Traditional council’s attempt to silence criticism fails

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The Baphalane Traditional Council’s application to make permanent their interim protection order against members of the Baphalane Concerned Group was struck off the roll on 16 September.

It was a great result that neutralised the Traditional Council’s attempt to shut down community protests about its lack of accountability and transparency.

The hearing was in the office of Magistrate Mamabolo at Mankwe Magistrates’ Court in Mogwase, which is near Sun City in North West.

In a marked departure from the usual legal process, the Traditional Council had previously won a protection order – a mechanism most often used to protect one partner in an abusive relationship from the other – against the Baphalane Concerned Group.

In this case, the protection order barred the Concerned Group from “disrupting traditional council meetings”, which is a very different context to the domestic one usually cited in protection orders. It is clear that the Traditional Council was not using it to protect themselves in an urgent context where lives were at stake, they were using it to protect their authority.

The allegations they made did not amount to “harassment” as defined in the law. The process was clearly being abused. In fact, they actually asked in their application for the interim protection order that the respondents be “reprimanded”, which is clearly not the object of the Act.

Earlier on, September 24, the Traditional Council appeared without a legal representative and the magistrate asked them if they wanted to proceed without their own legal team. They said they needed time to think about it. So, the magistrate told them that they must come back with an answer whether they are going to be represented or not, encouraged them to get the legal aid. The matter was postponed to the 16th and the magistrate ordered that the protection order should remain in force in spite of the prejudice to the respondents.

The community representatives said they needed to go to the council’s meetings to voice their concerns. According to the community members, there were two issues that they sought to question and which led to the interim protection order. The first was the misgovernance of a community trust. The second was a new mining right application by Samancor.

The community members said the trust had not produced the audited financial statements required under Clause 17.2 of the Trust Deed and argued that this was in violation of their rights in terms of their tradition to hold their leadership accountable.

The protection order briefly granted to the Traditional Council was designed for a context of domestic violence and is deliberately very easy to get. It is meant to be simple to provide an immediate relief. In this case, granting a protection order was a particularly outrageous abuse of the court system.

This order was overturned because the community was represented and it was very unlikely that there would be any outcome than the dismissal or postponement. What is frustrating is that the order was granted in the first place. We need our magistrates to be more attuned to these issues whether they are appropriate, or where the facts are in the first place.

For the community, this is a small step towards being able to hold their traditional council accountable. Now, it is up to the community to build on this momentum to achieve justice around management of the trust and accountability for mining activities.

They have defeated an effort to close down attempts of lawful protests and accountability in terms of customary law. When a community has a dispute and seeks to hold a traditional leader accountable, to then bring in police, to bring in criminal charges for protesting and just demanding community meetings it is entirely unlawful in terms of customary law.

opinion-grey Sobantu Mzwakali is a media worker with the Land & Accountability Research Centre in the Faculty of Law at UCT.
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