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[2023] ZAFSHC 193
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Harmony Golf Mining (Pty) Ltd and Others v Lejweleputswa Community Engagement Structure and Others (502/2023) [2023] ZAFSHC 193 (18 May 2023)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT
OF SOUTH AFRICA,
FREE STATE
DIVISION, BLOEMFONTEIN
Case No:502/2023
In the matter between:
HARMONY
GOLD MINING COMPANY LIMITED
1
st
Applicant
AVGOLD
LIMITED
2
nd
Applicant
FREEGOLD
(HARMOY) PTY LTD
3
rd
Applicant
and
LEJWELEPUTSWA
COMMUNITY ENGAGEMENT
1
st
Respondent
STRUCTURE
THAPELO
HOLLAND
2
nd
Respondent
MKHONTO
MOKOENA
3
rd
Respondent
ZENZILE
MNYAMANE
4
th
Respondent
THABANG
TSHAKA
5
th
Respondent
KHOTHULE
6
th
Respondent
THABO
RAMOKOATSI
7
th
Respondent
TAIBOS
KLEINBOOI NONYANE
8
th
Respondent
MOIPONE
HLALELE
9
th
Respondent
OUPA
MALELE
10
th
Respondent
JAR
NDADE
11
th
Respondent
AZANIA
MOKOMA
12
th
Respondent
BEN
MCOQI
13
th
Respondent
THABO
NTHOKA
14
th
Respondent
ZENZILE
ZULWAYO
15
th
Respondent
ITUMELENG
RAMABENYANE
16
th
Respondent
ISHMAEL
NGOMANA
17
th
Respondent
JOSHUA
MOKHERE
18
th
Respondent
CHRISTINAH
HOLLAND
19
th
Respondent
HEARD
ON:
11 MAY 2023
JUDGMENT
BY
:
MHLAMBI, J
DELIVERED
ON:
This judgment was handed
down electronically by circulation to the parties’ legal
representatives by email and released to
SAFLI. The date and time for
the hand-down are deemed to be 11h00 on 18 May 2023.
[1]
On 11 May 2023, I reserved judgment, postponed and extended the
rule
nisi to
18 May 2023, the day on which
the judgment would be delivered. A
rule
nisi
was granted on 06 February 2023
when the following relief was granted:
“
IT
IS ORDERED THAT:
1.
The forms, service and time periods
prescribed by the Uniform Rules of Court is dispensed with and this
application is heard as
one of urgency on an ex parte basis in terms
of Rule 6(12) of the Uniform Rules of Court.
2.
Condonation is granted to the
Applicants for non-compliance with the directives pertaining to set
down, and time periods for hearing
urgent applications to the extent
of any deviation.
3.
The Respondents are called to show cause
on the 2
nd
day of MARCH 2023 at 10h00 or as soon thereafter as the matter may be
heard, why a final order should not be made in the following
terms: -
3.1.
The Respondents are interdicted and
restrained from: -
3.1.1.
Causing or allowing any damage,
loss, injury or other physical or psychological harm (“
harm
”)
to any person employed by the applicants and/or their service
providers and/or agents whether on duty or not, and any property
owned or in control of the applicants and/or their service providers
and/or agents;
3.1.2.
Inciting or encouraging any
affiliate, associate, member or other third party to cause or allow
harm to: any person employed by
the applicants and/or their service
providers and/or agents whether on duty or not, and any property
owned or in control of the
applicants and/or their service providers
and/or agents;
3.1.3.
Threatening to cause or allow harm
to: any person employed by the applicants and/or their service
providers and/or agents whether
on duty or not, and any property
owned or in control of the applicants and/or their service providers
and/or agents;
3.1.4.
Preventing or otherwise discouraging
any and/or all of the applicants’ employees, service providers
and/or agents from discharging
any duty and/or rendering any service
for or on behalf of the applicants or for the applicants’
benefit;
3.1.5.
Blockading entrances and access to
properties or mining operations owned and/or occupied and/or operated
by the applicants;
3.1.6.
