Cape Town Militant Mzonke Poni Goes to Trial on Tuesday 29 September 2009 on a Charge of 'Public Violence'

Mzonke Poni, Chairperson of Abahlali baseMjondolo of the Western Cape, is scheduled to stand trial on the charge of public violence on Tuesday 29 September 2009. The charge relates to a protest organised in opposition to state criminality against the Macassar Village Land Occupation. He has written this essay on 'public violence' in response to the charges levelled against him.

Public Violence

by Mzonke Poni, Chairperson of Abahlali baseMjondolo of the Western Cape

What exactly is public violence? Who really counts as the public? What really counts as violence? These are important questions that require clear arguments.

I have seen many comrades in our movements arrested and charged with public violence for engaging in legal and peaceful protests. I have also seen the state engaging in illegal and violent actions, such as evictions and assaults on comrades, without anyone being arrested.

I have now also become a victim of the long standing and widespread tendency to arrest activists in poor people’s movements on the charge of public violence. In 2005 I was leading a protest at Khayelitsha where we barricaded the N2 for about 2 hours with burning tyres and stones. There were heavy armed police officers on the scene and they instructed us to clear the N2. We refused. During the course of the action one police officer come to me and asked to speak to me in private. At that time I was busy addressing people but I paid attention to him. He told me that he wanted to question me at the police station and immediately put me at the back of police vehicle. At the police station I was immediately charged with public violence.

I went to court and the state prosecutor proposed a R500 bail. My lawyer rejected that. She said that “All the cases must be treated equally according to schedule 1 of the criminal procedure. My client does not have any cases pending, has never been arrested before, had provided the court with fixed address and he is committed to the struggle.’’ I was released on a warning to appear to court, and during my second appearance my case was postponed for further investigation. On my third appearance my lawyer argued that ‘’what seems funny to me is, in the box of a match we have only one accused while it is a group of people who commit public violence.’’ The state prosecutor was forced to postpone the case again for further investigation and during this process of further investigation the state was still waiting for more arrests from the police.

On my fourth appearance still there were no further arrests and the state was forced to withdraw the charges against myself.

The background to the barricade of the N2 is the lack of service. Early this year I participated in a community based initiative to house homeless people at Macassar Village by building shacks on a vacant piece of public land which has not been used since 1994. This was public land and the people who occupied it where the public. The people who were building shacks on this piece of land were people that were coming from Macassar Village. Some of them had waited for many years for the state to build houses for them as they were on the housing waiting list.

On day one of this action we managed to occupy the land by building and occupy eights structures. These eight structures were then demolished by the municipality’s anti-land invasion unit without a court order and people’s building materials were confiscated. These evictions were therefore criminal acts perpetrated against the public by the state. However no state official was arrested on the charge of demolishing a shack without a court order or stealing people’s building materials.

During the course of our action at Macassar Village we managed to obtain legal assistance from the Church Land Program (Church leaders). With their support we managed to obtain a court interdict against the City of Cape Town. That interdict was forcing them to obey the law. It forced them to:

1. Return the stolen building materials. 2. Cease the illegal demolition of our structures.

We understand very well that our exclusion from the city is a political strategy by the rich which will only be defeated by the strength of the politics of the poor. But when the rich and their government are armed and willing to act against us as if we are not people who are protected by the law then going to court can be an important action to defend our politics against state criminality. We went to court to secure the structures that we have to build to shelter ourselves and our belongings and, also, to protect our building materials against theft by the state.

The City of Cape Town just ignored the court interdict. They came back to the Macassar Village occupation and demolished the four structures that we had been able to rebuild from the remaining building material after obtaining the interdict against them on the Friday night. When I tried to stop them from demolishing the structures and tried to show them the interdict so that they could see that their actions were illegal I was threatened by arrest and rubber bullets and the demolition went ahead without them having a court order and in violation of the court interdict. This time their actions were in contempt of court as well as criminal.

On Monday the municipality went to court and obtained an interdict against us. We were interdicted from erecting structures on the land. They argued in court that people had invaded the land but that there were currently no structures on the piece of land and they failed to disclose to the court that the reason why there were no structures was because of their illegal demolitions and their undermining the interdict which was issued by the High Court.

