In a recent article, Shaeera Kalla raised the issue of ongoing court cases against students arising from the 2015-16 #FeesMustFall movement that swept South African universities.

Her argument, which I agree with, is that “the criminalisation of students seems to be the sole focus of these ongoing trials”. Kalla cites the case of a black student activist sentenced to five years’ imprisonment by a white judge, and argues that this is surely disproportionate – does an activist deserve to have his life ruined for participating in the protests? She makes the point that, while some young people did commit acts of violence that crossed the line of legitimate protest, the vast majority of protesters organised and conducted themselves in a peaceful way.

In her piece, Kalla also raises the question of the behaviour of the South African Police Services (SAPS) at the time of the protests. She says: “There is enough evidence that on a number of occasions the police acted without following due process and many violations were made in terms of their conduct, yet to date, I have heard of no cop or leader of police … being singled out for acts of violence against students.”

I would like to take Kalla’s argument further by drawing attention not only to the high profile trials of student activists, but to the ongoing prosecution of ordinary students, many of whom were not in fact participants in the protests. My concern here is to draw attention to ongoing cases in which large groups of students face a collective charge of “public violence”. Many of these cases derive from a situation in which arrests were inappropriate and (not to put too fine a point on it) wrongful.

One of the aspects of the #FeesMustFall protests which I as an academic found most disturbing, was the way public order police descended onto campuses during times of heightened tension and protest. The way in which they proceeded once there was extremely disturbing. Of particular concern are the actions they took against students who happened to be on campus at the time, living in university residences.

Most of the students currently being tried in large cases on the charge of “public violence” were arrested in their residences during the course of a raid by public order (riot) police. Such a raid can also be described as a klopjag (a notorious but apt term from the days of apartheid). The students involved often had not chosen to get involved in the protests or the #FeesMustFall movement.

Imagine this scenario: one moment you are sitting in your residence room attempting to study for your exam despite the rising noise outside. The next moment your room fills with tear gas, and choking, you rush out into the corridor. You are grabbed by a large policeman and placed under arrest. Alternatively, you are in the shower, or (in one case I know of) sitting on the toilet, and the door is kicked open. You are arrested, your hair dripping wet, in your comfortable pyjamas, given no opportunity to return to your room to safeguard your valuables. In another case I am aware of, a student in the middle of writing a take-home exam made the mistake of venturing out to buy some bread at the tuck shop. He was arrested and charged with a large group of other students.

I have to note, sadly, that in the context of the Western Cape at any rate, the apartheid geographies of the past were strongly in evidence during #FeesMustFall. The residences of formerly white universities in Cape Town were not, as far as I am aware, subjected to such raiding by public order police. This did however occur at both the University of the Western Cape and the Cape Peninsula University of Technology (CPUT).

Public violence is defined as “a public act of violence by an unruly mob”; according to the 1992 Act, it “consists of the unlawful and intentional commission, together with a number of people, of an act/s which assume serious dimensions and which are intended forcibly to disturb public peace and tranquillity or to invade the rights of others” .

How does this apply to students in their residence rooms attempting to study for exams, students busy with their ablutions in the bathroom, students venturing out in the middle of a take-home exam in the hopes of buying a loaf of bread? All were swept up in the arrests. Riot police fired tear gas inside the residence corridors, kicked down doors, and placed students under arrest. Whether or not the students were actually participating in a violent act appears to have been irrelevant.

In one court case I am monitoring, a riot policeman stated under oath that he had been given the explicit instruction to “arrest as many students as possible” – surely an illegal instruction in a chaotic context where many students were living in the residences and were thus unavoidably present as bystanders.

This was the pattern: the klopjag took place at residences, often well into the night; students were arrested indiscriminately, then taken to the local police station and charged as a large group (almost invariably with public violence, occasionally under the Illegal Gatherings Act), before being taken to jail to await bail.

The days and nights they then spent in jails like Pollsmoor were just the start of a long nightmare. These students have subsequently been out on bail for up to three years, with the NPA continuing to prosecute. Often they have not had access to the resources needed to employ good defence lawyers and, as is widely known, the quality of legal aid offered by the courts varies from excellent to extremely poor.

I need to say more about the actual moment of arrest – where the injustice started. The attitude and actions of the riot police who made the initial arrests, make one despair of the very notion of public policing in this country. First, the arrests of the students were accompanied by swearing and very personalized jeering, in addition to beatings. I have spoken at length with young women from the group of 35 students who were living in residence at UWC and arrested in this way on the night of 19 October 2016. Comments made to these young women students as they were pulled out of their residence rooms by the arresting officers and charged at the police station include these:

“You think you’re so clever! Now your lives are over, you’re going to prison. It serves you right! (laughter). You’re going to suffer now, you’ll have criminal records for the rest of your life. You’ll never find jobs( laughter).”

The vitriole behind these remarks is deeply disturbing. Can one read into it a class jealousy which begrudged the young black women students the opportunity they had to study and better themselves in the future? Equally disturbing is the fact that at the police station, the arresting officers made false statements about the students and the circumstances of their arrest, a version which the students had no opportunity to contest.

To add a further layer of trauma, once in the court system, disproportionately large amounts of money had to be raised by sympathisers in order to secure the release of these large groups of students on bail. In all the cases I know of where students appeared at the Bellville Magistrates court after an action by riot police such as that described above, bail was set by the magistrate at R3,000 per student. For the case on 19 October 2016, even though the group of 35 students had been reduced to 24, the amount of money that had to be raised in order for the students to be released from jail was enormous, over R70,000.

Bail, remember, is not intended to constitute a punishment in itself, but rather to secure the attendance of the accused at future court appearances. The setting of bail at R3000 for black students dependent on NSFAS funding was, to my mind, a particularly vicious twist of the knife.

There is no database of students arrested as part of the #FeesMustFall protests, and so it is not possible to know how many are still in the court system. The country has moved on from #FeesMustFall and these students are forgotten. Small numbers of concerned staff still attempting to monitor cases are working in isolation.

A most welcome development in this regard was the decision by the NPA in early March to drop charges against a large group of students arrested in this way on the UWC campus on the night of 19 October 2016 (the “UWC23”).

In terms of large cases, I am aware of several that are still ongoing affecting UWC and CPUT students (excluding the “23” against whom charges have been dropped). Presumably, across the country, there are many more such cases affecting ordinary students – ie not only high-profile student activists – students who in many cases were arrested on spurious grounds. Organisations like Right2Know have shown interest in compiling a database.

My argument here is that an initial injustice is being compounded by ongoing prosecution of these cases by the NPA. When one has done nothing wrong, but has been subjected to months and years of ongoing stress as a result of an impending criminal charge, one is entitled to feel that the system has seriously let you down. As one of the UWC23 said to Groundup: “I felt that I had been cheated, victimised by a system … You always hear how the system fails people. You only understand when you are the victim.”

I urge the NPA to bring these cases to a speedy conclusion. In cases where the state might have actual evidence of public violence, arson and the like, I agree with Kalla that the option of diversion should be offered, so that such students can serve out their time by doing community service to atone for any damage they caused during the protests.

In large cases where the charge is “public violence” and where individual students were arrested under questionable circumstances in university residences, the NPA should drop charges altogether as in the case of the UWC 23. Not to do so is to perpetuate a serious injustice. DM