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[2023] ZAECMKHC 62
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Border-Kei Chamber Of Business and Another v Komani Protest Action Group ("KPA") and Others (442/2023) [2023] ZAECMKHC 62 (23 May 2023)
IN THE HIGH COURT OF
SOUTH AFRICA
[EASTERN CAPE DIVISION
– MAKHANDA]
CASE NO.: 442/2023
In the matter
between:-
BORDER-KEI CHAMBER OF
BUSINESS 1
ST
APPLICANT
CIVIC RATEPAYERS’
ASSOCIATION OF ENOCH
MGIJIMA 2
ND
APPLICANT
and
KOMANI PROTEST ACTION
GROUP (“KPA”) 1
ST
RESPONDENT
THULANI
BUKANI
2
ND
RESPONDENT
SOLOMZI
NKWENTSHA 3
RD
RESPONDENT
YOLANDA
GCANGA 4
TH
RESPONDENT
SATCH NAIDOO
5
TH
RESPONDENT
AXOLILE
MASIZA 6
TH
RESPONDENT
MNCEDISI
MBENGO 7
TH
RESPONDENT
JEROME
JASSON 8
TH
RESPONDENT
ALLISON DE
KOCK 9
TH
RESPONDENT
TEMBILE
MARMAN
10
TH
RESPONDENT
ALL PERSONS
ASSOCIATING THEMSELVES
WITH THE FIRST
RESPONDENT IN UNLAWFUL
ACTIVITIES IN THE
ENOCH MGIJIMA LOCAL
MUNICIPALITY
11
TH
RESPONDENT
MINISTER OF
POLICE
12
TH
RESPONDENT
THE COMMANDING
OFFICER: PUBLIC ORDER
POLICING
13
TH
RESPONDENT
JUDGMENT
NORMAN J:
[1] On
17 February 2023, the first and second applicants (“the
applicants”) sought and were granted
interim relief against the
respondents. They were interdicted from,
inter alia,
interfering in any way with their businesses or employees,
intimidating and/or threatening or harassing their employees or
customers,
causing damage or threatening to cause any damage to any
property of the applicants, encouraging violence against their
businesses
or employees, blocking and preventing any vehicles or
trucks of the applicants from traveling on any of the roads in
Komani, disrupting
any of their businesses or from entering their
premises unlawfully. They further sought contempt of Court orders in
the event that
the respondents fail to comply with the interdictory
relief.
Applicant’s case
[2] The
deponent to the founding affidavit is Jacques Pierre van Zyl who is
the Vice- Chairman of the first applicant.
He stated that on 31
January 2023 he attended a meeting with Komani Protest Action (“KPA”)
and the fourth, fifth, seventh
and eighth respondents to discuss the
proposed protest action. He represented the first applicant at that
meeting. There was a
plan by KPA and those that support it to shut
down Komani for a longer period. He negotiated that the shutdown
should be for a
shorter period due to the present economic climate.
He was further assured that their members would be safe if they
joined because
the community members walking around with white
armbands would protect any person in need of protection.
[3] He
was also assured that there would be security personnel to attend to
safeguard or control unruly groups
of people. He, together with the
first respondent, and those who were present discussed the
dissolution of the Enoch Mgijima Council.
He dealt with the protests
that occurred during January 2023.
[4] On
16 February 2023, an article appeared in the local newspaper
indicating that KPA and its members intended
to shut down Komani. In
that article, it is recorded that letters were sent by KPA to the
first applicant for it to inform the
business owners who are
affiliated with it that “
they were not forced to close but
at the same time they would be opening their businesses at their own
risk.
” KPA also indicated that “
they would not be
responsible for anything that may transpire in their shops because
when one stands in the way of the community
while people are
protesting for their rights, he becomes the victim”
.
[5] It
was also conveyed in the notice that the business sector was playing
victim but “
once they are ignorant of the mandate with the
community all the businesses will be identified and no one will go
and buy
”. In an article published by the Daily Maverick
dated 17 February 2023, it recorded that businesses were forced to
close
because hundreds of people went through the town forcing
compliance with the protest. In the same article it was recorded that
one Masiza had stated that ‘
we will deal with those who
won’t close their doors, we are planning a consumer boycott
where we will not support the businesses
that refuse to close their
doors. We have a list of the businesses that opened.’
