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[2023] ZAECMKHC 64
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Enoch Mgijima Municipality v Komani Protest Action (KPA) and Others (444/2023) [2023] ZAECMKHC 64 (23 May 2023)
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Certain
personal/private details of parties or witnesses have been
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Policy
IN
THE HIGH COURT OF SOUTH AFRICA
[EASTERN
CAPE DIVISION – MAKHANDA]
CASE
NO.: 444/2023
In
the matter between: -
ENOCH MGIJIMA
MUNICIPALITY
APPLICANT
and
KOMANI PROTEST
ACTION (“KPA”)
1
ST
RESPONDENT
KOMANI PROTEST
ACTION COMMITTEE
2
ND
RESPONDENT
MNCEDISE MBENGO
3
RD
RESPONDENT
(ID: 7[…])
SATCH NAIDOO
4
TH
RESPONDENT
YOLANDA GCANGA
5
TH
RESPONDENT
(3
rd
to
5
th
Respondents being the leaders spokesperson
and co-ordinators
of a community/action group known
as Komani Protest
Action)
ALL INDIVIDUALS
OR GROUPS OF PERSONS WHO
ASSOCIATE WITH
AND/OR GATHER WITH 1
ST
TO 5
TH
RESPONDENTS
AND/OR “KOMANI PROTEST ACTION”
(HEREINAFTER
CALLED KPA COMMITTEE”) FOR
PURPOSES OF
STAGING AND HOLDING PROTEST ACTION
IN THE MUNICIPAL
BOUNDARIES OF ENOCH MGIJIMA
MUNICIPALITY,
WHETHER UNDER THE NAME OF KPA
OR ANY OTHER
NAME IN ADVANCEMENT OF THE
OBJECTS AND/OR
GOALS OF KPA AND WHETHER
REGARDING
UNHAPPINESS WITH THE APPLICANT
OR ITS OFFICIALS
OR FOR ANY OTHER PURPOSE
WHATSOEVER
6
TH
RESPONDENT
MINISTER OF
POLICE
7
TH
RESPONDENT
JUDGMENT
NORMAN
J:
[1]
The applicant is named after a Xhosa prophet
and an activist, Enoch Jonas Mgijima, who was born in Ntabelanga. He
led the Israeli
church that embarked on a passive resistance
movement. It fought against, amongst others,land dispossessions by
the apartheid regime.
That led to the massacre of approximately 200
of his followers by the police. That massacre is referred
to
in the history books as the Bulhoek Massacre.
[2]
This reference to the above mentioned hero is to demonstrate the
importance of ensuring that,
in our life time, protests must be
encouraged and not suppressed for as long as they are conducted
peacefully.
[3]
The applicant in these proceedings seeks
confirmation
of the rule.
It sought and was granted interim relief on an
urgent basis
on 17 February 2023, by Beshe J,
interdicting and restraining the 1
st
to 6
th
respondents ( the respondents) during the protest actions or other
gatherings from directly or indirectly committing unlawful acts
and
violating fundamental rights in the form of intimidation, assault or
threats, littering, trashing causing pollution or harm
to the
environment, committing arson, barricading or blockading roads and
setting fire to any items and assets of any person whomsoever
in any
public area in the applicant’s municipal district. They were
also interdicted from threatening, inciting violence,
assaulting
anyone or using any means whatsoever to disrupt the affairs of the
Enoch Mgijima Municipality (“the municipality”)
and its
officials, service providers, management and/or employees in carrying
out their functions and delivery of services. The
interdict also
applied to all the members of the Komani Protest Action (“KPA”).
It is common cause that the respondents
are members of the KPA or
they closely associate themselves with the objectives of KPA.
[4]
The applicant further sought a cost order against any of the
respondents who opposed the application,
individually or jointly and
severally. It was further granted various orders relating to the
manner of service of the orders granted.
[5]
The application is opposed by the respondents.
Relevant
facts
[6]
Ms Nomthandazo Mazwayi, the Municipal Manager deposed to the founding
affidavit. She described
the applicant as a local authority and
public body established in terms of the provision of
section 12
of
the
Local Government Municipal Structures Act 117 of 1998
with full
incorporation and legal personality capable of being sued in its own
name.
