Sunday 19 May

First appeared on the Daily Maverick

by Mark Heywood, Director of SECTION27

Today, 10 July, marks one year since the Bophelo House 94 were arrested for participating in an ‘illegal demonstration’. This week, across the miles and miles of brown and blighted farmland that separates Bloemfontein, the capital of the Free State, from Gauteng, KwaZulu-Natal or from more miles of farmland in the Eastern Cape, a drama has been playing out of importance to us all.

In two different venues, the Bloemfontein High Court and the Mabaleng Auditorium in the middle of the University of the Free State, the Free State health system and 94 of its former employees have been concurrently on trial.

The health system – or those responsible for managing it – stands accused of failing to meet the standards promised by the Constitution. The community health workers risk being criminalised for an “illegal demonstration” which they attended to demand their jobs back and expose corruption and maladministration.

This drama is a cautionary tale for the future of our country. Although ostensibly about healthcare workers and services, it is revealing things that are important for all of us.

Free State (health workers) on trial

On Monday this week, after a year of stops and starts, the criminal trial of 94 community health workers (CHWs) finally got underway. The proceedings started with the undignified scene of the accused women sitting in a dark corridor outside a tiny courtroom in the bowels of the Magistrates’ Court. They had to shout “here” as their names were called from inside the court.

We had been here before.

In March this year, at their last appearance, the magistrate described the attempt to pack 117 CHWs into a tiny courtroom as “inhumane and undignified”. Then she ordered Advocate JJ Mlotshwa, the deputy director of public prosecutions in the Free State, to ensure that when this trial commenced it should be in a dignified courtroom where the accused need not be treated like sardines or cattle.

But he appeared not to have done his job.

So, several hours were wasted as the search for a courtroom began. Fortunately a bigger and dignified room was found in the High Court across the road. Eventually the 94 mostly middle aged women were called upon to enter their plea. “Not guilty,” they said in chorus, to a woman.

Photo: Court G, Bloemfontein High Court. 94 accused. One courtroom.

Pleading not guilty was not as easy as it sounds. The CHWs have stuck to their defence that they were not breaking the law throughout 12 months of intimidation and indignity and over a year of unemployment; they have made four previous trips to Court only to have their case postponed; they have resisted unprofessional conduct by a state advocate telling them in the corridors of the courts they would be better to “give up and go home”, suggesting they were being manipulated for some ulterior motive.

But despite this, the 94 have insisted on defending their Constitutional rights to freedom of expression and assembly; they have defended their and our hard won right to protest against their dismissal and the general crisis of health in the Free State. Whether the Magistrate will vindicate them we do not know.

What is the alleged crime of these enemies of the state on whose prosecution the government is expending hundreds of thousands of rands?

It is this.

One year ago, on a freezing cold night, they had gathered with their blankets to sing and pray for the night outside Bophelo House, the head office of the Free State health department and its notorious MEC, Dr Benny Malakoane. They were arrested at 2am that morning after a complaint to the police by someone unknown, suspected to be the MEC.

(In court it turned out that one of the reasons for their arrest was that the public order police who were called in to deal with the menacing women armed with sharp blankets and doeks consider Bophelo House as a ‘key point’ requiring extra protection. It also turned out that one of the arresting officers was part of the unit involved in the murder of Andries Tatane.)

But I jump ahead.

At last their day in court had come and what a few days it was. Court started with an argument from the defence counsel, Advocate Rudolf Mastenbroek, acting pro bono for the accused, to object to the charge of “convening and/or attending an illegal gathering” and to have it quashed.  Mastenbroek argued that under our Constitutional dispensation there is no longer such a thing as what used to be known as an “illegal gathering”.

In response the state mounted an argument that ought to send shivers down the spines of freedom loving people from Cape Town to Musina. Essentially they argued that while there is a right to freedom of expression, this right might only be exercised with the state’s permission. Demonstrating without permission, they told the magistrate, is inherently illegal. “The fact of the matter is that if you don’t have a notice, you’re gathering is illegal… it’s prohibited.”

Unfortunately Magistrate Tafeni, in a somewhat thin judgment, supported the state’s contention that the charges were proper.

The trial went ahead, lasted for a full four days and has now been postponed until 28 September, with another five days scheduled.

