The politics of faeces

The Democratic Alliance (DA) has tried to get the police in the Western Cape to round up the ANC Youth League "poo chuckers" who have vowed to make the province ungovernable. The police have been derelict in dealing with what is clearly a criminal - not a political - matter, writes Paul Hoffman SC of the Institute of Accountability in Southern Africa.

The Premier of the Western Cape, Helen Zille, has written a long and bitter diatribe concerning the 12 ("at least") incidents since May 2013 of what she calls "faeces attacks" that have taken place in the Western Cape. A small group of protesters have organised themselves to strew faeces around public places like the airport and the entrance to the provincial parliament (both "national key points") in order to make their objection known to being required to use portable toilets by the municipal authorities.

Zille suggests that the campaign is part of an ANC plan to "liberate" the province from the governance of her party. This plan is apparently called "Operation Reclaim". It involves, according to the ANC Youth League, making the province "ungovernable". The province and the city of Cape Town have laid charges of incitement to public violence based on the announcement of the plan and a signed ultimatum dated 27 July 2012 that accompanied it, "but we have heard nothing since" says Zille on 2nd September 2013.

Zille has however taken up the "faeces attacks" with the Minister of Police, the Chief of Police and the Provincial Director of Public Prosecutions, Rodney de Kock. Zille reports that all of these officials who are tasked with the duty of combating and preventing crime through prosecution without fear, favour or prejudice in the case of De Kock and through the investigation of crime via the SAPS, take up the attitude that there is no point in arresting the protesters because they would simply return the next day. This line has filtered through to police personnel on the ground. They threatened to arrest a Democratic Alliance (DA) MP who complained that they were allowing the throwing of faeces to continue unhindered at a protest in Khayelitsha.

Emboldened by police passivity, the protesters now organise the press to attend their protests, they steal plastic receptacles, they disrupt traffic, they endanger the health and welfare of the people unfortunate enough to encounter their activities and they generally make a mess.

Multi-party democracy under the rule of law is not for sissies. Nor is it for anarchists bent on sedition and terrorism. The authors Plaut and Holden, who recently wrote "Who Rules South Africa?", [the wrong question, of course, the Constitution rules South Africa and governance is allowed in a manner consistent with it] remark tellingly at the end of their book: "Anyone can be a democrat in victory; the true test of democratic credentials comes with defeat."

Multi-party democracy under the rule of law is the chosen structure for the New South Africa. The prospect of defeat at the polls is ever present in multi-party democracy. It is what keeps politicians accountable to the people more than any other single factor. The defeat of the ANC in the Western Cape and the constant boast that it is now the best run province in the country (backed up by surveys, statistics and the constant influx of new residents from ANC run provinces) are thorns in the flesh of the ANC. Operation Reclaim, if it exists, is surely a deeply undemocratic response to the will of the people of the Western Cape as expressed during the 2009 elections.

The Zille diatribe has had the effect of prompting the ANC to suspend party membership of seven of the "turd force". The police and prosecutors seem however to be immune to her wailing and gnashing of teeth. Both responses are wholly inadequate, given the serious nature of the problem. It is not a problem that lends itself to a "political solution". It is a problem of criminality of the most serious kind. Not only is the crime involved one that deleteriously affects the residents of the Western Cape who find themselves in the vicinity of a "faeces attack", it is a crime against the state, one which Zille herself has characterised as sedition. There is also the question of whether the activities of the protesters do not fit the definition of terrorism as set out in the 2004 legislation that outlaws activities of the kind here in question. It is not sufficient to require the political party concerned to discipline those bent on sedition in its ranks. This is a matter for the SAPS and the National Prosecuting Authority (NPA) and one which ought to be enjoying urgent attention at the highest level. The attack on the airport was expressly aimed at the economic activities of the province. This is seriously unpatriotic and an infringement of more than the Civil Aviation Act. It certainly fits the legal definition of sabotage and sedition and could also be construed as an act of terrorism.

The province and the city are entitled and obliged to defend themselves against the onslaught unleashed against them. It is not enough to lay charges and wait (in vain) more than a year to hear from the law enforcement agencies about the fate of the charges. The police can be compelled to do their job properly. Independent Police Investigative Directorate (IPID) is there for that purpose. If it is the NPA that is taking far too long to deal with the attack on democracy that the Premier complains of, then the Public Protector is available to investigate its maladministration of its constitutional mandate to prosecute crime without fear, favour or prejudice. It is also open to the province and city to ask for a "nolle prosequi" certificate from Advocate De Kock. This is a device that opens the way to mounting a private prosecution against the criminals who threaten the very existence of multi-party democracy in their pursuit of the alleged agenda to render the province ungovernable. If no "nolle prosequi" certificate is forthcoming then the NPA is obliged to get on with the task of prosecuting those who are alleged to be inciting their followers.

The province and city are also not without civil remedies against the known and named serial offenders - all of whom ought to be interdicted against continuing their campaign, whether or not they are suspended by the political party of whom they happen to be members. A flouting of the interdicts thus obtained would lead to contempt of court proceedings and possible incarceration for failing to obey the order of the court.

Zille complains that the Minister of Police and the Chief of Police both "displayed complete ignorance of their policing mandate". These are serious complaints. The National Assembly should be looking into them as a matter of urgency. A Premier complaining that the Chief of Police does not know what her job entails is a serious matter. The Minister is also accountable to parliament and ought to be made to explain why the Premier is so devastatingly critical of him. It is also open to the province and city to obtain declaratory, mandatory and supervisory relief from the courts in connection with the alleged dereliction of policing duty of which the Premier complains.

If the Premier is not just "poo-liticking" and seriously wishes to secure the safety of citizens in her province and to defend the constitution, both worthy goals, she may be well advised to consider the host of alternatives available to her rather than just moaning about the lack of official response to the "faeces attacks" and what she calls "Operation Reclaim".

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