally governed by the Regulation of Gatherings Act 205 of 1993 (the
Gatherings Act), which practically gives expression to these constitutional rights. The
Act sets out the procedures that should be followed for a protest to be considered
legally protected, as well as the manner in which protests should be conducted
by demonstrators. Another legal mechanism which regulates the conduct of POP
ofcers when managing and monitoring protests is the Public Order Policing Policy
Document on Crowd Management (POP Policy).
190

Although these legal mechanisms undoubtedly provide an extensive legal framework
relating to gatherings, the constitutional, legislative and policy provisions are
somewhat blurry in a number of respects.
191
This applies in particular to protests
where an element of violence is present, including violence against property.
192
In
fact, the legal status of and appropriate state response to violent demonstrations
has remained largely uncertain. For example, does the burning of tyres or throwing
of stones constitute public violence, and should these actions be met with rubber
bullets or live rounds?
The uncertain legal status of protests that do not conform to the regulations set
out above, has created room for potential abuse by local authorities and police.
Although the legal and policy framework is comprehensively laid out, in practice local
government and policing authorities regularly misapply or manipulate the legal rules
and regulations that govern participation in protest action in order to stie legitimate
expressions of public discontent.
193

This section highlights a number of concerning developments in relation to popular
protest in South Africa at a macro level. By unpacking these developments, it analyses
the rising trends in popular dissent at local government level and state repression of
such dissent. The section considers these broader issues through the lens of the
Thembelihle case study to illustrate how these developments occur in practice.
190
Ministry of Police Public Order Policing Policy Document on Crowd Management (undated). This
document sets out how the police should conduct themselves in relaton to gatherings.
191
Bruce The Road to Marikana SACSIS (12 October 2012).
192
Ibid.
193
On this misapplicaton and misconcepton by police and local authorites, see Duncan The Criminal
Injustce System SACSIS (18 February 2013); Johnson and Grifths The Regulaton of Gatherings Act
205 of 1993 LegalCity (27 July 2012); Pithouse On State Violence SACSIS (10 May 2011); Bruce The
Road to Marikana: Abuses of Force During Public Order Policing Operatons SACSIS (12 October 2012);
INCLO Take back the streets p. 3.
52
5.1 Criminalisation of Protest
A particularly concerning development is how the legal framework has been employed
to efectively criminalise service delivery protests. This has occurred largely due to
the distinction drawn in the Gatherings Act between lawful and unlawful gatherings.
The Act essentially makes it an ofence to participate or convene a protest that does
not comply with the requirements laid out in the Act.
194
The Act, however, does not
prohibit unlawful gatherings.
195
Nevertheless, the legal framework has consistently
been interpreted in a manner that signicantly curtails the right to protest.
194
Secton 12 of the Gatherings Act.
195
Secton 12(2) of the Gatherings Act states that it would be a defence to any ofence in terms of the
Act that a protest took place spontaneously. This implies that spontaneous protests that have not
given sufcient notfcaton are legally permissible. The POP Policy document provides that spontaneous
protests should be managed in the same manner as other protests and do not need to be dispersed
unnecessarily. Ministry of Police POP Policy Document of Crowd Management p. 15.
53
Richard Pithouse, politics lecturer at Rhodes University, points out that these actions
criminalise poor people and their social mobilisation, in that these approaches to
protest mean that there is a blurring between social activism and criminality in
public discourse.
196
By criminalising popular dissent in this way, the state is capable
of silencing arguably the most efective tool at the disposal of marginalised and
ignored communities.
197
Formal mechanisms of participation have often failed
these communities, as is evident in this case study from the TCCs long-standing
engagement with government through formal avenues. As a result, protest is usually
the last resort to highlight their grievances to those in power.
The criminalisation of protest is clearly evident from the police conduct during and
after the Thembelihle protest in September 2011. A clear illustration is the police
response to the protest arranged on 14 September after Miyas arrest, which was
virtually immediately dismissed by police as an illegal protest. Police claimed that
the protest was unlawful on the dubious grounds that the protestors had not given
the police the seven days notice required in terms of section 3 of the Gatherings Act.
This veneer of legal authority is often employed to compel gatherings to disperse.
