ANC uses courts to clamp down on Makhanda opposition

An interdict that basically outlaws disruptive forms of protest is a dangerous tool used to muzzle capable leaders and represses legitimate grassroots opposition to the ruling party.

When people discuss the poor condition of their cities and towns in the Eastern Cape, it is common to hear the ANC described as “arrogant”. 

ANC politicians appear habitually unperturbed that millions of people lack basic services; that many of their colleagues are under investigation by universities, the Public Protector or the provincial treasury; and that there is a growing culture of politically motivated assassinations – 15 people, including municipal union shop stewards, whistle blowers and managers who prized clean governance, have been assassinated since January 2019. And when ordinary working-class people bring these matters to the politicians’ attention in the form of a protest or shutdown, Eastern Cape ANC politicians are offended at their audacity.

17 June 2021: Police arrive to control protesters after frustrated Makhanda residents spontaneously initiated a demonstration, which was later interdicted. 

It should come as no surprise then that the ANC is now attempting to criminalise grassroots activists who intend to oppose them in the coming local government elections. The ANC-controlled Makana Municipality won an interim interdict on 19 June against the Unemployed People’s Movement (UPM), its spokesperson Ayanda Kota, the United Front provincial secretary Lungile Mxube (wrongly named in court papers as Mxube Ngcobo) and anyone who “willingly associates with the words or actions” of the three – potentially thousands of residents of Makhanda.

The interdict came after the town was twice shut down, first in late May by taxi associations, and again on 17 June, by groups of residents. But the municipality took no action against the taxi associations. They targeted only the UPM, Kota and Mxube, who did not initiate either protest. The day before the interdict was handed down, the UPM announced it would register a Makana Citizen’s Front to contest the local government elections.

Traditional forms of protest

It is not clear why the high court judge, Judith Roberson, granted the interim interdict against Kota, Mxube and the UPM when there was ample proof that between 15 and 19 June they made several public calls for people not to shut down the town.

Mxube also physically removed tyres from a busy road when protestors wanted to burn them, and Kota issued public messages asking residents of the town to desist from setting fire to anything. Kota and Mxube were not given any notice to appear in court and only heard about the municipality’s interdict application after it had been granted.

The interdict infringes on the constitutional right to protest. While it purports to restrain people from only “violent” or “unlawful” protest, it bans non-violent forms of protest including burning tyres or garbage “generally anywhere within the vicinity of Makhanda”. It bars residents from using “bricks, wood and/or rubble” to build barricades of any size, and bans anyone from encouraging residents to protest at council offices. Yet these are all peaceful forms of protest. Protest by its very nature is disruptive, but this interdict concludes that all disruptive protest is violent.

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The interdict goes further, citing the police as respondents and compelling them to disperse any such protest, even if their training tells them to stand back.

The money the ANC council used to bring this costly application to the court comes from the same municipal pocket they claim is empty when street lights need repairing or sewage flooding into residential areas needs to be removed.

The interdict is clearly a political attempt to curtail the growing popularity of the UPM, which last year won a court order against the municipality, compelling it to dissolve. Instead, with the support of the Eastern Cape premier, Oscar Mabuyane, it applied for leave to appeal, falsely claiming it had already begun work to improve service delivery.

17 June 2021: Ayanda Kota, spokesperson for the Unemployed People’s Movement, made several calls to residents not to shut down the town or to burn anything. 

When services became worse instead, the taxi associations called a three-day total shutdown. This ended after local ANC leaders capitulated to a request by the provincial government that they be given two weeks to say how they would fix the town. The provincial government instead released a limp three-year “mandatory financial recovery plan” on 15 June (past the deadline), which promised to repair all infrastructure, fix potholes and carry out maintenance on water, sewerage and electricity systems. This was similar to a 2014 plan that ultimately failed. 

After the UPM and Lungisa Sixaba, the coordinator of the taxi drivers in the town, left the meeting in disgust, Cooperative Governance and Traditional Affairs member of the executive council Xolile Nqatha released a statement claiming that “the problems of Makhanda have been hijacked by people with nefarious political [agendas]”.

At a mass meeting called the next day in Soccer City, the participants backed the formation of the Makana Citizen’s Front. A distraught municipal worker said many workers no longer had any tools and could not do their jobs. They were distressed that they had become part of the problem. The meeting agreed to delay any further shutdowns, but later that night protestors initiated their own spontaneous shutdown of the town, which lasted a day before it was interdicted.

Shutting down political opponents 

Kota has long been a political thorn in the side of the ANC, successfully leading the court case to have the municipality dissolved. He spent most of 2020 in hiding after sympathetic ANC sources warned him that he was earmarked for assassination.

Mxube, a former ANC and South African Communist Party leader, is despised by the ruling party for blowing the whistle on corrupt practices in several Eastern Cape municipalities for which he worked. He was recently told that he too had become an assassination target. He is a political unifier in the province who helped negotiate the latest coalition government in the Nelson Mandela Bay Municipality, where he now works as a special advisor.

Both Kota and Mxube are experienced and popular community organisers and are able to lead a local government elections campaign that could see the new Makana Citizen’s Front, or a coalition, unseat the ANC. 

17 June 2021: The ANC won an interdict against protests after the Unemployed People’s Movement announced it would register the Makana Citizen’s Front to contest local elections.

Senior counsel Izak Smuts and top Makhanda attorney Brin Brody have already offered to represent Kota, Mxube and the UPM and intend to bring the municipality back to the courts by 25 June to oppose the interim interdict. 

The interim interdict is a tool the ANC uses to clamp down on its political opponents. For example, this interdict means that Kota, Mxube and any other member of the UPM could be jailed for three months for contempt of court if they call an election campaign meeting in a field and a few of the attendees set up a line of rocks across a nearby road or burn ANC flags – which they have been doing – or set fire to a tyre on open ground and sing revolutionary songs. All of these are non-violent, traditional forms of protest. 

During the local government elections campaign period, courts should be mindful that broad interdicts can have a damping effect on grassroots social movements, which usually cannot afford a legal team to contest them. 

Update 23 June 2021: The interdict was in force for only four days. On 23 June, after the UPM’s advocate, senior counsel Izak Smuts, brought an urgent application, the Makhanda high court discharged the interdict and awarded costs against the Makana municipality. The UPM condemned the municipality for fruitless waste of public funds on baseless litigation.

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