[7]
It is common cause that the municipality is empowered to govern the
local government affairs within
the municipal districts of,
inter
alia,
Hofmeyer, Komani (Queenstown), Molteno, Sada, Sterkstroom,
Tarkastad and Whittlesea. It also has executive authority in terms of
section 156 (1) of the Constitution and a right to administer local
government matters pertaining to,
inter alia,
housing,
population development, regional planning and development, welfare
services, building regulations, municipal planning,
municipal health
services, water and sanitation services, control of public nuisances,
local amenities, public places and traffic
and parking.
[8]
In terms of section 156(5) of the Constitution the applicant has the
right to exercise any power
concerning a matter reasonably necessary
for,amongst others,the effective performance of its functions.
[9]
KPA is a group of persons whose names are, according to the applicant
unknown to it but persons
who associate with one another for a common
goal, to stage protest actions aimed at disrupting the affairs of the
applicant and
to unsettle its leadership as a result of its members’
grievances regarding service delivery issues. KPA issued
notices
warning the businesses of the protest action and the shutting
down due to lack of municipal services or adequate service delivery.
They also called upon businesses to voluntarily close down for a
period of two (2) hours on 6 February 2023 between 12h00 to 13h30
pm.
Applicant’s
case
[10]
The applicant stated that since January 2023, respondents have
organized themselves as a voluntary association
that staged protest
actions directed at interfering with and/ or disrupting and
destabilizing the affairs of the municipality so
as to pursue its
aims and objectives. Their aim is to force dissolution of the council
and to cause the national government to
intervene in the affairs of
the municipality, based on the views of the KPA that the municipality
fails to deliver services to
its communities.
[11]
These protest actions, as stated by the applicant, have been
marred
with violence and a range of unlawful conduct, which includes,
inter alia
, arson, assaults, threats of assault, intimidation,
unlawful damage to property. The applicant contends that whilst
committing
these unlawful activities, the respondents violate the
citizens’ fundamental rights which include,
inter alia,
the rights to life, freedom of movement and dignity.
[12]
The applicant relied on various media reports on SAFM radio, on
WhatsApp group messages that these respondents
have put out in the
social media where they were announcing the two (2) days shutdown
over service delivery. These statements were
put up on
7
and 16 February 2023.
One of the posts on social media by KPA
stated,
inter alia
:
‘
The Komani
Protest Action will proceed with the shutdown of Komani with effect
from 16 -17 February 2023 until their demands are
met and it is
further stated that we shall put all our conceited efforts to the
dissolution of Enoch Mgijima Local Municipality.
We must remain
strong and firm for the betterment of our Municipality.’
[13]
According to its Facebook page, KPA held itself out to be a public
group which presently has 586 members.
The applicant alleged that
three weeks prior to the filing of the application, certain members
of the KPA including, Mbengo, Naidoo
and Gcanga approached one Shaun
Dudley Adolph (“Adolph”) who is a chief traffic officer
and public safety officer of
the applicant, seeking consent to hold
or to stage a protest meeting on 26 January 2023. Their request
was refused. It appears
that these committee members informed Adolph
about the objectives of KPA as aforementioned. They also mentioned to
him that their
grievances arise from various problems such as
electricity outages, potholes and in general poor service delivery.
[14]
On 5 February 2023 KPA issued a notice that a meeting would be held
at the Hexagon Square, Komani with the
former Minister of COGTA, Dr
Nkosazana Dlamini-Zuma to whom a memorandum of grievances was going
to be handed over. This group
had closed all the entrances to town
and had brought the business sector substantially to a standstill.
Some of the members of
the protest were trashing the streets of
Queenstown. The applicant contends that the fundamental rights of the
citizens were violated
and the trashing of the streets created a
health and hygienic hazard for the citizens. It further contends that
the actions of
the group was criminal in nature to the extent that
they intentionally damage or caused damage to the property of the
municipality.
