[intro]Many students and fellow academics are surprised to learn that there are still, in early 2018, students on trial from the #FeesMustFall protests. While the country has moved on from this time, the arrests that took place at the height of this chaotic period are continuing to play out in the courts.[/intro]
For South African universities and those who work in them, the last few years have been a traumatic time. With the optimistic emergence of the #FeesMustFall movement on most South African university campuses in October 2015, we captured images of young people cheerfully marching, holding up homemade cardboard placards often inscribed with humorous legends – “Zuma Cut the Fees with your Blade” my personal favourite. These rapidly give way to more disturbing images of riot police pursuing fleeing students, smoke, rubber bullets, tear gas, injured students, and calls for “shutdowns” of universities. Security companies, controversially, are brought in to protect staff and property. Securitized campuses and shutdowns become a reality.
During this period, we found ourselves in a contested and painful space both within the university community and the society at large, as the boundaries between just and unjust actions and outcomes blurred and academics felt forced to take sides. In academic space, debates raged about legitimate and illegitimate forms of protest, the presence of often poorly trained private security guards on our campuses, and the actions of riot police when called to campus to ‘restore order’. It was hard to remain clear headed as events unfolded at a dizzying pace.
At the broader level of public debate, there has been little incisive journalism on the protests. What there was, appeared mainly in 2015 and 2016 with everyone having lost interest by 2017 as the country moved on. Also, with so many university campuses for journalists to cover, the larger and better-known institutions such as UCT (University of Cape Town) and Wits (University of the Witwatersrand) got the lion’s share of attention. There was little coverage of events at other campuses, such as UWC (University of the Western Cape). Race and class have played out in disturbing ways in these spaces.
Many students and fellow academics are surprised to learn that there are still, in early 2018, students on trial from this time. While the country has moved on from #FeesMustFall, the arrests that took place at the height of this chaotic period are continuing to play out in the courts.
A common assumption is that, if students were arrested, then there must have been a reason – they must have been involved in rioting or violence or in some way ‘doing something wrong’ in order to warrant arrest. But this is far from necessarily being the case. Many activist students were non-violent, and their arrests and prosecution are deeply problematic. In other cases, such as that discussed here, bystanders were arrested despite not even being supporters of the movement.
This being South Africa, the commonly held view about the student protests and associated arrests is also one inflected by a strong dose of old-fashioned racism. Such a view is evident in the public comments posted on the TimesLive Facebook page, following news that the state has dropped charges against twenty-three students from the University of the Western Cape (UWC) who were arrested and jailed one chaotic night in October 2016 on charges of public violence. See article published by Groundup and picked up by TimesLive.
Before looking at the public comments on the story of the “23”, I need to retell this story – this time from the point of view of an academic who was there and who chose to get involved. There are many other similar cases around the country – this is simply one troubling example, one that I know personally.
Public order policing gone mad
On the night of 19 October 2016, public order police entered the UWC campus due to the ongoing protests that were being carried on by a minority of students who felt justified in setting fires in dustbins, buildings and the like as a means to further their struggle for free higher education. A strong machismo was in evidence during confrontations like these on many South Africa campuses as young men, fuelled by adrenalin and discovering an outlet for their sense of disempowerment in this society, enjoyed pitting their wits and bodies against the often equally adrenaline-filled and inadequately trained police.
On the night in question at UWC, public order (riot) police entered the residences, firing rubber bullets and letting off tear gas canisters – including within the corridors and rooms of the residences – as many students, particularly the young women, cowered in fear and struggled to breathe. Students were forced out of the bedrooms and bathrooms where they had been hiding, both because of the teargas and because police kicked in the doors and dragged them out. There was nowhere one could be safe.
In the middle of the night, many academic staff received frantic text messages from their students begging for help. The UWC campus, isolated at the best of times, was at that time inaccessible due to the prevailing campus shutdown, and many students in the residences (especially but not exclusively women) felt seriously under threat. The raid continued until 3am and there were reports of students who had been beaten by police or who had suffered asthma attacks and for whom timely medical treatment had not been made available as ambulances were prevented from entering the campus.
It was difficult at 1 a.m. to know what to do. Some academics drove down to campus and tried to pick up their students – including postgraduate students from other parts of the world – along Robert Sobukwe Road, opposite the factories and the railway yards. But most students could not get out, and we could not get in. We advised our terrified students to try to lock themselves in their rooms and wait it out.
