Victory at last for #BopheloHouse94: Long live democracy and the right to protest

Joint statement by the Treatment Action Campaign and SECTION27
“Indeed, the right to freedom of assembly is central to our constitutional democracy and exists primarily to give a voice to the powerless. Given the constitutionally protected right to peaceful assembly, a provision which allows for unarmed and peaceful attendees of protest gatherings to run the risk of losing their liberty for up to a period of one year and to be slapped with criminal records that will, in the case of the appellants, further reduce their chances of gaining new employment for merely participating in peaceful protest action, undermines the spirit of the constitution.” (State v Tsoaeli and Others)
JOHANNESBURG, 17 NOVEMBER 2016 - In a landmark judgment, with important implications for the right to protest in South Africa, the Bloemfontein High Court today set aside the convictions and sentences of the 94 community healthcare workers (CHWs) known as the #BopheloHouse94. This finally brings to an end the state’s callous and vindictive persecution of this courageous group of mostly elderly women.
The #BopheloHouse94 are CHWs from across the Free State. They were arrested in June 2014 at a peaceful night vigil at Bophelo House, the headquarters of the Free State Health Department. They were protesting the collapse of the Free State public healthcare system and the April 2014 decision of then MEC of Health Dr Benny Malakoane to dismiss, without warning or cause, approximately 3 000 CHWs in the province. Malakoane has recently been removed as MEC of Health.
At no time during the night vigil where they were arrested did the #BopheloHouse94 threaten public safety or damage property. They simply wanted a meeting with the MEC of Health to address their challenges, after several unsuccessful attempts and requests to do so. Instead they were arrested, thrown into the back of police vans and imprisoned in police cells. The arrests were only the start of their ordeal. Over the following two years the #BopheloHouse94 would have to travel at high cost to court seven times from across the province, spending a total of 14 days in court before they were finally convicted in October 2015. The appeal to the October 2015 convictions was heard in the Bloemfontein High Court on 8 August 2016 and the court delivered judgment today.
Today’s judgment affirms our view that the prosecution of the #BopheloHouse94 was politically motivated and an abuse of state resources. We estimate that the state spent over Millions of Rands on this case – not taking into account the fact that time spent on this case could have been used to prosecute more important cases.  National Prosecuting Authority (NPA) head Shaun Abrahams denied several requests to drop the prosecution. Free State Premier Ace Magashule also failed to try and negotiate a solution.
The Free State Prosecuting Authority, with the approval of the NPA, and the South African Police Service conducted this prosecution in the most onerous manner possible, in essence ensuring the court procedure in itself was torturous, demeaning and undignified. Though these authorities are bound by law and decency to seek justice, they abused their positions to punish the BopheloHouse94 long before the trial began.
The #BopheloHouse94 began as the BopheloHouse129 before the state’s war of attrition forced some of the accused to sign plea bargains and admit guilt of a crime that the court has now ruled does not even exist. Those who were able to withstand the onslaught only did so with extensive support from probono lawyers and others who arranged humble accommodation and provisions. Again and again, the state’s litigation tactics forced mothers, some who were ill, to leave families and scrounge funds to travel to Bloemfontein, sleep on church floors and attend court hearings. There is no justice when the state forces the poor to admit guilt despite their innocence. There is no justice when the state takes its pound of flesh before a trial even begins.
This was a political and malicious prosecution. Therefore, while we celebrate victory, we also look to the future in which we will seek to address the injustice done to these activists.
What does today’s judgment say?
The question in this case was whether attendance of a gathering for which no prior notice was given to authorities constitutes a crime.
The state argued that an “un-notified” gathering is “automatically prohibited” and attendees are therefore guilty of attending a “prohibited” gathering, an offense in terms of section 12(1)(e) of the Regulation of Gatherings Act 205 of 1993.
The BopheloHouse94 argued that there is no such thing as an “automatically prohibited” gathering and an interpretation that allowed for such a concept would be offensive to the Constitution.
The court reviewed apartheid-era laws and noted that even this “draconian” legislation did not countenance the notion of “automatic prohibition.”
The court also found that the state’s interpretation of the law offended the “principle of legality” as expressed in the maxim “no crime without law.” In other words, the state cannot simply create crimes with which to prosecute citizens where the law has not already done so expressly.
The court reasoned:
“The interpretation contended for by the State, which propounds that attendance of a gathering for which no prior notice was given to authorities is automatically prohibited clearly has no merit and is inconsistent with the objects of the RGA and the spirit and purport of our Consititution.” (Paragraph 40)
The court therefore ruled for the BopheloHouse94 and set aside their convictions and sentences.
The court also ordered the Minister of Police to pay costs occasioned by a postponement necessitated by his failure to file papers timeously in adherence to a court directive. This cost order sends an important message to the police that they must be accountable to the courts and citizens.
Judge President Molemela penned the judgment. Acting Deputy Judge President Moloi and Judge Lekale concurred.
What does the judgment mean for the right to protest in South Africa?
At stake in this case was the very core of the right to protest and assembly. Should the state’s interpretation have prevailed, any gathering of 15 or more people would be considered “illegal” unless authorised by the police and every person at such a gathering would be liable to arrest, prosecution and a sentence of up to one-year imprisonment and a fine. The police and prosecuting authorities sought to interpret the law in a manner that would give them power to  control closely who can be where, when and with whom. Such a law would strangle the spread of ideas and silence dissent.
We argued that the notion of an illegal gathering died with apartheid. The Bloemfontein High Court agreed saying “the iron-fist approach towards protest action manifested in the holding of gatherings and protests in the past has, by virtue of the [Regulation of Gatherings Act], been replaced …”
The victory of the #BopheloHouse94 comes at a time of increasing repression across the country of the right to protest. We hope this judgment empowers all activists, whoever they are and whatever their cause, to exercise their constitutional right “peacefully and unarmed, to assemble, to demonstrate, to picket and to present petitions.”
