"No Control, she doesn't want to move. She says it's a human rights issue." Developing the Right to Freedom of Movement within a spatial context
05 March 2017
"The standoff continued for what seemed like hours. In truth, it was only a few minutes. By now, there were radioed messages. The men in the house must have been calling for backup. The Security man replied, “It’s a woman. Bravo. She is not doing nothing. Sitting in the car. No, control, she doesn’t want to move. She says it’s a human right issue. I don’t know control. No, control. Properly dressed. No, control. Doesn’t look like that. Sober. I think she was phoning, control. English control. Only English. No, not only English, Zulu also. Me, I speak only English to her….”
What began as my mild refusal to be bullied congealed into something more ominous and ugly. A slow, cold anger rose within myself. I knew I had crossed a threshold.
The radioed exchange stopped. The Security man asked me to please move. He was only doing his job. Now, they were telling him to remove me by force. I replied “We have a problem. I am not going to be told by you or anybody to move. Please, understand this. I have nothing against you or the owner of that house. I am simply parked in the street. I do not owe you an explanation. Now, I may I ask that you leave me alone.”
This is part of an extract from a Facebook post by Nomboniso Gasa, a researcher and analyst in South Africa who works on issues of law, gender, politics, and cultural issues. On that night in September 2016, she experienced what perhaps many others experience in accessing and engaging with public space in South Africa’s cities, and is a lucid portrayal of the prevalence of spatial apartheid which continues to characterize the South African urban environment.
Her experience is emblematic of the extent to which movement is controlled in South African cities. This emerges both from a history of legislated control of movement, as well as a contemporary context of high crime rates and under-resourced policing. This has led to gating practices (in which a street or suburb is cordoned off, and access is policed privately), private policing practices (in which, for example, private police vehicles patrol typically wealthy suburban streets), and community policing through online social media forums (in which, for example, a member of a community alerts other via social media or a group instant messaging platform of a suspicious vehicle in the neighborhood).
How does the law respond to this new form of spatial apartheid? Does it outlaw private security altogether, relying rather on the mechanisms of the South African Police Service in pandering to our senses of insecurity? Does it completely forbid the gating of streets, or does it go even further by mandating that townhouse or gated communities remain open to passing pedestrian traffic? And how does it stop us policing each other based on preconceived notions of what or who constitutes a danger – the 'bravo' male, or the 'bravo' female who speaks English and isiZulu, and who refuses to move because, she says, “it’s a human rights issue.”
This is the first post in a series which tries to provide some answers to these questions. The series will be structured as follows: First, it will develop the right to freedom of movement from one which is understood primarily as facilitating intra-state movement, to one which informs law and policy aimed at enabling movement within the spaces that make up the city. The second part of the series will look at arguments in favor of lawfully limiting the right to freedom of movement, principally through the prism of the right to freedom of security of the person. The third part of the series will look at a constitutional framework in which these two conflicting rights may be balanced. The fourth, and final part of the series will look at what this may mean for policy and law going forward.
But first: How can we begin to develop the Right to Freedom of Movement, as contained in Section 21 (1) of the South African Constitution, within a spatially-oriented context?
Section 21 (1) of the Constitution, which provides simply that everyone has the right to freedom of movement, must be understood with due regard to South Africa’s history of restrictions on movement. Section 10 of the Natives (Urban Areas) Consolidation Act provided that no African could remain for more than 72 hours in a particular area unless he/she was born or resided in the area, worked continuously for one employer for more than 10 years, or was the wife, unmarried daughter or underage son of the African person. Section 29 of the Act allowed for an authority to banish any African deemed undesirable, or whose presence is apparently detrimental to the maintenance of peace and order.
Section 2 (1) of the Natives (Abolition of Passes and Co-Ordination of Documents) Act required Africans to carry ‘passbooks’. These had to be carried at all times, and in terms of section 10(2) could be demanded by a police officer at any time (failing which resulted in imprisonment). Section 8 (1) of the Act had the effect of ensuring that the only occasion an African could enter into a ‘white’ area was if he/she was employed there.
The Group Areas Act was a series of three acts designed to designate certain areas along racial lines. Thus, formerly diverse areas such as Sophiatown in Johannesburg were in 1955 destroyed by the state and rebuilt as purely a white suburb. Its residents were moved to the southwestern urban fringe of the city – those classified as black were moved to Meadowlands, those classified as Indian to Lenasia, and those classified as coloured to Eldorado Park. The impact of this legislation was to create a spatial imaginary in the South African city located across lines of race; you simply did not live in heterogeneous communities because the law channeled you into a very particular space.