At least nine days given over to prosecuting peaceful demonstrators. At what cost, you might well ask.

But if what was happening inside court is a harbinger of the future influence of China and Russia on our democratic reasoning, the shenanigans and dirty tricks outside court harked back to our Apartheid past. Since the last postponement of the case in March, ongoing attempts have been made to sew divisions among the community health workers.

In every organisation there is someone for sale, someone greedy for 30 pieces of silver. In this case, it is a former chairperson of TAC in the Free State who has been turned (echoes of what is happening in Cosatu?). On the first day of trial, he arrived in court wearing a bright yellow T-shirt imitating the iconic TAC ‘HIV positive’ T-shirt, but this time declaring ‘HIV negative’.

A perversion if ever there was one.

Ironically, the former chairperson was one of the original organisers of the night vigil. He avoided arrest that night. Nonetheless he was able to persuade a sad sliver of tired and confused community health workers to accept the state’s offer of alternative dispute resolution, a deal in which for the withdrawal of charges against them they accepted that the demonstration was “illegal” and agreed that should they be found participating in any future “illegal” demonstrations the charges against them could be reinstated.

Meanwhile, on the same day on other side of the province, Premier Ace Magashule was addressing an imbizo in Welkom where he reportedly said that if the CHWs acknowledged their guilt and took the plea bargain they would get their jobs back. This is not the first time that senior politicians have held these workers to ransom over their jobs.

Shame on them.

Seditious gatherings to promote the Constitution

Fortunately, a gathering indoors is not yet illegal.

So, while the court drama unfolded, a mere 6.7kms away as the GPS flies, the TAC and Section27 were convening a People’s Commission of Inquiry into the Free State health care system. This exercise in democratic engagement with socio-economic rights is the latest attempt by TAC to draw public and political attention to the killing fields of the Free State health service.

But this too was not to be without political interference and malice.

The day before the inquiry started, one of the organisers received a phone call from someone initially pretending to be a journalist, who later admitted to be from the crime and intelligence services. This person warned darkly, but without substantiation, that there may be a threat to the event and that they were monitoring it.

And they were right – at least as far as the threat was concerned.

On the first morning, as ordinary, rights-bearing citizens began to unfold their tragic and pain-ridden tales before the panel (the hearing was screened live) there were two nasty attempts to disrupt and sabotage the inquiry.

First a rowdy busload of primary school children, claiming the moniker of the once noble Congress of South African Students (Cosas) arrived ‘to participate’ in the inquiry. After they were denied entry, they left, with some threatening to return and cause havoc the next day.

Then, almost simultaneously, a group of participants inside the hall started to interrupt proceedings and threaten violence on the grounds that TAC “was paying people to tell lies”; “that TAC was not the Public Protector” and not entitled to host such a hearing and that the Free State health department was not being given the opportunity to speak. The hall had to be emptied to expel the rude aggressors.

‘Not the Public Protector’ – testimony to the TAC’s people’s inquiry into the Free State health system.

After two days, the testimonies were complete. It is not a pretty tale. Bereavement counselling has to be provided to a group of the participants. What are meant to be systems of healing do indeed seem to be systems of killing. We now wait the report of the panel. Unfortunately members of the Free State health department staged a walkout two hours into the hearing. So we need not expect that anyone with power will pay attention to it.

Shame on them.

Be courageous

So in conclusion what lessons do we learn from frontline Free State?

It’s simple. Be scared.

Under Magashule the democratic Free State is becoming QwaQwa-esque. It is reverting to its former intolerant Bantustan form. Racist white farmers and money-grubbing politicians once more rule the roost.

Be scared.

It is now clear that the need to deny people’s legitimate claims to the socio-economic rights granted them in our Constitution is leading the state to behave in ways that are eroding their civil and political rights.

Be scared.

Don’t take for granted your right to freedom of expression or demonstration. Our new elite is much more comfortable with circumscribed democracy a la Putin or Li Kequiang and is beginning to instill this culture within its armed bodies of intolerant men.

Be scared.

Unless you stand for other people’s rights you are going to lose your own. The Free State can easily become the new normal. At this point, almost all that stands between that scenario and you is organised civil society and an independent judiciary.

Soon you are going to have to choose.

Be courageous. DM


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