[15]
It appears that Adolph advised the representatives of KPA that
consent would not be granted for a public
protest meeting on various
grounds including, short notice. Notwithstanding
this
refusal, various members of KPA gathered at Hexagon circle in
Queenstown on 26 and 27 January 2023 after the notice contained
in
Annexure “FA1” had been disseminated amongst business
owners. It appears that the protest of 26 and 27 January 2023
was not
violent, however
, there were certain screenshots attached to
the papers reflecting that from the official Facebook page of the
Daily Dispatch, it
was reported that hundreds of frustrated Komani
residents blocked the entrance to the town and were protesting at the
Hexagon circle
in Queenstown centre whilst the police were trying to
disperse the crowds without success.
[16]
The applicant complains that by its actions on those days, KPA,
managed to effectively bring the commercial
sector to a standstill
and most businesses were closed during the day whilst the entrances
to the town were blocked and closed
by this group as they refused to
disperse notwithstanding the presence of the police. The applicant
stated that during the protest
of both
26 and
27 January 2023,
KPA and its members later during that day
became more threatening, aggressive, intimidating especially towards
the members of the
police.As a result the police had to use rubber
bullets and
stun
grenades to calm down the group and to disperse it.
Respondents’
case
[17]
The deponent to the answering affidavit, Satch Naidoo, described KPA
as a civil organization, with no political
affiliation with its
objective to achieve the dissolution of the municipality. He
categorizes the relief sought as an attempt to
gag the respondents or
residents of Komani who identify with the cause of the respondents.
He contends that there have been a series
of successful protest
actions organized by the respondents to put pressure on the national
and provincial executives to take steps
to dissolve the municipality.
[18]
The respondents rely on the provisions of sections 17 and 18 of the
Constitution that KPA has a right to
assemble peacefully, unarmed, to
demonstrate, to picket and to present petitions and to assert its
right to freedom of association.
It states that the right to protest
in this country is a fundamental right and serves as a bedrock of our
democracy. He denies
that KPA was involved in a violent protest. He
stated that the respondents exercised their freedom to assemble in a
peaceful and
within the confines of the law.
[19]
He relied on section 3 of the Regulation of Gatherings Act
205
of 1993
(the Gatherings Act) that KPA gave notice to the
police special operating unit. The meeting they held was also
attended by the crime
intelligence unit on 23 January 2023. The
purpose of the meeting was to advise the police about the intended
gathering. He
makes the point that KPA was not required to obtain
consent from the authorities. He contends that the right to protest
is an automatic
right. He conceded that notice was not given in
writing. KPA believed that the meeting on 23 January 2023 constituted
sufficient
notice and thus the gathering was not illegal. It was not
possible to give, according to him, seven calendar days’ notice
because the protest was triggered in January 2023 when the
Secretary-General of the African National Congress, Mr Fikile Mbalula
visited Komani for an ANC gala dinner which was, according to KPA at
the expense of the residents who were adversely affected by
lack of
service delivery by the municipality which is in dire financial
constraints.
[20]
KPA had issued a cordial invitation to all members of the Komani
community asking them to join the protest
action. There was no
intimidation, acts of violence or destruction of property of any
kind. In this regard, he relied on a video
clip of an interview
between the Minister of COGTA and eNCA. He contends that even on 16
and 17 February 2023, the protest was
peaceful
and not marred with
violence, intimidation or destruction of
property. He criticized the fact that the application was brought
ex
parte
when it affected the interests of KPA. In this regard, it
contended that the application was an abuse of the process of Court.
He
submitted that the applicant lacked good faith and the application
is contrived and ill-conceived.
Reply
by the Applicant
[21]
In its replying affidavit, the applicant relied heavily on the fact
that the respondents in paragraph 45
of their answering affidavit
admitted the fact that there was violence and a range of unlawful
conduct which
marred the protest
and
such unlawful conduct included arson, assaults, threats of assaults,
intimidation and unlawful damage to property. On this basis
alone,
the applicant contends that this court should therefore confirm the
rule.
[22]
The respondents relied on an Annexure “AAOO1” which they
contend is evidence to show that the
gathering and protest were
peaceful and conducted in a disciplined manner. However, they failed
to attach such an annexure. In
this regard, the applicant contends in
reply that, that annexure whether it was present or not would not
alter the concession made
that the protest actions were
marred by violence,
unlawful acts and violation of fundamental
rights, as admitted in paragraph 45 of the answering affidavit.
