It's hard to properly judge whether throwing shit at someone is a legitimate form of political protest. It is certainly extreme. And smelly, and disgusting. It is also, as any doctor would tell you, potentially dangerous, in that it will spread disease that can quite literally be life-threatening in certain circumstances. Quite rightly, this was always going to get extreme reactions. Among the commentariat, and around the braai, that's absolutely fine. But among our judicial officers, it's not. Their job is to be dispassionate. That's what we pay them for; and why we give power to take away our freedom. But the magistrate who denied bail to Cape Town's seven "poo protestors" failed us. And prosecutors might be about to fail us again.

[Health warning: as you may have already noticed, this opinion piece does not use euphemisms. If you have a multi-sensory imagination, perhaps you should not read it over your cereal.]

In case you hadn’t heard, throwing shit around has become a new form of protest in South Africa. It’s harder to clean up afterwards than a normal “service delivery protest”, sure. But at least no one has yet had to go to hospital as a result. Which perhaps makes it a better and safer form of protest than your average NUMSA strike. After several such incidents, the main ring-leaders were arrested and chucked into jail. It was only a matter of time, considering that amazingly, the media were always there and able to get pictures and eyewitness reports of the actual shit being dumped.

In other words, the leaders, Andile Lili and Loyiso Nkohla, were tipping them off before doing it.

It is this year’s political philosophy question: If a protester throws shit on a government building without a camera being present, was it a political protest, or just a man having a shit?

It was after trying to dump their precious cargo at Cape Town International Airport that they were arrested. And then the state threw the book at them. Not only did they break the usual set of rules one would associate with publishing one’s shit in public, but they were also accused of breaking Professor Pierre de Vos’s favourite law, the National Key Points Act. In case you’d forgotten, taking pictures at an airport was illegal under the act.

After several hearings, the seven were denied bail by Belville Magistrates Court Magistrate Jannie Kotze. The main reason for his decision was that the “suspects” had promised that if they were released, they would do it again. Lili and Nkohla, in particular, have publicly refused to recognise any political authority over them, and claimed, in several radio interviews, that this was a legitimate form of public protest, over an issue that absolutely affects millions of people on a daily basis.

But Kotze was wrong, and on Friday, thankfully, Judge Dennis Davis put things right. Before freeing them, he gave them a good lecture on why he thought their actions were “politically driven and undermine[d] the Constitution”.

But the main point is that you need a very, very good reason to remove someone’s freedom, until they are convicted of a crime.

One of the main legal reasons why so many people are granted bail under our system is that the balance must always come down on the side of freedom. You are, to quote the ANC, innocent until proven guilty. To keep someone in jail before they are proven guilty is just wrong. Now, this doesn’t mean that someone accused of murdering a man, and who then goes on the radio and says he’ll murder that man’s wife, should be released. That’s why our system, like virtually all the others on the planet, has different categories of crime.

Even when it comes to murder, as Oscar Pistorius’s lawyers could tell you, there are different schedules of offence. It is only if the prosecution can prove there was real and deliberate intent, in other words, someone planned a murder, that they can be denied bail.

And throwing shit is simply not murder. Really. If someone throws shit at you, the chances are you will survive. You will probably stay in the shower for a few days, but you won’t die. If you were given the choice between having a bucket of stuff thrown at you or being hit in the face, the logical choice would be the smellier option. You would wash it off, brush your teeth fifteen or sixteen times, and then be completely whole again. But that evening, your body would be as it was that morning. The same cannot be said for physical violence or assault. The body would take time to heal from that, if ever.

That also doesn’t mean that Lili and Nkohla and his inner-shitty crew should be allowed to simply throw as much of it as they can as at many people as possible until they’re finally convicted. That’s why we have bail conditions. The bail conditions have now been set, and if they break them by participating in any such action again, then their bail can be revoked, and they will be behind bars until they’re convicted.

It is wrong to say to someone, There is a strong chance this person will commit another, relatively minor crime, and therefore I am going to lock up an innocent person. But should that person demonstrate a clear pattern: by breaking those bail conditions, then you can. Obviously you could point to several incidents which do demonstrate a clear pattern. Unfortunately, when it comes to the law, pictures on Twitter don’t count. You have to be charged, and go through the process. That’s the point of the law.

Having now been released, it could be claimed that these seven citizens have now had their rights restored, and they can be sure of a fair trial. A fair trial, maybe, but they’re still being mistreated. For them to be charged under the National Key Points Act is ridiculous. Why should throwing shit in one public place be adjudicated under a different law than performing the same act at another? It is not treasonous to publicly display your faeces. The only reason they’re being charged with this is to put the fear of twenty years in jail in them.

The National Prosecuting Authority is using an unconstitutional law to threaten political protestors.

Doesn’t that scare you? It damn well should. It smacks of the worst kind of totalitarian Apartheid-style mindset.

Lili and Nkohla were also lucky to be represented by attorney Barnabus Xulu. You may remember him as the attorney for Western Cape Judge President John Hlophe. Xulu is politically astute, and determined to protect his clients in a case like this. Thank goodness, otherwise they might well still be stuck in jail.

Having said all of this, it must be remembered that there are different forms of political protest. They are all designed to get attention. This doesn’t mean people who are violent during “service delivery” protests must not be prosecuted. But they must be prosecuted for the laws they break, not threatened with twenty years in jail. And this protest is not as different and radical as you may think.

Thabo Mbeki has a story he’s told once or twice about a big Organisation of African Unity gathering in an unnamed African capital. He says that he once saw a large group of women standing on the side of the road, waiting for the leader of their country. He had taken power undemocratically, and was not a popular figure. As his convoy drove past them, this group of women turned around, and quite literally lifted their skirts. The political point they made was pretty clear.

And it’s not far from showing someone your bum in protest, to what Lili and Nkohla have been doing.

People wanting to get attention to make a political point must take responsibility for the laws they break. But they must be treated as ordinary citizens who’ve broken the law, not as a political risk to society. No matter how much their actions may make you gag. DM

Grootes is the host of the Midday Report on Talk Radio 702 and 567 Cape Talk, and the Senior Political Correspondent for Eyewitness News. He’s been part of the political hack pack since before the Polokwane Tsunami, and covers politics in a slightly obsessive manner. Those who love him have recommended help for his politics addiction. He quotes back Amy Winehouse.