Section 21 (1), however, must also be interpreted within the contemporary spatial context of South African cities. In this regard, Clarno and Murray conducted empirical research looking at the practices of private policing in Johannesburg. They note how managers and employees of ‘several security companies’ openly admitted that ‘the definition of “suspicious” is racialised. Whenever they come across “two black males,” security officers are instructed to conduct an investigation.’ They note further from their research how private security officers exercise a discretion in determining whether a person has legitimate business in the area; if not, they are escorted out of the neighborhood. If a person refuses to leave, a variety of intimidation tactics is used, including following their movements, alerting the police, or taking their photograph. Even more alarmingly, the focus group conducted by Clarno and Murray noted how when physical violence is necessary, it is used – both in terms of extracting information from those caught allegedly in the act of committing a crime, and those whose return is not welcome in the neighborhood.
In addition to this more active form of private policing, there is a more passive mode that exists within digital spaces created by residents in a particular area. Anecdotal observations of these digital spaces reflect how this mode of private policing exists primarily through quite strange semantics and involves alerting others to suspicions about various people using the neighborhood in some form or another. This occurs through the use of a reductive and almost militaristic terminology – a ‘bravo’ male to describe a black male, for example. This not only suggests an inherent preoccupation with wanting to categorize those who access and use the area along the lines of race but also suggests a poorly-disguised desire to exclude the other from the invisible scale at which residents feel comfortable.
It is this captivation with defining scale in terms of race which Dirsuweit and Wafer suggest was the genesis of road closures in Johannesburg. They posit that the immediate post-apartheid deconstruction of the city meant that white residents sought to reimagine the scale in which they identified with the city. This occurred in a manner that reiterated the narratives of ‘community self-determination,’ viewing road closures ‘as an attempt to “scale-down” local politics in an attempt to maintain control of spaces of privilege.’
The result is an ingrained desire to control the movement of the other. This has significant implications for the right to freedom of movement in that the right itself is an antithesis to control, and particularly within the contemporary and historical spatial context of the South African city, its limitation should be viewed with circumspection.
Freedom of movement allows for an equality of access to the various opportunities that the city is able to offer. It broadens the city-scale in that the city’s islands of privilege and poverty are submerged. It allows for encounters with others, facilitating a city of difference rather than one that is heterogeneous in its interactions.
There is also a certain infringement of the right to dignity in being able to control who can access a public space. In grappling with dignity, Haysom identifies three distinct concerns which emerge as key elements of the right to dignity: firstly, that dignity implies a level of autonomy for the individual; secondly, that dignity rejects conduct which treats a person as non-human, less than human, or as an object; and thirdly, that dignity sees everyone as having equal worth and value.
In light of the above, we can see a certain objectification of the body in the controlling of a person’s movement through a public space. The ‘bravo male’ is pre-eminently someone whose movements are not to be trusted; he is an object that moves around white spaces, devoid of feelings and experiences that make him human. He has limited autonomy in deciding where he moves, which is decided for him depending on the legitimacy accorded to him by those that control these spaces. In this way, the control of movement strips people of their dignity, and an argument may be made that any perceived need for personal security (as opposed to actual need) outweighs the desire for a society based on equality, freedom and dignity.
It also strips people of their right to the city. The control of movement is, I would suggest, one of the key determinants that bring the right to the city into play in the first place. The control of movement reinforces the repressiveness of dominant strategies and ideologies inherited from a legislated system of spatial apartheid. It stifles the enjoyment of a right to urban life, in which places of encounter and the exchange value of property remain paramount. In this way, it detracts from the city as oeuvre because the production of space is constructed through a consumerist prism of control, rather than the relationships between people.
The next post considers the extent to which the right to freedom of movement can legitimately be limited. Do you think the right should be limited within a contemporary South African spatial context? What considerations should be taken into account when considering this limitation? What is the role of the law in balancing conflicting considerations in this regard?
 25 of 1945.
 67 of 1952.
 Clarno & Murray ‘Policing in Johannesburg after apartheid’ (2013) 39 Social Dynamics: A journal of African studies 210, 219.
 Group Areas Act 41 of 1950; Group Areas Act 77 of 1957; and Group Areas Act 36 of 1966.
 Clarno & Murray (note 219.
 Ibid 220.
 Ibid 220.
 Ibid 220.
 Dirsuweit & Wafer ‘Scale, governance and the maintenance of privileged control: the case of road closures in Johannesburg’s northern suburbs’ (2006) 17 Urban Forum 327, 330
 Ibid 5-6.
 See Lefebvre Le Droit a la Ville (1968), translated and reprinted as part of Lebfebvre (Kofman & Lebas – trans) Writings on Cities (1996) 154.
 Ibid 158.
 Ibid 158.