2
2024. I said at the time that my reasons would follow in due course. These are
my reasons.
2 There are three principal bases upon which I was bound to refuse the relief
sought. First, the Department had failed to establish a rational factual link
between the respondents and any reasonably anticipated unlawful activity.
Second, the group of individuals cited as the second respondent was
incapable of meaningful definition, and in any event could only be identified, if
at all, once any unlawful conduct had actually taken place. It followed that the
second respondent could not have been meaningfully informed of the breadth
and application of the order before the individuals comprising it were identified.
Third, the relief itself was startlingly overbroad, and plainly invasive of the
constitutional rights to assemble, to demonstrate, to picket, and to present
petitions.
No link established between the respondents and reasonably anticipated
unlawful activity
3 In Commercial Stevedoring Agricultural and Allied Workers' Union v Oak
Valley Estates (Pty) Ltd 2022 (5) SA 18 (CC) (“Oak Valley”), at paragraph 39,
the Constitutional Court made clear that interdicts in restraint of unlawful
protest activity may only be granted where a factual link between an individual
respondent and actual or threatened unlawful conduct is shown. Without such
a link, there can be no reasonable apprehension of harm, and accordingly no
grounds for the imposition of an interdict.
4 In this case, the Department built its case upon a poster, apparently
disseminated among non-profit organisations registered with it, which called
3
for a sit-in at its offices on 18, 19 and 20 March 2024, in protest against the
Department’s plan to establish a panel charged with the distribution of
resources to non-profit organisations who provide social services that the
Department itself lacks the capacity to deliver.
5 The poster bears the hashtag “#Gauteng NPO’s”. It was on this slender basis
that counsel for the Department submitted that it was entitled to interdictory
relief against each of the 450 or so entities on its database of non-profit
organisations registered with it, or providing services to it. I rejected that
submission. The poster is not a statement of intent. It is a call to action. Even
assuming that the poster is a call to unlawful action, it provides no basis for
the reasonable apprehension that each one of the 450 organisations involved
in this application are about to embark upon the advertised sit-in. There is no
basis on the papers for concluding that each of those organisations had seen
the poster, let alone that they intended to answer its call.
6 In order to establish the factual link required in Oak Valley, more was plainly
required than mere registration with the Department as a non-profit
organisation or as a service provider. The Department was unable to provide
any further basis to establish such a link.
7 It was argued before me that Oak Valley does not require such a link where
the individuals being placed under interdict have deliberately sought to
obscure their identities. However, I do not think that Oak Valley goes that far.
Paragraph 42 of the Oak Valley decision says that “where a strike is beset by
unlawful conduct and large numbers of protesters or strikers deliberately
conceal their identities – for instance, through the wearing of masks – a Court
4
may be entitled to more readily conclude that an applicant has a reasonable
apprehension that the participants in the strike will cause it injury”. That plainly
does not mean that the requirement of a rational factual link between the
individual sought to be interdicted and the unlawful conduct complained of can
be dispensed with altogether. What it means is that a court need not insist on
the direct and individual identification of a person within a group of people who
have disguised themselves for the purpose of engaging in unlawful activity, if
there are other facts from which that person’s participation in the unlawful
activity can be inferred.
8 In any event, the attempt at disguise to which the Department adverted was
an exhortation on the poster that participants in the sit-in should wear face
masks. The exhortation to wear face masks at gatherings – especially at a
gathering of people working for non-profit organisations who regularly come
into contact with the old, the frail and the sick – is plainly hygienic in intent. It
is not a call to obscure the identities of the participants.
9 For all these reasons, there was no basis on which I could grant any
interdictory relief against the first respondents. No factual link between any of
them and any identified unlawful activity – and accordingly no reasonable
apprehension of harm – was established.
The second respondents
10 No relief at all could be granted against the second respondents, because
nobody can say who they are. In Kayamandi Town Committee v Mkhwaso
1991 (2) SA 630 (C) at 634G-J Conradie J emphasised that court orders may
only be granted against clearly defined parties who can be identified in
5
advance of the institution of a lawsuit. This does not mean that each party
must be individually identified. Persons may be joined to a lawsuit as members
of a group (for example, all the occupiers of a particular erf are regularly made
parties to eviction proceedings). However, where they are not individually
identified, the group comprising the parties to the lawsuit must be clearly
defined and easily ascertainable, such that notice can meaningfully be given
to the members of the group in advance.
11 In this case, the group comprising the second respondents is notionally
inclusive of anyone who chooses to participate in the sit-in if and when it goes
ahead. There is no way that these individuals can be identified in advance,
and accordingly no meaningful sense in which they can be given notice of the
application for the interdict. Again, then, there can be no reasonable
apprehension that any one of the multitude who could potentially comprise the
second respondent will conduct themselves unlawfully. As a result, no relief
can be granted against that group.
The overbreadth of the relief
12 The Department claimed an interdict of startling overbreadth. It sought more
than the mere restraint of a sit-in. The notice of motion seeks to restrain any
“interference” with or “obstruction” of the Department’s activities at its main
offices; any “picketing” action; any “protest” action; and incitement of any
“picketing” or “protest” action. The problem with this relief is that it embraces
a wide range of conduct, some of which may be perfectly lawful. In particular,
the right to picket is specifically protected in section 17 of the Constitution,
1996. A picket of any sort entails some interference with access to or egress
6
from a place of business. There is of course a line between lawful picketing
and unlawful disruption or interference, but the Department made no effort to
suggest where that line might be. In addition, while “protest” action – which
the Department also seeks to restrain – is not specifically protected by section
17 of the Constitution, the rights to “assemble” and “demonstrate” are.
“Protest” action clearly encompasses assembly and demonstration, and in the
absence of any effort in the Department’s notice of motion to identify a
boundary between unlawful protest action that may properly be restrained,
and lawful demonstration and assembly that may not be restrained, no relief
could be granted at all.
Order
13 In sum, the Department sought overbroad relief that was plainly invasive of
constitutional rights against an ill-defined group of people. Where members of
the group sought to be restrained were identified, the Department could not
establish a link between those individuals and any unlawful conduct that had
caused it harm, or was reasonably anticipated to do so.
14 It was for those reasons that I dismissed the application, with no order as to
costs.
S D J WILSON
Judge of the High Court
This judgment is handed down electronically by circulation to the parties or their legal
representatives by email, by uploading to Caselines, and by publication of the
7
judgment to the South African Legal Information Institute. The dat e for hand-down is
deemed to be 18 March 2024.
HEARD ON: 15 March 2024
DECIDED ON: 15 March 2024
REASONS: 18 March 2024
For the Applicant: K Nondwangu
Instructed by the State Attorney
For certain of the W Sithole
First Respondents: Instructed by Webber Wentzel