Plight of activists continues to raise concerns as more are killed, attacked

This update covers September 2022 – May 2023

Association

CSOs speaking against Xenophobia continue to face attacks

In late July 2022, the Socio-Economic Rights Institute of South Africa (SERI), together with the South African Informal Traders Forum (SAITF) were subjected to threats of violence and cyberbullying on Twitter by Councillor Nkululeko Mbundu, a party representative for Action SA and Member of the Mayoral Committee (MMC) for Economic Development in the City of Johannesburg. This came after SERI successfully obtained an urgent court order that reversed the illegal eviction of 400 informal traders in Johannesburg. Councillor Mbundu falsely asserted that SERI “used locals as a front” in the case and implied that SERI and SAITF constitute “a syndicate with big vested interests”. Xenophobic groups and individuals acted on Councillor Mbundu’s tweets by circulating pictures of SERI staff and their cellphone numbers, and threatened to burn down SERI’s offices, including to kill the lawyers who represented SAITF and also harm other staff members at SERI.

As a result, SERI was forced to temporarily close down its offices, as the lives of many of their staff members were endangered for simply working to safeguard the rights of every person, as guaranteed in South Africa’s Constitution. Since the attacks against SERI and SAITF, SERI filed complaints with the police and the Information Regulator, and both investigations are pending.

Responding to these developments, the Ministry of Justice and Correctional Services issued a statement which read in part:

“The Ministry of Justice and Correctional Services has noted with concern the flagrant and complete disdain with which the City of Johannesburg's Member of the Mayoral Committee on Economic Development has treated the Socio-Economic Rights Institute (Seri)… The MMC’s actions have been a blatant violation of a court order and show a total disregard for court decisions… The MMC has also endangered the lives of Seri’s staff by placing pictures of Seri staff and their respective cell phone numbers on social media and baiting xenophobic elements in our communities to target these individuals…We call upon the Information Regulator to investigate these actions in line with the Protection of Personal Information Act.”

Deputy Minister of Justice and Constitutional Development, Mr John Jeffery, also said:

“It is important to stress that the right to legal representation is fundamental. Every person has the right to have their case heard before a court of law. Legal practitioners represent their clients and the rights of their clients. They cannot and should not ever be harassed and intimated for doing their jobs.”

Relatedly, the CIVICUS Monitor previously documented a similar attack against the Helen Suzman Foundation for challenging the validity of the Minister of Home Affairs’ decision not to extend the Zimbabwe Exemption Permit.

Recently enacted aw raises concerns for civil society

On 22nd December 2022, the General Laws (Anti-Money Laundering and Combating Terrorism Financing) Amendment Bill was signed into law. The law amends a number of pieces of legislation, including the NPO Act, with the aim of meeting the international standards on anti-money laundering and combating terrorism financing, and reducing the prospect of grey listing by the Financial Action Task Force (FATF).

Civil society organisations were particularly concerned about the proposed universal mandatory registration of all non-profits operating in South Africa with the Department of Social Development's NPO Directorate when the bill was first made available for public comments on 27th September 2022. Many people viewed the rule as being both unnecessary and unconstitutional. Nonetheless, the issue was resolved in that the registration requirement is now limited to South African-based organisations that are working in other countries or sending money there.

However, there remain concerns about the lack of clarity in the provisions of the Act, which may cause confusion for civil society groups and how mandatory registration will be assessed. In addition, the lack of resources within the NPO Directorate was a major concern on how they may be able to handle thousands of registrations that come before it. At the moment, the directorate's head lacks the authority to hire or fire its own employees, as well as to control its own spending, as it serves as an internal sub-department of the social welfare-focused Department of Social Development ministry that has been perceived by some as being dysfunctional.

Prominent environmental activists receive death threats

In late January 2023, the Amadiba Crisis Committee (ACC), a social movement of community activists fighting to protect land and environmental rights, received information from a whistle-blower that there was a plot to assassinate Nonhle Mbuthuma and Thwesha Silangwe.

Both leaders of the movement have been at the forefront of moving the N2 Wild Coast Highway from the Amadiba coast to further inland, a matter which has received heavy opposition from several interested parties, including politically connected cadres who stand to gain from a lucrative coastal town deal associated with the coastal highway. Nonhle is the spokesperson of ACC who has received death threats for many years.