Interfering with any of the
applicants’ mining operations and business;
3.1.7.
Accessing the mining premises and
making any commercial demands from the applicants, the employees,
service providers and/or agents;
and
3.1.8.
Using any of the applicants or their
service providers’ property without the applicants’
and/or service providers’
permission.
(“the
interdicted activities”)
3.2.
the Respondents are directed to: -
3.2.1.
To take all reasonable steps to
ensure that their affiliates, associates, members and/or other third
parties refrain from engaging
in all or any of the interdicted
activities, including by informing such affiliates, associates,
members and/or other third parties
of the provisions of this order
and calling on them categorically and unequivocally not to engage in
all or any of the interdicted
activities; and
3.2.2.
jointly and severally pay the costs
of this application, on the attorney and client scale, including the
costs of two counsel; and
3.2.3.
to adhere to any such further and/or
alternative relief as may be warranted on the papers.
4.
Pending the final determination of this
application, paragraphs 3.1 and 3.2 above (including all
subparagraphs, except paragraphs
3.2.2 and 3.2.3) hereby operate as
an Interim Order with immediate effect.
5.
This application and
Court
Order be served: -
5.1.
By email upon the first respondent
at:
lejwel
[…]
5.2.
Via WhatsApp to: the Fourth
Respondent (078 […]); the Seventh Respondent (078 […]);
the Eleventh Respondent
(065 […]); the Sixteenth
Respondent (073 […]); the Seventeenth Respondent
(073 […]) and the
Nineteenth Respondent (076 […]);
5.3.
By the Sherriff who will amongst
others call the individual respondents to meet with the Sherriff for
purposes of being served;
5.4.
On the South African Police Service
(“
SAPS
”)
Provincial Commissioner(s) for the Free State Province; and
5.5.
on the Station Commander(s) of the
SAPS Welkom Police Station
6.
The SAPS Welkom Police Station is
hereby authorized and directed to: -
6.1.
give effect to this Order by
preventing the Respondents from breaching the terms hereof; and
6.2.
dispersing and/or arresting persons
or any groups of persons who act in any unlawful manner and/or who
are acting in a manner as
to contravene or reduce the effect thereof.
7.
The Respondents have the right to
anticipate the return date with 24-hour notice to the
Applicants.
[2]
Some of the respondents filed a notice of opposition on 28 February
2023. The order of 02 March 2023
which postponed the application to
11 May 2023 indicated that all the respondents were opposing the
application.
[3] A further
notice of intention to oppose the application in respect of the
remaining respondents was filed and served
on 13 March 2023 and the
opposing affidavits were filed two days out of time in terms of the
court order of 2 March 2023. The applicants
did not oppose the
respondents’ application for the condonation of the late filing
thereof.
[4]
The applicants seek final interdictory relief (which excludes
subparagraph 3.2.3 of the interim order).
Background
[5]
The applicants have four mining operations in the
Free State province named Tshepong/ Phakisa, Masimong,
Joel and
Target. All of them are situated in the Free State Goldfields in and
around Welkom. The applicants collectively employ
22 000 people
in the said mining operations
[1]
which produce 1200kg per month of precious metals or 43kg per
day. Their operations produce R44.7 million in revenue per
day.
[6]
The first respondent, the Lejweleputswa Community
Development Structure, is a community organisation consisting
of
community leaders, activists and various community structures
representing several community members affected by the applicants’
mining activities in the Free State.
[2]
The second to the eighteenth respondents are members of the first
respondent and represent the first respondent’s various
sub-communities.
[3]
The
nineteenth respondent is the second respondent’s wife and is
not associated with the first respondent.
[4]
[7]
The respondents delivered a memorandum of demands
to the applicants during a peaceful march to the applicants’
offices on 29 November 2022. The respondents notified the local
authorities and the South African Police Services to ensure safety
during the march.
[5]
The
applicants responded to the demands in writing on 15 December
2022.