After their court interdict was served to the people at Macassar Village, everyone was upset because they had undermined our interdict and now they wanted us to be banded by their interdict. As a result of that people started to protest, barricading the New road with burning tyres and stones. Immediately the guys from law enforcement responded and moved people off the road and cleared the road. As they were busy clearing the road one of their officers come to me and insulted me in front of everyone. He told me that I am the one who is fucking them around and he threatened to arrest me. I told him instead of threatening me he must go ahead and arrest me. He was called by one of his colleagues to stay away from me. More law enforcement officers and members of SAPS were arriving on the scene but I decided to leave the scene as it was getting late for me to catch the taxi to Khayelitsha (15km away from Macassar Village).

So, while I was standing at another street with two comrades of mine waiting to catch the taxi two law enforcement vehicles come next to us speeding. My comrades ran away but I decided to stand where I was standing because I couldn’t get it why they were running away. Immediately guys from law enforcement stop next to me and the guy who threatened to arrest me before come out and started assaulting me. He sprayed me in my eyes with a spray gun and clapped me in the face, then threw me in a private vehicle, drove around the Village with me while beating me with hand cuffs on my right hand shoulder and making fun out of me. I guess they enjoyed that moment.

After they had finished assaulting me I was taken back to the scene and from there to Macassar Village police station, where I was charged with public violence.

Here is the first question that I want to raise: What exactly is public violence? Is it doing something in public which is against the will of the public? Or is to commit an act that affects the public? Or is it an act in public that is against the law? Or is it a public act of violence by an unruly mob? The last definition is based on the English dictionary which confirms to me that it is a bunch of people who commit public violence.

We do not deny that we occupied the land at Macassar Village. We do not deny that we built shacks on that land. We do not deny that occupying land is trespass. We do not deny that building without permission is also, like trespass, a minor civil offence. We do not deny that we barricaded the road. This is an act of civil disobedience. It might not be lawful but it is not violent and it is not criminal.

However the police and the Anti-Land Invasions Unit committed various criminal acts and they committed them in public. They include illegally destroying shacks, contempt of court, theft, damage to property and assault. They even shot a twelve year old child with their rubber coated steel bullets. They were acting in groups. It is clear to anyone who looks at the situation honestly that the police and the Anti-Land Invasions Unit are free to engage in criminal behaviour against the poor.

We justify our minor infractions of the law, our civil disobedience, on the grounds that the law is for the rich. The law says that you must buy or rent a house or that you must be given a house by the state. But as the poor we cannot afford to buy or rent a house and the state is failing to give us houses. Therefore we have to occupy land and build our own houses. The fact that this is against the law (even though it is not criminal) just shows that the law does not fit with the reality of the people. For as long as the law does not fit with the realities of the people the people will break it daily because they have no other choice if they are to survive. Often this breaking of the law actually helps to force the state to bring the law closer to the lives of the people. Often our actions help to break the hold of the rich over the land – something that the government has failed to do. Therefore we say that it is clear that our actions are democratising society from below. They are for the good of society.

Anyone should be able to recognise this. The fact that this is not recognised shows us that we as the poor are not considered to be the public. The fact that our minor and non-criminal offences are treated as criminality – as public violence – shows that in reality we are not included in the definition of the public. The law might say that all of us with papers are citizens but the police and the Anti-Land Invasions Unit and the politicians act as if only the rich are citizens. We can never accept that. Therefore we have to rebel just to count as part of the public.

But the courts are supposed to uphold the law fairly. Why is it that when it is the state that commits criminal and violent actions in public is it not brought to justice?

The fact that the state is free to commit criminal and violent acts against the people questions the independence of the justice system in South Africa.

We have questions about the independence of certain judges. For instance after we got the interdict against the state to force the state to obey the law and then the state went ahead and broke the law and violated the interdict we went back to court to report this. If the judge was fair he would have ordered the arrest of the officials who ordered these criminal acts. But the judge, Mr. Van Zyl who is an acting judge and also an SC, dismissed our application. Later the same judge awarded an interdict to the Municipality! He clearly puts the right of the rich to control the land over the laws of the country. This confirms that in the eyes of the law we as the poor are not equal: there are those who are better off than others.

We have learnt another important lesson from this incident: the judiciary system is not accessible to all, is it only accessible to those with money. On day one of demolition of our structures I personally went to the LRC, the Law Society and the Legal Aid Board with a view to seek legal representation to lodge an urgent application to interdict the state from demolishing the structures. I went from one corner to the other seeking for urgent help but all these organisations told me that they don’t have the capacity to help us.