In March 2016, Sikhosiphi ‘Bazooka’ Radebe was gunned down outside his home in the Lurholweni township in Mbizana, Eastern Cape, in front of his teenage son. At the time of his assassination, Bazooka was one of the leaders of ACC who opposed two ‘development’ mining projects that would result in the loss of their ancestral land and harm the environment. To date, no arrests have been made in his case.

Dedicated wildlife conservationist gunned down

In July 2022, Anton Mzimba, a game ranger who worked for 25 years dedicating his life to the protection of wildlife, was gunned down at his home in front of his family. Mzimba had previously received threats to his life but had continued to discharge his duties as a game ranger with passion and zeal.

Ranger trainer Ruben de Kock said Mzimba was incorruptible and extremely loyal.

“He was connected and never feared what was coming for him. Mzimba knew there were threats on his life but he stayed loyal to his job… to die at the hands of criminals is sickening. They failed to corrupt him and decided to kill him.”

Mzimba was known to have once said “I am not shy to say that I’m a hero. Because I know that the poacher, before he shoots at the rhino, is going to shoot at me first.” He won the Best Field Ranger honour at the 2016 Rhino Conservation Awards. He also served as the Global Conservation Corps' technical adviser, which is based in the US.

The police denounced the killing and said they would bring to justice those responsible.

Prominent activist shot dead

On 17th April 2023, community activist Loyiso Nkohla was fatally gunned down in Cape Town’s Philippi area. Nkhola was killed while attending a meeting at the Phillipi railway station to discuss ongoing plans to relocate shack dwellers who were occupying the railway line, in order to facilitate restoration of railway services in the area. Nkohla gained public attention in 2013 after he and his colleague led a campaign to protest against inadequate sanitation in Khayelitsha by dumping faeces on the steps of the Western Cape legislature.

Plight of HRDs & whistle-blowers raised as a key concern at UN mechanism

The above escalating trend of attacks and killings of activists was also noted in November 2022 when South Africa participated in its 4th Cycle of the Universal Periodic Review. For the first time since its participation, member states shone a spotlight on the deteriorating situation of human rights defenders and whistle-blowers in the country.

Since the beginning of the UPR process, South Africa has frequently received recommendations about discrimination based on race, nationality or sexual orientation, violence against women and children, and HIV/AIDS treatment. This was the first time UN member states submitted advanced questions and recommendations on the protection of human rights defenders in the country. Concerns about the rising number of assaults against defenders and whistle-blowers as well as the pervasive impunity for their deaths were expressed in the various contributions.

Sweden and Uruguay recommended that South Africa should develop a legal framework and protection system that is effective for HRDs, with Uruguay highlighting the particular situation of environmental and anti-corruption activists.

Switzerland explicitly requested the South African government to urgently address the killings of members of Abahlali baseMjondolo, calling attention to the fact that only two convictions have been secured in the 24 killings of its members.

Peaceful Assembly

National shutdown protest held against loadshedding

The Economic Freedom Fighters (EFF), an opposition political party, announced that it would hold a national shutdown on 20th March 2023 to protest against the continued power cuts (known as loadshedding) and call for the resignation of President Ramaphosa.

According to Julius Malema, EFF leader, "the national shutdown means that there will be no school, no university, factories and no business will be operating on that day…All municipalities and all major cities will be shut down and there will be no work on that day. All major roads will be barricaded and all ports of entry, including roads that lead to borders, will be closed…”

Other political parties showed their support for the shutdown, and other similar demonstrations. Ahead of the national protests, over four thousand officers from the police and National Defence Forces were deployed throughout the country until 17th April 2023.

On the day of the protests, at least 150,000 protesters took to the streets across the country, as the EFF leader Malema led a procession to the Union Buildings in Pretoria. Sporadic incidents of violence and intimidation were reported, leading to at least 87 arrests by 9.00 am for alleged public violence-related activities. Reports indicated that by the end of the protests, a total of over 550 protesters had been arrested across different provinces in the country including Gauteng, North West, the Free State, Mpumalanga and the Eastern Cape.

