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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

Media: ANC can learn a lesson from Moshoeshoe

2006-05-20

27/05/2006 20:32 - (SA)
ANC can learn a lesson from Moshoeshoe
ON 2004, the University of the Free State turned 100 years old. As part of its centenary celebrations, the idea of the Moshoeshoe Memorial Lecture was mooted as part of another idea: to promote the study of the meaning of Moshoeshoe.

This lecture comes at a critical point in South Africa's still-new democracy. There are indications that the value of public engagement that Moshoeshoe prized highly through his lipitso [community gatherings], and now also a prized feature in our democracy, may be under serious threat. It is for this reason that I would like to dedicate this lecture to all those in our country and elsewhere who daily or weekly, or however frequently, have had the courage to express their considered opinions on pressing matters facing our society. They may be columnists, editors, commentators, artists of all kinds, academics and writers of letters to the editor, non-violent protesters with their placards and cartoonists who put a mirror in front of our eyes.

There is a remarkable story of how Moshoeshoe dealt with Mzilikazi, the aggressor who attacked Thaba Bosiu and failed. So when Mzilikazi retreated from Thaba Bosiu with a bruised ego after failing to take over the mountain, Moshoeshoe, in an unexpected turn of events, sent him cattle to return home bruised but grateful for the generosity of a victorious target of his aggression. At least he would not starve along the way. It was a devastating act of magnanimity which signalled a phenomenal role change.

"If only you had asked," Moshoeshoe seemed to be saying, "I could have given you some cattle. Have them anyway."

It was impossible for Mzilikazi not to have felt ashamed. At the same time, he could still present himself to his people as one who was so feared that even in defeat he was given cattle. At any rate, he never returned.

I look at our situation in South Africa and find that the wisdom of Moshoeshoe's method produced one of the defining moments that led to South Africa's momentous transition to democracy. Part of Nelson Mandela's legacy is precisely this: what I have called counter-intuitive leadership and the immense possibilities it offers for re-imagining whole societies.

A number of events in the past 12 months have made me wonder whether we are faced with a new situation that may have arisen. An increasing number of highly intelligent, sensitive and highly committed South Africans across the class, racial and cultural spectrum confess to feeling uncertain and vulnerable as never before since 1994. When indomitable optimists confess to having a sense of things unhinging, the misery of anxiety spreads. It must have something to do with an accumulation of events that convey the sense of impending implosion. It is the sense that events are spiralling out of control and no one among the leadership of the country seems to have a handle on things.

I should mention the one event that has dominated the national scene continuously for many months now. It is, of course, the trying events around the recent trial and acquittal of Jacob Zuma. The aftermath continues to dominate the news and public discourse. What, really, have we learnt or are learning from it all? It is probably too early to tell. Yet the drama seems far from over, promising to keep us all without relief, and in a state of anguish. It seems poised to reveal more faultlines in our national life than answers and solutions.

We need a mechanism that will affirm the different positions of the contestants validating their honesty in a way that will give the public confidence that real solutions are possible. It is this kind of openness, which never comes easily, that leads to breakthrough solutions, of the kind Moshoeshoe's wisdom symbolises.

Who will take this courageous step? What is clear is that a complex democracy like South Africa's cannot survive a single authority. Only multiple authorities within a constitutional framework have a real chance. I want to press this matter further.

Could it be that part of the problem is that we are unable to deal with the notion of "opposition". We are horrified that any of us could become "the opposition". In reality, it is time we began to anticipate the arrival of a moment when there was no longer a single [overwhelmingly] dominant political force as is currently the case. Such is the course of change. The measure of the maturity of the current political environment will be in how it can create conditions that anticipate that moment rather than ones that seek to prevent it. This is the formidable challenge of a popular post-apartheid political movement.

Can it conceptually anticipate a future when it is no longer overwhelmingly in control, in the form in which it currently is and resist, counter-intuitively, the temptation to prevent such an eventuality? Successfully resisting such an option would enable its current vision and its ultimate legacy to our country to manifest itself in different articulations of itself, which then contend for social influence.

In this way, the vision never really dies, it simply evolves into higher, more complex forms of itself. If the resulting versions are what is called "the opposition" that should not be such a bad thing - unless we want to invent another name for it. The image of flying ants going off to start other similar settlements is not so inappropriate.

I do not wish to suggest that the nuptial flights of the alliance partners are about to occur: only that it is a mark of leadership foresight to anticipate them conceptually. Any political movement that has visions of itself as a perpetual entity should look at the compelling evidence of history. Few have survived those defining moments when they should have been more elastic, and that because they were not, did not live to see the next day.

I believe we may have reached a moment not fundamentally different from the sobering, yet uplifting and vision-making, nation-building realities that led to Kempton Park in the early 1990s. The difference between then and now is that the black majority is not facing white compatriots across the negotiating table. Rather, it is facing itself: perhaps really for the first time since 1994. It is not a time for repeating old platitudes. Could we apply to ourselves the same degree of inventiveness and rigorous negotiation we displayed up to the adoption or our Constitution?

Morena Moshoeshoe faced similarly formative challenges. He seems to have been a great listener. No problem was too insignificant that it could not be addressed. He seems to have networked actively across the spectrum of society. He seems to have kept a close eye on the world beyond Lesotho, forming strong friendships and alliances, weighing his options constantly. He seems to have had patience and forbearance. He had tons of data before him before he could propose the unexpected. He tells us across the years that moments of renewal demand no less.

This is an editied version of the inaugural Moshoeshoe Memorial Lecture presented by Univeristy of Cape Town vice-chancellor Professor Ndebele at the University of the Free State on Thursday. Perspectives on Leadership Challenges In South Africa

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