[23]
The applicant also relied on the admission made by the respondents in
paragraph 49 of their answering affidavit
that KPA blocked the
entrance road to Queenstown and arranged to bring the commercial
sector to a complete standstill. In this
regard, it contends, the
right of freedom of movement of citizens was affected. It contends
that the respondent admitted the altercations
which took place
between KPA and the police during which the police were obliged to
use rubber bullets
and stun
grenades to
fend off and calm down the group. In this regard the applicant
submits that the respondents seek to rely on self-help
or
self-defense because of the alleged provocation by the mayor.
[24]
They also rely on an admission also made in paragraph 51 of the
answering affidavit that on 7 February 2023
they trashed the streets
and also closed the entrance to the town and again brought the
business sector substantially to a standstill.
[25]
The applicant contends that the fact that the threats of eviction
from temporal head office of the municipality
and bringing the
municipality to a standstill based on essential services, is conduct
which objectively speaking, has not been
disputed. It is that
conduct that led to the application having been brought on an urgent
ex parte
basis.
[26]
The municipal manager contends that when the threat was made to evict
management and employees from the municipal
offices it became
necessary to approach the court for urgent relief because there was
real apprehension that various damages and
harm may accrue because of
the conduct of the members of KPA.
Applicant’s
legal submissions
[27]
Mr McLouw for the applicant submitted that on the respondents’
version they do not say that they gave
notice to the municipality as
envisaged in section 3 of the Gatherings Act. Instead, they asked for
consent which was refused due
to short notice. He took the court
through the admissions made in the answering affidavit as already
indicated in reply. He submitted
that the interdict issued by Beshe J
related to unlawful actions as contained in paragraph 2.1, 2.2 and
2.3 of the order.
[28]
He submitted that there is no balancing of rights in this matter
because what has been brought before this
Court is unlawful and
unacceptable conduct on the part of the respondents. He relied on
South
African Transport and Allied Workers Union and Another v Garvas and
Others
[1]
that the organizers of the march may be held personally liable for
the damages that the marchers do resulting in damages being
suffered
by the citizens or residents. He contends that in this case the
respondents failed to prove that they took all reasonable
steps to
quell any violence as a result of the protest action.
Respondents’
legal submissions
[29]
Ms Mnqandi submitted that the applicant failed to demonstrate that it
has a right that ought to be protected.
She submitted that 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. She submitted that the
applicant has failed to prove that any harm
suffered was caused by
the respondent or has not shown that there are reasonable grounds for
apprehension of harm. The applicant
failed to show that there was no
alternative remedy. She contends that urgency was self-created. She
further contended that the
community organized itself to address the
challenges it had and that right must be balanced with the right and
freedom of movement.
If such rights were affected they are not
absolute.
[30]
She contended that in balancing the conflicting rights, the Court
must find that it was reasonable and justifiable
for the respondents
to hold the protest action. She submitted that the respondents denied
any interaction with the person named
Adolph as alleged by the
applicant. She submitted that, according to the respondents, it is
the officials of the municipality who
provoked the residents and that
resulted in an altercation which was resolved speedily. Thereafter
the crowd dispersed and it gathered
again and continued with the
purpose of the gathering. She submitted that any trashing of the
streets is denied. This denial, according
to her , is supported by
the fact that the police were present and they monitored the
situation.
[31]
She further submitted that the conduct complained of by the applicant
is past conduct. That 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]
.
She submitted that it is trite that there is no hierarchy of
rights and she relied on section 22 of the Constitution. The
Court
must look at balancing those rights, she argued. She argued
that a final interdict cannot be granted when it has not
been proved
that the march was violent. The entire town of Komani is hanging by a
thread, the municipality has an obligation to
deliver services to the
people, she submitted.
[32]
The protest was perpetrated by the service delivery issues. Millions
were spent on a gala dinner. KPA had
no intentions from the very
beginning of acting outside the borders of the law. 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 further submitted that there is perpetual suffering by the
residents which is caused
by a municipality that is not delivering on
its mandate.
[33]
She submitted that interdicting KPA of future marches or protests is
too broad and should be refused.