However, the approach advocated by the police is not in line with the legal framework
governing protests.
5.2 Increased Police Brutality
The police have also come under considerable criticism for their increased brutality,
heavy-handedness and use of wholly inappropriate lethal force.
198
The systemic
and widespread nature of this problem has been highlighted by various prominent
instances of police brutality in recent years. These include the Marikana massacre of
16 August 2012, when the police shot and killed 34 striking mineworkers in Marikana.
The high prole case of the brutal beating and killing of community activist Andries
Tatane in April 2011, during a protest for access to water in Ficksburg, Free State, has
also become emblematic of the often brutal force used by the police to suppress the
196
197
See Madlingozi Post-Apartheid Social Movements in Langford et al Socio-Economic Rights pp. 109-112;
Dugard Urban Basic Services in Langford et al Socio-Economic Rights pp. 286-291; D McKinley and A
Veriava Arrestng Dissent: State Repression and Post-Apartheid Social Movements Centre for the Study
of Violence and Reconciliaton Research Report (2005) pp. 43-60.
198
See, generally, Dawson Resistance and Repression in Mobilising Social Justce in South Africa pp.
101-136; Pithouse On State Violence SACSIS (10 May 2011); Bruce The Road to Marikana: Abuses of
Force During Public Order Policing Operatons SACSIS (12 October 2012); M Clark and J Dugard State
Suppression of Popular Dissent Should Concern Us All Business Day (6 March 2013).
54
expression of popular dissent.
199
The same forceful approach to protestors, albeit
less severe, was evident in the police reaction to the protest in Thembelihle. As
described above, the police used excessive force against residents, which may have
been partially motivated by ambiguities contained in the legal framework relating to
popular protests.
200

However, the principles laid down in the Gatherings Act and the POP Policy
unequivocally concretise certain rules pertaining to the use of force. The Gatherings
Act and the POP Policy both provide that the use of force should be reasonable and
proportional to the threat encountered. This means that the use of force may not
be more than is necessary to dispel the force inicted by the protestors or the force
necessary to disperse the protestors. Both the Act and the Policy make it clear that
lethal force and the use of live ammunition may only be used where life or property
are threatened and where less harsh methods have proved unsuccessful.
In Thembelihle the police gravitated to the more extreme use of force. This is
particularly apparent from the door-to-door raids that were allegedly conducted in
individual shacks, where people who claimed not to have participated in the protest
were arrested while hiding in their dwellings. As detailed above there were also
numerous injuries inicted by rubber bullets and at least one possible situation where
live ammunition was used. It is doubtful that this kind of police action was justiable
in terms of the legal provisions applicable to the use of force. The preceding narrative
shows that the police were initially acting in a vacuum. Later, however, with the
retreat of ofcials and politicians, the police were efectively left to treat the protest
as a criminal act that needed to be stopped. It thus seemed as if the police were
emboldened by an apparent political sanction for the clamp down that followed.
5.3 Challenges with Public Order Policing
A further concern is that the presence of POP units and the unsympathetic attitude of
the police may aggravate the violence that sometimes occurs during protests.
201
This
seems to be a frequent complaint of protestors.
202
Thus protests tend to turn violent
199
Following the televised broadcast of footage showing the police atack Tatane, who collapsed and died
with multple bruises and two rubber bullets in his chest, six police ofcers were charged with assault
and murder. All six were found not guilty on the basis that the identty of the ofcers could not be
confrmed as they were wearing riot gear. See, for example, Dugard Urban Basic Services in Socio-
Economic Rights p. 291.
200
See Bruce The Road to Marikana SACSIS (12 October 2012).
201
See J Hornberger We Need Complicit Police! Politcal Policing Then and Now (April 2014), a paper
presented at a panel discussion on Police against the People as part of the Public Positons Series hosted
by the Wits Insttute for Social and Economic Research (WISER).
202
Duncan The Criminal Injustce System SACSIS (18 February 2013); Hornberger We Need Complicit
Police! pp. 6-10.
55
in reaction to police violence usually directed at a largely peaceful protest.
