The defence in a case involving a March and March activist, Wandile Nsibande has accused police of targeting the applicant, questioning the grounds for his arrest and alleging that officers assaulted him despite an apparent lack of resistance.
The defence challenged the State’s account of events surrounding the applicant’s arrest, arguing that the available video footage did not support the suggestion that the marchers had obstructed traffic or that the applicant had resisted police.
The legal representative, Xolani Zuma, argued that the applicant had asked officers: “What have we done? Why can’t we picket?”
According to the defence, police did not explain why the applicant was being arrested or clearly inform him that he was under arrest.
The advocate further alleged that police vehicles blocked the road while other roads remained open, challenging the allegation that the marchers had obstructed traffic.
The defence argued that the footage showed police had decided to arrest the applicants, rather than responding to resistance or violence from them.
The advocate also alleged that the applicant was assaulted.
These claims formed part of the defence’s challenge to the circumstances of the arrest and the State’s version of events. The defence also challenged the suggestion that the applicant was responsible for violence associated with the protest.
The applicant, according to the defence, disputed being a leader of March and March, saying he was merely a member of the movement.
The advocate argued that March and March had been organising marches for 21 months without organising violent protests.
The defence relied on Section 17 of the Constitution, which protects the right to assemble, demonstrate, picket and present petitions peacefully and unarmed.
The argument was that the applicant’s participation in a protest could not, by itself, justify his arrest or continued detention.
The advocate also disputed the allegations concerning dangerous weapons, arguing that the items in question were traditional weapons.
The defence’s arguments challenge the State’s account, but the allegations and the interpretation of the footage have not been independently established in the material available for this report.
In arguing against keeping the applicant in detention, the advocate referred to a judgment identified in court as S v Tatis.
The advocate submitted: “An applicant cannot be kept in detention pending his trial as a form of anticipatory punishment.”
The argument was that detention should not be used to punish an accused person before the case has been decided.
The defence went further, alleging that the applicant had been subjected to harassment and that police had pursued the group before stopping and arresting the applicants.
The advocate suggested that the sequence of events supported the argument that officers had already decided to arrest them.
The court was also asked to consider an audio recording that the defence said captured an incident at approximately 11pm, when an investigating officer allegedly woke the applicant’s sister and questioned her about withdrawing a charge.
The advocate argued that the recording raised concerns about whether the State was determined to keep the applicant behind bars at any cost.
The State’s response to the specific allegations was not available in the material used to prepare this report.