[6] The
deponent feared that there will be further civil unrest as a result
of the proposed shut down. The present
economic situation in the
country and in Komani is such that the protest action was disastrous
to business in Komani and would
have serious negative consequences
for it. He criticized the respondents in their exercise of self-help
and collective punishment
of business in an attempt to force the
Enoch Mgijima Municipality to deliver services in circumstances where
businesses were not
at fault.
[7] He
submitted that the prejudice that will be caused to the applicants
and the public at large is manifest
and far reaching and the loss
suffered will not be merely financial but may probably affect the
viability of various businesses.
He stated that the advertisements
that the applicants rely on and the interruptions would be
indefinite, because the planned protests
were to continue until the
situation improves or until the municipal council is dissolved. On
that basis, he submitted, that the
applicants, would suffer
irreparable harm which would have catastrophic consequences for the
applicants if the interdict is not
granted. It would affect their
employees, their dependants and the general public in Komani.
Respondent’s
case
[8] The
respondents opposed the application in an affidavit deposed to by
Satch Naidoo. In their opposition the
respondents took the same legal
points they took when they resisted the final interdict in
Enoch
Mgijima Municipality v Komani Protest Action and Others, Case number
444/2023
. In summary those points were that there must be a
balancing of rights between the protesters and those of the
businesses and their
commercial interests. They criticized the
applicants for advancing and protecting their commercial rights at
the expense of the
majority of the residents of Komani.
[9] In
response to the allegations which attached the video footage and the
Facebook page the deponent stated
the following ‘
our members
visited all the business premises as a precautionary measure to ask
them to close shops as a risk mitigation and to
prevent possible acts
of vandalism.’
They resisted the granting of the interdict
on the basis that should a final interdict be granted the court would
have elevated
the rights of the few members of the community at the
expense of the greater community who live below the poverty line.
[10] The deponent
admitted that a two (2) day-protest that causes business to shut down
will have major financial ramifications
for the businesses in Komani.
He justified this by saying ‘
most business owners who are
not members of the 1
st
applicant are also
prejudiced.’
He denied that there was civil unrest but he
admitted that there were several protests. He complained about the
fact that the interdict
was brought
ex parte.
He attacked the
urgency alleged by the applicants as being self- created. He
contended that there was no right that was being protected
by the
applicants.
Applicant’s
reply
[11] In reply, the
applicants stated that their right to trade is being hampered by the
forced shut down imposed upon them
by the respondents. The applicants
denied the allegations that they were simply protecting their own
interests but indicated that
on 14 February 2023 and without any
warning KPA had delivered correspondence notifying them of the
intention to commence further
protest actions within two (2) days and
that action continued on 16 February 2023. It was for that reason
that they approached
court on 17 February 2023 to protect the
interests of businesses. It was on the basis that the respondents had
suggested that the
protest actions would continue indefinitely until
the Minister of COGTA, Dr Nkosazana Dlamini-Zuma, returned to
dissolve the Council.
Applicant’s
legal submissions
[12]
Mr Brown appeared for the applicants and Ms Mnqandi appeared for the
respondents. He submitted that the interdict does
not infringe on the
respondents’ rights to lawful and peaceful protest. All that it
sought to do was to stop them from acting
unlawfully by shutting down
the applicants’ businesses and harassing and intimidating their
employees, workers, service providers
and customers. In this regard
he relied on
Absa
Bank Limited v South African Clothing & Textile Workers Union;
and Go Touchdown Resort Seasons CC & Another v Farm
Rural
Informal Dwellers Association & Another
[1]
that there was no right on the part of the opposing respondents to
undertake activities which the applicants seek to interdict
and thus
no question of the balancing of competing rights is necessary.
[13] He submitted
that the applicants have a clear right to protect as they own the
businesses. There is harm that was actually
being committed or
reasonably apprehended. There was absence of other satisfactory
relief and the applicants have a clear and protected
right to trade
as envisaged in section 22 of the Constitution. This right is
conceded by the respondents. It is that right that
had to be
protected by means of the interdictory relief. He submitted that the
businesses were forced under threat to close down
for the duration of
the protest actions in January 2023. The fear of an indefinite
protest was real whilst businesses were being
forced to close during
the February protests.
Respondent’s
legal submissions
[29] Ms Mnqandi
made the following submissions:
That
the applicants failed to demonstrate that they have a right that
ought to be protected. The respondents, on the other hand,
have a
clear right to assemble peacefully, to demonstrate unarmed, to picket
and to present petitions as well as freedom of association.