University students protest against financial exclusion

In mid-February 2023, students at the University of Cape Town (UCT) and the University of the Western Cape embarked on protest action against fee exclusions, the housing crisis and the National Students Financial Aid Scheme (NSFAS). This forced the University of Cape Town to shut down its campuses and shift lectures online until further notice, while students at the University of the Western Cape called on the administration to shut down campus activities.

The Student Representative Council (SRC) at UCT has been in discussions on the student housing department's decision to revoke housing offers for those who have paid in full within the weeks preceding the start of the academic year. Many are now homeless and without suitable options as a result. The SRC considers this to be discriminatory and points out that it disproportionately impacts black and low-income students. The NSFAS's restriction of housing allowances to amounts judged unrealistic by the SRC has added to the demonstrations' complexity. The University has denounced the actions of the students unlawful.

Separately, still in mid-February 2023, students from the University of the Free State who held a peaceful demonstration were met with brutal force from the police, with a video circulating on social media showing a police officer using disproportionate force on one of the students.

For decades, students in South Africa have embarked on protest actions due to increasing tuition fees and financial exclusion for many students who cannot afford to pay their own fees. It is expected that more universities across the country may institute protest action for similar reasons.

Expression

Positive judgment recognises the repercussions of SLAPP suits

In November 2022, the South African Constitutional Court handed down judgment concerning issues of Strategic Litigation Against Public Participation (SLAPP) suits, the right to freedom of expression, and access to courts.

The appeal was brought by mining company Mineral Sands Resources (Pty) Ltd & others and concerned a claim for defamation against a group of South African environmental lawyers and activists (human rights defenders). The claim by the mining company related to damages in the amount of R14,25 million (950 000 USD) against the defenders for publicly criticising the companies’ mining activities and operations, including the harmful impact that they posed on both the environment and economy of the affected areas.

In the High Court, the companies’ claims were dismissed with costs, and the litigation was classified as a SLAPP suit aimed at silencing the human rights defenders concerned. The court affirmed that “the strategy to target a group of environmental activists more or less at the same time may have the effect of intimidating them to such an extent that they may withdraw from further engagement after being sued for damages…This strategy may operate to produce a chilling effect not only on the defendants’ constitutional right to freedom of expression, but also on others who considered speaking out on the issue in the future…”

Positively, on appeal, the Constitutional Court confirmed that South Africa’s legal system recognises a defence to SLAPP claims. In the judgment, Justice Majiedt provided that "abusive litigation would fall within the common law notion of abuse of court process," which "consists of an examination of both the merits and the reasons for initiating the action.”

The Court acknowledged the serious repercussions of deliberate legal action against public engagement for people attempting to exercise their rights to free speech and court access. "

SLAPP lawsuits seem to be on the rise here, as they are everywhere. The conclusion reached in this case that the SLAPP suit defence can be accommodated by the common law notion of abuse of process assures that courts can preserve their own integrity by exercising caution when using their procedures. Additionally, it ensures that the law is applied fairly and that it is not exploited for detestable, unintended goals.”

Journalist seeks to have case against her dismissed

In other developments, on 21st March 2023, the South African National Editors’ Forum (Sanef) and civil society organisations held a peaceful protest in support of News24 journalist Karyn Maughan. The protest outside the KwaZulu-Natal High Court was held in solidarity with the journalist as she sought to have a case brought by former president Jacob Zuma against her dismissed. The case is in relation to News24's publication of Zuma's medical condition, which was based on papers earlier filed at the court – which are considered to be of public record unless expressly declared otherwise by the court. Maughan said that the former president had abused the court process and harassed her to prevent her from further reporting about his corruption case.

In emphasising that the case had no merit, Sanef said:

“Maughan’s constitutional rights have been abused by this private prosecution. Media freedom is paramount in our constitutional democracy; hence there is a need to defend it all the time. Sanef will be outside the court on Wednesday to show solidarity with Maughan… All organisations are united against this targeting and attempt to intimidate Maughan. Sanef will always speak out against anyone seeking to silence journalists. Sanef believes in the ability of our judiciary to spot any abuses of the courts, which we believe is what this private prosecution is doing.”