[6]
A meeting between the
representatives of the first applicant and the first respondent was
convened on 1 February 2023 to discuss
the contents of the letter of
15 December 2022.
[8]
The respondents were of the view that the applicants did not meet any
of the promises made at previous meetings and informed
the applicants
that the community members intended to take protest action.
[7]
The meeting degenerated and serious threats of a shutdown were made
by the members and representatives of the first respondent.
[8]
[9]
On the same day, the applicant received a WhatsApp
voice note in Sesotho from an unknown speaker which was
circulated on
the first respondent’s WhatsApp group, indicating that the
first respondent intended to embark on a shutdown
of the applicants’
mining operations.
[9]
The
translated and transcribed voice note reads as follows:
“
Mr
X: Morning, Morning leadership. Yah, General Mokoma you are right but
let’s all work at this thing and we’ll see
how we work
around those media, yah. Let’s not mandate other people about
such things, General. Let us be the ones to handle
it. If I speak
with the, if you speak with the everyone will organise however they
organise. So that we know that those people
will struggle to talk to
them, those people even with data for the internet General, yes
others have phone numbers and they call
each other, these people are
given all the details. What will happen Leadership, make no mistake
when we say we are not going to
picket the way things happen
,
we are going to close down production
.
No one is going to
work
.
Already it is all over social media, even the voice notes will go
viral…[inaudible]
If a
person stands before the interests of the community….
[inaudible] of work, then he must make sure that he pays for mortuary
so that his family won’t struggle because there are going to
close production there
, the
production is in this community but the community does not benefit,
there’s nothing we benefit as stakeholders.
On
top of that, we going to close until our demands are met, no matter
how long were are there for,3 days or 5 days, we don’t
care
because we have concluded that for this thing we will sacrifice
.
If they come to the table, I want this thing to go viral just like
when… [inaudible] they chased me away from there, they
must
know that CEF says their stinking tables they always call us on to
come to managing us, them getting jobs to manage us ...
[inaudible]
they are playing, we will mobilize our community members, so that
when they see them they must hate them to the extent
that whatever
must happen to them because its them, they are the enemies of these
processes that are ruling over the lives of this
community. So we are
going to the shutdown, whether it’s cold or hot we are going to
the shutdown.
We are going to
close production at Harmony, we are going to close production at
Harmony, all the networks. The coal stations releasing
production
around Free State, its Tshepong and Phakisa, yes, the
coal station is Tshepong
,
on top of that Leadership the issue that they are going to test us,
we are done being tested, we are done with the issue of being
recognised, we want our demand to be met and we are not backing down,
we are familiar with hunger. How those people will
survive,
they will see moving forward. In a way we will be sitting making our
own way forward. This clip must go viral, they must
all know that
there is nothing that will stop us
.
If needs be there will be a Marikana part 2 here in Matshabeng Free
State,
we don’t care, we
only care about those people who care about us. So if there is going
to be a Marikana part 2 here, we going
to recruit our children who
are underage to be part of the toyi-toyi, while they are busy
delaying those processes we are going
to collapse Matshabeng, all of
it. It will go to the shops, to the malls and all the networks in
Matshabeng because now it’s
going to start at the mine. If they
think we are playing they will see what will happen, we don’t
play, we don’t just
talk here on social media.”
[10]
On 2 February 2023, the first respondent sent an email stating that
the first respondent and its members would embark on a
shutdown on 7
February 2023.
[10]
The email
reads as follows:
“
Good
morning everyone
We hope this email
finds you well in this oppressing time.
As CES we are
dedicated to a right course for the Communities of Lejweleputswa,
driven by ambition to serve and protect the rights
of weak and
vulnerable.WHEN IT COMES TO THE COMMUNITY WE DON’T COMPROMISE
This
email serves as reminder to Harmony Gold Mine that CES will embarking
on a Shutdown on the 7
th
of February 2023, after having multiple
engagements
with Harmony Gold Mine with no POSITIVE response and to see tangible
development from Harmony.
The boiling issue that
CES has pronounced forward to the attention of Harmony officials with
an aim for urgent remedy to this quagmire
of sime sort is the
issue of Terms of Reference that Harmony is playing delay tactics.
