8 January 2013

Filing of a complaint With the Public Protector Adv. Thuli Madonsela

Dear Adv. Madonsela

Filing of a complaint against the Minister of Police, Mr. Nathi Mthethwa

On behalf of the civil rights organisation, AfriForum, I would hereby like to file an official complaint of misconduct against the Minister of Police, Mr. Nathi Mthethwa. The complaint deals in particular with attempts by the office of the honourable minister, to declare a peaceful protest march, hosted by AfriForum, illegal. At least one representative of the Department of Police also attempted to blackmail our organisation on the same matter, to which the Minister will have to be held accountable. We view the attempts of the office of the minister in a very serious light, as it amounts to political interference by die minister on a matter where he was supposed to act in the interest of the public at large.

The details of the proceedings that led to the complaints are stipulated as follows:

1. On 23 October 2012 I called Zweli Mnisi, the spokesperson for the Minister of Police. I informed Mr Mnisi about a march for the prioritising of farm attacks, that was scheduled to take place on 1 December 2012, (see details of the march below) and kindly requested a confirmation letter that the minister or one of his representatives will accept our memorandum on the said day. Mr Mnisi responded by stating that they are not comfortable with our plans. He suggested arranging a meeting between AfriForum and the minister of police, on the condition that we discontinue our planned march. He used the words: “We don’t want AfriForum creating headlines on this matter.” I explained to Mr Mnisi that we would agree to meeting with the minister, but that the possibility of such a meeting of which the outcome would be unpredictable, is not sufficient to discontinue the plans for the march. I did however give an undertaking

that we would discontinue the march if the minister were to agree that farm murders should be treated as a priority crime. Mr Mnisi also indicated that he was not aware of any previous correspondence from AfriForum on this matter.

2. On the 24’th of October I sent Mr Mnisi an e-mail with a formal letter, explaining our concerns about farm attacks, what we require of the Department of Police, our plans for the 1’st of December and attachments of previous correspondence between AfriForum and the office of the Minister of Police. The letter is attached hereto as Annexure A. The earlier correspondence that was mentioned in the letter is available on request. Mr Mnisi did not respond to the letter and did not provide a confirmation of receipt thereof.

3. On the same day, 24 October 2012, AfriForum filed an official notice under the Regulation of Gatherings Act (act 205 of 1993) with the Tshwane Metro Police’s Events Department, that a public gathering in the form of a protest march was planned to take place on the 1’st of December 2012, from Church Square in Church Street, to the Minister of Police’s office in Pretorius Street. The march was about rural safety and the department of police’s lack of action to stop farm attacks in particular (the notice is attached as Annexure B).

4. On 26 October 2012 I sent another e-mail to Mr Mnisi, asking for a response, to which he did not reply.

5. On 29 October 2012 I sent the following SMS to Mr Mnisi: “Please confirm whether you have received my e-mails last week. Regards, Ernst Roets, AfriForum”. Mr Mnisi responded with: “Yes I have, we are trying to secure a date for a meeting. Will keep u posted. Rgds, Zweli.”

6. On 8 November 2012 I sent another e-mail to Mr Mnisi, stating that we are still waiting for him to provide us with a confirmation letter that the minister will receive our memorandum. In the event of Mr Mnisi not understanding the extend of the Regulation of Gatherings Act, I also explained that the minister’s refusal to provide such a confirmation letter will not render the march illegal and that we will

continue with the march to the minister’s office, regardless of whether such letter is provided or not. In the case of a refusal to accept the memorandum, we will then read the memorandum aloud in the street outside the minister’s office. I also attached the notice that we filed with the Tshwane Metro Police to my e-mail. The e-mail is attached hereto as Annexure C. Mr Mnisi did not respond to my e-mail.

7. On 12 November 2012 I sent another SMS to Mr Mnisi: “I sent you an e-mail requesting a confirmation letter that you will accept our memorandum on the 1st of December. Regards, Ernst Roets, AfriForum”. Mr Mnisi did not reply.

8. On 13 November 2012 I sent another SMS to Mr Mnisi: “Please respond to my request for a confirmation letter for accepting of a memorandum on 1 December.” Mr Mnisi then replied: “I will speak to the Minister & revert. I cud not arrange meeting with u last week because of other engagements in Parliament.” Mr Mnisi did not revert as promised.

9. On the 14’th of November 2012 I sent another e-mail to Mr Mnisi, requesting a confirmation letter, to which Mr Mnisi did not respond. The e-mail is attached as Annexure D.

10. On 19 November 2012 I called Mr Mnisi again. He did not take the call, but responded with an SMS, requesting that I send him an SMS.

11. On the same day, I called the Tshwane Metro Police about our planned march, to determine if we should arrange a meeting to discuss our plans and to ensure that everything is done in accordance with the relevant legislation. I spoke to sergeant Lorraine Mamadise, who informed me that the Metro Police couldn’t find any fault with our planned march, but that we still needed to hold a meeting to discuss the logistics of the march.

12. On 20 November 2012 I sent another SMS to Mr Mnisi: “Can we expect a confirmation letter for our march on 1 December, as requested? Ernst Roets, AfriForum”.

13. Shortly after sending an SMS to Mr Mnisi and on the same day, I called Metro Police once again to follow up on a date for the planned meeting. Upon reaching sergeant Mamadise, she told me that they had just received a phone call from what she referred to as “top management”, who informed them that our march could not continue and that it was to be declared an illegal gathering. I asked what the reasons for the prohibition of the march were, to which sergeant Mamadise said that she was not aware of the reasons for this interference. I then suggested that we postpone the march, but was informed that their instructions were that the march couldn’t be postponed and that AfriForum will not be able to march on the matter “until further notice”. I saw this as an unacceptable infringement on our rights to freedom of expression (section 16 of the Constitution) and more particularly, to freedom of assembly, demonstration, picket and petition, as enshrined in section 17 of the Constitution:

“Everyone has the right, peacefully and unarmed, to assemble, to demonstrate, to picket and to present petitions.”