The following day, as the university boiled, the debate among UWC academics began. Some including myself felt that the frightening actions of the riot police in the campus residences on the night of 16 October should be condemned in the strongest terms, and that the SAPS should be called on to act more responsibly. These academics hoped that the university would publicly condemn this action. This did not occur.
The argument still unresolved, we became aware that in the mayhem of the raid, 35 students including young women had been arrested and taken to the Bellville South police station. As reported in the media, the university and the SRC (Student Representative Council) intervened the following morning, and nine of these students were allowed to go free.
Twenty-five students were to appear in the dock that morning. Yet only twenty-four students were loaded into the people carriers for transportation to the notorious Pollsmoor and Goodwood jails, where they would have to await the raising of bail. One of these students would later be charged separately under a different case number, while the remaining 23 were charged with public violence in one large case. So, what of the ‘missing’ 25th student?
It seems that a young ‘coloured’ student, who had been arrested together with her best friend, a young African woman, was quietly given the option to slip out of the police station and go home. Matters at this early stage were still chaotic enough for this to be possible – the state had still to prepare the dockets and most of the students’ details taken at the police station were incorrect and still being checked. From the very start, this was to be a sickeningly South African story.
I do not know whether it was a policeman or some other person in authority who acted to pluck this particular student out of the long nightmare that the other students were to go through. In a sense that is not the point. The point is that all the black students (the remaining 24) were sent to jail. To be clear: by virtue of being coloured, this young woman was given the choice of either staying with her best friend and going to jail … or slipping off home. In addition to illustrating the arbitrary nature of the arrests, how painful must that decision have been for the young woman to make; how guilty she must have felt at having to abandon her close friend to her fate!
The point is often made that bail ought not to be used as a punishment but should be set at an appropriate level for the means of the accused person – otherwise it in effect acts as a jail sentence in itself. We also know that the student movement had become a key concern for the state, with the Director of Public Prosecutions (National Prosecuting Authority) allegedly instructing magistrates to take a hard line on any student arrests associated with #FeesMustFall. Even so, the bail was set very high and was quite unattainable for students reliant on NSFAS (National Student Financial Aid Scheme).
While students arrested at other institutions were given lower bail amounts, the magistrate presiding that morning at the Bellville Magistrate’s Court had no hesitation in setting bail at an astonishing R3000 per arrested student. The total amount of bail money required for the release of the students on bail was thus in the region of R70 000.
Through the grapevine it had already become clear that the majority of these students were not in fact part of the #FeesMustFall movement at all and had no involvement in any protest action, violent or otherwise. They had quite simply been arrested unjustly. Until bail was paid, these students would stay in Pollsmoor and Goodwood prisons, hardly suitable places for young people many of whom had never been in trouble before.
A minority of staff felt that given the situation of the students, many of whom were from outside the Western Cape, it was important to at least get them out of jail as soon as possible. Frightened parents were calling from remote areas of the Eastern Cape or attempting to travel to Cape Town to find out what had happened to their children.
Other academics disagreed with the efforts to raise bail, arguing that to contribute towards a bail fund for the arrested students was the wrong thing to do because it ‘undermined the students’ own agency’ and was paternalistic: the students themselves could organise to raise bail.
Rejecting this reasoning, a small group of staff decided to work with the SRC and many in this group contributed personally towards the bail fund. Those parents who could afford it, paid bail for their children. As several of the arrested students were studying accountancy, the South African Association of Chartered Accountants agreed to contribute also, and within a week the full amount had been raised.
After surviving seven traumatic nights in jail, the students were released under strict bail conditions which meant that they had to live off campus (they were not allowed to return to the residences) and prepare for their exams there.
Alone in the court system
In the sixteen months since then, the 23, who were in either their first or second year of study when arrested, have faced the ongoing ordeal of a pending criminal charge which has ruined their entire university experience, percolated every aspect of their lives, and led them to the brink of despair at times. The stresses ranged from being required to attend interminable court appearances, in the process missing lectures, tutorials and tests … only to be told that the case was postponed yet again; to the university adding a pending disciplinary charge to their student records (meaning that their academic transcripts were not made available to them so they could apply for vacation jobs and internships). On the legal front, they struggled to find effective representation to assist them in negotiating the baffling court system.