The
applicants failed to prove that any harm suffered was caused by the
respondents and have not shown that there are reasonable
grounds for
apprehension of harm. The applicants failed to show that there was no
alternative remedy. That urgency was self-created.
The community
organized itself to address the challenges it had and that right must
be balanced with the right to trade relied
upon by the applicants. If
such rights were affected they are not absolute. In balancing the
conflicting rights, the court must
find that it was reasonable and
justifiable for the respondents to hold the protest action. The
respondents denied any civil unrest
or violence during the protests.
They denied that businesses were forced to close.
[31]
The conduct complained of by the applicants is past conduct. An
interdict is meant to prevent future conduct and not
decisions
already made. In this regard she relied on
National
Treasury and Others v Opposition to Urban Tolling Alliance and
Others
[2]
. The court must balance the rights of the protesters and businesses
as they are all enshrined in the Constitution, she argued.
[32] That the
public has a right to service delivery and to hold the municipality
accountable. She conceded that for two days
in January 2023 and two
days in February 2023, during the protests, there was business lost.
She submitted that interdicting KPA
to hold future marches or
protests is too broad and should be refused. She submitted that the
application should be dismissed with
costs.
Discussion
[14] Having read
the papers and having considered the submissions made by both counsel
it appears to me that the respondents
misconstrued the issue they
were called upon to respond to. The issue is not about the
respondents’ right to protest, which
they have addressed
extensively. The applicants’ source of complaint is the conduct
of the respondents who, when engaging
in a protest, threaten and/ or
force businesses directly or indirectly to close and thus making it
impossible for them to trade.
[15] Both parties
are
ad idem
that the rights entrenched in the Constitution,
namely, the right to freedom of expression (section16); the right to
peacefully
and unarmed, to assemble, to demonstrate, to picket and to
present petitions (section 17); and the right to choose their trade,
occupation and profession (section 22), are all equal rights.
[16]
The
Constitutional
Court
has held that the right to freedom of assembly is central to our
constitutional democracy. It exists primarily to give a voice
to the
powerless. It is one of the principal means which ordinary people can
use to meaningfully contribute to the constitutional
objective of
advancing human rights and freedoms.
[3]
[17] In the
Satawu
case
at paragraph 38, the Constitutional Court when dealing with the
provisions of section 11 (2) of the Regulation of Gatherings
Act 205
of 1993, held:
“
38.
The somewhat unusual defence created for an organization facing a
claim for statutory liability appears to have been made deliberately
tight.
Gatherings, by their very
nature, do not always lend themselves to easy management. They call
for extraordinary measures to curb
potential harm.
The approach adopted by Parliament appears to be that, except in the
limited circumstances defined, organizations must live with
the
consequences of their actions, with the result that harm triggered by
their decision to organize a gathering would be placed
at their
doorsteps. This appears to be the broad objective sought to be
achieved by Parliament through section 11.” (my emphasis).
[18]
The next question would be what necessitated the requests or demands,
by KPA and those acting in concert with it, that businesses
should
close during a protest? Those demands or requests do not form part of
the steps to be taken in terms of the Gatherings Act
when organizing
a protest or gathering.
It has not
been shown on these papers that KPA and the other respondents had
financial interests in those businesses to warrant
the interference
with their operations. I have no doubt that the businesses operating
in Komani are managed by their directors
or owners or employees who
have the capacity to decide whether to close or not to close when
there is a protest. It is not for
the respondents to determine their
closure during a protest. By imposing their will on the businesses,
the respondents were actually
interfering with those businesses’
rights to trade. This issue has not been addressed by the
respondents, instead they sought
to attack the applicants for wanting
to trade when there is a protest. They labelled them as protecting
their commercial interests
and not sharing the plight of the poor.
[15] This attack is
unsound because not every person (rich or poor) is interested in
engaging in a protest. There are hundreds
of other people who were
probably sitting at home and not participating in the protest. There
were possibly others who were content
with the manner that the
services were delivered to them by the municipality. Others may have
been unhappy with service delivery,
but may have opted for other
means of raising their dissatisfaction, for instance, sending a
letter to the municipality threatening
legal action. Had the
respondents gone to the homes of the people I refer to in the above
scenarios, to demand that they leave
their homes and join the
protest, their conduct would have been unlawful and unconstitutional.
The same applies herein.