203
This
approach was highlighted by statements made by protestors during the Thembelihle
protest. Some participants in the SERI focus group said that the protest turned violent
only after police arrived on the scene. One participant even stated that the protestors
generally had a good relationship with police, but that the POP unit brought violence
into the equation. According to him, the big Nyala [POP unit van] is the problem
when they arrived last year they just started shooting as soon as they arrived. Thats
when we started defending ourselves.
204
This tension seems to be exacerbated by
the police arresting protest participants, especially community leaders such as Miya.
Once arrests occur, the potential for violence at the hand of protestors seems to
increase signicantly. Whether they intended to or not, the police therefore spurred
on the violence and efectively aggravated the situation at Thembelihle.
5.4 Targeting Local Activists
This report also illustrates how police ofcers often utilise protests characterised by
elements of violence as an excuse to target local activists whom they believe to
be troublemakers.
205
This generally occurs whether or not there is any evidence
that these activists were directly involved in the protest, or that the violent actions
were actually related to them.
206
Community activists are often treated severely
and are arrested on trumped-up charges. In the case of the Thembelihle protest,
this was conrmed by the investigating ofcer who opposed Miyas bail application
when she expressly acknowledged that the police sought to apprehend Miya as they
considered him to be the leader of the protest.
207
Perhaps most disturbing is the fact
that the prosecution sought to hold Miya personally responsible for all the violent
actions that owed from the protest, despite the fact that there was no evidence to
support this, and that the investigating ofcer actually acknowledged that Miya had
attempted to prevent the violence.
208
203
204
205
206
Ibid.
207
208
Kedibone Ndlovu (22 September 2011) pp. 8-9. See also Duncan The Criminal Injustce System SACSIS
(18 February 2013) who argues that this is frequently the case in relaton to targeted actvists.
56
5.5 Abuse of the Criminal Justice System
Abuses of power seem particularly prevalent in the investigative arm of the criminal
justice system, with protestors often being arrested on frivolous charges.
209
This in
turn renders many protestors subject to long periods of detention and potentially
lengthy criminal cases. These actions are pursued by the state despite the fact that
the vast majority of criminal charges laid against protestors or community activists
are likely to be withdrawn or dismissed for lack of substance.
210
In the Thembelihle
case, this is illustrated by the failed criminal prosecution of Miya and the other
Thembelihle protestors on unsubstantiated charges. However this is not an isolated
occurrence and, according to Jane Duncan, professor at the School of Journalism
and Media Studies at Rhodes University, criminal prosecution on trumped-up charges
is a growing reality in South Africa, with many instances of charges been overtly
fabricated by authorities to silence community activists.
211

Arrests in these circumstances often render protestors subject to long periods
of detention. In the instances where protestors are awarded bail, bail conditions
often restrict basic political rights by requiring protestors to withdraw from
political activities or move out of an area pending the conclusion of their criminal
proceedings.
212
The issue of afordability of bail is also a concern to poor protestors,
who are often unable to aford the bail requested.
213
As is clear from section 4.2
of this report, these criminal proceedings are often based on frivolous charges and
are fraught with multiple delays and postponements. The Thembelihle protestors
were exposed to seven postponements over a period of nine months. This kind of
delay often has the efect of derailing legitimate and efective protest action, thereby
signicantly alleviating political pressure on local authorities.
209
Pithouse On State Violence SACSIS (10 May 2011); Bruce The Road to Marikana SACSIS (12 October
2012); Duncan The Criminal Injustce System SACSIS (18 February 2013). Public violence is the most
common charge.
210
211
Ibid.
212
213
57
58
6. Conclusion
This research report has documented and unpacked the complex Thembelihle
protest that took place in September 2011 in detail. It illustrates how the Thembelihle
communitys struggle was not only for access to services, land and housing, but also
for recognition and opportunity to participate in decisions that afect them. Their
struggle utilised a wide range of tactics, including protest as an informal mechanism
to highlight their grievances and demands.
The report also documents the repressive response of the state apparatus to this
expression of popular dissent, bringing into sharp focus the clamp-down on civil and
political rights in the wake of the protests, including the unlawful arrest and detention
of a prominent community leader.