14. On 21 November 2012, our attorneys served the ministry of police and the City of Tshwane Metropolitan Police with a letter of demand, indicating that the conduct of the ministry of police amounted to an abuse of power and a violation of our rights and that we intend taking the matter to court, should a sufficient written response not be provided by 17:00 on the same day. The letter is attached hereto as Annexure E. Mr Mnisi responded by denying that he ever said that he intends to prevent the demonstration from taking place “at any cost”. His response is attached hereto as Annexure F.

15. On 27 November 2012, I met Touch Mashaba, a representative in the office of the MMC for Police. During the meeting I repeatedly asked Mr Mashaba to provide us with reasons why the march could not continue. He wasn’t able to provide any such reasons, nor was he able to indicate why the march couldn’t continue at a later stage. I explained that AfriForum has a clean track record when it comes to public gatherings and that prior experience with AfriForum could only serve as a motivation that the march could continue. Mr Mashaba further asked whether we would be interested in meeting with the

National Police Commissioner about our concerns on farm attacks, to which I responded with great interest. He then stated that such a meeting could only be arranged on the condition that we discontinue our protest march, to which I responded that it is already too late, as the march has already been marketed and was due to take place in four days. Mr Mashaba then stated that in the event of AfriForum attempting to continue with the march, we can be ensured that a meeting with the Police Commissioner would not be arranged. I saw this as a blatant abuse of power that even amounted to blackmailing. Mr Mnisi’s earlier conduct also bordered on blackmail, as he made it clear that a meeting with the Minister of Police could be arranged on the condition that we discontinue the march. Neither Mr Mashaba, nor Mr Mnisi accepted our argument that the march couldn’t be discontinued based on an undertaking that a meeting, of which the outcome is unpredictable, might be arranged, but that we would rather discontinue our march after such a meeting has taken place and proven to be fruitful. Mr Mashaba refused to provide me with any further details about his position in the department or where I can contact him and only stated that he will contact me if there is a need for further communication. He did not contact me again.

16. Our case was heard before the Gauteng North High Court on 29 November 2012. A declaration that no fault could be found with our formal notice was provided and that we could continue with the march. The court order is attached hereto as Annexure G.

17. On the following day, 30 November 2012, I finally met with the relevant people at the Tshwane Metro Police. During the meeting, the panel unanimously agreed that no fault could be found with our planned march and it was stated that the march was declared illegal prior to the court proceedings, as a result of interference by die Department of Police and presumably by the office of the minister of police. Our planned march was also approved during the meeting. Upon dispersal, I was however expressly informed that our march is approved on a preliminary basis, but that based on the internal history of this particular matter, we should not be surprised if the office of the minister will attempt once again to prevent the march from continuing.

18. Upon closing time at the same day, I did not receive any further correspondence from the Metro Police, who were supposed to provide me with a written confirmation that our march could continue. In the light of the meeting that was held earlier the day, I assumed that there would not be a problem with continuing with the march.

19. On 1 December 2012 we hosted that march. Despite the fact that hundreds of people participated in the march, as was predicted earlier, I could only find two police officials in the area, who did not know about the march. I then informed them of the situation and showed them the court order, indicating that we could continue with the march. In reaction to this, they attempted to control the traffic in the CBD so that we can continue with the march. I am afraid that the service and protection that we received by the SAPS on the said day was not near sufficient and I was concerned for the safety of the protesters, as we were marching in the streets of the CBD.

20. On 3 December 2012 I checked my e-mails again and found a formal letter from Senior Superintendent William Mohlala of the Metro Police. The letter had been sent to me on the evening before the march. It stated that the march was “not approved” and that it would be an illegal gathering. The motivation for this declaration was stated to be that “Police management” told Metro Police that they were never informed about our intention to picket outside their office. In the light of the information stated in this complaint and the attached Annexures, a notion that the Police management was not informed about our plans is, with respect, a blatant lie and once again an abuse of power. The letter is attached hereto as Annexure H.

21. I regard the events that led and that followed on 1 December 2012 as a series of violations of our rights, especially the rights to freedom of expression, the right to protest and the right to fair administrative action. Furthermore, it is clear to me that the conduct of the minister of police, through his representatives, amounted to maladministration, abuse of power and even blackmailing. I am afraid that our plans to march on an issue of crime has been politicised by the minister of police to such an extent that active steps were taken to prevent us from exercising our constitutional rights. Given the circumstances, it is

not farfetched to conclude that the minister is not only indifferent to South Africa’s farm murder catastrophe, but that his department is prepared to abuse its power to prevent the public from speaking out about it.

22. In the light of the abovementioned information, I am filing this formal complaint against the minister of police. I kindly request that a declaration be provided by die Public Protector that the Minister’s conduct did in fact amount to an abuse of power and a violation of our rights. A recommendation on how the matter can be dealt with moving forward from here would also be appreciated.

With kind regards,

Ernst Roets Deputy CEO AfriForum Cell: 082 264 0953 Tel: 086 10 200 30 Fax: 012 664 1281

Annexures A Letter to Mr Zweli Mnisi (2012-10-24) B Notice of Gathering (2012-10-24) C E-mail to Mr Zweli Mnisi (2012-11-08) D E-mail to Mr Zweli Mnisi (2012-11-14) E Attorneys letter (2012-11-21) F Court order (2012-11-29) G Metro Police Declining Letter (2012-11-30)