Attention:

The Prosecutor
Magistrate's Court
Court L
174 Visagie Street

June 3 2009

[By Hand]

Dear Prosecutor

Representation: Prosecution re "Mugabe, go home!" posters

Approximately at 12:00 on 7 May 2009, members of the Tshwane Metro Police in Pretoria charged me for contravening municipal regulations after I, Carl Martin Kriel (ID 6909145101081), put posters of AfriForum with the message "Mugabe, go home!" on lampposts in Church Street.

These posters were part of AfriForum's peaceful protest campaign against the fact that the Zimbabwean human rights violator, Robert Mugabe, had been invited to attend the presidential inauguration scheduled for 9 May 2009 at the Union Buildings, while the Dalai Lama had recently been refused a visa to visit South Africa.

Notices were issued to me, ordering me to appear in Court L (174 Visagie Street) on 22 June 2009, or to pay admissions of guilt to the amount of R5 000.  The reference numbers of the notices are: 07/0 1106127 /4046, 07/0 1106128 /4046, 07/0 1065103 /4046, 07/0 1065104 /4046 and 07/0 1113665 /4046.

Herewith I officially appeal to you to withdraw all of the abovementioned charges against me.  This appeal is based on the following reasons:

1. Mugabe, as violator of human rights and dictator, does not belong in South Africa

The decision to invite the Zimbabwean dictator, Robert Mugabe, to the South African presidential inauguration, undermines all democratic principles, as well as the rights of the victims of the Mugabe regime to, amongst other things, dignity and freedom.  The rights to dignity and freedom are regarded highly according to the South African Constitution, but the invitation to Mugabe creates question marks regarding the South African government's commitment to human rights, and sends the wrong message to the world.

It is therefore a bitter irony that the violator of human rights and enemy of democracy, Robert Mugabe, was welcomed in the country with open arms, while those who protested against this fact in a peaceful manner, are being prosecuted.  If anybody deserves to be prosecuted, it should be Mugabe.

The decision to put up posters with the message "Mugabe, go home!" is justified by the necessity to send a strong message against the suffering that the people of Zimbabwe are subject to because of the actions of the Mugabe regime.

Some examples in this regard are:

• 18 Activists, as well as 2 journalists, have recently been arrested because of political reasons by the security forces of Mugabe;
• Since 2001, approximately 3 000 cases were recorded by NGOs of people being tortured by Mugabe's security forces;
• During Mugabe's Operation Murambatsvina in 2005, a total of 700 000 people were left homeless;
• Since 1998, the average life-expectancy in Zimbabwe has decreased from 55 years to a mere 35 years;
• 50% of Zimbabweans face malnutrition and a shortage of food on a daily basis;
• Zimbabwe's unemployment rate is estimated to be between 80% and 85%;
• 13% of Zimbabwean children die before they reach the age of 5 years and in more than 50% of the cases, their deaths could have been prevented;
• There is no respect for property rights in Zimbabwe; and
• Mugabe clings to power, in spite of the fact that he had lost the previous election.

(Source: THE ZIMBABWE PAPERS: http://www.freemarketfoundation.com/DynamicData/Event_4.pdf ).

It is ironic that the South African government has just relaxed visa requirements for Zimbabweans who are flooding into South Africa, while at the same time, the cause of this humanitarian crisis, namely Robert Mugabe, is being welcomed with open arms in the country.

In the light of all of the above, I firmly believe that it was my own, as well as AfriForum's moral duty to take a stand in a peaceful manner against the visit of Mugabe.

2. Efforts had been made by means of legal avenues to prevent Mugabe's visit

AfriForum, as well as I, did everything in our power to put an end to Mugabe's visit by means of legal avenues.  During April 2009, AfriForum sent urgent missives to the Presidency and the Department of Foreign Affairs, requesting that Mugabe should not be welcomed at the presidential inauguration on the 9^th of May 2009 (these letters are available on request).  Although the Presidency acknowledged receipt, our request fell on deaf ears.

AfriForum and I therefore were forced to follow other peaceful methods in order to take a stand against Mugabe's visit.  Putting up posters presented us with a peaceful option, which would not interfere with the inauguration of the President of South Africa in any way.

3. The municipal bylaws restrict my constitutional right to freedom of speech in an unfair manner

Article 16 of the Bill of Human Rights as contained in the South African Constitution recognises my right to freedom of speech.  This right, just as the other rights contained in the Bill of Human Rights, may according to Article 36 only be restricted if such a restriction proves to be "fair" and "justifiable".  The usual regulations concerning the putting up of posters advertising meetings and gatherings is fair, but the specific stipulations of the bylaws pertaining to posters of a political nature, are unfair.

The Control of Outdoor Advertising Bylaws (2006) of the Tshwane Metropolitan Municipality, under whose jurisdiction the larger Pretoria area falls, stipulates in Article 37 that four categories of posters qualify to be put up.  The "Mugabe, go home!" posters, as posters of a political nature, do not qualify to be regarded as a category 1, 2 or 4 poster.  The mentioned categories respectively make it possible to put up posters that advertise a gathering, promote newspapers' articles and advertise public meetings.

