Symposium on Protest and Legal Mobilization: Right to Protest in a Post-Apartheid South Africa – The Case of Mining-affected Communitiess

[Sithuthukile Mkhize, Head of Political and Civil Rights at the Centre for Applied Legal Studies, University of Witwatersrand.

Omhle Ntshingila is project coordinator of the Right2Protest Project housed at University of Witwatersrand.]

South Africa’s democracy post-apartheid, which is popularly referred to as the period after the country’s first, fully-democratic elections in 1994, is often celebrated and praised for being one of the most advanced because of its progressive constitutional protections. One significant protection that is guaranteed in section 17 of South Africa’s Constitution is the right to assemble, demonstrate, picket and petition peacefully and unarmed. The right to protest has been described as a gateway for users to access other rights guaranteed in the Constitution. It is enforced as a measure of last resort, when all else has failed.  The Constitutional Court in South Africa has held that the right to protest is one of the principal means by which ordinary people can meaningfully contribute to the constitutional project of advancing human rights and freedom.

Thirty years into democracy, South Africa still finds itself in a politically volatile situation. Growing inequality and numerous socio-economic challenges have earned the country the unfortunate distinction of being dubbed the “protest capital of the world,” with an average of 27 protests occurring daily) These shifts in South Africa’s political and economic landscape have led to what scholar Richard Pithouse describes as the troubling decline of democracy and erosion of the rule of law. This has manifested in a deliberate disregard of the Constitution by public officials. It is particularly evident in widespread corruption from the embezzlement of state funds to sustain elaborate lifestyles, to paying off informants and maintaining political power. The establishment of the State Capture Commission of Inquiry on allegations of corruption and its comprehensive report has highlighted and exposed this systemic corruption.

Central to these dynamics is South Africa’s mining sector. From the 1900s gold rush to today’s lucrative platinum mining, South Africa’s extractive industry remains at the forefront of the country’s economy. The sector also carries a long and stark history of land dispossession, labour exploitation, and other human rights violations, including years of documented pollution and mining-related health issues that have devastated hundreds of communities across South Africa. Despite the gradual incorporation of the principle of free prior and informed consent (FPIC) in South African policies, legislation and case law and despite other legislative requirements designed to facilitate public participation in mining activity, decision-making remains largely in the hands of the government and mining companies.

The gap between constitutional rights and lived reality has created fertile ground for community resistance and subsequently, for the systematic and unlawful criminalization of protest action. Alongside protest, mining-affected communities have also turned to other legal mobilization strategies, utilizing constitutional rights to challenge mining activities, demand environmental assessments, and seek compensation for damages. However, the states’ and private companies’ response has been to label legitimate community protest as criminal activity, deploying the use of excessive force and strategic litigation against public participation best known as SLAPP suits to protect their interests rather than constitutional rights.

The Marikana Massacre

One of the incidents where the right to protest was severely constrained is the well documented Marikana massacre where 34 miners were shot and killed by members of the South African Police Services (SAPS) during a protest on live TV. The Marikana massacre that happened on 16 August 2012 was preceded by a six-day mining worker’s protest, primarily over wage disputes between the workers and mining company Lonmin Platinum Mine in Marikana, Northwest Province, South Africa. The protest, monitored by armed members of SAPS who fired and shot miners, some using live ammunition to disperse the crowds and end the protest. The massacre was a historical and unprecedented incident as it contributed towards significant changes on public order police conduct during protest action.  One of the important recommendations by the Marikana Commission of Inquiry was the prohibition of the use of lethal weapons during protest action.

Despite this tragic event in Marikana, communities affected by human rights violations at the hands of mining companies have not been deterred and have continued to challenge and oppose harmful mining practices. Mobilisation in mining affected communities has grown significantly giving birth to movements such as the Amadiba Crisis Committee (ACC) who have been fighting against mining in the South Coast of South Africa.

Acts of brutality seen during the Marikana massacre and other incidents of killings of human rights defenders have, however, continued, with mining companies’ heavy deployment of private security companies during anti-mining protests. This has led to human rights violations, including protest-related deaths and injuries in mining affected communities. These scenarios present a lack of distinction between apartheid South Africa and post-apartheid South Africa, in how the state interacts with marginalised communities, treating them as actors who should be excluded from dialogue, economic opportunity and become easy targets of brutality.

Modiri, reflecting on Lewis Nkosi’s “the Republic of Letters after the Mandela Republic”, provides an account of the realities of the post- apartheid South Africa. He speaks of difficulties in talking about the end of apartheid because of the social and economic structures that remain the same even after the repeal of apartheid laws. Modiri further argues that the current post-apartheid South Africa reflects a continuation of apartheid and colonisation in South Africa public and political life.

Using Law as a Weapon

Motivated by their powerful financial muscle, companies have also resorted to using the legal system, specifically the courts in South Africa, to prevent mining affected communities from exercising their right to protest and freedom of expression.

Mining companies have typically used court interdicts as a weapon to gag and prevent communities from exercising their constitutionally protected rights. These interdicts are often targeted at community leaders who are often at the forefront of exposing criminal conduct of politicians and mining companies. Typically, the relief sought by mining companies against communities through the interdicts is: (i) to stop communities from protesting within certain parameters of the mining companies; (ii) to stop community leaders from speaking about the mining company in the media; and (iii) to stop communities from disturbing mining companies’ employees and sub-contractors from carrying out their employment duties. The use of interdicts against communities is attractive to mining companies because it provides effective and urgent relief as they are often sought on an urgent basis, denying and/or limiting communities from defending them due to truncated time periods set out in the court papers.

