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