Stories of Lwandle evictees not OK, says ADR lawyer

After 20 years of democracy, and celebrating the spirit of Madiba, the reality of the Lwandle evictions, as reported in Court last week, triggered memories of the old style police treatment in the sad history of this country.

As part of a Ministerial Inquiry into the evictions Sheena St. Clair Jonker (main photo) made submissions on behalf of the community. She is the founding head of the non-profit Access to Justice Association of Southern Africa and ADR Network SA, also a former practicing attorney, current academic lawyer, Alternative Dispute Resolution Practitioner and Human Rights Activist.

“It is a fact that if you are poor in South Africa, your access to justice looks very different to that of the economically advantaged,” said Jonker.

Hence her association purposes to provide Dispute Resolution and Legal Resource to the poor.

Restorative justice is focused on healing

“Our work is filtered primarily through the lenses of Restorative Justice and Transformative Justice. In any given situation, we are not primarily looking for heads to roll, we are looking to accomplish healing and restoration. We do this by engaging victims and offenders alike in processes where truth and accountability are maximized as a basis for restoration, healing and ultimately behavioural change.”

She proceeded to tell the stories of some of the evictees with whom she had consulted during visits the week commencing 9 Junes – in the torrential rain and cold:

It transpired that the community were not, as should be the case with a Rule Nisi, appraised of or notified of their rights to make representations before the grant of any final order to evict. They being interested parties in this matter. In fact, they being the most significant parties in this matter.

• Jonker was informed by Ses’khona People’s Movement of a 4 month pregnant woman who miscarried her baby the day after being kicked by police and of
• the suicide of a 21 year old man who returned from work to discover all his worldly possessions, and his home itself, destroyed.
• Community leader Xoliswa Masakala related to her that on the day her rights to speak, her right to ask questions were completely derogated and she was brutalized in the process. She was stripped naked and assaulted by police.
• Jonker was given to understand that over the two days of the evictions, the police opened fire, and their fire was not limited to rubber bullets. There exists evidence that live rounds were used.
• Patience Ndlevu was almost 9 months pregnant on the day of evictions. She was at home with her three year old child at the time. When she realized what was happening, she attempted to retrieve identity documents and her child’s birth certificate. The police responded by kicking her in the hip. When Jonker met her almost a week later, she could not walk. Jonker found her lying down and unable to get up by herself.
• Wandile Mpopo is a 28 year old Security Officer. His version is that he awoke to the commotion and went to assist community members in resisting what amounts to complete assault on and derogation of human dignity. In the process of attempts to retrieve his uniform for work, his documents including his Identity Document and Security Certificate and whatever else he could, he was arrested, brutalized by police and later charged with public violence. He was later released on bail of R 500 and has to report at Lwandle police station once a week. When Jonker met him he was in a highly traumatized state with difficulty speaking and visibly trembling. This was some 10 days after the evictions and the day after his release on bail.
• Thabo Mohale is 38 years old and is unemployed with a wife and two children aged 13 years and 11 months respectively. When he heard the police loudspeaker announcement for everyone to leave, he attempted to ask questions like, where must each family go. Shortly thereafter shooting ensued and the community replied, some with the throwing of stones in an attempt to resist. On the day Jonker met him, he described having extreme difficulty sleeping at night. This was some ten days after the evictions and a day after his release on bail of R 500 and his obligation to appear weekly at Lwandle Police Station.
• Bongikosi Siphungu, 19 years old is unemployed. On the day of evictions he had just left his house to go looking for a job. When he realised what was happening, he attempted to retrieve some of his possessions. His attempts to resist what was happening resulted in his arrest. After 9 days in jail, where he says he was beaten, he was released on bail of R 500 and similar bail conditions to the others mentioned. He has lost all his worldly possessions, including his Identity Documents.
• Moseli Masakala, 41 year old husband to Xoliswa, in the midst of what was happening, asked to speak to police. In the process he was brutalized by police and arrested. He also says he asked to see the court order and was shown an interim order. When Jonker consulted with him some ten days after his release on bail on the same conditions as others, he still had pain in his arm.
• Bongani Magaqana, 27, is a security officer studying for a CS Diploma at Unisa. During the evictions he lost everything, including his study material and ID. His arrest also resulted in his failure to appear at a CCMA enquiry for his previous unfair dismissal, which had prejudiced his claim. He was released on bail along with the others and on similar conditions. He described on the day of evictions asking questions of the police, including to see the court order. He says that a Captain Erasmus said “My bro you are asking a lot of shit.” Thereafter he was brutalized and arrested and told by a Captain Potgieter that Africans are “kak people”. He also said that he exhorted the community to not throw stones as the police applied Rules 1,2 and 3 of riot protocol. He says his questions of the police resulted in his arrest and brutalization. He lost absolutely everything he owned.
• Yandise Sogayise, 30, is unemployed. He has a similar story of asking questions, attempting to retrieve possessions, arrest and later release on bail. He told Jonker he got lice and a severe rash in prison. On the day she met him, his hand was still injured from the beatings he says he was subjected to.

Jonker’s notice in this matter was gained via Loyiso Nkhola of Ses’khona people’s rights movement in early June, just after the June evictions.

Rights violated

As a backdrop she stated the following principles as a basis for the submissions:

1. The right to human dignity, a constitutionally enshrined right, is one which in our view is inviolable and not lawfully capable of limitation.
2. The right to life is a constitutionally enshrined.
3. Personality Rights are further protected at common law and in terms of the Constitution and we all have the right to have the physical and psychical aspects of our beings guarded and to be free of physical, psychological or patrimonial loss, harm or injury.
4. Ownership of goods is also a constitutionally enshrined and protected right. The unlawful dispossession of and destruction of goods may amount to theft and damage to property.

Government must meet basic human needs

Jonker read a statement by their appointed attorney in this matter, Krish Jairam:

”It is a greatly significant achievement that our democracy is twenty years old. It is significant that we have basic human needs entrenched as human rights in our constitution - health, housing and education. Within those very provisions is an indivisible and immutable accord that whoever leads our people as a government, whether it is at local, provincial or national level, will do their utmost to meet those basic needs. That we recognise this here and now as a basis of this commission of inquiry will be significant. More so if we allow these rights to filter out the insignificant.

What is insignificant is debatable but what I have recognised, and it amazes me that such circumstances exist, is that the insignificant has become significant. Toll roads have become more important than our right to housing. SANRAL and the City of Cape Town are at odds with each other over toll roads. The City refuses to relocate and house the Lwandle Community in order to keep SANRAL’s tolls out. SANRAL abuses court processes and the police services to oust a community in the middle of winter.

The City’s politicking has become significant even if it is at the expense of a basic human need – housing. SANRAL’s profit margin equally so. Therefore I say insignificant is significant; unimportant is important; irrelevance is relevant; immaterial is material.

Any which way we choose to put it. The powers that be have become unconscionable. This is unacceptable. Such conduct does not accord with our constitution and can only be described as immoral and seditious. The agenda of the constitution has been subverted for political gain and profiteering. That much is clear.”

In closing, Jonker’s plea:

“We as South Africans cannot continue to partake in action that plunges us into further darkness. Peace is not the absence of conflict alone. It is also the presence of justice. We insist on justice. We insist on making right. The fact that families and young children are exposed to this level of inhumanity and brutality cannot be accepted. How can we allow young children to be exposed to and subject to the terror of grown men in full riot gear coming to dismantle and destroy their homes. Violent administrative action keeps us in a downward spiraling cycle of injury and harm on every level. All South Africans must stand together and say no.”

by Elma Pollard