Two community-based environmental justice activists are taking on the might of a Marikana mining company which, they say, is trying to gag them through a court interdict.

The management of Tharisa Mine in Marikana has already secured an interim interdict against Oridile Kgatea and Rodney Kotsedi, claiming they were making defamatory statements and interfering with the operations of the mine.

On Thursday, 2 May the Mahikeng High Court in North West will be asked to decide whether the interdict should be made final. The pair, represented by the Centre for Applied Legal Studies (CALS), will argue that the interdict infringes on their right to freedom of expression.

They will argue that it constitutes strategic litigation against public participation – a SLAPP suit – which the Constitutional Court has recognised as an abuse, to silence and distract activists who cannot afford expensive litigation.

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CALS, which is being represented by advocate Modise Shakung, argues that the interdict application falls squarely into the definition of a SLAPP suit, that the mine has failed to prove it was defamed or suffered any loss or harm from statements made to the media, and that the media interviews it relied on did not portray any false or misleading information.

And far from defaming the mine, the activists have instead attempted to vindicate their community’s rights to protest and to an environment not harmful to their health or well-being.

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“It is clear the mine seeks to silence those trying to hold them accountable for harms related to mining activities, such as damage to houses from blasting and contamination of drinking water, among others. These issues are the subject of a pending inquiry in respect of the Mine Health and Safety Act,” CALS said.

“The activists are entitled to raise awareness of human rights violations and to hold the mine accountable for failing to comply with the Constitution and other legislation. The application has no merit and stands to be dismissed as a SLAPP suit.”

Blasting and dust

The mine operates on communal land and its operations affect the community of Mmaditlhokwa village. Residents have lodged a number of complaints that blasting takes place within 500m of their homes, causing damage to houses and also releasing dust, which is a health and safety violation.

It is these complaints that led the mine to institute urgent legal proceedings against the community in the Mahikeng High Court in March 2024, when the interim interdict was granted.

In an affidavit, Tharisa Mine general manager Vulela Mkuni said Kgatea and Kotsedi, who both live in the village, were “ostensibly” acting on behalf of the local community, in raising complaints, particularly about alleged contamination of water supplied by the mine to the village.

Mkuni said there were “established channels” to raise complaints, but Kgatea and Kotsedi had not used these. Instead they had threatened to block the blasting operations, threatening the mine’s security personnel and the mine manager.

He said they were refusing to accept the results of water quality tests conducted by professionals at an accredited laboratory. Instead they had insisted that the results from a water sample taken by a lay person, at an undisclosed location and tested at an unidentified laboratory, be preferred.

In an opposing affidavit, Kotsedi said he and Kgatea were environmental justice activists, authorised by the community to represent its interests under the umbrella of a nonprofit organisation, Creation of Unity and Development.

He said the plight of the community had been highlighted in documentaries and at an inquiry initiated in terms of the Mine Health and Safety Act. Those findings were still pending.

The complaints centred on allegations that continuous blasting resulted in flying rocks breaking house windows, vibrations, dust, noise and contaminated water.

“We have at all times engaged with the applicants peacefully, where unprovoked, and have endeavoured to follow the proper communication channels,” he said.”

He denied that they used threatening behaviour or prevented anyone from doing their job.

“The applicant (the mine) is using the court to silence all our efforts to hold them accountable for the human rights violation at the village,” Kotsedi said.

“We are entitled to hold both the applicant and the Department of Mineral and Energy Affairs accountable for its failure to comply with the Constitution and enabling legislation. We are engaging on issues that affect the majority of communities in South Africa affected by mining.” DM

First published by GroundUp.