Colenso - peaceful protest - Public Violence - Estcourt Magistrate's Court - Pietermaritzburg High Court - Constitutional Court - Expanding Political Space
SERI represents 12 women in the small town of Colenso, KwaZulu-Natal who were arrested and detained while engaging in a peaceful protest against their municipality in August 2018. The protestors were part of a group arrested after a service delivery protest in which is a main road into and out of the town was blocked for approximately an hour.
The protestors were charged with public violence, denied bail and detained for 60 days in Newcastle, 130 kms away from their children and families in Colenso. After 60 days in custody, the women pled guilty to the charges in order to be released. The women, mostly housewives with low levels of education, argued that they were coerced into pleading guilty and told that if they did, the case against them would end sooner and they would be released to be with their families. The women were sentenced to 200 hours of community service, three years of house arrest and a three-year custodial sentence suspended for five years on condition that they do not commit a similar offence.
SERI became aware of the case after the women had been convicted and in February 2019 filed an application for leave to appeal against the convictions and sentences.
SERI then appeared in the Estcourt Magistrates Court to apply for a suspension of the women’s sentences pending a review of the appeal. The Court suspended the house arrest, suspended sentence, and community service pending the outcome of the appeal in 2020.
On 1 July 2020, the appeal was adjudicated at the Pietermaritzburg High Court through written argument. On 16 July 2020, The High Court dismissed the appeal for the conviction and, substituted the sentence with a -year’s imprisonment which is wholly suspended for three years on the condition that the accused are not convicted of public violence.
On 17 August 2020, SERI petitioned the SCA to appeal the conviction. The principal issue raised in this application is whether a charge of public violence can be sustained in the absence of any actual physical force threatened or applied to any person or any property. SERI argues that a charge of public violence cannot be sustained in the absence of actual violence, or the threat of it. The High Court held otherwise. It concluded that any use of non-violent “force” or any protest action that “invades the rights of others” is capable, in principle, of constituting public violence. This interpretation of the offence will limit the exercise of the right to protest and should be set aside on appeal.
The SCA dismissed the application for leave to appeal against the convictions and upheld the sentences. SERI then petitioned the Constitutional Court for leave to appeal on 11 November 2020. On 24 February 2021, the Constitutional Court handed down an order dismissing the appeal application.
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