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OPINION | Recent looting and destruction show that crime, violence remain a disease in SA
27 July 2021, 4:50 PM

The issue of riots, crime, and violence in South Africa is a growing concern as it presents a significant obstacle to human rights and respect for the rule of law in the country. Where there is unrest and violence in the country it goes without saying that human rights violations are present, if not rife. The recent looting and destruction were unparalleled and must be condemned in the strongest terms. They, however, demonstrate that crime and violence remain a disease in our society that must be cured in order for the country to pursue the visions of a country united in diversity.

Social media platforms provide a powerful mechanism through which the right to freedom of expression, access to information, and robust public debate can be fostered. Conversely, social media has also enabled pathways for false, manipulated, or harmful information to be created, disseminated and amplified by various actors at a scale, speed, and reach never known before.

South Africa has indeed embraced social media in all its forms with 41.9% of the total population being social media users as of January 2021. There is no doubt that the level 4 lockdown under the Disaster Management Act 57 of 2002 that prevents people from gathering in large numbers, placed even more impetus on the use of social media to  and/or disseminate information and bridge constraints to gathering.

Given the fundamental importance of freedom of expression to democracy and the enjoyment of all other human rights and freedoms, South African law affords particularly strong protection to expressions on matters of public interest. The right to freedom of expression enshrined in section 16(1) of the Constitution however does ‘not extend to’ certain forms of harmful expression listed in section 16(2) including the ‘advocacy of hatred …that constitutes incitement to cause harm’. This is further reinforced by the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 which prohibits in section 10 and 12 hate speech and the dissemination of information that unfairly discriminates respectively.

During the riots, some popular figures used social media to encourage violent responses from the public, amongst others.  Where popular figures instigate violence and crime through social media platforms, their actions pervert the incredible contribution that social media can potentially make towards connecting our society in a positive and productive fashion. It is unfortunate that those who have allegedly incited violence through social media also exploit people in vulnerable situations and affect a wide range of human rights, including economic, social, cultural, civil and political rights. This has played out in the recent riots where the circumstances of the poor and unemployed have regrettably been exploited for political purposes.

In response, the Police Minister Bheki Cele confirmed on 13 July that there are 10-12 people that the security cluster is scrutinising for incitement of violence in the current riots. The Democratic Alliance (DA) opened cases against members of the Zuma family, and the Economic Freedom Fighters for stroking public unrest through social media. Hopefully, justice will prevail in these matters and that perpetrators will be held accountable for violations of the Constitution.

The use of social media to incite violence therefore remains prohibited by our laws, and is both a human rights violation, and a criminal offense. The increase in social media usage has brought about the challenge of regulating expression that is hateful and harmful. For example, during the South African Human Rights Commission (SAHRC or Commission) 2017 National Investigative Hearing on Racism and Social Media in South Africa, it was found that reporting mechanisms of social media sites, such as Facebook are not informed by South Africa’s constitutional imperatives. Consequently, when requests by users are made to remove posts that could constitute hate speech, the social media managing entities may not view it as such.

The capability or appropriateness of online platforms acting as “speech police” in order to determine whether certain posts do indeed violate the Constitution remains a problem. However, with collaboration between social media companies and law enforcement authorities it is possible for forensic evidence to contribute to the prosecution of criminals.

In the interim however, a greater responsibility is thus placed on individual users to ensure that they use social media sites responsibly in a manner that does not contravene the Constitution or legislation. Noting this, the Commission has developed, and is in the process of finalising a social media charter. This Charter serves to reaffirm that constitutional rights are equally applicable in the digital world as they are in the real world.  The SAHRC hopes that the Charter will advance social cohesion and catalyse a society united in its diversity as envisaged in the Constitution.

In conclusion, the use of social media to fuel violent protest and lawlessness is problematic and violates our laws. Where such violations occur the public have several remedies available where cases against perpetrators can be opened, depending on the desired outcome, including the South African Police Services and the South African Human Rights Commission. Ultimately, it is vital that the respect for human rights and rule of law be protected.  Article by Commissioner André Gaum & Allan Tumbo

Experts say diabetics at risk of severe COVID-19, urges them not to delay seeking medical help
23 July 2021, 9:30 PM

Health experts are urging people living with diabetes, who have been diagnosed with COVID-19, not to delay in getting medical help should they develop even just a mild form of breathing difficulty.

They say while diabetics are not at greater risk of contracting Covid-19, they are more at risk of developing severe disease or even death.

Scientists estimate that over 50% of South Africans who have diabetes are undiagnosed.

Healthcare specialists say one in four adults in South Africa over the age of 45 have diabetes, making it one of the most pressing health issues in the country. People living with diabetes who develop COVID19 are more likely to be admitted to hospital, more likely to need oxygen in intensive care, and are more likely to die from COVID-19.

But just why are diabetics more prone to severe disease?

