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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 

 

News Archive

Media: Sunday Times
2006-05-20

Sunday Times, 4 June 2006

True leadership may mean admitting disunity
 

In this edited extract from the inaugural King Moshoeshoe Memorial Lecture at the University of the Free State, Professor Njabulo S Ndebele explores the leadership challenges facing South Africa

RECENT events have created a sense that we are undergoing a serious crisis of leadership in our new democracy. An increasing number of highly intelligent, sensitive and committed South Africans, across class, racial and cultural spectrums, 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. We have the sense that events are spiralling out of control and that no one among the leadership of the country seems to have a definitive handle on things.

There can be nothing more debilitating than a generalised and undefined sense of anxiety in the body politic. It breeds conspiracies and fear.

There is an impression that a very complex society has developed, in the last few years, a rather simple, centralised governance mechanism in the hope that delivery can be better and more quickly driven. The complexity of governance then gets located within a single structure of authority rather than in the devolved structures envisaged in the Constitution, which should interact with one another continuously, and in response to their specific settings, to achieve defined goals. Collapse in a single structure of authority, because there is no robust backup, can be catastrophic.

The autonomy of devolved structures presents itself as an impediment only when visionary cohesion collapses. Where such cohesion is strong, the impediment is only illusory, particularly when it encourages healthy competition, for example, among the provinces, or where a province develops a character that is not necessarily autonomous politically but rather distinctive and a special source of regional pride. Such competition brings vibrancy to the country. It does not necessarily challenge the centre.

Devolved autonomy is vital in the interests of sustainable governance. The failure of various structures to actualise their constitutionally defined roles should not be attributed to the failure of the prescribed governance mechanism. It is too early to say that what we have has not worked. The only viable corrective will be in our ability to be robust in identifying the problems and dealing with them concertedly.

We have never had social cohesion in South Africa — certainly not since the Natives’ Land Act of 1913. What we definitely have had over the decades is a mobilising vision. Could it be that the mobilising vision, mistaken for social cohesion, is cracking under the weight of the reality and extent of social reconstruction, and that the legitimate framework for debating these problems is collapsing? If that is so, are we witnessing a cumulative failure of leadership?

I am making a descriptive rather than an evaluative inquiry. I do not believe that there is any single entity to be blamed. It is simply that we may be a country in search of another line of approach. What will it be?

I would like to suggest two avenues of approach — an inclusive model and a counter-intuitive model of leadership.

In an inclusive approach, leadership is exercised not only by those who have been put in some position of power to steer an organisation or institution. Leadership is what all of us do when we express, sincerely, our deepest feelings and thoughts; when we do our work, whatever it is, with passion and integrity.

Counter-intuitive leadership lies in the ability of leaders to read a problematic situation, assess probable outcomes and then recognise that those outcomes will only compound the problem. Genuine leadership, in this sense, requires going against probability in seeking unexpected outcomes. That’s what happened when we avoided a civil war and ended up with an “unexpected” democracy.

Right now, we may very well hear desperate calls for unity, when the counter-intuitive imperative would be to acknowledge disunity. A declaration of unity where it manifestly does not appear to exist will fail to reassure.

Many within the “broad alliance” might have the view that the mobilising vision of old may have transformed into a strategy of executive steering with a disposition towards an expectation of compliance. No matter how compelling the reasons for that tendency, it may be seen as part of a cumulative process in which popular notions of democratic governance are apparently undermined and devalued; and where public uncertainty in the midst of seeming crisis induces fear which could freeze public thinking at a time when more voices ought to be heard.

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 be seen to have become “the opposition”. The word has been demonised. In reality, it is time we began to anticipate the arrival of a moment when there is no longer a single, overwhelmingly dominant political force as is currently the case. Such is the course of history. The measure of the maturity of the current political environment will be in how it can create conditions that anticipate that moment rather than seek to prevent it. We see here once more the essential creativity of the counter-intuitive imperative.

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 is currently, 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 in different articulations, which then contend for social influence. In this way, the vision never really dies; it simply evolves into higher, more complex forms of itself. Consider the metaphor of flying ants replicating the ant community by establishing new ones.

We may certainly experience the meaning of comradeship differently, where we will now have “comrades on the other side”.

Any political movement that imagines itself as a perpetual entity should look at the compelling evidence of history. Few movements 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 ’90s. 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. Could we apply to ourselves the same degree of inventiveness and rigorous negotiation we displayed leading up to the adoption or our Constitution?

This is not a time for repeating old platitudes. It is the time, once more, for vision.

In the total scheme of things, the outcome could be as disastrous as it could be formative and uplifting, setting in place the conditions for a true renaissance that could be sustained for generations to come.

Ndebele is Vice-Chancellor of the University of Cape Town and author of the novel The Cry of Winnie Mandela

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