Discussion
[34]
As a starting point, it is important to mention that the applicant
herein also champions the cause of the
businesses operating within
that municipality. Counsel had requested that the two cases be dealt
with separately. This case together
with the one brought by the
Border – Kei Chamber of Business v KPA
& Others under case no. 442/2023
are based on similar
facts.
[35]
A protest action is a mechanism of exerting pressure on the
authorities to deliver on their mandate to fulfill
their
constitutional obligations. When utilized in an orderly manner
it has the effect of achieving the desired results.
It also has a
potential of creating more harm than good. According to the
respondents the intention of the protest in question
was to dissolve
the municipality because of its failure to deliver services to the
people.
A perusal of the answering
affidavit shows that the service delivery issues did not trigger the
protest. What triggered the
protest, according to the respondents,
was the visit by Mr Fikile Mbalula and the gala dinner that was held
by the municipality,
in circumstances where the municipality’s
finances were in dire straits. In any event, service delivery issues
were clearly
a concern as is apparent from the thousands of people
that joined the protest.
[36]
It is common cause that the applicant has its own council as well as
executive and legislative functions.
[37]
Section 157 of the Constitution provides for the composition and
election of municipal councils. This means
that people who serve on
the council are elected. There is proportional representation based
on the municipality’s segment
of the national common voters’
roll, which provides for the election of members from lists of party
candidates drawn up in
a parties’ order of preference or from
such a system combined with a system of ward representation based on
the municipality’s
segment of the national common voters’
roll. The term of a municipal council may not be more than five (5)
years.
[38]
The dissolution of a municipal council is provided for in the
Constitution. It is located in section 139
thereof:
“
139.
(1) When a
municipality cannot or does not fulfil an executive obligation
in
terms of the Constitution or legislation, the relevant provincial
executive may intervene by taking any appropriate steps to
ensure
fulfilment of that obligation, including—
(a)
. . . .
(b)
. . . .
(c)
dissolving the Municipal Council and
appointing an administrator until a newly elected Municipal Council
has been declared elected,
if exceptional circumstances warrant such
a step.”
[39]
I deal with this aspect to highlight that a dissolution of a
municipality is regulated by the Constitution and
by section 34 of
the Local Government: Municipal Structures Act 117 of 1998. The
Municipal Structures Act provides for two (2)
scenarios, namely,
where a council may dissolve itself at a meeting called specifically
for that purpose and where it adopts a
resolution for dissolving a
council with a vote of at least two-thirds majority of the
councilors. The other scenario is where
the MEC for Local Government
dissolves the council as provided for in section 34(3) and (4) of the
Structures Act. When there is
a dissolution of council, an
administrator must be appointed by the MEC for Local Government in
the Province.
[40]
Any act that would seek to dissolve the
municipal council in a manner that would be contrary to that which is
prescribed by the
Constitution would be unlawful, invalid and
unconstitutional. I mention the process of dissolution of a
council to demonstrate
that there are certain processes that must be
followed.
[41]
In the respondents’ answering affidavit there is not a single
document that evinces the steps they
have taken to convey their
intentions to have the council dissolved either to the municipality
itself or to the MEC. The respondents
have resorted to conduct a
series of protest actions organized by them to put pressure on both
the relevant provincial and national
executives to dissolve the
council. In their notices they make it abundantly clear that the
protests will continue until the council
is dissolved. The
submission that the interdict sought related to past conduct is, with
respect, unsound. The threat to continue
with the protests until the
dissolution of the council was not an empty one if one has regard to
the conduct of the respondents
and the series of the protests that
were held and the manner they were carried out. There was a protest
scheduled for 17 February
2023, the day the interdict was sought and
obtained.
[42]
It seems to me that the applicant’s fears
that the protests and the threats of KPA and its members would
continue indefinitely
until the demands of the KPA were met, which
threats included, amongst others, to converge in the temporal head
office of the municipality,
evict management and employees in order
to bring the municipality to a standstill, were real.
[43]
In the
Satawu
case at paragraph 38, the Constitutional Court
when dealing with the provisions of section 11 (2) of the Gatherings
Act 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.”