Events at Thembelihle raise several signicant concerns about government responses
to local service delivery protests and expressions of popular dissent. Over the past
few years, the various branches and functionaries of government have attempted to
suppress such protests through a variety of means. The line between protests and
criminal activity has been blurred, enabling the government to label protests illegal
and allowing the police to react with increasing brutality. Furthermore, as Miyas
arrest and bail proceedings show, local community leaders are specically targeted
for arrest and criminal prosecution. Criminal charges are often brought against
protestors on little or no substantiated evidence, and proceedings are excessively
delayed to prolong detention and intimidate community activists. The criminal justice
system is not so much used for the genuine prosecution of criminal activity, but is
rather employed to deter and suppress popular dissent.
By unpacking these developments, this report analyses the rising trends in popular
dissent at the local government level and state repression of such dissent through
the lens of the Thembelihle case study to illustrate how these developments occur in
practice. In particular, this report emphasises:
y The continued vilication and criminalisation of local community protests and
other forms of popular dissent;
y The disconcerting increase in police brutality;
y A number of serious challenges posed by public order policing, and especially
the manner in which the police may inadvertently exacerbate or contribute to
violence;
59
y The targeting of local activists by the police; and
y The abuse of the criminal justice system to silence popular dissent.
At its core, the report shows the Thembelihle communitys frustration with the
governments failure to engage with their grievances and demands was exacerbated
by the governments suppression of the protest through the police services and the
criminal justice system. It is clear that, without the guarantee of the civil and political
rights to speak out and collectively mobilise through protest, it will be increasingly
difcult for communities to assert their socio-economic rights.
60
7. Bibliography
Books / Chapters in books
y J Burchell Principles of Criminal Law 3 ed (2006)
y M Dawson Resistance and Repression: Policing Protest in Post-Apartheid South
Africa in J Handmaker and R Berkhout (eds) Mobilising Social Justice in South
Africa: Perspectives from Researchers and Practitioners (2010) pp. 101-136
y J Dugard Urban Basic Services: Rights, Reality, and Resistance in M Langford,
B Cousins, J Dugard and T Madlingozi (eds) Socio-Economic Rights in South
Africa: Symbols or Substance? (2014) pp. 275-309
y E du Plessis, FJ de Jager, A Paizes, AS Skeen and S van der Merwe Commentary
on the Criminal Procedure Act (Service 49, 2002)
y T Madlingozi Post-Apartheid Social Movements and Legal Mobilisation in M
Langford, B Cousins, J Dugard and T Madlingozi (eds) Socio-Economic Rights
in South Africa: Symbols or Substance? (2014) pp. 92-130
y T Tselapedi and J Dugard Reclaiming Power: A Case Study of the Thembelihle
Crisis Committee in Good Governance Learning Network (GGLN) Active
Citizenship Matters (2013) pp. 57-58
Journal articles / Academic papers
y P Alexander Rebellion of the Poor: South Africas Service Delivery Protests A
Preliminary Analysis (2010) 37(123) Review of African Political Economy pp.
25-40
y P Alexander, C Runciman and T Ngwane Community Protests 2004-2013: Some
Research Findings Social Change Research Unit, University of Johannesburg
(2013)
y J Hornberger We Need Complicit Police! Political Policing Then and Now
(April 2014), a paper presented at a panel discussion on Police against the
People as part of the Public Positions Series hosted by the Wits Institute for
Social and Economic Research (WISER)
y M Huchzermeyer The struggle for in situ upgrading of informal settlements: A
reection on cases in Gauteng (2009) 26(1) Development Southern Africa pp.
59-73
y L Sinwell, J Kirshner, K Khumalo, O Manda, P Pfafe, C Phokela and C Runciman
Service Delivery Protests: Findings from Quick Response Research on Four
Hot-Spots Piet Retief, Balfour, Thokaza, Diepsloot Centre for Sociological
Research, University of Johannesburg (September 2009)
61
y M Storie Representations of Space: A Case of Karst, Community and Change in
the Urban Landscape (2011), a paper presented at the African Centre for Cities
(ACC)/Centre for Urbanism and Built Environment Studies (CUBES) Cities
Conference, Cape Town, 7-9 September 2011
y M Storie Dolomite Issues in the Gauteng City-Region: Preparing for Community
Engagement (2012), a workshop with community leaders of the Protea South
settlement and land planners, 13 April 2012
Research reports
y Centre for Housing Rights and Evictions (COHRE) Any Room for the Poor?
