Goldfields Community Forum challenges order silencing activists
- Lee-Anne Bruce
CALS and R2P are in the Bloemfontein High Court on 26 November representing the Goldfields Community Forum challenging an interdict against protest
[UPDATE: The Court subsequently dismissed the application and we are awaiting reasons from the Judge to decide on a way forward]
On Thursday 26 November, the Bloemfontein High Court is set to hear arguments in an application brought by activists from the Goldfields Community Forum against Harmony Gold Mining Company. The activists seek to overturn an interdict which prevents them from exercising their constitutional right to protest. They are supported by the Centre for Applied Legal Studies and the Right2Protest Project.
The Goldfields Community Forum (GCF) is a non-profit organisation which seeks to promote the rights of mining-affected communities near Odedendaalsrus in the Free State. Since 2018, GCF has been trying with little success to engage with the management of Harmony Gold Mine about their social and labour plan (SLP). An SLP is a legally binding document which details how a mining company will share the benefits of mining with affected communities. A social audit of the provisions in Harmony Gold’s SLP – conducted by community network Mining Affected Communities United in Action – showed that the mine had failed to comply with its legal obligations.
Following more than a year of frustrated engagements and broken promises, as a measure of last resort, activists from GCF organised a protest to draw attention to the mine’s non-compliance. Members of GCF gave notice of their intention to protest and fulfilled the requirements of the regulations governing gatherings. Instead of addressing their list of demands, Harmony Gold responded by seeking an urgent interdict against GCF and three individual community activists.
The interdict was granted in November last year. None of the named individuals or other members of GCF were able to attend the hearing, and none were given an opportunity to find legal representation. The interdict effectively prevents them from exercising their right to protest and thereby promote the rights of their communities. It goes one step further by criminalising further protests near Harmony Gold and ordering that the non-profit organisation and individual community activists pay the costs of the litigation.
The Goldfields Community Forum, represented by the Centre for Applied Legal Studies and assisted by the Right2Protest Project, has therefore approached the High Court. They are asking for the interdict to be overturned, arguing that the process was procedurally unfair and that the purpose of the interdict was to silence any further criticism of the mine. In fact, this may amount to an example of strategic litigation against public participation, otherwise known as a ‘SLAPP’ suit. Harmony Gold is opposing the application.
“This interdict is nothing more than an attempt to threaten us as activists,” says Aubrey Tsoeute, Chairperson of the Goldfields Community Forum. “What is worse is the costs order against us. This places a huge financial burden on individuals who are mostly full-time community activists and of course also intimidates others who would speak out against injustice in the mining sector.”
“Social and labour plans are there to ensure that mining companies contribute to the development of communities affected by their operations,” says Thandeka Kathi, attorney at CALS. “Communities are understandably frustrated when companies fail to comply with their legal obligations and refuse to engage with them. They have every right to draw attention to this injustice through protest.”
“The Goldfields Community Forum complied with the regulations that govern gatherings and yet their protest action is still being criminalised,” says Stanley Malematja, attorney at R2P. “Effectively, this order infringes on the communities’ right to protest and forces them to pay for the privilege of being silenced by a corporation already impacting on their environmental rights.”
Read more in the heads of argument here.
The matter is set to be heard by the Free State High Court in Bloemfontein on 26 November 2020.
For inquiries, please contact:
From the Goldfields Community Forum:
- Aubrey Tsoeute, Chairperson at firstname.lastname@example.org
From the Centre for Applied Legal Studies:
- Thandeka Kathi at Thandeka.Kathi@wits.ac.za
- Busisiwe Kamolane at Busisiwe.Kamolane@wits.ac.za
From the Right2Protest Project
- Stanley Malematja at Stanley.Malematja@wits.ac.za
- Busisiwe Zasekhaya at Busisiwe.Zasekhaya1@wits.ac.za
About the Goldfields Community Forum
The Goldfields Community Forum (GCF) is a registered non-profit organisation with members from communities in Kutlwanong, Bronville, Thabong, Allenridge and Henneman in the Free State whose environmental rights are impacted by mining activities in the region.
About the Centre For Applied Legal Studies
The Centre for Applied Legal Studies (CALS) is a public interest law organisation based at the Wits University School of Law. Founded in 1978 by Professor John Dugard, CALS continues to use a combination of research, advocacy and litigation to advance human rights and social justice in South Africa. Read more about our work at https://www.wits.ac.za/cals/ or follow @CALS_ZA.
About the Right2Protest Project
The Right2Protest Project (R2P) is a coalition of organisations that aim to advance the realistion of the constitutional right to protest in South Africa by providing legal assistance and support to all protesters. R2P is currently based at the Centre for Applied Legal Studies at Wits University. Find out more about us at https://www.r2p.org.za/ or follow @ProtestZa.