[44]
Professor G. Devenish in his book entitled:
A Commentary on
the South African Bill of Rights, Chapter 12, Freedom of Assembly,
Demonstration, Picket and Petition
page
221-222,
he defines the freedom of assembly as follows:
“
Freedom of
assembly is concerned with the public expression of opinion by
“spoken word and by demonstration”. It can
be described
more succinctly as a synthesis or a “mélange of speech
mixed with conduct”. The latter is both
a revealing and
accurate definition, as it not only locates freedom of assembly “in
the pantheon of freedom of expression
from which it springs, but
identifies its distinguishable, or one might say ‘demonstrable’
dimension as well”.
An analysis of the different definitions of
freedom of assembly indicates that they are essentially complementary
rather than contradictory.
It has been argued that freedom of
assembly is merely a “specific form of freedom of speech”.
In contrast, Grunis has
reasoned that there is a distinction between
free assembly and free speech, since freedom of assembly relates to
the behaviour
of a gathered group, whereas speech is concerned with
the content of a verbal or written message.
The United States
Supreme Court, as will be explained below, has assimilated the two
divergent approaches that the Canadian scholars
have demarcated.
Speech, perceived in a generic sense, could, according to the Supreme
Court, include more than mere intellectual
content of the message,
but the means of expression will also be the same or at least similar
to constitutional protection given
to the content. The ultimate
result is that freedom of assembly is treated as a protected form of
speech, al
though freedom of speech
may
have a demonstrable feature to it.
2 The need for
protection of freedom of assembly.
Liberal
democracy cannot operate effectively without meaningful measure of
freedom of assembly, for two reasons. Modern political
parties, which
must of necessity appeal to the masses, must exercise collective
politics to be effective. This requires political
meetings, both
large and small, for which freedom of assembly is indispensable.
Second, the development and crystalisation of creative
and innovative
ideas and policies require intensive, penetrating and dialectical
debate and discussion in political meetings.”
[45]
In the same book he makes reference to the remarks made by Professor
Dugard in his work
Human Rights and the South African Legal Order
(1978)
at page 186,
where he
explained that the repression of public demonstration is not only
undemocratic it is inherently dangerous. He stated that
liberal
democracy cannot operate effectively without a meaningful measure of
freedom of assembly for two reasons: First, modern
political parties,
which must of necessity appeal to the masses, must exercise
collective politics to be effective. This requires
political
meetings, both large and small for which freedom of assembly is
indispensable. Second, the development and crystallization
of
creative and innovative ideas and policies require intensive,
penetrating and dialytical debate and discussion in political
meetings.
[46]
He stated that assemblies ensure that there is meaningful and
continuous communication between voters and
representatives. The
government is thereby informed of the unpopularity of its policies
and is able to identify and address problems
between elections.
Freedom of assembly and demonstration is essential to a society’s
commitment to universal political participation
in the democratic
process and discourse. He states that this seminal right therefore
permits persons to assemble and demonstrate
their opposition or their
support for any
cause
and to present the
authorities with their demands for change. It is subject to the
internal modifier that such conduct be effected
peacefully and
without arms. This means that violent protest is proscribed, and this
impliedly permits laws regarding breaches
of the peace and riot.
[47]
Such conduct, as indicated above need not necessarily be directed
against public authority but can be in
respect of the opposition to
any particular issue or cause private or public. However, there is an
obligation on the part of the
authorities to ensure that such conduct
is exercised within the parameters of the law.
[48]
In
Kimat
Lal Kei Shaar v Commission of Police
[3]
where the Supreme Court of India ruled that the State can only make
regulations to facilitate the right of assembly, which includes
reasonable restrictions to safeguard citizens’ rights, but this
does not obviously mean prohibitions of all meetings and
processions.
[49]
The respondents complain that the application is intended to
interfere with their rights of assembly contained
in the Bill of
Rights as follows:
16.
Freedom of expression
1.
Everyone has the right to freedom of
expression, which includes-
a.
freedom of the press and other
media;
b.
freedom to receive or impart
information or ideas;
c.
freedom of artistic creativity; and
d.
academic freedom and freedom of
scientific research.
2.
The right in subsection (1) does not
extend to-
a.
propaganda for war;
b.
incitement of imminent violence; or
c.
advocacy of hatred that is based on
race, ethnicity, gender or religion, and that constitutes incitement
to cause harm.
