The 94 community healthcare workers (Bophelo House 94) arrested during a peaceful night vigil in July 2014 were today found guilty of attending a gathering for which no notice was given, in the Bloemfontein Magistrate’s Court. As part of her judgment Magistrate Thafeni ruled that the gathering for which no notification was given to police was – in her view – a “prohibited” gathering.
The far-reaching implication of Magistrate Thafeni’s ruling is that any gathering of more than 15 people in South Africa without notification to the police must be considered a “prohibited” gathering and is therefore unlawful. Any person taking part in such a gathering should be arrested and charged with a crime carrying a sentence of up to one year imprisonment and a fine.
“This judgment essentially declares any gathering of people or protest to be unlawful,” says Anele Yawa, General Secretary of the Treatment Action Campaign. ”It makes a mockery of our Constitutionally guaranteed right to peaceful protest. It is a judgment that you would expect in a police state, not a Constitutional democracy.”
Lawyers for the Bophelo House 94 will appeal the judgment and are confident it will be overturned. The defence argued this week that the vigil was not a prohibited gathering as defined in the Gatherings Act. According to the Gatherings Act, a gathering can only be prohibited in very specific, and severe, circumstances, which are set out explicitly in the Act, and through a certain process, also set out in the Act. In this instance, it is indisputable that the circumstances in which a gathering may be prohibited did not exist and the relevant procedure was not followed.
The court did not find that the Bophelo House 94 posed any threat to public safety or to property during the vigil. The guilty verdict is thus purely based on the Magistrate’s assertion that the gathering was “automatically prohibited” and not on any harm that could have followed from the gathering.
Today’s judgment is the latest chapter in a saga that started early in 2014, when Free State MEC for Health Benny Malakoane dismissed over 3500 CHWs. A group of 127 CHWs who dared question their dismissal were arrested in July 2014 after their repeated attempts to meet with Malakoane were met with contempt.
After their arrest, they spent 36 hours in cells – some without access to their chronic medicines. Since then, the CHWs have been to court seven times – each time leaving their lives and families behind. Some CHWs pleaded guilty along the way, which is why there are now 94 left.
The state’s disproportionate response to a group of mainly aged women peacefully singing and praying at a night vigil remains hard to explain – especially since it is now clear that even the police did not consider there to be any actual threat to public safety or to property. The state’s decision then to prosecute and to spend what must be hundreds of thousands of Rands on the prosecution is even more irrational, especially in light of the scarcity of public resources.
“This prosecution is not about justice,” says Yawa. “Instead, this case is about punishing those who dare speak out – and challenge power – about their unfair dismissal and the dysfunction in the Free State public healthcare system. The arrests and the prosecution is a flagrant abuse of the state apparatus and aims to suppress healthy democratic dissent. We will appeal this judgment in the interests of all people in South Africa in order to make clear that the right to assemble cannot be violated in this way. An injury to one is an injury to all.”
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