Mining companies are especially guilty
The right to protest in South Africa is being eroded by the increasing use of interdicts, especially by mining companies.
An interdict is an order which a court uses to protect someone's rights from the threat of unlawful interference or actual interference.
Interdicts can be:
- prohibitory: stopping someone from doing something;
- mandatory: compelling someone to do something; or
- restitutionary: ordering the return of property or restoring possession to someone.
A court-ordered interdict can provide temporary or final relief, and in very particular situations, a person may be entitled to an urgent interdict.
Prohibitory interdicts are increasingly being used by mining companies against communities demanding accountability for the devastation wrought by mining. This has been one of the leading repression tactics being used to stop dissent and prevent communities from exercising their right to protest.
Sometimes interdicts are used to address legitimate concerns, as in the case of Hotz v University of Cape Town, where the University of Cape Town obtained an interdict prohibiting several people, some of whom were students and others who were not, from protesting on the campus.
The case arose from the Shackville protest over accommodation especially for black students.
The protest resulted in the destruction of university property and threats of arson. The Constitutional Court ruled that the protesters had infringed on the university's rights, including the control of access to residences and dining halls, and the right to prevent unlawful activities such as the removal and destroying of paintings and photographs, and that staff, students, and the public were being harassed and threatened, and could not do their work on campus.
This case highlights circumstances where an interdict is legitimate.
But private actors are increasingly misusing interdicts to intimidate individuals and communities who resist injustice and hold authority accountable.
In Bethanie, for instance, the community held a two-week protest, demanding that Glencore Rhovan Mine engage with them on a range of pressing issues. Their demand was met with violence from the South African Police Services and in May this year the community, represented by the Right2Protest Project (R2P), was slapped with an interdict against protest.
This legal maneuver is an all-too-familiar strategy aimed at intimidating activists and curbing mobilisation against the mine.
These interdicts portray communities as violent protesters, yet it is the mining companies who encroach on and violate the rights of marginalised communities. Mining companies choose to engage in legal battles with communities instead of addressing the harmful impacts of their operations. The constant legal pressure serves to drain community resources and discourage activism, all while the destructive mining activities continue unchecked.
Of particular concern is the judiciary's handling of these interdicts. Courts often appear to issue interdicts without sufficiently considering the legal frameworks that safeguard protest rights or acknowledging the attempts made by communities to engage with those seeking the interdicts. There is a glaring absence of socio-political analysis in many of these decisions, which is alarming, since protests are inherently political and often stem from unresolved social grievances.
Mining companies and other private entities often get prohibitory interdicts by approaching courts on an urgent basis. In most cases, activists and communities learn about the interdict months later, after it has been affirmed and made official, and they have had no opportunity to state their case.
Unfortunately, Bethanie is not an isolated case. R2P, alongside other civil society organisations, is actively challenging prohibitory interdicts across South Africa, particularly in mining areas. Conversations with activists like members of Mining Affected Communities United in Action (MACUA) reveal a disturbing pattern of corporate impunity, where community leaders face constant legal harassment simply for exercising their constitutional rights.
In the Free State, for instance, MACUA and other civic organisations have been in dispute with Harmony Gold Mine for years. On 26 June 2024, they marched to Harmony Gold's mine in Nyakallong to hand over a memorandum of grievances, only to be informed of an interdict obtained by the mine against the community and several activists, which they had been unaware of.
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The next month, Harmony Gold approached the Free State High Court again, seeking to interdict MACUA and other organisations from protesting near the mine. The interim interdict was granted on 22 July, and the return date is 5 December 2024. R2P is representing MACUA and the communities in this matter.
In Limpopo's Ga Nkoana area, Bokoni Platinum Mine approached the Limpopo High Court on 14 August for an interdict against a protest planned by local communities. The interdict has not yet been granted, but the mere sight of the court papers has discouraged the protest.
If we do not act now, such prohibitory interdicts will prevent communities from challenging powerful corporations and holding them accountable. Civic organisations, lawyers and policymakers must rally together to demand a more just approach to handling protests. Otherwise, the right to protest may soon become a privilege reserved for those with the resources to fight protracted legal battles--leaving the most vulnerable communities voiceless.
Omhle Ntshingila and Felix Quibe are based at the Right2Protest Project, Centre for Applied Legal Studies, Wits University.
Views expressed are not necessarily those of GroundUp.
