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Charges against Frederick Mhangazo for Cape Town fire criminalise poverty

07 May 2021 | Story Keitumetse Maake and Nombulelo Shange

A wildfire hit Cape Town hard in April and no doubt, the financial, social, health and ecological impact of it will be felt for a long time to come. The fire moved from the mountain and leapt close to the suburbs, destroying homes, colonial memorials, businesses, student residences and a library at the University of Cape Town.

One of the people arrested for the fire, is 35-year-old Frederick Mhangazo, who is said to be homeless. He was initially arrested on charges of arson. Mhangazo’s lawyer, Shaun Balram reported that the charge was later changed to contravening the National Environmental Management Act (Nema). But the question must be raised: was arson a fitting charge in the first place? Why did the state rush to try and charge him on such a serious charge, an offence which would have potentially carried a 15-year conviction?

Arson is a common-law offence which is an aspect of the common-law crime of malicious damage to property. While various definitions have developed over time, the definition which most widely encompasses the full nature of the crime, as indicated in the approach followed in a recent Supreme Court of Appeal case, State v Dalindyebo, is by legal scholars, John Milton and Jonathan Burchell.

They explain that arson is the act of unlawfully setting an immovable property or structure on fire with the intent to injure another or defraud another. The immovable property or structure may be owned by another or even belong to the accused himself. The injury caused to another may include injury to the interests of the community or even injury of insurable interests.

In order to successfully prosecute the crime, the following elements must be proven;

(i) setting of the fire, meaning that a structure must burn with damage resulting from burning;

(ii) the structure must be immovable property, including but not limited to land or a building;

(iii) the act must be unlawful, meaning that there is no justification or grounds excusing the act;

(iv) intention, the accused must have intended to set the structure on fire and intended to cause proprietary injury to the immovable property and / or damage the interests of another.

What about Mhangazo and people like him

Our case law has emphasised the importance of establishing the intentions of the accused, explaining that mere negligence does not suffice in proving liability for a crime of this nature. Dolus or intention is what separates the crime from others of the same species.

We place the blame on people like Mhangazo on the odd occasions that we also have to shoulder the burden of poverty because a fire started by a desperate man has destroyed our symbols of wealth. But what about Mhangazo and people like him? What about their loss of dignity that comes as a result of living in a society that normalises the violence of living in poverty while prioritising material wealth over human life? What has also mostly been missing in the outrage is how this fire has affected the poor in the city, once again showing the rot in our society, that we care more about destroyed colonial structures than we do about the most vulnerable people and their well-being.

While we tally the cost of the damage and mourn damaged colonial structures that should not have a place in post-apartheid South Africa, we are glossing over the bigger injustice ‑ poverty and homelessness in South Africa and the desperate and impossible decisions many South Africans must make to survive, have food and some level of warmth and safety. This fire is just one example of the impact poverty can have on the people living in it and the rest of society by extension. By charging Mhangazo, we are criminalising poverty. We are punishing those who commit certain acts out of desperation and economic need, rather than address poverty and ensuring more equitable distribution of resources and opportunities. Even the lesser Nema charge is still an injustice, especially if you view it against the contradiction of rich capitalist entities who contravene Nema every day with little or no consequences. EDS Systems business development head, Eckart Zollner, reported last year that: “South Africa’s emission levels are as high as those of the eight-times-larger UK economy.” Much of these emissions come from the mining industry threatening the environment and public health and further adding to poverty.

We criminalise Mhangazo’s actions, rather than deal with the circumstances

French classical Sociology theorist, Emile Durkheim tells us that crime in society is inevitable in reasonably small amounts. It usually speaks more to diversity and differences in socialisation. Subcultural groups do not always fit into the mainstream society and its laws and norms, so clashes exist in that regard and crimes are committed. But when crime rates are excessive, it leads to social decay. The decay reflects more on the society rather than the individuals committing the “crimes”. It shows that the norms and social constructs used to create laws are oppressive and overwhelmingly benefit the rich elite who are more likely to be protected by the legal structures, even when they break laws. We criminalise Mhangazo’s actions, rather than deal with the circumstances that might have led him to start the fire.

In this instance, it would have been very difficult to prove the malicious intentions of the accused given the social context. While many Cape Town residents have called for the context to be ignored, condemning the views of many public interests groups advocating for the protection of the homeless, it is important to note that the requirement of proving intention makes the context all the more relevant. It would have been difficult to argue that a homeless man, who is said to have sited the area where the fire allegedly emanated from as his place of dwelling, had intended to wilfully destroy the same property or had done so with the intention of damaging the interests of others. Nor could it be simply argued that the damage was reasonably foreseeable for someone who had often relied on small fires to keep warm. The social context cannot be ignored where the intention behind the act is such an important element of the crime.

Opinion article by Keitumetse Maake, an Admitted Attorney and a Legal and Compliance Officer in the financial services sector, and Nombulelo Shange, lecturer in the Department of Sociology, University of the Free State

Nombulelo Shange is lecturer in the Department of Sociology, University of the Free State (UFS).

Keitumetse Maake is an Admitted Attorney and a Legal and Compliance Officer in the financial services sector.