17.
Assembly, demonstration, picket and petition
Everyone has the
right,
peacefully and unarmed
, to assemble, to demonstrate, to
picket and to present petitions.
18.
Freedom of association
Everyone has the right
to freedom of association.” (my emphasis)
[50]
The Constitution itself promotes peaceful and not violent
gatherings. The concession by the respondents
that the protests
were marred with violence is not consistent with their reliance on
the above quoted provisions of the Constitution.
That concession
means that the interim interdict was properly sought and obtained to
stop the violent acts, blockades of entrances
into town and trashing
of streets.
[51]
The structure of the Gatherings Act is intended to encourage holding
of gatherings. It does not provide that
consent must be sought before
a gathering is embarked upon. That would limit the right to assemble
peacefully.It would thwart any
efforts to convey to those in power
the unhappiness or disagreements that people have towards,
inter
alia
,their leaders or the government or employers.
[52]
I have no doubt that were that to be so, the respondents, would have
sought an order that such provisions
be declared invalid and
unconstitutional. What is upper most in the Gatherings Act is that a
convenor must issue a written notice
of its intended gathering and
explain itself therein by giving details in relation to all the
matters that are listed in section
3(2)(a) to (j) of the Gatherings
Act.
[53]
It follows that Adolph, on the applicant’s version, had no
basis in law or in terms of the Gatherings
Act to refuse a request
for a gathering. His obligation is to educate and advise those who
seek to hold a gathering about the processes
to be followed. In any
event the respondents denied ever meeting with Adolph.
[54]
The measure of control of the gathering cannot be regarded as a
control that actually limits ones right to
assemble and to picket or
to petition. It is simply intended to ensure that in the process of
one expressing its right to assemble,
one does not trample upon the
rights of others. The manner in which the protest will proceed
through the streets must be
guided so as to ensure that the
protesters themselves are not in harm’s way, either by way of
stampedes or speeding vehicles.
[55]
An open ended march or assembly cannot be regarded as a
constitutional method of expressing one’s unhappiness
with
those who are in power because what it means is that one would hold a
march protest as and when one wishes without any structure
to it, no
control mechanisms put in place, and most importantly no
consideration for others or any of their rights that may be
affected
by that protest. The way I see the relief that is being sought,
is simply intended to ensure that when there is
such a protest
action, it must be held in terms of the law ( compliance with
the provisions of the Gatherings Act ) , it
must be peaceful,
non-violent and not domineering on the rights that other citizens or
persons hold, which rights , they too, enjoy
in terms of the
Constitution.
[56]
All that is prohibited in the interim interdict is unlawful conduct
and no more. The respondents had, in
one of their notices, made it
clear that no violence would be tolerated. There is nothing in their
answering affidavit which tabulates
the steps that they took to
ensure that the protesters acted in a peaceful manner. Unfortunately,
there were violent acts as they
have admitted which occurred. They
have taken ownership and responsibility that they were the organizers
of the protests and they
have not advanced any reason why they should
be distanced from the unlawful acts that occurred during the protest,
that they themselves
had organized.
[57]
The fact that the respondents had notified the police of their
intentions to hold a gathering, does demonstrate
that they considered
the safety of the protesters and the residents.
However,
that was not enough.
On their version, they deny meeting
Adolph and they thus accept that they failed to notify the local
council or the municipal manager
about the planned protest. They
proffered no explanation for their failure to do so. Most
importantly they failed to satisfy
the requirement that they were
supposed to meet in terms of section 3 of the Gatherings Act, namely,
giving written notice. The
complaint was about the municipality and
not about the police. Notifying the police only was , perhaps on
their part, to
seek assistance with crowd control but that did
not relieve them of their obligation to notify the local authority
that its streets
would be occupied, for example, from 6am to 6pm on
the one day, that no vehicles would be allowed to enter or
leave the town
and / or that all entrances would be blocked; and that
they intended to continue with the protests indefinitely until the
council
is dissolved.