As noted earlier, South Africa has also experienced an increase in the use of SLAPP lawsuits used mainly by powerful mining companies to intimidate, dissuade and threaten mining affected communities from expressing dissent. These lawsuits that often take the form of court interdicts as a weapon to gag and prevent communities from exercising their constitutionally protected rights are instituted to try and derail and demobilise communities from making legitimate claims against mining companies by speaking out against issues in the public interest.  Although SLAPP lawsuits are not legally recognised in South African legislation, the Constitutional Court has held that SLAPP Suits fit neatly within the common law doctrine of abuse of court process. Since this recognition, a legal defence of SLAPP Suits is available to litigants who can prove that a lawsuit brought against them is one that constitute a SLAPP Suit, provided that they can prove the elements of a SLAPP Suit as defined by the court. SLAPP suits can manifest in different forms, namely, defamation suits, interdicts and other court applications.

South Africa is yet to develop legislation protecting against SLAPP suits, despite the pronouncement and legal recognition in the Mineral Sands judgment. Since this decision, the Right to Protest Project and Centre for Applied Legal Studies have taken mining companies to court in defence of communities against SLAPP suits that seek to limit their civic freedoms. The argument of these organisations is that SLAPP suits are not instituted on merit, but rather to further disenfranchise mining affected communities. In other words, instead of addressing the ills and wrongs done to communities, these companies are using the courts, leveraging their heavy financial muscle, both to avoid their responsibilities and to further oppress communities.

The Illusion of Constitutional Democracy

The era of constitutional democracy in South Africa has left white supremacy and coloniality undisturbed. Modiri argues that the interests of the white and powerful minority have been secured by the Constitution whilst the realities and demands of the Black majority in the country have been silenced, minimised and erased. This is alarming as democracy and contributions are supposed to protect the vulnerable, empower them and then improve their livelihoods. Instead, there is a lack of accountability from the state and lack of regulatory penalties for mining companies who do not comply with their SLP obligations. Companies in South Africa punish those who speak out against them, leaving them with little to no protection even though they are doing absolutely nothing wrong.

In post-apartheid South Africa, the neo-apartheid era described by Madlingozi with promises and ideals of transformative constitutionalism has ironically resulted in state officials weaponizing the law to discourage and silence voices of dissent, that manifest through protest action. This oppressive tactic has played out in two ways: firstly, through law enforcement agencies acting ultra vires or when deployed at protests, for example by applying excessive force as a measure of crowd control. Secondly, through the failure to implement and observe protest legislation and guidelines informed by the Constitution. The deliberate disregard of the law can be attributed to the lack of political will by the executive arm of government and the desperate need to appease a political agenda. It is by no surprise therefore that writers such as Kibet and Fombid have also described constitutionalism as an illusion.

Sibanda further critiques the ideals and promises of the Constitution in his reflections on the concept of transformative constitutionalism. According to Sibanda, the transformative constitutionalism project has failed to deliver on the type of emancipatory changes it claims to bring.  Furthermore, Sibanda argues that transformative constitutionalism scholarship, on its own has failed, to respond and offer meaningful insights on the multifaceted and layered crises experienced by South Africans, politically, economically, culturally and epistemically. These shortcomings are felt the most by the vulnerable and marginalised members of society, such as mining affected communities, who experience the lack of structured implementation of the Constitution by the government.

Engaging in protest action in South Africa inevitably results in criminalisation by the state and even corporate actors, even if the protest is peaceful and protestors act within the confines of the law. There are several existing examples where protestors face the might of the law, not for a legitimate reason, but because they are punished for their acts of dissent. In South Africa, the courts remain the only avenue and forum to enforce Constitutionally protected rights and prevent the decay of our Constitution and rule of law.

Conclusion

Legal mobilisation through the exercise of the right to protest has played a significant role in the absence of state protection for protesting communities and human rights defenders. Without the support of these outspoken communities and human rights defenders many communities would be bullied to silence and left with no choice but to live under the rule of dominating economic actors in South Africa. Through legal mobilisation, a model law for the protection against strategic litigation against public participation has been  developed by civil society organisations in South Africa led by the Centre for Applied Legal Studies. The model law provides a blue-print for anti-SLAPP legislation in South Africa informed by research report on the prevalence of SLAPP Suits in South Africa and globally. The model law seeks to persuade Parliament (the legislator) in South Africa on the significance of legislation that provides procedural safeguards to human rights defenders and activists who face SLAPP suits. Furthermore, it seeks to raise awareness on the use of SLAPP Suits against activists and human rights defenders as a tool and means of impeding the exercise of fundamental rights such as the right to freedom of expression and the right to protest.

As the civic space continues to shrink, strategies and legal mobilisation efforts have become increasingly relevant and significant.  Without legal mobilisation against the criminalisation of the right to protest, many protesters fighting against displacement and exploitation by mining corporations are left vulnerable in the current political terrain. The law plays an integral part in activism, in enabling marginalised communities to speak out against their oppressors without fear or intimidation. Civil society organisations in South Africa remain resolute and dedicated to the cause by holding the line with communities as they defend them in and out of the court room, but with the rule of law being evaded daily by mining companies and politicians, the pressure is becoming evident.

Photo attribution: “WASP activist Mametlwe Sebei building the October 2012 mineworkers strikes” by Jonny White / WASP SA is licensed under CC BY-SA 4.0