Forced Evictions in Johannesburg, South Africa (2005)
y Council for Geo-Sciences (CGS) Engineering Geological Study of the Greater
Lenasia Area for the City of Johannesburg Southern Metropolitan Substructure,
Parts 1 and 2 Report No. 1998-0091 (June 1998)
y International Network of Civil Liberties Organizations (INCLO) Take back the
Streets: Repression and criminalization of protest around the world (October
2003): http://www.popularresistance.org/take-back-the-streets-report-
details-excessive-police-force-against-protestors/
y Intraconsult Interim Report to Keeve Steyn Inc on the Engineering Geological
Stability Investigations on Sections of Portion 129, Lenasia Report No. IR69 (May
1992)
y H Jain Community Protests in South Africa: Trends, Analysis and Explanations
Community Law Centre (CLC) Local Government Working Paper Series No 1
(2010)
y D McKinley and A Veriava Arresting Dissent: State Repression and Post-
Apartheid Social Movements Centre for the Study of Violence and Reconciliation
Research Report (2005)
y N Pingo Institutionalisation of a Social Movement: The Case of Thembelihle, the
Thembelihle Crisis Committee and the Operation Khanyisa Movement and the
Use of the Brick, the Ballot and the Voice Research Report submitted for MSc in
Development and Planning, University of Witwatersrand (May 2013)
y Urban Landmark Access to Urban Land: A Handbook for Community
Organisations (August 2008)
y K von Holdt, M Langa, S Molapo, N Mogapi, K Ngubeni, J Dlamini and A
Kirsten The Smoke that Calls: Insurgent Citizenship, Collective Violence and the
Struggle for a Place in the New South Africa Centre for the Study of Violence
and Reconciliation and Society, Work and Development Institute (July 2011)
Popular media
y D Bruce The Road to Marikana: Abuses of force during Public Order Policing
Operations The South African Civil Society Information Service (SACSIS) (12
October 2012): http://www.sacsis.org.za/site/article/1455
62
y M Clark and J Dugard State Suppression of Popular Dissent Should Concern Us
All Business Day (6 March 2013): http://www.bdlive.co.za/opinion/2013/03/06/
state-suppression-of-popular-dissent-should-concern-us-all
y City Press Thembelihle residents block roads City Press (9 September
2011): http://www.citypress.co.za/news/thembelihle-residents-block-
roads-20110909-2/
y City Press Persuasion over forceful evictions a priority City Press (16 September
2011): http://www.citypress.co.za/news/persuasion-over-forceful-evictions-a-
priority-20110916/
y A Deklerk Lenasia residents take up Lenasias cause Mail and Guardian (13
September 2011): http://mg.co.za/article/2011-09-13-lenasia-residents-take-
up-thembelihles-cause/
y A Deklerk Residents up in arms over shooting Mail and Guardian (9 September
2011): http://mg.co.za/article/2011-09-09-residents-up-in-arms-over-shooting/
y P de Wet Five lessons from Thembelihle Daily Maverick (7 September
2011): http://www.dailymaverick.co.za/article/2011-09-07-ve-lessons-from-
thembelihle
y P de Wet Thembelihle: A breakdown of ingredients for a service-delivery
riot Daily Maverick (8 September 2011): http://www.dailymaverick.co.za/
article/2011-09-08-thembelihle-a-breakdown-of-ingredients-for-a-service-
delivery-riot
y P de Wet Thembelihle: Arresting a protest Daily Maverick (15 September 2011):
http://www.dailymaverick.co.za/article/2011-09-15-thembelihle-arresting-a-
protest/
y P de Wet Thembelihle vs Chiawelo: A story of power and the cables that
bring it Daily Maverick (13 September 2011): http://www.dailymaverick.co.za/
article/2011-09-13-thembelihle-vs-chiawelo-a-story-of-power-and-the-cables-
that-bring-it/
y J Duncan The Criminal Injustice System The South African Civil Society
Information Service (SACSIS) (18 February 2013): http://www.sacsis.org.za/
site/article/1574
y M Johnson and J Grifths The Regulation of Gatherings Act 205 of 1993 LegalCity
(27 July 2012): http://www.legalcity.net/Index.cfm?fuseaction=magazine.