News Archive

Inaugural lecture: Prof Robert Bragg, Dept. of Microbial, Biochemical and Food Biotechnology

2006-05-17

Attending the inaugural lecture were in front from the left Prof Robert Bragg (lecturer at the Department of Microbial, Biochemical and Food Biotechnology) and Frederick Fourie (Rector and Vice-Chancellor). At the back from the left were Prof James du Preez (Departmental Chairperson: Department of Microbial, Biochemical and Food Biotechnology) and Prof Herman van Schalkwyk (Dean: Faculty of Natural and Agricultural Sciences). Photo: Stephen Collett

A summary of an inaugural lecture delivered by Prof Robert Bragg at the University of the Free State:

CONTROL OF INFECTIOUS AVIAN DISEASES – LESSONS FOR MAN?

Prof Robert R Bragg
Department of Microbial, Biochemical and Food Biotechnology
University of the Free State

“Many of the lessons learnt in disease control in poultry will have application on human medicine,” said Prof Robert Bragg, lecturer at the University of the Free State’s (UFS) Department of Microbial, Biochemical and Food Biotechnology during his inaugural lecture.

Prof Bragg said the development of vaccines remains the main stay of disease control in humans as well as in avian species. Disease control can not rely on vaccination alone and other disease-control options must be examined.

“With the increasing problems of antibiotic resistance, the use of disinfection and bio security are becoming more important,” he said.

“Avian influenza (AI) is an example of a disease which can spread from birds to humans. Hopefully this virus will not develop human to human transmission,” said Prof Bragg.

According to Prof Bragg, South Africa is not on the migration route of water birds, which are the main transmitters of AI. “This makes South Africa one of the countries less likely to get the disease,” he said.

If the AI virus does develop human to human transmission, it could make the 1918 flu pandemic pale into insignificance. During the 1918 flu pandemic, the virus had a mortality rate of only 3%, yet more than 50 million people died.

Although the AI virus has not developed human-to-human transmission, all human cases have been related to direct contact with infected birds. The mortality rate in humans who have contracted this virus is 67%.

“Apart from the obvious fears for the human population, this virus is a very serious poultry pathogen and can cause 100% mortality in poultry populations. Poultry meat and egg production is the staple protein source in most countries around the world. The virus is currently devastating the poultry industry world-wide,” said Prof Bragg.

Prof Bragg’s research activities on avian diseases started off with the investigation of diseases in poultry. “The average life cycle of a broiler chicken is 42 days. After this short time, they are slaughtered. As a result of the short generation time in poultry, one can observe changes in microbial populations as a result of the use of vaccines, antibiotics and disinfectants,” said Prof Bragg.

“Much of my research effort has been directed towards the control of infectious coryza in layers, which is caused by the bacterium Avibacterium paragallinarum. This disease is a type of sinusitis in the layer chickens and can cause a drop in egg product of up to 40%,” said Prof Bragg.

The vaccines used around the world in an attempt to control this disease are all inactivated vaccines. One of the most important points is the selection of the correct strains of the bacterium to use in the vaccine.

Prof Bragg established that in South Africa, there are four different serovars of the bacterium and one of these, the serovar C-3 strain, was believed to be unique to Southern Africa. He also recently discovered this serovar for the first time in Israel, thus indicating that this serovar might have a wider distribution than originally believed.

Vaccines used in this country did not contain this serovar. Prof Bragg established that the long term use of vaccines not containing the local South African strain resulted in a shift in the population distribution of the pathogen.

Prof Bragg’s research activities also include disease control in parrots and pigeons. “One of the main research projects in my group is on the disease in parrots caused by the circovirus Beak and Feather Disease virus. This virus causes serious problems in the parrot breeding industry in this country. This virus is also threatening the highly endangered and endemic Cape Parrot,” said Prof Bragg.

Prof Bragg’s research group is currently working on the development of a DNA vaccine which will assist in the control of the disease, not only in the parrot breeding industry, but also to help the highly endangered Cape Parrot in its battle for survival.

“Not all of our research efforts are directed towards infectious coryza or the Beak and Feather Disease virus. One of my Masters students is currently investigating the cell receptors involved in the binding of Newcastle Disease virus to cancerous cells and normal cells of humans. This work will also eventually lead to a possible treatment of cancer in humans and will assist with the development of a recombinant vaccine for Newcastle disease virus,” said Prof Bragg.

We are also currently investigating an “unknown” virus which causes disease problems in poultry in the Western Cape,” said Prof Bragg.

“Although disinfection has been extensively used in the poultry industry, it has only been done at the pre-placement stage. In other words, disinfectants are used before the birds are placed into the house. Once the birds are placed, all use of disinfectants stops,” said Prof Bragg.

“Disinfection and bio security can be seen as the ‘Cinderella’ of disease control in poultry. This is also true for human medicine. One just has to look at the high numbers of people who die from hospital-acquired infections to realise that disinfection is not a concept which is really clear in human health care,” said Prof Bragg.

Much research has been done in the control of diseases through vaccination and through the use of antibiotics. “These pillars of disease control are, however, starting to crumble and more effort is needed on disinfection and bio security,” said Prof Bragg.

Prof Bragg has been working in close co-operation with a chemical manufacturing company in Stellenbosch to develop a unique disinfectant which his highly effective yet not toxic to the birds.

As a result of this unique product, he has developed the continual disinfection program for use in poultry. In this program the disinfectant is used throughout the production cycle of the birds. It is also used to ensure that there is excellent pre-placement disinfection.

“The program is extensively used for the control of infectious diseases in the parrot-breeding industry in South Africa and the product has been registered in 15 countries around the world with registration in the USA in the final process,” said Prof Bragg.

“Although the problem of plasmid mediated resistance to disinfectants is starting to rear its ugly head, this has allowed for the opening of a new research field which my group will hopefully exploit in the near future,” he said.

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