On two recent occasions involving mining operations in Limpopo and Mpumalanga, Webber Wentzel has assisted different clients operating in the mining industry to obtain interdicts against the SAPS to compel them to fulfil their duty to maintain law and order
Lebalelo Water Users Association
In the first case, we assisted the Lebalelo Water Users Association (LWUA) in obtaining an interdict against the South African Police Service (SAPS) in the Polokwane High Court. The LWUA is a water management institution established to develop bulk water infrastructure to provide raw water to mines and municipalities. The LWUA’s services are integral to the operations of the platinum mines in the Limpopo province.
The LWUA experienced friction with the communities surrounding its operations, which increased in intensity in March 2019. We assisted the LWUA in obtaining a final interdict from the Polokwane High Court against several communities (including the Modubeng community) which restrained the communities (and certain named respondents from the communities) from interfering with LWUA's operations by damaging infrastructure and barricading access roads.
In February and March 2021 the Modubeng community again engaged in violent protest action, which included damaging pipelines, blocking employees from entering the pump station and holding employees hostage by preventing them from leaving the pump station for several hours.
Despite numerous requests for assistance, SAPS refused to take adequate action against the Modubeng community. SAPS also informed the LWUA that if private security officers took action against the community, SAPS would lay charges against the private security officers.
The LWUA approached the Polokwane High Court on an urgent basis to obtain a court order against SAPS to compel them to uphold their constitutional duty to maintain law and order and enforce the 2019 interdict. SAPS opposed this application, together with certain members of the community, despite the fact that no relief was sought against them. SAPS argued the application was not urgent, the situation was under control and it should not be used as a compliance agent in seeking to enforce court orders (i.e. that the LWUA should use contempt of court processes).
On 16 March 2021, the Polokwane High Court granted an order directing the SAPS to use its powers to ensure that:
- public order is restored and maintained around LWUA's area of operations;
- no damage is caused to its assets and infrastructure;
- none of its businesses, employees or contractors are interfered with by the members of the Modubeng community; and
- members of the Modubeng community and any respondents subject to the 2019 interdict comply with this 2019 interdict.
SAPS were also directed to:
- maintain a presence at key points around the LWUA infrastructure, specifically on all access roads to the area of operations;
- provide reasonable assistance to any private security service provider contracted to LWUA seeking to secure the LWUA's infrastructure; and
- lawfully maintain public order, including, where necessary, clearing obstructions to access roads and sharing information and intelligence in relation to any unlawful acts.
The court also awarded costs against SAPS.
This order is significant in that it is a permanent interdict against the SAPS compelling its functionaries to maintaining order when the LWUA's operations are disrupted by the local communities.
In the second case, we assisted Palabora Copper (Pty) Limited (Palabora) to obtain an interdict against a local community organisation and the SAPS to prevent the community from interfering with Palabora's operations and damaging its property.
The Ba-Phalaborwa Community Forum (BCF) became involved in a dispute between Palabora and one of its contractors. The BCF argued that the employees of the contractor should not automatically transfer from the old contractor to the new contractor, in terms of section 197 of the Labour Relations Act, but rather that all new employees should be recruited from the local communities. Palabora could not accede to this demand.
Following violent protest action by members of the BCF at the premises of Palabora on Friday 26 February 2021 (and continuing into the weekend) our employment team was instructed to institute urgent proceedings, interdicting the BCF from continuing with its unlawful conduct at Palabora's premises (including damaging its property, threatening its employees and interfering with its contractors) and ordering the SAPS to use all powers conferred on them to ensure that the BCF refrain from their unlawful conduct.
On 2 March 2021, an urgent application was issued by the Polokwane High Court, with the matter being set down for hearing the following day. On 3 March 2021, Kganyago J ordered a final interdict against the BCF and its members as well as against the SAPS.
The order prohibits the BCF and its members from gathering outside Palabora's premises and strategic loading depots, damaging Palabora's property and interfering with its operations. Importantly, it also requires the SAPS to intervene to uphold the order against the BCF and its members. This intervention includes stationing SAPS officers at Palabora's premises and escorting its trucks to the loading depot.
The order is significant in that it does not have a termination date – it is a final interdict and is therefore indefinite. This has the effect that Palabora may use this interdict in the future for any community protests incited or otherwise organised by the BCF (without Palabora having to approach the Court again).