Statement – Mine abandons attempt to silence community activists!

The Marikana Youth Development members protesting outside Tharisa Mine. Photo: Bongani Xezwi

On 22 September 2020, the Rustenburg Magistrate’s Court was set to hear arguments in an application for a protection order sought by Tharisa Minerals and former North West deputy police commissioner, William Mpembe, against community activists in the Marikana area. The application was however withdrawn last week and the interim protection order was abandoned.

At the end of April 2020, amidst lockdown, community activists were served with an interim protection order that prohibited community activists from:

(i) engaging in or attempting to engage in harassment of Mr Mpembe,

(ii) harassing and/or in intimidating Mr Mpembe and making scandalous allegations against him on social media; and 

(iii) preventing him from entering or leaving his place of employment at Tharisa Minerals. 

The community activists were set to return to court on 5 August 2020 to show cause as to why the court should not issue a final protection order.  The matter was postponed in order to allow the parties to obtain legal representation.

• Two of the three community activists filed affidavits in which they set out the grave procedural and substantive concerns with the application.  
• The community activists argued that a protection order of this nature implicated their constitutionally protected right to freedom of expression.  
• They argued that, if granted, the order would have a chilling effect on free speech, and any form of activism in the Marikana area, which will set a dangerous precedent that protection orders can be used to silence dissenting voices, and limit free speech.  

Following the filing of their affidavits, the application was withdrawn, and the interim order was abandoned. While the withdrawal is regarded as a success, R2K remains deeply concerned by the attempts by mining companies, and those in positions of power, to misuse court processes to stifle free speech. Far too often private companies get away with using lawfare as a way to clamp down on activists and preventing communities from partaking in decision making processes that affect their lives. 

The Protection from Harassment Act, in terms of which this application was made, is to provide victims of harassment with effective remedies. The Act is not designed to shield individuals and companies from scrutiny.  The requested terms of the protection order appeared to be a means to safeguard the reputation of the mine and silence those who call for accountability and transparency. Filing an application which seeks to unduly restrict the ability of community members to share information, ideas and express opinions is contrary to the values of an open and democratic society and South Africa’s Constitution.

Applications of this nature appear to be part of a growing trend in which companies are using lawfare and misusing court processes to quash freedom of expression, to stifle and restrict speech, and to intimidate those who are critical of them.

R2K, community activists and public interest lawyers are acutely aware of this trend, and will continue to work tirelessly to ensure that the right to freedom of expression and associated rights are respected, protected and promoted.  It is imperative that everyone can share, hear, form and express opinions and views freely on a wide range of matters, even if such views are unpopular or inconvenient to some.

The community activists are members of the Right2Know campaign (R2K) and are represented by Power Singh Inc.

For more information contact:

Thami Nkosi, R2K Campaign Advocacy Organizer: 062 624 5992

Tina Power, Power Singh Inc., Attorney: 011 268 6881

Raserole Mashamaite, Marikana Community Leader: 071 308 3303