Justice delayed and denied for 12 Kennedy Road accused
May 13, 2010 Edition 1
TOMORROW, 12 men are going to appear in court for the 11th time in nearly eight months. They have yet to be informed of the evidence against them.
"Justice delayed is justice denied" is described as a legal cliché, and my dictionary tells me that a cliché is a saying that has lost its impact through overuse. But for those who suffer the impact of justice delayed directly it is no cliché: the effects are devastating - and should be unacceptable to citizens of South Africa.
The crimes took place on the night of September 26-27, 2009, at the Kennedy Road centre of Abahlali baseMjondolo. Abahlali is a social movement of shack dwellers, founded at the Kennedy Road settlement in Durban, but now spread through much of South Africa with thousands of members.
The Kennedy Road Development Committee, which had earlier negotiated a development plan with the eThekwini municipality, and had also restricted the opening hours of shebeens, had just met when they were attacked by men with pangas and knobkieries, shouting pro-Zulu, anti-Mpondo slogans.
Two people died, 30 houses were burnt, property was looted, the occupants chased out, among them S'bu Zikode, the leader of the movement. They remain in hiding after death threats, and Abahlali now exercises its leadership away from the public eye - underground, as they say.
But the authorities reacted immediately and very publicly. Within 48 hours, on September 28, the office of the Department of Community Safety and Liaison announced that the provincial government had "moved swiftly to liberate a Durban community (Kennedy Road) that had been placed on an illegal curfew..." and "Matters came to a head at the weekend when a group of men brandishing an assortment of weapons... killed two people. Scores of others were injured."
Accompanied by police, the MEC, Willies Mchunu, visited the settlement and a special task team was set up to hunt down the killers, and the promise was made that freedom would be restored to Kennedy Road.
Eight men were already under arrest, and five were arrested later. The charges could not be more serious - public violence, assault and murder. But now, after nearly eight months, they have still not been tried, and neither they, nor their lawyers, nor we the public, know what they did to merit these charges.
The big questions remain unanswered. Who attacked the Abahlali leadership at Kennedy Road, burnt the houses, destroyed property, driving families from their shelters, forcing them to live in hiding? How is it possible that those now under arrest themselves lost their homes in the attack? The provincial authorities publicly announced that Kennedy road had been "liberated".
By whom and from whom? Could it really be that, as Abahlali believes, their attackers had local ANC support and were under instructions to rid Kennedy Road of an organisation that was providing effective support and services for the poor.
As long as answers to such questions are kept from us then the tensions and the misery and injustice with which the violence of the night of September 26 is surrounded grows and spreads, poisoning the lives of all those touched by it.
Consider what has happened in the courts. Since October, 2009, the accused have appeared in court on 10 occasions. At first bail applications were refused because no evidence had been placed before the court.
Then an identity parade was held after the accused had appeared in court. Seven were released on bail, five remained in prison, but the case was postponed into 2010. Five months, six months, seven months, a long time to be under bail conditions, property destroyed, families homeless, difficult to get a job. And a longer time to be in Westville Prison.
On May 4 the case came before the court again. The accused's lawyer asked for copies of the statements upon which the charges were based.
After all, without them, the charges were just "bald allegations". Again no decision was made: the magistrate declared that she was new to the case, had not been provided with information, and postponed proceedings until May 14.
The constitution tells us that the accused have the right "to be informed of the charge with sufficient detail to answer it" (35.3.a) and tried "without unreasonable delay" (35.3.d).
In this case the sufficiently detailed information has not been provided after nearly eight months. As a result, justice has been delayed, and denied, to 12 South Africans who were removed from their homes in September, 2009. Since then they have suffered detention, the loss of liberty, and with their families and dependants, the consequences of deprivation at all levels: jobs, work and income, basic housing, and a safe and secure family life.
And they have as yet only been accused - they wait to be told what they are supposed to have done.
# Jeff Guy is an emeritus professor of history at the University of KwaZulu-Natal.