[16] The harm that will
be suffered by businesses if they close as a result of a shutdown is
admitted by the respondents. The calls
to businesses to join the
protest, correspondence that was exchanged and notices or interviews
of some of the respondents which
I have referred to, above,
constituted threats to those businesses who were going to continue
operating during protests. Those
advertisements or interviews that
threatened businesses that were going to trade when there was a
protest were also admitted. For
example, statements such as:‘
we
will deal with those who won’t close their doors, we are
planning a consumer boycott where we will not support the businesses
that refuse to close their doors. We have a list of the businesses
that opened”,
were clear threats. If they were not, why
would the respondents compile a list of businesses that were opened?
I find that such
conduct was unlawful and it had to be interdicted.
It is not correct that the interdict was sought for past conduct.
During January
and February 2023 when there were protests businesses
were forced to close. The respondents were engaged in a protesting on
16
February 2023 and had indicated that the protest was indefinite
pending the dissolution of the council. The applicants’ right
to trade continued to be under threat for as long as the protests
were continuing. The respondents have not placed any facts that
connect the businesses or the applicants to the service delivery
obligations of the municipality. In the light of the finding of
unlawful conduct on the part of the respondents it is not necessary
to venture into the debate of balancing of constitutional rights.
In
my view, therefore, the applicants have made out a case for final
relief and the application must accordingly succeed.
[17] In so far as
costs are concerned, those respondents who are opposing the
application should bear the costs. The heads
of argument clearly
indicate that they have been filed in respect of the first to the
eleventh respondents. I have found in the
Enoch Mgijima
Municipality matter
, that the respondents were entitled to
receive notice
albeit
short notice of the application prior to
the applicants moving court for interim relief. On the applicants’
version, the
first applicant’s Vice- Chairman, who deposed to
the founding affidavit, had met and engaged with some of the
respondents
on,
inter alia,
the protest as aforementioned. The
fact that no notice was given to them is something that this court
frowns upon. The orders that
were sought and granted in their absence
affected them directly and have costs implications. They had a right
to be heard prior
to the granting of the interdict.
[18]
In the
Go
Touch Down Resort Season CC case
relied upon by the applicants in their submissions, the applicants
therein approached their attorney of record to address a letter
of
demand to the respondents. In that letter of demand, all that the
applicants asked for was an undertaking that the respondents
would
cease and desist from their unlawful actions, which were specifically
mentioned in the letter. No response was received from
the
respondents. However, the respondents gave an undertaking not to
proceed with their gatherings until such time as the application
was
heard
[4]
. Applicants are
expected to take steps to notify the respondents of their intention
to approach court. It is fair and just to do
so.
[18] I shall
accordingly issue a costs order similar to the
Enoch Mgijima case
No 444/ 2023 and deprive the applicants of 50% of their costs for
bringing this application on an
ex parte basis.
[19]
In the
circumstances, I make the following Order:
19.1 The
Rule Nisi issued on 17 February 2023 is hereby confirmed.
19.2 The
1
st
to 11
th
respondents are hereby ordered to
pay 50% of the applicants’ costs of the application, jointly
and severally, the one paying
the other to be absolved.
T.V NORMAN
JUDGE OF THE HIGH
COURT
Date of
Hearing: 30
March 2023
Date of Delivery of
Judgment: 23 May 2023
APPEARANCES:
For the
APPLICANTS: Adv.
Brown
Instructed
by: WHEELDON
RUSHMERE AND COLE INC
Matthew Fosi Chambers
119 High Street
MAKHANDA
E-mail:
lit6@wheeldon.co.za
REF: Mr B Brody / Dianne/
S25531
For the
RESPONDENTS: Adv
Mnqandi
Instructed
by: L.
MAZALENI ATTORNEYS INC.
Office
No. 2-4 Status Centre, First Floor
11
Robinson Road
KOMANI
Email:
luzuko@lmazaleniaattorneys.co.za
REF:
CIV / KPA/245/LM
C/O
NEVILLE
BORMAN & BOTHA
22
Hill Street
MAKHANDA
TEL:
046 677 7200
[1]
2014
JOL 31586
(KZD) at 22;
Go
Touchdown Resort Seasons CC & Another v Farm Rural Informal
Dwellers Association & Another
Case No. 60735/2021 North Gauteng High Court at para 42.
[2]
2012(6) SA 223 (CC) at para 50.
[3]
South
African Transport and Allied Workers Union and Another v Garvas and
Others
(CCT 112/11)
[2012] ZACC 13
; 2012(8) BCLR 840 (CC); 2013(1) SA 83
(CC) (13 June 2012).
[4]
GoTouch Down Resort-Season CC, supra paras 8 - 10