“The Ace2 receptor that the virus uses to enter cells is more plentiful in people living with diabetes. People living with diabetes often have a more dysregulated immune response, putting them at risk of more severe infections and developing more severe inflammation. Something that is called a cytokine storm and people living with diabetes are often overweight or obese. They have hypertension and cardiovascular disease and are often older, all of which in their own right have been shown to be risk factors for more severe COVID-19,” says the head of the Groote Schuur Hospital’s endocrinology division, Professor Joel Dave.

A recent UCT study published on the association of diabetes and COVID-19 during the first wave of infections in the Western Cape
showed that of 66 000 people diagnosed with COVID-19, at least 9 000 were people living with diabetes.

“45% of all these people living with diabetes required admission to hospital and if you look at the mortality from COVID-19 during this period, almost 50% were people living diabetes. Interestingly, among the just over 9 000 of people living with diabetes that we diagnosed with COVID-19, about 1 000 were also newly-diagnosed with diabetes and it is thought that in most of them they had pre-existing diabetes,” explains Professor Dave.

People living with diabetes are urged to check their blood glucose regularly, stick to their medications and adhere to a healthy diet.

“High blood sugar has been shown to change some of the proteins in the body that protects us against severe infection in the lungs and that usually protects people against things like blood clots and so forth. And if blood glucose is high, you lose that protection and therefore it is postulated that this is part of the reason for people living with diabetes to have more severe COVID and also more severe rates of death compared to the background population,” says Stellenbosch University Endocrinologist and senior lecturer, Dr Ankia Coetzee.

COVID-19 vaccination is also strongly advised.

“The vaccine has been shown to be as effective in patients with diabetes. There’s no increased risk of adverse effects due to the fact that they have diabetes and it is probably one of the best things individuals with diabetes can do to prevent the severity of COVID-19,” adds Dr Coetzee.

Doctors say while it could be asymptomatic, classic signs of diabetes are increased thirst, frequent urination, especially at night, dizziness and blurred vision.

Tygerberg and Groote Schuur Hospitals are urging people with diabetes to seek immediate medical care if COVID-19 is suspected.

Diabetes at risk of severe COVID-19:

Lawyers of prosecutors accused of enabling state capture dismiss the claims as malicious and baseless
23 July 2021, 8:59 PM

Lawyers of prosecutors accused of enabling state capture have dismissed the accusation against their clients as malicious and baseless.

Advocates Torie Pretorius, KwaZulu-Natal prosecutions boss Moipone Noko, Antony Mosing, Raymond Mathenjwa and Sello Maema among those are accused of aiding malicious prosecutions against public officials fighting corruption.

Head of the KZN-based Cato Manor unit, Johan Booysen, alleged that some of these prosecutors acted at the behest of fired former acting National Director of Public Prosecutions, Nomgcobo Jiba.

Booysen was himself charged for racketeering relating to the alleged extra-judicial killings of suspects by members of his unit. But Mathenjwa and Maema’s legal representative Advocate Tebogo Ramathibe told the State Capture Commission that Booysen and his unit were undeniably responsible for the unwarranted killings of innocent people.

Contradicting reports

The inquiry also heard testimony on the alleged cover-up in the extradition of Zimbabwean nationals, that did not follow proper procedure. This is according to evidence presented by the commission’s legal team this morning.

The commission’s Senior Counsel, advocate Tebogo Mathibedi, read a report on the investigation into the Zimbabwe rendition in 2015.

He said there were two contradicting reports compiled by Independent Police Investigative Directorate (IPID) in relation to this.

In the first report, former IPID head Robert McBride was accused of instructing IPID investigator, Innocent Khuba and IPID investigation head, Matthew Sesoko, to review evidence on the rendition.

The commission hears on testimony extradition of Zimbabwean nationals:

IPID prepared a second report, which recommended that captain Lesley Maluleke together with other police officers be charged with kidnapping and defeating the ends of justice. The report also recommended that generals Anwa Dramat and Shadrack Sibiya face similar charges.

In December 2014, the then Minister of Police, Nathi Nhleko, suspended Dramat and in 2015, Nhleko appointed Werksmans Attorneys to investigate the issue of the two IPID reports with different recommendations.

“A case docket of defeating the ends of justice and fraud was opened against McBride, Khuba and Sesoko. In February 2016, it was recommended that Sesoko and Khuba be prosecuted,” said Mathabibedi.

Advocate Kgaogelo Ramaimela, Senior Counsel, told the commission that McBride misled the commission in 2019 when he gave evidence.

She said although South Africa has no criminal act called on rendition, the country does have laws that could have been used to charge McBride and the other accused, that suggested the crime committed was rendition.

“What Mr McBride failed to tell the commission and the public at large is that the people that were accused of having taking part of the rendition did,” charged Ramaimela.

The Senior Counsell said that legal procedures were not followed in the extradition of the Zimbabwean nationals.

Phahlane wants to clear his name

Former acting national SAPS Commissioner, Lt General Johannes Khomotso Phahlane, also testified on Friday.

