The Facts

The Free State health care system, under MEC Benny Malakoane’s leadership, is one of the worst and fastest worsening in the country.

Community Health Workers (CHWs) are a critical cadre of workers. They are in intended to be the backbone of the health care system. However, their conditions of employment are not dignified, safe or acceptable. There is a need for standardised, formal employment for CHWs across the country.[1]

On 16 April 2014, MEC Malakoane issued a circular that, in effect, dismissed all CHWs in the Free State. The dismissal came without warning and the MEC did not provide any reasons for it.

In June of 2014, the #BopheloHouse94, a group of CHWs accompanied by a smaller number of TAC activists, engaged in a night vigil (and/or a smaller vigil the following morning) outside of Bophelo House, the Free State health department’s office in Bloemfontein, in protest of the dismissal of the CHWs and the state of the healthcare system.

They were arrested and charged with violating the Regulation of Gatherings Act 205 of 1993 (the RGA).

All of the #BopheloHouse94 are now TAC members. Most are poor and most remain unemployed. The majority are women and many are elderly. They are from various parts of the province. They are, however, well organized thanks to extensive efforts by organizers on the ground.

Trial and conviction

The #BopheloHouse94 attended court for six preliminary hearings and nine days of trial. They were convicted on 1 October 2015 and sentenced on 2 October 2015.

They were convicted under section 12(1)(e) of the RGA, which provides an offence for:

“Any person who in contravention of the provisions of this Act convenes a gathering, or convenes or attends a gathering or demonstration prohibited in terms of this Act(Emphasis added)

The only piece of this provision relevant to our case is the underlined part.

The key issue in our case is whether a gathering for which no notice is given is a “prohibited gathering.”

The RGA requires conveners of gatherings to provide notice to authorities.[2] It was common cause that notice was not provided for the #BopheloHouse94 gathering.

The prosecution argued that an un-notified gathering is a prohibited gathering and therefore the #BopheloHouse94 were guilty of attending a prohibited gathering, an offense in terms of the underlined part of section 12(1)(e) above.

The #BopheloHouse94 argued that an un-notified gathering is not prohibited and that the concept of an “automatically prohibited” gathering, as the prosecution called it, would be unconstitutional.

The magistrate agreed with the prosecution, convicted the #BopheloHouse94 and sentenced them all to imprisonment for three months or a fine of R600. The magistrate suspended the penalties for three years on the condition that the #BopheloHouse94 not be again convicted of an offence under section 12(1)(e) during those three years

[1] SECTION27, led by Violet Kaseke and Thuthukile Mbatha, with the TAC and networks of CHWs, is advocating for such a policy.

[2] See RGA section 3