It was clear that private representation was the solution. But private representation costs money and this therefore confirms that the law is not accessible to the poor but only to the rich. Is this not a form of public violence? The answer is clear. As long as the rich have easy access to the law and the poor are denied access to the law the law will be an instrument that the rich use against the poor. It will be a tool of oppression. It will be used to justify and protect all kinds of violence against the poor. Until access to the law is free the legal system will be a form of institutionalised public violence. We must face this reality.

The state has failed to provide people with basic or essential services such as adequate toilets, clean water and electricity. Is this not a form of public violence? Children die of diarrhoea because they don’t have clean water, women are raped because they have no safe place to do the toilet, people die in shack fires because they have no electricity. We are being killed by the violence of the poverty caused by the state’s failure to treat us as human beings. But we don’t see the mayor being arrested because the people still have no toilets.

The state evicts people from where they have established themselves for years and where they perform their daily economic activities. This form of development is carried out without meaningful engagement with affected people. Mostly it is enforced by the police and private security. But the state still argues that their actions, that they have to carry out violently, are ‘development’ and that they are ‘in the public interest’. Is this kind of development again not a public violence? The answer is clear. Evictions are clearly a case of public violence. But we never see the evictors in court.

When the state fails to manage the housing crisis and to deliver services to the poor, why do they always want the courts to manage their own crisis? Is this not because they know that they can afford good lawyers and can manoeuvre very well within the legal system? It is not in the public interest for the state to take its failures to the courts instead of too the people. Is this reliance on the courts rather than negotiations with the people not also a form of public violence?

When the state is being threatened by community leaders who encourage communities to remain mobilized in pressurizing the state to realize its obligations to the public it targets those leaders. They are arrested, they are assaulted, they are accused of being the ‘third force’. Is this intimidation not a form of public violence? When protests are attacked is this not a form of pubic violence?

When the state/politicians/ministers/mayors/councillors fail to attend to peoples’ demands why are they not being brought in front of the law to answer to the people? When the people who had enough of them take to the streets they are being brought in front of the law and accused of public violence. Who is the public? Are we not the public? When we protest which violence do we really commit? Is the right to protest not a freedom of expression?

When the state prosecutor and the magistrate want to prosecute individuals who are accused of public violence when they know clearly that in terms of law those charges are invalid but they still want to go ahead with prosecution, what is that called? Is this not a public violence? These charges are a way for the legal system to rob the public of the minimum resources they have because each time we appear in court the community always demonstrates outside the court and we have to appoint good criminal lawyers. All these resources that are wasted in this regard are the resources that were supposed to be used at capacitating our community led structures but the state is robbing them. Is this not a public violence?

Just to defend our structures at Macassar Village which were demolished by the state without a court order, just to obtain a court interdict, the law firm who took our case against the municipality robbed us almost R130 00 which was paid to them by church leaders (Church Land Program). Is this also not a public violence? After the case the City announced that they would no longer give any work to this law firm. They clearly want to punish any law firm that takes instruction from the poor. Is this also not a public violence?

I am facing charges of public violence at Somerset West Court and my case goes on trial on the 29th September 2009. This case had been postponed many times due to my failure to secure legal representation. I have consulted with many law firms and individuals attorneys. All of them refused to do my case, some lawyers told me that this case will cost me lot of money, some told me that they don’t do criminal cases and some did not want to have anything to do with a case against the City of Cape Town.

One lawyer who once represented me on my previous case of public violence, accepted my case and money was transferred to her account number three weeks before my court date but during the day of my trial she did not pitch at court and did not even want to pick up my calls. Why? I don’t know. Maybe she is also receiving instructions from the city, you will never know.

I had to appear four times in front of that magistrate as she was applying a pressure to me, the failure from my attorney to pitch was translated to my fault by the magistrate as she was forcing me to bring my attorney to the court irrespective of the explanation that I gave to the court.

This case has affected the progress of the movement (Abahlali baseMjondolo WC) as it is difficult now to engage the state actively while having this case which is pending in the court of law and this cause set backs in communities that work with the movement. This case is in violation of the rights of the movement and its constituencies to organize freely. I therefore declared my arrest as a public violence which is being committed by the state and it’s judiciary system because that magistrate and the state prosecutor were supposed to throw this case outside their court roll as they had real cases to deal with. Shame I understand them - maybe they are also looking for ways to defend themselves as well , so that in the eyes of their bosses can be seen as good officers of the court, because if they were independent they would have used their discretion as they are doing with other cases that they are throwing out of the court roll.

We are fighting for a society in which we are all the public. We will keep on with this fight. If we are taken to prison we will be political prisoners and not criminals.

Down with state repression! Down with a legal system that is for the rich and by the rich!