Phahlane was represented by his lawyer Johan Eksteen from BDK Attorneys. He told the commission that he just wants to clear his name from allegations made against him at the commission by McBride.

Phahlane says also wants the allegations against him of unlawful practice by police union, POPCRU, be investigated immediately to clear his name.

The former police boss says before April 2016, he had never heard of or met McBride. He came to know McBride when he came to his house in 2016 to introduce himself to him. He says McBride warned him of the then Police Minister, Nathi Nhleko.

Phahlane says he has nothing to fear because he had done nothing wrong. – Additional reporting by Nothando Magudulela

IEC unanimously endorses the Moseneke report which recommends postponement of local polls
23 July 2021, 2:25 PM

The Independent Electoral Commission (IEC)has unanimously accepted the recommendations of the Moseneke report that elections be deferred to February 2022.

The commission says it will now push for the shelving of the polls.

The Moseneke Inquiry had found that the polls wouldn’t be free and fair if they proceed in October as scheduled. It said greater immunity through mass vaccination is a desirable precondition for a safe, free and fair election to be realised.

Former deputy chief justice Dikgang Moseneke had solicited views from the public, political parties, health experts, scientists and electoral role-players as to whether free and fair elections are possible during the COVID 19 pandemic.

Chair of the IEC Glen Mashinini says they will now have a meeting with CoGTA Minister, Dr Nkosazana Dlamini-Zuma, the national treasury as well as political parties to communicate its decision that the elections be postponed.

Mashinini says the commission has also resolved to: “Urgently brief Senior Counsel to launch an application in a court of competent jurisdiction to seek judicial authorisation to conduct the election outside of the constitutionally prescribed time periods. To immediately postpone the upcoming voter registration weekend scheduled for 31 July and 1 August to a later date.”

The application for the postponement of the local polls will go to either the Electoral or Constitutional Court for a final decision.

Mashinini says the new dates for voter registration will be communicated in due course.

He says until a court of competent jurisdiction has determined the application for deferral, all other planned electoral activities will proceed.

IEC briefing in the video below:

EXPLAINER | What you need to know about the Films and Publication Act
23 July 2021, 2:20 PM

Social media is fast becoming a primary source of information for many online users. While some use it for interaction or check the latest trends nationally and globally – others use it to disseminate information as seen with the recent unrest that took South Africa by storm.

A reason why it is prudent to know the limitations that are in place for us as citizens and the consequences thereof.

What is the Films and Publications Act 65 of 1996?

It is a piece of legislation that regulates what individuals, businesses and the media can publish on the internet, social media, written media or any other formats.

This Act is there to protect the rights of persons who are in the business of publication of films, short movies so that their work and content thereof is not used without their consent. This also applies to any videos that are taken in a private setting, for example between a couple or videos such as the ones that were being shared on social media during the post-Zuma incarceration unrest.

The act defines a film as: ‘film’ means any sequence of visual images recorded in such a manner that by using such recording, such images will be capable of being seen as a moving picture, and includes any picture intended for exhibition through any medium, including using the internet, or device.

Therefore, any video that is taken by a private person with a cellular phone falls within the definition of what a film is. It is important to understand this so that a private person should protect themselves from being on the wrong side of the law when distributing certain videos on WhatsApp, Twitter, Facebook, Instagram or any other social media space.

In terms of the Act – distribution is defined as: ‘distribute’[,] in relation to a film, game or a publication, without derogating from the ordinary meaning of that word, includes—
(a) to stream content through the internet, social media or other electronic mediums;
(b) to sell, hire out or offer or keep for sale or hire, including using the internet; and[,]
(c) for purposes of sections 24A and 24B, [includes] to hand or exhibit a film, game or a publication to a person under the age of 18 years, and also the failure to take reasonable steps to prevent access thereof by such a person

Therefore, retweeting a tweet, forwarding on WhatsApp or sharing on Facebook falls within the definition of distribution of a film.

Videos shared during unrest

We have seen the sharing of several videos on social media, some of them depicted the violence that was under way, as a form of a warning to the public. However, some of the footage depicted the intention of other individuals who intended on inciting violence and/or propaganda.

Section 29(1) states that “any person who knowingly distributes a publication which, judged within context-

  1. Amounts to propaganda for war;
  2. Incites to imminent violence; or
  3. Advocates hatred that is based on race, ethnicity, gender or religion, and which constitutes incitement to cause harm,
  4. Shall be guilty of an offence.We have seen on the social media platforms videos wherein certain races were threating to bring harm on people from other racial groups. Such people, should they be caught or identified could find themselves facing the committee who can refer the matter to the National Prosecuting Authority (NPA) for a criminal matter to be opened against the offender.The public is therefore urged to err on the side of caution before distributing any sort of video on their social platforms as this might be seen as distribution, as a result may fall with in the definitions of S 29 (1) – (3) which could result in a person facing a hefty fine or a prison term. – Author Nthabiseng Dubazana from Dubazana Attorneys.



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