Harmony Gold has
failed dismally to provide transparency to the communities of
Lejweleputswa, by prioritizing structures that was
Charged by
Corruption,. Through Harmony policy rather of being misled by some
individuals who want perpetuate Corruption and Maladministrata,
in
the Harmony by continuing to work with the structure that is
oppressing our people to pay bribes for getting employed.
CES doesn’t want
to engage or have meetings with Mr Sabelo Mgotywa anymore because he
has failed to suffocate the hysteria
that we are faced with as the
representative of the community at large. In a nutshell please take
note that there will be a total
Shutdown. Our mass action will
perpetuate until such time where our demands are met to its fullest
implementation.
Whe we revolt it’s
not for a particular not culture, we revolt simply because, for many
reasons, we can no longer breath.
kindly see the attach
documents in order.
We hope you find above
in order.
Best regards’’
[11] The applicants
approached the court for an urgent interim interdict which was
granted on 6 February 2023 and served on the
respondents by email and
via WhatsApp as per the court order.
The respondents’
opposition
[12]
In the answering affidavit, the application was opposed on
several grounds under the following headings: Urgency and
ex
parte,
[11]
duty of
disclosure,
[12]
No prima facie
right,
[13]
well-grounded
apprehension of irreparable harm,
[14]
balance of convenience,
[15]
no
other satisfactory remedy in law,
[16]
incompetence of relief sought,
[17]
relief sought against third parties not cited,
[18]
authority to arrest and disperse protestors,
[19]
and confusion regarding what is actually expected of the
respondents.
[20]
In the
written heads of argument, the grounds were significantly reduced.
[13]
The first ground of urgency raised in the answering affidavit
has become moot as Van Rhyn J had already determined in
the urgent
court that the matter was urgent on 6 February 2023.
[21]
The law relating to final interdicts was sunccintly set out in
Setlogelo
v Setlogelo,
[22]
where it was stated that the requisites for the right to claim an
interdict are : a clear right, injury actually committed or
reasonably apprehended, and the absence of similar protection by any
other ordinary remedy.
Clear
right
[14]
The respondents stated in their answering affidavit that the
applicants based their application solely on commercial
interest or
constitutional right to trade, which they feared the respondents
would interfere with.
[23]
The
applicants did not believe that the shutdown would include any form
of violence and accepted that the interference with their
business
and operations was the only risk they faced.
[24]
In their oral and written submissions, the respondents maintained
that while the applicants could certainly lay claim to a right
to
conduct their business in the exercise of the right to freedom of
trade and occupation, free from unlawful interference, they
could not
lay claim to that right as a freedom from any lawful
interference.
[25]
By
implication, the respondents contend that their conduct was lawful in
the circumstances as they exercised their right to protest
and the
applicants had no reason to complain.
[26]
[15]
In Hotz
[27]
it was
stated that protest action is not itself unlawful and the right to
protest against injustice is one that is protected under
the
Constitution. The right of demonstration is to be exercised
peacefully and all rights are to be exercised in a manner that
respects and protects the foundational value of human dignity
of other people and the rights other people enjoy under the
Constitution. In a democracy the recognition of rights vested in one
person or group necessitates the recognition of the rights
of other
people and groups, and people must recognise this when exercising
their own constitutional rights.
[16]
It is evident from the respondents’ answering affidavit
that the respondents do not contest the applicants’
right to
freedom of trade or right to trade and to conduct their mining
operations. Consequently, I find that the applicants have
established
a clear right and have met the first requirement for an interdict.
An
injury actually committed or reasonably apprehended
[17]
The respondents took the position that the applicants failed to
provide any evidence of any unlawful conduct planned or perpetuated
in previous protests. The applicants, it was contended, also failed
to create a nexus between all four of their mining sites and
the
intended shutdown.
[28]
It was,
furthermore, opportunistic of the applicants to rely on the WhatsApp
voice note of an unknown author and which was without
context.
However, the respondents did not deny that the voice note was
circulated on the WhatsApp group of the first respondent
where some
of the respondents were present.