A long struggle
TAC and SECTION27 thank the #BopheloHouse94 for their courage and determination in seeing this case through to the end. You have cleared your own names, but you have also struck a blow for justice and democracy in South Africa. We are humbled by your commitment and determination.
We also thank the various individuals and organisations who have supported the #BopheloHouse94 throughout this extended ordeal. The many letters of support and public statements from across the country and the world all helped us and the #BopheloHouse94 to see it through to the end.
Thank you  also to the various individual and organisational donors who helped to pay for transport and accommodation for the #BopheloHouse94 during the various court appearances and other costs relating to the case. These costs were substantial. We are particularly grateful to Amnesty International and Open Society Foundations South Africa.
SECTION27, under the leadership of Head of Litigation Advocate Adila Hassim, and Webbers Attorneys represented the Treatment Action Campaign and the #BopheloHouse94 in this case. We thank Webbers Attorney Madeleine Koller, Advocates Rudolf Mastenbroek and Byron Morris for their long, unflinching and free representation of the BopheloHouse94. We also thank former University of Free State Vice-Chancellor Jonathan Janssen for on occasion making accommodation available.
A video history of the #BopheloHouse94 case
-       10th August 2016: Video of #BopheloHouse94 appeal:
-       1st October 2015: #BopheloHouse94 to appeal convictions:
-       10th July 2015: The trial of #BopheloHouse117 begins:
-       30th March 2015: Drop the charges against the #BopheloHouse118:
These are the names of the #BopheloHouse94
1.     Patricia Tsoaeli,
2.     Pulane Joyce Sekonyela
3.     Gadibolae Margaret Lebotsa
4.     Mvulazana Maria Tlhapi
5.     Machaba Aria Tsie
6.     Moselantja Constance Mokoteli
7.     Emily Mansali Monyane
8.     Esther Nazo
9.     Dieketseng Malunga
10.  Likeleli Malekgotla Sarah Dimema
11.  Mkwanazi Letia Mmantshadi
12.  Mieta Ntsane
13.  Mapulane Alinah Nyareli
14.  Martha Toloane
15.  Selina Motsamai
16.  Dimakatso Belina Tsiane
17.  Ouma Sarah Chabangu
18.  Ntombizodwa Belina Moss
19.  Kgothatso Sehoapa
20.  Annah Madikotsi Rampheng
21.  Motsepe Lydia Mphomotsang
22.  Madibuseng Tsatsi
23.  Seipati Tau
24.  Mmaadimo Naomi Mokokolo
25.  Nomakhepu Maria Twane
26.  Storey Sasarina Martha Kgothule
27.  Thobeka Nokha
28.  Limakatso Vidalina Mojaje
29.  Semina Molelekeng Matsoso
30.  Malisemela Meriam Majorobela
31.  Cecilia Leburu
32.  Lydia Seboholi
33.  Nkhata Suzan Mpharoane
34.  Evelyn Tlhoetsweng Dlamini
35.  Chabana Joyce
36.  Malifaenale Adelina Moabi
37.  Motshegwa Agnes Thepe
38.  Boitumelo Grace Madikgetla
39.  Lerato Ntamane
40.  Pensher Nokadebona Matlotlo
41.  Leah Nthako
42.  Keltumetse Violet Mohokare
43.  Thenjiwe Augustina Moss
44.  Paulina Mankgathi Tsewu
45.  Kgwase Godfrey Letsisa
46.  Mida Naku Radebe
47.  Mamohapi Lydia Mohlaphuli
48.  Malefu Ntsala
49.  Medupe Mantoa Maria
50.  Maleshoane Dorothy Mokhere
51.  Thiwe Elizabeth Moss
52.  Ntabeleng Maria Molelekoa
53.  Ntshediseng Jacob Mokhanuhi
54.  Glenda Moss
55.  Landi Nozimanga Geniva
56.  Disebo Anna Yoyi
57.  Machobane Morake
58.  Maseapeng Alleta Mmmusi
59.  Enock Mzimkhulu Moware
60.  Thabo Seli
61.  Elizabeth Sekoto
62.  Mahlani Papitjie Lucas
63.  Mpolokeng Rosinah Sipengana
64.  Motsamai Joseph Phatsoane
65.  Lebuajwang Meshack Thobela
66.  Mokhitli Mokhehle
67.   Mamogalo Rebecca Masiza
68.  Mamokete Paulina Sello
69.  Thakane Maria Rammota
70.  Puleng Christinah Tshabangu
71.  Mirriam Tolokazi Matona
72.  Annah Ntombovuyo Ndabeni.
73.  Palesa Merriam Maseko
74.  Mafani Sarah Bohlale
75.  Ketso Susan Moletsane
76.  Lesley Kgathole
77.  Oupanyana Mohutsioa
78.  Thebe Thebe Vincent
79.  Mophete Stephen Seheri
80.  Bulelwa Ngwete
81.  Grace Matlhoko
82.  Sellwane Shuping
83.  Dipuo Suzan Mosetlhe
84.  Alina Matlhake Dorothy
85.  Mammatli Mokorotlo
86.  Dikhutso Lydia Oliphant
87.  Masabatha Annie Oliphant
88.  Lebogang Nape
89.  Toko Agnes Mkhehlane
90.  Nthabeleng Metsing
91.  Mamahlape Elisa Mogotsi
92.  Lizzie Nthofela Hlaoli
93.  Maria Pete
94.  Dinah Matlakala Makumane
For media comment:
TAC General Secretary Anele Yawa 0793281215
SECTION27 Mark Heywood 0836348806