The "Mugabe, go home!" posters, as posters of a political nature, should in terms of fairness resort under Category 3.  This category however is described as, amongst others, "Posters for ... elections ... as well as campaigns by the state and parastatal institutions to promote democracy, ...".  The article therefore allows political parties and state institutions to put up political posters and posters for the promotion of "democracy", but in effect excludes all other institutions in an unfair manner to put up posters that promote "democracy".  This stipulation therefore discriminates against an organisation such as AfriForum, which also has the right to freedom of speech to promote democracy with, for example, "Mugabe, go home!" posters, simply on the grounds that AfriForum is neither a political party, nor a state institution.  This discrimination amounts to an unfair restriction of freedom of speech and therefore is unconstitutional.

If the municipal bylaw had not discriminated unfairly against institutions of the civil society and it would therefore have been possible to have the "Mugabe, go home!" posters approved as a part of the category 3 posters, it would have been possible to avoid this dispute.  Neither AfriForum, nor I deserve to be punished in the light of the unconstitutional and discriminatory stipulations of the bylaw.

4. My prosecution is malicious and politically motivated

The decision of Director Ndumiso Jaca of the Tshwane Metropolitan Police to prosecute me, is malicious and politically motivated.  I am grounding this allegation on the following facts:

• When he arrived at the scene where the posters were being put up, Director Jaca was very aggressive and threatened to arrest the students who were helping me to put up the posters.  This, in spite of the fact that no grounds existed for an arrest.  One of these students, Ernst Roets, is prepared to testify in court regarding Jaca's conduct.  Jaca yelled at us: "We will govern this country!".  As neither I, nor the students displayed any aggression, we found it strange for him to be yelling at us in such an aggressive manner.  Apparently he did not like the message "Mugabe, go home!" and therefore his aggression was ideologically and politically driven.
• Jaca said "I will fine you R1 000 for each poster", after which he proceeding to search the boot of Ernst Roets' car without permission and to count the number of posters in the boot.  When I alerted him to the fact that we cannot be fined for posters in a boot, he charged at me in an aggressive manner and yelled: "I saw it with my own eyes".  I remained calm throughout.  Jaca instructed some of his colleagues to fine Roets for parking his vehicle on the sidewalk.  From the above it became clear to me that Jaca was out to teach us a lesson, rather than to apply regulations.  He wanted to fine us amounts higher than the amounts prescribed by the regulations.  He even wanted to fine us for posters not put up and was looking for more reasons to fine us.  This points to malicious prosecution and victimisation.
• Long after the posters of political parties, such as the ANC and others, should have been removed in terms of the municipal bylaws, they were still - and in some cases even are still - to be seen on lampposts. (Photographs of such examples, as well as of other illegal posters are available on request).  Jaca neither threatened to arrest any officials of the political parties, nor tried to fine them as much as possible.  In shrill contrast, AfriForum's posters were removed upon instruction of Jaca only minutes after being put up, and I was prosecuted.  This serves to confirm my allegation that the prosecution attempt is politically motivated.
• A day after the incident, the Tshwane Metro Police issued a media statement in which they attacked AfriForum and me.  The fact that the Metro Police did not issue attacking statements in response to similar incidents where other institutions and political parties, which had put up political party posters in violation of bylaws, once again confirms that the action against me had been motivated maliciously and politically.
• During a meeting on street name changes which took place in the Pretoria North City Hall on 22 October 2008, Director Jaca shoved me around violently.  This happened as I was trying to identify a supporter of the ANC who had hit another member of the public with a chair during a uncalled-for brawl in the hall.  I made it clear that I had had no part in the brawl, but had merely seen what had happened from where I had been sitting at the back of the hall. The mere fact that I had the audacity to identify an ANC supporter, who had committed public violence, in a calm manner, incited Jaca to aggression towards me.  Subsequently I laid a charge of assault with the SAPS against Jaca.  I believe that this is one of the reasons why Jaca wants to prosecute me at all costs for the "Mugabe, go home!" posters.
• Jaca's political aversion of AfriForum also became evident on 6 April 2009 when he refused to study a written request re traffic problems by AfriForum, as according to him, it was in Afrikaans, which is a "wishy-washy language".  In response, AfriForum submitted a complaint in this regard to the Metropolitan Council's Mayor.  This incident once again serves to confirm that Jaca is conducting a politically-driven vendetta against AfriForum and me.

5. The notices re the alleged contraventions are vague, confusing and contradictory

The notices and other documentation issued to me by the Metro Police officials at the scene, are vague, confusing and contradictory.  A property receipt form (number 01081) was given to me with the details of the posters which had been confiscated.  Details written on the forms, include the numbers of the lampposts on which the confiscated posters, according to the Metro Police, had been.  I also received notices (fines), with the numbers of the lampposts on which the posters had, according to the Metro Police, been.  The lamppost numbers on the property receipt form and those on the notices differ from each other.  For example, I was fined for posters which, according to the Metro Police, had been on lampposts D85, D87 and D83, while these lamppost numbers do not appear on the property receipt form.  On the other hand it is stated on the property receipt form that a poster had been confiscated which had been on lamppost D90, while this lamppost number does not appear on any notice.  I believe that these contradictions in the documentation on their own provide sufficient cause for the prosecution against me to be abandoned.

Should this appeal be unsuccessful, and you decide to proceed prosecuting me, this letter also serves as written notice of my intention to defend the case in court on the 22^nd June 2009 (Court L, 174 Visagie Street).  In principle I cannot pay the fine, but I am committed to paying an amount equal to the fine for welfare assistance to the people of Zimbabwe.

Sincerely

Carl Martin Kriel

CEO: AfriForum

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