[29]
[18]
It was argued on behalf of the respondents that the shutdown to which
the respondents could be factually linked, was not per
se unlawful.
Had the shutdown occurred, it would only have been unlawful if the
respondents had attempted and managed to enforce
it in an absolutely
coercive manner or had in fact been violent.
[30]
I disagree.
[19]
In
V
& A WATERFRONT PROPERTIES (PTY) LTD AND ANOTHER v HELICOPTER &
MARINE SERVICES (PTY) LTD AND OTHERS,
[31]
it was
held that
:
“
The
argument was that 'injury' in that phrase had necessarily to entail
physical harm or pecuniary loss. The appellants had consequently
to
show, so the contention proceeded, that the helicopter was
unairworthy and that its operation involved risk to life and
property.
The argument is founded on neither authority nor principle.
The leading commonlaw writer on the subject of interdict relief used
the words 'eene gepleegde feitelijkheid' to designate what is now in
the present context, loosely referred to as 'injury'. The
Dutch
expression has been construed as something actually done which is
prejudicial to or interferes with, the applicant's right.
Subsequent
judicial pronouncements have variously used 'infringement' of right
and 'invasion of right'. Indeed, the leading case,
Setlogelo, was
itself one involving the invasion of the right of possession. Of
course it is hard to imagine that a rights invasion
will not be
effected most often by way of physical conduct but to prove the
necessary injury or harm it is enough to show that
a right has been
invaded. The fact that physical means were employed or physical
consequences
sustained
is incidental.”
[20]
I was referred by counsel to a passage in
Nestor
and Others v Minister of Police and Others
[32]
where
it was held that: “
A
reasonable apprehension of injury has been held to be one which a
reasonable man might entertain on being faced with certain facts
(Free State Gold Areas Ltd v Merriespruit (Orange Free State) Gold
Mining Co Ltd
1961 (2) SA 505
(W) at 515). The applicant
for an interdict is not required to establish that, on a balance of
probabilities flowing from
the undisputed facts, injury will follow:
he has only to show that it is reasonable to apprehend that injury
will result (Free
State Gold Areas case supra at 518).
However, the test for apprehension is an objective one (Ex parte
Lipshitz
1913 CPD 737
; Seligman Bros v Gordon
1931 OPD
164
; Pickles v Pickles
1947 (3) SA 175
(W)). This means
that, on the basis of the facts presented to him, the Judge must
decide whether there is any basis for the entertainment
of a
reasonable apprehension by the applicant.”
[21]
The
applicants contended that they approached the court for interim
relief because there was evidence that the respondents intended
to
violently shut down the applicants’ mining operations. This
evidence was contained in the email of 2 February 2023, the
WhatsApp
voice note circulated on the first respondent’s WhatsApp Group,
and a poster indicating that a shutdown would take
place on 7
February 2023. The poster, marked Annexure “FA5”,
[33]
bore,
inter
alia
,
the following lettering
“
Lejweleputswa
Community Engagement Structure/CES vs Harmony Gold Mine
”
and “
Shutdown
at Harmony Gold Mine operations on the 07
th
of February 2023
.”
People
and litter or debris were shown in some of the photos on the poster.
[22]
The violent and aggressive language used in the email and
WhatsApp note does not give the impression that the shutdown
would be
peaceful as suggested by the respondents. It was a total shutdown and
the mass action would
“
perpetuate”
until
such time the demands were met to
“
its
fullest implementation
.”
The
build-up towards the shutdown was kinetic and in full swing and, had
the interim relief not have been sought and granted, as
it was, the
intended shutdown would have taken place as scheduled. On a
consideration of these facts, the applicants were, objectively
speaking, entitled to entertain a reasonable apprehension of injury.
This is borne out by the suspension of the shutdown by the
respondents only hours after the interim order was served on them on
6 February 2023.
[34]
Absence
of similar protection by any other ordinary remedy
[23]
The respondents contended that the applicants did not require a court
order to protect them against unlawful conduct as such
power to act
lay with the South African Police Service and private security.