article&ArticleID=4493411
y LookLocal Thembelihle riots continue LookLocal (6 September 2011): http://
www.looklocal.co.za/looklocal/content/en/lenasia/lenasia-announcements-
general?oid=4689370&sn=Detail&pid=1171275&Thembelihle-riots-continue
y M Mabaso Geotechnical report insufcient to remove residents LookLocal (29
June 2012): http://www.looklocal.co.za/looklocal/content/en/lenasia/lenasia-
news-municipal?oid=5797797&sn=Detail&pid=null&Geotechnical-report-
insufcient-to-move-residents
63
y S Maliza Child Shot during service delivery protests The Sowetan (6
September 2011): http://www.sowetanlive.co.za/news/2011/09/06/child-shot-
during-service-delivery-protests
y K Naick March to Municipal ofces LookLocal (23 August 2011)
y K Naick Protests cause havoc LookLocal (5 September 2011): http://www.
looklocal.co.za/looklocal/content/en/lenasia/lenasia-announcements-general
?oid=4678007&sn=Detail&pid=1171269&Protests-cause-havoc-
y K Naick Thembelihle protestors remanded in custody LookLocal (7 September
2011): http://www.looklocal.co.za/looklocal/content/en/lenasia/lenasia-
announcements-general?oid=4695823&sn=Detail&pid=1171269&Thembilihle-
Protestors-remanded-in-custody
y L Sidimba Thembelihle wants more City Press (10 September 2011): http://
www.citypress.co.za/news/thembelihle-wants-more-20110910/
y Local Government and Housing (Gauteng Province) Communitys Newspapers
summary (13 July 2012)
y R Pithouse On State Violence The South African Civil Society Information
Service (SACSIS) (10 May 2011): http://sacsis.org.za/site/article/666.1
y P Ranchod Service delivery protests in Thembelihle LookLocal (9 June 2011):
http://www.looklocal.co.za/looklocal/content/en/lenasia/lenasia-news-mu
nicipal?oid=4474501&sn=Detail&pid=1171275&Service-delivery-protests-in-
Thembelihle-
y SABC News Another protest looms in Thembelihle SABC News (15 September
2011): http://www.sabc.co.za/news/a/2a28d40048564fd0942e95ae7750fb21/
Another-protest-looms-in-Thembelihle--20110915
y SABC News Thembelihle informal settlement in danger of sink holes
SABC News (15 September 2011): http://www.sabc.co.za/news/a/
e69921804857529581ad8b0e3505e7d1/Thembelihle-informal-settlement-in-
danger-of-sinkholes-20110915
y SAPA Heavy police contingent remains in Thembelihle IOL News (7 September
2011): http://www.iol.co.za/news/crime-courts/heavy-police-contingent-
remains-in-thembelihle-1.1132508
y SAPA Thembelihle protests under control Police The Citizen (2011)
y S Segodi Thembelihle Crisis Committee contesting elections through Operation
Khanyisa Movement Democratic Social Movement (30 April 2011): http://www.
socialistsouthafrica.co.za/index.php?option=com_content&view=article&id=
48:thembelihle-crisis-committee-contesting-elecstions-through-operation-
khanyisa-movement&catid=1:latest-news
y K Sibanda ISN action plan for Thembelihle residents after bloody service
delivery protests Shack / Slum Dwellers International (SDI) South African
Alliance (9 September 2011): http://sasdialliance.org.za/isn-action-plan-for-
thembelihle-residents-after-bloody-service-delivery-protests/
64
y L Sidimba Thembelihle wants more City Press (10 September 2011): https://
media.otd.co.za/Pdf.ashx?id=32358&dl=true&src=false
y P Tau Arrested man said to be peaceful protester The Star (15 September 2011):
http://www.iol.co.za/the-star/soweto/arrested-man-said-to-be-peaceful-
protester-1.1137883
y S Tau Free Leader, or Lenasia protests continue The Citizen (2011): http://www.
