Go Touch Down Resort-Season CC and Another v Farm Rural Informal Dwellers Association and Another
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | TA Maumela J |
| Judgment Date | 20 January 2022 |
| Docket Number | 60735/2021 |
| Hearing Date | 20 January 2022 |
| Court | North Gauteng High Court, Pretoria |
| Citation | 2022 JDR 0203 (GP) |
Maumela J:
This matter came before court in the urgent roll. The Applicant seeks an order providing for the following:
That a rule nisi is issued, calling upon the Respondents and all other interested parties to show cause, on 16 March 2022 why the following order should not be confirmed:
That the Respondents are interdicted and restrained from: -
Participating in, or inciting another/others to participate in any unlawful conduct and/or unlawful gatherings or unlawful protests on the Applicants' premises, and at any entrance or road to the Applicants' premises situated at Portion 116 of the Farm Hartbeesfontein 445, Registration Division J.Q., Province of North-West, consisting of various erven situated in the Bushveld View Extension 12 Township located at Old Rustenburg Road, Brits ("the Applicants' premises");
Unlawfully interfering with or obstructing the conduct of the business of the Applicants;
Blockading or obstructing the entrances and roads to the Applicants' premises and hindering the entrance and exit of vehicles or people from the Applicants' premises;
Conducting any unlawful activities on or outside the premises, or on the roads to the premises of the Applicants including but not limited to destroying or damaging any of the Applicants' property;
Interfering with the employment relationship between the Applicants and its staff; and
Inciting violence.
The applicants seek for the rule nisi to serve as an interim order. They seek for the South African Police Service, alternatively a
Maumela J
private security company appointed by the Applicants to be authorised to act in accordance with section 9, read with section 6 (a) of the Regulation of Gatherings Act, 205 of 1993 should the Respondents fail to adhere to and to comply with the Order they seek.
They also seek for the Respondents to be ordered to pay the cost of the application jointly and severally the one paying the other to be absolved, which shall include the costs of 7 December 2021.
The Applicants argue that the scope of the 'right to freedom of assembly' does not extend to persons who assemble in a manner that is not peaceful or unarmed. They point out that the scheme of the Act is aimed at restricting unlawful, violent behaviour that violates the rights of others and ensuring that organizers of those gatherings are held liable. [1] It does not undermine the rights of the Respondent to exercise their Constitutional right set out in section 17 of the Constitution. It is to ensure that whenever the Respondents have no intention to act peacefully, they should lose their constitutional protection. [2]
The First Applicant seeks to protect its livelihood, its employees, and its guests in circumstances where the Respondents prove to be unwilling or unable to comply with the law or to respect the rights of others in the process of exercising theirs.
The Applicants seek an interim order in terms of which the Respondents and those protesting under them are prohibited from acting in contravention of the Regulation of Gatherings Act, 205 of 1993 ("the Gatherings Act"). They point out that in the event that the Respondents are not interdicted, the Applicants will have no remedy against unlawful activities such as the blockading of entrances and the harassment of its staff and its guests. [3] They make the point that every right must be exercised with due regard to the rights of others cannot be overemphasised.
BACKGROUND.
Maumela J
The first gathering of the Respondents took place on the 11th of October 2021. It was preceded by an email to the Applicants and there were about 40 people present. On the 26th of November 2021, another gathering took place. This time around, the gathering came as a total surprise to the Applicants. Its size and the unlawful actions by the participants escalated exponentially in that there were about 80 people present; entrances were blocked; remote controllers for entrances and exits were forcefully seized. One Joubert was shoved around.
Due to the protest action of the 26th of November 2021, the Applicants' approached their attorney of record to address a letter of demand to the Respondents. [4] In that letter of demand, all the Applicants asked for was an undertaking that the Respondents will cease and desist from their unlawful actions. The said actions were cited and specifically mentioned in the letter of demand. No response was received from the Respondents. This was despite the fact that numerous guarantees had to been given by the Second Respondent that the demonstrators will cmply with the law in the process of conducting the gatherings.
As a result, this matter was instituted to be heard on the 7th of December 2021 if unopposed. In the event where it was to be opposed, it was to be set down to be heard on the following week which was to be the week of the 14th of December 2021. The parties thereafter agreed, and only in order for the Respondents to have more time to draft their affidavit, that, should the Respondents undertake not to conduct any illegal gatherings until the matter has been heard, the matter may be set down by agreement to be heard on the 21st of December 2021.
The Applicants point out that the only reason why the matter was only set down when it was, was due to the undertaking of the Respondents that they will not proceed with their gatherings until such a time as this application has been heard.
URGENCY AND THE POINTS IN LIMINE.
The Applicants argue that the matter remains urgent due to the statements made by the Second Respondent that they will carry on with the gatherings into the whole of December 2021. Absent any evidence by the Respondents contrary to the facts set forth
Maumela J
by the Applicants, it remains reasonable to assume that these gatherings will be out of control and in contravention of the Gatherings Act.
TWO POINTS IN LIMINE RE: JURISDICTION:
The Respondents raised the following two points in limine:
JURISDICTION OF THE GAUTENG DIVISION OF THE HIGH COURT, PRETORIA.
The jurisdiction of this court regarding this matter is not in dispute. On the 15th of January 2016, the Minister determined that the district of Madibeng shall fall under the area of jurisdiction of Gauteng Local Division, Pretoria as per Government Notice 39601 filed herewith as "A". On the 31st of March 2017 the Minister published an intention to excise the district of Madibeng to the North West Division and asked for comments to be addressed on the issue and as set out in Government Notice 40753 filed herewith as "B". The district of Madibeng was not excised and it still falls under the area of jurisdiction of the Gauteng Division, Pretoria, as set out in Government Notice 41552 filed as "C". on that basis, the Gauteng Division, Pretoria has jurisdiction over this matter. Therefore, the point in limine regarding jurisdiction is dismissed.
JURISDICTION OF THE HIGH COURT.
The Respondents argue that the application ought to have been instituted in the Labour Court.
The Labour Court is established in terms of the Labour Relations Act and derives its jurisdiction from the Act. The preamble of the Act provides for the establishment of the Labour Court and Labour Appeal Court as superior courts, with exclusive jurisdiction to decide matters arising from the Act. The Supreme Court of Appeal has held in relation to the purpose of the Labour Relations Act in the case of Motor Industry Staff Association v Macun NO and Others, at paragraphs 18 to 20 that "The LRA was enacted, inter alia, to "change the law governing labour relations", to "give effect to section 23 of the Constitution", and to "promote and facilitate collective bargaining at the work place and sectorial level"... The Constitutional Court has put it beyond doubt that the primary objective of that Act was to establish a comprehensive legislative framework regulating labour relations. An...
To continue reading
Request your trial