[35]
The applicants correctly pointed out that this contention was flawed
as criminal proceedings are not an alternative remedy for
the
purposes of an interdict.
[36]
A criminal prosecution punishes past conduct while the protection
afforded by an interdict is the cessation of the unlawful activity.
It would seem to me that, on raising some of the defences, the
respondents had in mind an attack on the requirements of an
interlocutory
interdict. The remaining defences raised by the
respondents are beside the point and do not in any way neutralise the
applicants’
case that they have met the requirements for a
final interdict.
Conclusion
[24]
I am satisfied that the requirements of an interdict have been
met. In
Hotz,
[37]
Wallis JA stated that
once
the applicant has
established
the three requisite elements for the grant of an interdict, the
scope, if any, for refusing relief is limited. There
is no general
discretion to refuse relief. He stated further:
“
That
is a logical corollary of the court holding that the applicant has
suffered an injury or has a reasonable apprehension of injury
and
that there is no similar protection against that injury by way of
another ordinary remedy. In those circumstances, were the
court
to
withhold
an
interdict, that would deny the injured party a remedy for their
injury, a result inconsistent with the constitutionally protected
right of access to courts for the resolution of disputes, and
potentially infringe the rights of security of the person enjoyed
by
students, staff and other persons on the campus.”
[38]
[25]
The following order is made:
ORDER:
Paragraphs
3.1 and 3.2 of the Rule Nisi (including all subparagraphs except
subparagraph 3.2.3) are confirmed with costs of two
counsel.
_________________
MHLAMBI,
J
On
behalf of the applicants:
Adv.
Andrew South SC & Vincent Mabuza
Instructed
by:
Lovius
Block Incorporated
31
First Avenue Westdene
Bloemfontein
On
behalf of the respondent:
Adv.
JFD Brand
Instructed
by:
UFS
LAW CLINIC
Sports
Avenue & Nelson Mandela Drive
UFS
Main Campus
BLOEMFONTEIN
[1]
Para 9.15 of the FA.
[2]
Para 13 of the AA.
[3]
Para 14 of the AA.
[4]
Para 15 of the AA.
[5]
Para 17 of the AA.
[6]
Para 18 of the AA.
[7]
Paras 21 and 22 of the AA.
[8]
Paras 49 of the FA and 84 of the AA.
[9]
Paras 35 of the FA and *! Of the AA.
[10]
Paras 54 of the FA and 32 and 87 of the AA.
[11]
Para 31 of the AA.
[12]
Para 34 of the AA.
[13]
Para 39 of the AA.
[14]
Para 41 of the AA.
[15]
Para 51 of the AA.
[16]
Para 57 of the AA.
[17]
Para 60 of the AA.
[18]
Para 62 of the AA.
[19]
Para 64 of the AA.
[20]
Para 66 of the AA.
[21]
Masilonyana Local Municipality v Kokoane and Others (4140/2020)
[2022] ZAFSHC 49
(8 March 2022).
[22]
1914 AD 221
at page 227; Hotz and Others v University of Cape Town
2017
(2) SA 485
(SCA)
.
[23]
Para 39 of the AA.
[24]
Para 40 of the AA.
[25]
Para 39 of the respondents’ heads of argument.
[26]
Para 41 of the respondents’ heads of argument.
[27]
Supra para 62.
[28]
Paras 44 and 45 of the AA.
[29]
Para 47 of the AA.
[30]
Para 42 and 43 of the heads of argument.
[31]
2006 (1) SA 252
(SCA) at paras 20 & 21.
[32]
1984 (4) SA 230
(SWA) at para
[33]
Para 55 of the AA and annexure “FA5” on page 38 of the
indexed papers.
[34]
Email dated 6 February 2023 on page 104 of the indexed papers.
[35]
Para 59 of the AA.
[36]
Berg River Municipality v Zelpy 2065 (Pty) Ltd 2013 (4) SA (WCC)
para 47.
[37]
Supra.
[38]
Para 29.