The minister should surely know that persecution is illegal and unconscionable in SA

Minister in the presidency Khumbudzo Ntshavheni has been widely quoted as saying of the illegal miners trapped in a Stilfontein mine: “You want us to send help to criminals? You want us to send help to criminals, honestly?… We are not sending help to criminals. We are going to smoke them out. They will come out. We are not sending help to criminals. Criminals are not to be helped, criminals are to be persecuted.”

The minister is surely aware that these alleged criminals, like everyone else, have guaranteed human rights under the Bill of Rights. These rights include the rights to life, dignity, bodily and psychological integrity, food, water and shelter as well as equal treatment under the law.

All those accused of crime have a multitude of rights in the longest section in the Bill of Rights, section 35. These provisions exist to ensure that the presumption of innocence is respected and that fair trials precede any finding by a court of law (not a minister of state) that any person is guilty of any crime with which they are charged. Fair trials include the right to appeal an adverse finding.

The state, of which the minister is a functionary, is obliged to respect, protect, promote and fulfil all the rights in the Bill of Rights. Any failure to do so is conduct that is regarded as invalid and therefore unconstitutional under section 2 of the constitution.

As the minister has sworn an oath or affirmed that she will uphold the constitution, she should consider withdrawing her remarks forthwith. She should surely know that persecution is illegal and unconscionable in SA.

It is the gross shortage of jobs in our failing economy that drives the unemployed to resort to what may be illegal mining. They feel the need to keep body and soul together and to feed their families. If those trapped in the mine ever see the inside of a courtroom, it will be open to them to raise a plea of necessity: “we mine or we die of starvation”.

This tactic succeeded for the wives and mothers from the Transkei who illegally took up residence in urban areas in the apartheid era to be with their breadwinners in preference to dying of starvation back home.

If the plea of necessity of the miners succeeds they will not be criminals at all, ministerial tantrum notwithstanding.

Paul Hoffman
Director, Accountability Now