At first, they made little headway in successfully asserting their rights as clients of the lawyers who originally agreed to take the case ‘pro bono’. We were extremely concerned in mid-2017 when these lawyers advised the 23 that their best option would be to apply for ‘diversion’ instead of taking the case to trial. This would have seen the 23 entering a young offenders’ programme such as NICRO and performing community service to atone for their ‘crime’.
Knowing that they were innocent of the charge of public violence and preferring to fight the case in court so that evidence against them could actually be presented and critically challenged, the students refused to consider this seriously. At this point, they exercised their agency and approached the Legal Resources Centre for help.
Thanks to the intervention of the LRC, the students were able to obtain proper legal advice for the first time. They immediately fired the initial lawyers. The latter had not bothered to hold even a single consultation with the students outside of court appearances, or take a single statement from them, and were reprimanded in court by the magistrate for their negligence. Through the efforts of the LRC as well as a state-appointed legal aid defence lawyer, a strong case was prepared for trial.
At the very last moment, just as the case was going to trial on 26 February 2018, the state prosecutor announced that the criminal charge of public violence against the 23 would be dropped.
It must be remembered that during this long ordeal, it seemed to many of the students that their chosen careers (accountancy, law and so on), might well be barred to them. As the magistrate told them at one court appearance, “Your entire futures are at stake”. They had to continue studying and maintaining their high academic grades, in faith that they would ultimately be acquitted of the criminal charge. Their lives were put on hold, jobs opportunities were blocked, money that students and their families didn’t have was spent so that people could get to court, only to see the case postponed yet again.
Dropping the charges may free the students to now go on with their lives, but it does little to salve the trauma and pain. There were, of course, human actors in this drama as well as institutions – but it is doubtful whether anybody is going to apologise.
For me, one of the most troubling impacts is that which is still being felt in the lives of the individual students who were detained, arrested, jailed, bailed (often only thanks to the generosity of concerned staff and others), charged – commonly with ‘public violence’ – and left to confront the state and its legal processes on their own. The case described here is only one case – albeit perhaps the most dramatic, involving the largest number of students – among a number of still ongoing court cases against students. Many of these students have now completed their degrees but cannot find work with the pending criminal charge. The old adage holds here: “Justice delayed is justice denied”.
In a chaotic situation at university residences, with riot police intent on effecting as many arrests as possible including of bystanders, how is it defensible that the resulting court cases have been prolonged and remained unresolved for so long? Why have the affected students not received more support from the people and institutions one would have expected to help them?
The far from nuanced presentation by many media outlets of the events associated with #FeesMustFall protests on South African university campuses, fed an overly simplistic view and a single, undifferentiated story line. In the mind of the public, there appears to be only the enduring image of groups of angry young people – black young people – who trashed university infrastructure and behaved like ‘hooligans’ in their demand for ‘free education’. Amongst the troubling comments posted by members of the public following the dropping of charges are the following: “They all look very happy .. no responsiblity [sic], no consequences for their action”; “They got what they deserved”; “Rubber bullet them.”
The biblical notion of the ‘scapegoat’ comes irresistibly to mind. By arresting these students and subjecting them to a long court case, the state has effectively made these young people our society’s ‘scapegoats’ for the #FeesMustFall movement. They have had to, as individuals, bear the burden of the damage done to university infrastructure during the protests, even though they individually did nothing to inflict such damage.
The idea that many young people present on campus were simply caught up in the events as collateral damage – and I think the word ‘scapegoat’ is both more powerful and more apposite here – is simply not entertained as a possibility. More sadly, it is clear that, in general, the public does not care. In the minds of the commentators on the TimesLive Facebook page, all young black students are by definition guilty. Their guilt lies in their collective identity as black students. In this way of thinking, their existence as individuals, and their individual ‘guilt’ or ‘innocence’, is irrelevant.
The conclusion is irresistible – students like these are our scapegoats as a society for the phenomenon that was #FeesMustFall.
A version of this article originally appeared in Times Select.
Shirley Brooks, an associate professor at the University of the Western Cape, writes here in her private capacity. The views expressed here are hers alone and do not represent those of any institution.