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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

Inauguration of Prof Francis Petersen as 14th Vice-Chancellor and Rector of the UFS

2017-05-23

Dr Khotso Mokhele, Chancellor of the UFS, robes Prof Francis Petersen as Vice-Chancellor and Rector of the UFS.
Photo: Charl Devenish

“At the UFS, we want to produce graduates for the world, and we need to ensure that we use our knowledge to uplift society”
— Prof Francis Petersen, 14th Vice-Chancellor and Rector of the University of the Free State (UFS)

On Friday 19 May 2017, the University of the Free State (UFS) celebrated the inauguration of its 14th Vice-Chancellor and Rector, Prof Francis Petersen. The formal inauguration was held in the Odeion Theatre on the Bloemfontein Campus. The ceremony was preceded by a week-long welcoming programme on the three UFS campuses.

The guest list included representatives from local and provincial government, vice-chancellors and rectors from across South Africa, and senior members of the university’s executive management.

During the inaugural address, Prof Petersen paid tribute to his predecessors for the role they played in making the university what it is today. This included former rectors and vice-chancellors who attended the ceremony, such as Prof Francois Retief and Prof Frederick Fourie, and Prof Stef Coetzee and Prof Jonathan Jansen who were unable to attend.

Prof Petersen characterised 2015 and 2016 as watershed years for the South African higher-education system. “The Rhodes Must Fall, and subsequent Fees Must Fall student and staff protests challenged us, and re-energised a critical engagement around the purpose of the university in an equal society, both as a site of complicity and as a potential agent for social change,” said Prof Petersen.

He committed himself to developing the UFS into an institution that will have an even greater impact than before.

“This institution I am striving to establish will be one that responds positively to inclusivity, diversity, and transformation, and which can incorporate these values into our curriculum, scholarship, and research in a productive way,” said Prof Petersen.

Prof Petersen emphasised the importance of the three-campus model. “The University of the Free State is ONE university with three campuses: the Bloemfontein Campus, our South Campus, and the Qwaqwa Campus. I am committed to align the activities of the three campuses, and to integrate our activities to a greater extent.

“We must work together to infuse each campus with the values we have identified as essential if we are to make our mark as a united University of the Free State: academic excellence, diversity and inclusivity, and innovation.”

The Chancellor, Dr Khotso Mokhele, had the honour of handing over the gown to Prof Petersen. Prof Lis Lange, Vice-Rector: Academic, explained the relationship between the university and the Basotho people, and how this relationship is honoured through the official procession gowns of the UFS. The Basotho blanket is worn by kings, and the university therefore hopes that the symbolism of the gown would be a source of inspiration to Prof Petersen.

The event was concluded by congratulatory messages from former colleagues and the President of the Student Representative Council on the Bloemfontein Campus, SK Luwaca. The event was elegant and graceful – the inaugural address was thought-provoking and inspiring.

Official Inauguration Ceremony:

19 May 2017
Bloemfontein Campus

Description: Official Inauguration photo small Tags: Official Inauguration photo small

"I challenge you to dream big and do big." - Prof Petersen

Photo Caption: Dr Khotso Mokhele, Chancellor of the UFS, robes Prof Francis Petersen as Vice-Chancellor and Rector of the UFS.
Photo: Johan Roux

Short biography of Prof Francis Petersen
Inaugural address: 19 May 2017
Transcription of the ceremony
Photo Gallery
Video

Welcoming Ceremonies:

The week of 11-19 May 2017 was one of the highlights in this year’s calendar for staff and students of the University of the Free State (UFS), with various ceremonies taking place to welcome Prof Francis Petersen – who assumed his duties on 1 April 2017 – as the 14th Vice-Chancellor and Rector. The festivities culminated in the official inauguration ceremony at the Bloemfontein Campus on 19 May 2017.

The Qwaqwa Campus welcoming ceremony took place on Thursday 11 May 2017, attracting a wide spectrum of community leaders from the area. Prof Petersen was welcomed by representatives from the two trade unions, National Education Health and Allied Workers Union (Nehawu) and UVPERSU, as well as representatives from the Student Representative Council (SRC), the Thabo Mofutsanyana Education District, and the House of Traditional Leaders. Paramount Queen Mopeli of the Bakoena Royal House bestowed a special honour upon Prof Petersen by clothing him in a traditional Basotho blanket and hat. She said, "From our heart of hearts, welcome, Prof Francis ..., and all Godspeed during your tenure."

The South Campus in Bloemfontein hosted a welcoming ceremony for the new Vice-Chancellor and Rector on 18 May 2017. The ceremony included a number of vocal performances and messages from various stakeholder groups. The same afternoon, the Institute for Reconciliation and Social Justice (IRSJ) also facilitated a panel discussion, titled Diversity, inclusivity, and social justice and the renewed call for decolonisation, in the Albert Wessels Auditorium (AWO) on the Bloemfontein Campus.

The welcoming ceremonies culminated in an event in the Callie Human Centre on Friday 19 May 2017 at the Bloemfontein Campus, with a number of performances by musicians associated with the UFS, marimbas, drum majorettes from Jim Fouche Secondary School, the Grey College Gumboots, and school choirs from Eunice Secondary School, Brebner Primary School, and Willem Postma Primary School. Representatives from key stakeholders such as Nehawu, UVPERSU, the Campus Ministries Forum, SRC, Alumni, Convocation, and the UFS Council had the opportunity to convey their messages of welcome to Prof Petersen.

The formal inauguration ceremony took place in the Odeion Theatre on the Bloemfontein Campus the same day.

Qwaqwa Campus ceremony:

11 May 2017
Qwaqwa Campus

"Qwaqwa Campus is the perfect laboratory for sustainable sciences.” – Prof Petersen

Photo caption: Paramount Queen Mopeli of the Bakoena Royal House with Prof Petersen and his wife, Cheslyn.
Photo: Mamosa Makaya

Photo Gallery
Video

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Transcription of the ceremony

South Campus ceremony:

18 May 2017
South Campus

"South Campus: you aspire excellence, adding to diversity and you are innovative in what you do." - Prof Petersen

Photo caption: Flag bearers and drummers walking to the Madiba Arena.
Photo: Hannes Pieterse

Photo Gallery

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Transcription of the ceremony

Bloemfontein Campus panel discussion:

Panel discussion: Diversity, inclusivity and social justice and the renewed call for decolonisation
18 May 2017
Bloemfontein Campus

Description: Panel discussion 18 May 2017 Tags: Panel discussion 18 May 2017

"The UFS should be a place of belonging for everyone." - Prof Petersen

Photo caption: from left: SK Luwaca (SRC President, Bloemfontein Campus), Prof Elelwani Ramugondo (UCT), Prof Francis Petersen (UFS), Prof Melissa Steyn (WITS), Prof Andre Keet (UFS)
Photo: Lelanie de Wet

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Transcription of panel discussion

Bloemfontein Campus ceremony:
19 May 2017
Bloemfontein Campus

Description: Bloem welcoming ceremony on 19 May 2017 Tags: Bloem welcoming ceremony on 19 May 2017

"I can just say, Wow! I've experienced a lot during the welcoming functions on all three campuses." - Prof Petersen

Photo caption: Prof Francis Petersen, Vice-Chancellor and Rector of the UFS
Photo: Rulanzen Martin

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Transcription of the ceremony

Photo gallery of Inauguration and Welcoming Ceremonies

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