citizen.co.za/citizen/content/en/citizen/local-news?oid=225183&sn=Detail&pi
d=334&%E2%80%98Free-leader--or-Lenasia-protests--continue%E2%80%99
y S Tau Rubber bullets red in Lenasia protest The Citizen (5 September 2011)
Press releases, letters and memoranda
y City of Johannesburg Peace settling in Thembelihle (3 March 2010): http://
www.joburg.org.za/index.php?option=com_content&view=article&id=4892&c
atid=197&Itemid=344
y City of Johannesburg Various services delivery issues on housing, J Water, City
Power by people of Thembelihle residents (March 2011)
y Independent Electoral Commission of South Africa (IEC) 2011 Municipal
elections: Results map (2011): http://maps.elections.org.za
y SERI Press release: Magistrate strikes Thembelihle case from the roll (11 April
2012): http://www.seri-sa.org/images/stories/thembelihle_press_release_nal.
pdf
y TCC Ward 08 Acknowledgement of receipt for a petition (30 August 2011)
y TCC Follow up memorandum of grievances and demands from the community
of Thembelihle (August 2011)
Court documents
y City of Johannesburg v Occupiers of the Thembelihle Informal Settlement,
South Gauteng High Court, Case No. 03/10106, Answering Afdavit
y City of Johannesburg v Occupiers of the Thembelihle Informal Settlement,
South Gauteng High Court, Case No. 03/10106, Founding Afdavit
y State v Bhayi Bhayi Miya, Protea Regional Court, Case No. 69/4121/11, Afdavit
of Bhayi Bhayi Moses Miya (22 September 2011)
y State v Bhayi Bhayi Miya, Protea Regional Court, Case No. 69/4121/11, Opposing
Afdavit of Lillian Kedibone Ndlovu (22 September 2011)
y State v Bhayi Bhayi Miya, Protea Regional Court, Case No. 69/4121/11, Afdavit
of Nomthandoza Merriam Bembe (29 September 2011)
y State v Bhayi Bhayi Miya, Protea Regional Court, Case No. 69/4121/11, Notice of
Appeal (5 October 2011)
y State v Bhayi Bhayi Miya, Protea Regional Court, Case No. 69/4121/11, Transcript
of the Court Proceedings before Magistrate Morton (29 September 2011)
65
y State v Nkosi and Others, Protea Regional Court, Case No. 43/01308/2011,
Statement of Levy Tsheko Lesego Mere (5 September 2011)
Statement of Sarah Johanna Magdelena Bunce (undated)
Statement of Nomthandoza Merriam Bembe (29 September 2011)
Court judgments
y Garvis v South African Transport and Allied Workers Union 2010 (6) SA 280
(WCC)
y S v Dlamini; S v Dladla & Others; S v Joubert; S v Schietekat 1999 (2) SACR 51
(CC)
y S v Hudson 1996 (1) SACR 431 (W)
Legislation and policy documents
y Criminal Procedure Act 51 of 1977
y Regulation of Gatherings Act 205 of 1993
y Ministry of Police Public Order Policing Policy Document on Crowd Management
(undated)
Interviews
y Interview with Bhayi Bhayi Bhayiza Miya, community activist and TCC
spokesperson (23 August 2012)
y Interview with Daniel Bovu, previous ward councillor for ward 8 and current
member of the mayoral committee (MMC) for housing, City of Johannesburg
(18 November 2012)
y Interview with Siphiwe Zwane, TCC activist and OKM PR councillor, Thembelihle
(9 August 2012)
y Interview with Siphiwe Segodi, former TCC chairperson, Thembelihle Community
Hall (14 July 2012)
y Interview with Janice Ndarala, ward councillor for ward 8, Thembelihle (15
August 2012)
y SERI focus group interview with Democratic Alliance (DA) members in
Thembelihle, Thembelihle Community Hall (11 August 2012)
y SERI focus group interview with the Thembelihle Crisis Committee (TCC),
Thembelihle Community Hall (21 July 2012)
66

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54 De Korte Street
Braamfontein 2001
Johannesburg
Reception: +21 11 356 5860
Fax: +27 11 339 5950
Email: michael@seri-sa.org

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