Legal experts have questioned the interdict granted to a group of Eastern Cape farmers, saying it unjustifiably limits the farm workers’ constitutional right to speak out against alleged poor treatment.

The high court in April granted commercial farmers in the Eastern Cape an interdict against farm workers and non-governmental organisations (NGOs) in the area. But it has been described by some of South Africa’s leading constitutional law and freedom of expression experts as an attempt to criminalise social justice activism and muzzle the voices of a working-class community.

A group of commercial farmers sought the interdict that effectively bars the Nelson Mandela Bay-based Khanyisa Educational and Development Trust and its director, Simphiwe Dada; the Kouga Farm Workers Reunion; and individual farm workers Buyelwa Kota, Freddie Grootboom, Amelia van Rhyner, Msingathi Mbanda, Granwell Abby James, Lephalo Pentse and Rencia van Sensie from intimidating the farmers or speaking about them to anyone.

Judge Nozuko Mjali granted the final court order, unopposed, on April 18.
But the farm workers in question had no legal representation at the time. They are currently preparing an appeal.

The farmers — Pieter Ferreira, Jannie van Niekerk, Elwin Damons, Tommie Kraai, Riana van Niekerk, Romeo Kurat and William Melville, who represent Galactic Deals and Endulini Sundays River Fruit —  applied for an interdict against being assaulted even though there was no indication that they had ever been assaulted.

In their founding affidavit, the farmers said they needed an interdict to prevent the NGOs and farm worker groups from “publishing injurious falsehoods about them” and stop them from potentially contacting the buyers of their citrus fruit, which they said would damage the brand’s good name.

The ‘Ferrari’ of oranges

In court papers, Ferreira argued in favour of his reputation, citing family credentials and his production of what he says are the “Ferrari” of oranges. 

He claimed that Dada had written and distributed an A4-sized notice, which was prominently displayed in the towns of Hankey and Patensie, making “injurious and defamatory falsehoods” about him that had incited farmworkers to march to the Endulini farm packhouse outside Patensie, near Baviaanskloof, on 2 November last year.

Ferreira claimed in his affidavit that during the march, Kota, one of the interdicted farm workers, had described the Ferreira family as “sly” and alleged that they had stolen farm workers’ identity documents. 

Ferreira also alleged that Mbanda, another interdicted farm worker, said the Ferreira family “should leave on a plane like the Guptas”.

Ferreira alleged that protestors had chanted phrases such as “Julle moer [screw you]”, “Down with the Ferreiras” and “Die bobbejaan is hier [the baboon is here]”, adding that he and his family felt threatened. 

“I am very concerned about the respondents’ unashamed attempts to incite their audience to act against the Ferreiras,” he said. 

The interdict prohibits the respondents from causing “unlawful damage to the reputation and/or good name and/or business interests” of the farmer group. The interdicted group was also barred from coming within 100m of any residential or business premises of the farmers’ group without prior written consent. 

It also bars the respondents from “writing to or communicating with any person, including but not limited to the purchasers or prospective purchasers of the [farms’] products, or their customers, in any manner whatsoever about, or in connection with the applicants or their business interest.”

Expert opinions

Some legal experts, however, say that this clause in the interdict effectively bars respondents from ever talking or writing about poor treatment of farm workers on the two farming businesses to anyone, ever again. 

University of Cape Town constitutional law professor Pierre de Vos says “the prohibition on any communication with any person about the products of the farmer constitutes an unconscionable and unjustifiable limitation on the right to freedom of expression. 

“A farmer/businessman, does not have and can never have a right not to have his business, business practices or his products criticised,” he adds, commenting that it was “surprising [that] the interdict had been granted at all … It looks like an attempt to criminalise social justice activism – protecting the economic interests of the powerful while negating the political rights of the activists.” 

Thulani Nkosi, a senior attorney at the Socio-Economic Rights Institute of South Africa, describes the interdict as “vague”, “overbroad” and “overreaching”. He criticises the clause in the interdict that prevents the activists from interfering with the “free movement” and “mental wellbeing” of the farmers, their families and their employees.

“Does it not open up endless possibilities for the applicants to say they have had their free movement interfered with just because any of the respondents happen to have showed up or have been in the same vicinity or direction as them? Interfering in any manner should not be inserted in any interdict,” Nkosi says.

He adds that a clause in the interdict that prevents farm workers from “instigating, disrupting, inciting, organising or participating in any conduct that might interfere or damage the business of the farmer group” could result in the activists easily being “criminalised for meeting innocently or engaging in peaceful and unarmed protests”.

The NGO and farm worker group have the constitutional right to associate with others and stage lawful protests, according to Nkosi, and “non-violent disruption is not prohibited criminal conduct and should not be restrained by an interdict”.

Jane Duncan, a University of Johannesburg professor and expert in the repression of social movements, says that the [farmers] should have brought a defamation case against the activists if they were concerned about defamatory speech. Instead, she says the interdict was “an inappropriately blunt instrument to use that actually leaves these claims untested”.

Duncan says such interdicts that ban people from saying anything before they have even said it amounts to a prior restraint on speech, which is “almost always a bad thing. It means that the respondents cannot raise their issues about the conduct of the applicants, even if they have legitimate grievances and do so in a non-threatening way.

“Instigating or disrupting the activities or trade of businesses is what workers and activists do all the time, and disruption is often the most effective means at their disposal to call attention to grievances.

“Declaring a class struggle against the Ferreiras and other farm owners in the area does not qualify as incitement to imminent violence, as uncomfortable it may have made the [farmers] feel,” she says, explaining that the Regulation of Gatherings Act is ratified to protect disruptive protests “while drawing the line at serious disruption [and] the interdict extends to any disruption whatsoever. 

“While it could be argued that the interdict extends to unlawful behaviour only, it is so broadly framed that, in reality, the respondents will be scared to do anything at all about their grievances, which inhibits both freedom of expression and freedom of assembly,” says Duncan.

Right2Know campaign organiser Thami Nkosi says it is common for a business to interdict workers and activists “from essentially raising their concerns or voicing dissent about malpractice”. 

He described the interdict as “muzzling the voices of black, working class communities”.

Right to protest

“We are really concerned by it. People have the right to protest if they feel hard done by,” says Nkosi, adding that his organisation is currently working with the Centre for Environmental Rights to establish a national network of interdicted activists.

The Right2Protest Project, a coalition of organisations that provide legal assistance to protesters, and one of its members, the Centre for Applied Legal Studies, a human rights organisation based at Wits University’s school of law, also weighed in on the interdict. They say activists in South Africa are facing “a rise in disturbing responses to the right to protest by the state and the private sector. 

“The Constitution guarantees everyone the right to freedom of expression and the right to protest. These rights ensure that any member of the public can have a voice on the issues affecting them and can draw attention to these issues. Activists face many kinds of threats on a daily basis for merely trying to protect the rights and interests of their communities.”

They say the private sector uses interdicts “to effectively close down the democratic space. This kind of litigation has a chilling effect on activists, not only taking up time and resources but threatening and silencing them both now and in the future”. 

The NGO and farm worker group were ordered to pay the farmer group’s legal expenses, which amounted to R150 000.

Acting judge Apla Bodlani overturned a similar interdict in the Eastern Cape high court in June, saying that farm workers exercising their rights to object to allegedly poor working conditions and bad treatment on farms did not amount to threatening conduct against their employer. Farmer Arthur Rudman has applied for leave to appeal the ruling.

This article was first published on New Frame.