33 residents of Thembelihle get bail after 5 nights in prison


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Thirty three residents of Thembelihle informal settlement – including 7 women, 19 men and 5 children – were forced to spend 5 nights in jail after being arrested during a protest.

Despite being arrested on Thursday, 26 February 2015 the residents were not charged until Friday afternoon, February 27. This meant that they could not be brought before a court until Monday, resulting in their spending the weekend in prison.

Arguing at the bail hearing, the State said that it needed 7 days to verify the physical addresses of the resident because it’s difficult to verify addresses for people living in “unnavigable informal settlements”. Eventually, the Magistrate granted bail to all of the accused after hearing arguments from the State and the legal representatives of the detainees, the Socioeconomic Rights Insitute (SERI). However, the residents were forced to spend a fifth night in prison because the cashier was closed to process the payments.

According to the press statement released by SERI after the residents were released, this case was an obvious example of the violation of the protesters’ rights by the police and unlawful arrest. The statement pointed out that the the State had opposed bail for, amongst others, the following people:

  • A 54-year old domestic worker, who is the sole breadwinner for herself and her two schoolgoing children.
  • A woman with a 12-year old son she was forced to leave at home, and whose father is a longdistance truck driver, away for many days at a time.
  • An 18-year old school pupil.
  • Several people with fixed employment and addresses, and no criminal records.

In an opinion piece, which appeared on both the print and digital edition of Business Day on March 5, Frannky Rabkin comments on the arrest of the Thembelihle protesters and writes that justice at the Magistrate’s court is “rough and ready”. Recounting her experience working as a public defender at a Magistrate’s court, Frannky states that “seven days to verify a person’s address — shack or no shack — was the norm. When I asked why the police could not verify the accused’s address in one or even two days, I was met with puzzled bemusement: “They can’t,” was the answer.” She further makes a distinction on the different treatment of the poor and the rich at magistrate’s court, and highlights the different working conditions and workloads between the magistrate’s and Constitutional Court.

Ineffective application of bail impinges on the “right to freedom” that is enshrined in section 12(1) (a) of the South African constitution.

The WJP has done extensive research on the challenges facing Gauteng’s courts when it comes to application of bail. Read the research report here and an outcomes document of a roundtable debate pertaining to the matter, here.

About witsjusticeproject
The Wits Justice Project combines journalism, advocacy, law and education to make the criminal justice system work better for all.

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