Sunday 19 May

After a grueling three-year-long process, SECTION27 has received confirmation that the criminal records of the #BopheloHouse94 have finally been cleared. This follows the judgment on 17 November 2016 in which the Bloemfontein High Court set aside the convictions and sentences of the 94 health activists known as the #BopheloHouse94.

The #BopheloHouse94 consists of community health workers (CHWs) and members of the Treatment Action Campaign from across the Free State who were arrested in June 2014 at a peaceful night vigil outside Bophelo House, the headquarters of the Free State Health Department. They were protesting the collapse of the Free State public healthcare system and the decision by then MEC of Health Dr Benny Malakoane to dismiss, without warning or cause, approximately 3 000 CHWs in the province. Dr Malakoane has since been removed as MEC of Health.

Although the vigil was peaceful, the #BopheloHouse94 were arrested and charged with attending a gathering for which there was no prior warning, in contravention of the Regulation of Gatherings Act 205 of 1993. Over the following two years, they would attend the Magistrate’s Court seven times, and endure 14 days of a trial which led to their conviction and sentencing in October 2015. The matter was taken on appeal to the Free State Division of the High Court where the Court found that attending a gathering for which no notice had been given did not constitute a prohibited gathering in terms of the Act. As such, the appeal was successful and both the convictions and sentences were set aside in November 2016. The judgment reaffirmed the centrality of the right to freedom of assembly in our constitutional democracy and its purpose – to give voice to the powerless.

What should have followed the successful appeal was the erasure of the criminal records arising from these arrests. Ordinarily, once a conviction has been set aside, the SAPS Criminal Records Centre must be informed by the court so that the records can be updated. However, this did not occur. The #BopheloHouse94 continued to have criminal records, despite having been acquitted, for over three years.  This failure of the system caused them to suffer indignity and presented unjustified hurdles in their everyday lives.  The #BopheloHouse94 have been sent from pillar to post for the past three years, incurring significant costs, in attempts to have the criminal records removed. It has taken a herculean effort from SECTION27 and TAC to ensure that the records are finally cleared.

The confirmation that the records have been cleared comes as a relief to the #BopheloHouse94 whose dignity has finally been restored. Sadly, TAC chairperson in the Free State, Opanyana Mohutsioa, who was a leading member of the #BopheloHouse94, died before he received confirmation that his record had been cleared.

“Whilst we welcome the finality in this matter, we are concerned about the impact of an apparent lack of coordination between the court and the SAPS Criminal Records Centre, and the fact that there seem to be no clear processes, for those similarly affected, to follow and clear the relevant records. How many other people, following the acquittal, remain with criminal records? There is a need for clarity and for the establishment of processes to clear criminal records in the case of acquittal to allow those acquitted of crimes to continue with their lives unhindered by incorrect criminal records,” says Tendai Mafuma, legal researcher at SECTION27.


For more information contact Nontsikelelo Mpulo on 082 782 7143


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