[58]
Section 4(b) of the Gatherings Act enjoins a convenor to give the
notice contemplated in section 3(2) to
the Chief Executive Officer or
his immediate junior. It is apparent from the respondents’
version that there was no compliance
with the provisions of section
3(2) and those of section 4(b) of the Gatherings Act. Even where the
respondents deal with the process
followed by the respondents in
organizing the protest action, they have not dealt, for example, with
the anticipated number of
participants, route of procession, names
and number of the marshals who will be appointed, the manner in which
the participants
would be transported to the place of assembly and
from the point of dispersal. The reason why the notice was given less
than seven
(7) days as prescribed in section 3(2).
[59]
Their actions were intended to limit operations of all sectors and
movement of residents, indefinitely, because
their intention was to
continue with the protests until the council was dissolved. Failure
to comply with the provisions of the
Act, in this regard, constitutes
unlawful conduct. It is that conduct that the interdict sought
to arrest.
[60]
In
Acting
Superintendent of Education of KwaZulu Natal v Ngubo
[4]
the
Court found that the right to assemble and demonstrate implicitly
extended no further than what was necessary to convey the
demonstrator’s message. It was held that it was not possible to
conceive of any situation where the right to assemble and
demonstrate
could be so extensive as to justify harassment, delicts or criminal
conduct. As indicated above, the Courts must carefully
and rationally
weigh up the conflicting interest.
[61]
Proceeding to deal with the conflicting interest, Ms Mnqandi urged
the court to weigh up the interests of
the municipality and those of
the protesters who were conveying a message of their dissatisfaction
about service delivery issues.
In my view, because of the finding of
unlawful conduct, it is not necessary to deal with conflicting
interests.
[62]
The submission that the final interdict will limit the respondents’
rights enshrined in sections 17
and 18 of the Constitution, has no
merit. A final interdict is sought to ensure that the
respondents, when they wish to protest
they do so in terms of the
law. That does not amount to a blanket prohibition of protests as
suggested by the respondents.
[63]
I am satisfied that the matter was of sufficient urgency to warrant
moving court for an interdict. There
was no alternative remedy
other than approaching court for relief on the part of the applicant.
However, I agree with the respondents
that there are no sound reasons
to warrant
ex parte
proceedings when they had an interest in
the matter. Had they been given notice, they contend, the application
could have been
avoided. The first to third respondents were known to
the applicant as early as January 2023, according to the facts stated
in
the founding affidavit. In the founding affidavit cell phone
numbers of some of the respondents are listed therein. Infact
the
applicant was even aware of the cell phone number of one Caren, a
contact person of KPA. A whatsapp message alerting the respondent
to
the relief sought would have served as notice
albeit
informal.
They should have been given notice of the urgent application because
the orders sought affected them directly. This court
intends to
deprive the applicant of some of its costs for their failure to give
notice of the proceedings as aforementioned.
[64]
For all the reasons advanced above, the applicant has made out a case
for the final interdict. It follows
that it is entitled to its costs
subject to those that the court will disallow for their failure to
give notice to the respondents
as indicated above.
[65]
I accordingly make the following Order:
65.1
Th
e Rule Nisi issued on 17
February 2023 is hereby confirmed.
65.2 The
respondents are directed to pay 50% of the applicant’s 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:
03/30/23
Date of Delivery
of Judgment:
05/23/23
APPEARANCES:
For the
APPLICANT:
Adv. McLouw
Instructed by:
NETTLETONS
ATTORNEYS
118A High Street
MAKHANDA
Per Instruction:
PEYPER
ATTORNEYS
BLOEMFONTEIN
E-mail:
everlona@peyperattorneys.co.za
For the
RESPONDENTS:
Adv Mnqandi
Instructed by:
DULLABH
ATTORNEYS
5 BETRAM STREET
MAKHANDA
REF: CIV1/0132
Email:
sinesipho@smayinjanaattorneys.co.za
Instructed by:
S. MAYINJANA
ATTORNEYS
QUEENSTOWN
[1]
(CCT 112/11) [2012] ZACC 13; 2012 (8) BCLR 840 (CC); 2013 (1) SA 83
(CC).
[2]
2012(6)
SA 223 (CC) at para 50.
[3]
[1973] 1 SCR 227.
[4]
1996 (3) BCLR 369
(N) at 375 – 376.