Makana Municipality’s interdict against the Unemployed People’s Movement and its leader Ayanda Kota was withdrawn this morning. The urgent interim order granted on Friday 18 June 2021 interdicted Kota, a “Mxube Ngcobo”, the UPM and unspecified people named as the Fourth Respondent. On Wednesday 23 June, in the Grahamstown High Court, Judge Nomathamsanqa Beshe ruled the interdict to have been discharged.
Actions listed in the application to be prohibited included gathering in groups in breach of lockdown regulations, preventing free movement to Makhanda by members of the public, preventing businesses from operating, barricading roads, intimidating Makana employees, officials or councillors, arson or vandalism, and inciting people to enter municipal property.
The categories that comprise the Fourth Respondent are “Those persons in Makhanda who the applicant believes are attempting or intending, through violent protests, to further intimidate, threaten, harass, assault, or in any way interfere with the applicant’s employees, councillors and business, scholars and members of the public, and anyone who willingly associates with the words or actions of the first to third respondents.”
The Fifth Respondent was the Minister of Police. In a cut-and-paste error, the original application listed as the Sixth Respondent the Station Commander of Fish Hoek Police Station; however, this was corrected to the Grahamstown Police Station in supplementary papers.
Senior Counsel Izak Smuts and Advocate Gavin Brown, briefed by Brin Brody of Wheeldon Rushmere & Cole, appeared for Kota and the UPM. The original application was made by Makana’s lawyers, Smith Tabata, through Nettletons. In court today was attorney Mark Nettleton. In a session in the High Court in Makhanda that lasted less than 10 minutes, Judge Beshe read out the order agreed on by the parties that discharged the 18 June interdict.
Costs, including the cost of two Counsel, are to be paid by Makana Municipality, the order states.
The matter against the remaining respondents (‘Fourth Respondent’) is postponed for hearing on 24 August 2021, with no costs order attached.
This is in response to allegations in Makana’s founding affidavit, signed by Municipal Manager Moppo Mene, that comments and actions in community meetings during the protests indicate that there is ”a clear intention to create civil disobedience and unrest at any cost until their demands are met”.
The application says the first three respondents “have been instrumental in organising and making sure that schoolgoing children don’t go to school and join their protests”; “have harassed and intimidated people who want to go to work and earn a living”; have taken a “scorched earth” approach to the shutdown of Makhanda, and flouted Level 3 Disaster Act regulations. The application refers to Level 2 and corrects this in supplementary papers.
In their responding affidavit, the UPM and Kota deny being party to any violent or unlawful activity.
They highlight several procedural and factual errors in the drafting of the 18 June application.
The Makana Council is named as the second applicant, and the UPM says there’s no indication that individual councillors authorised that the application be brought on their behalf.
Kota implies a political motive for Friday’s application, saying there is good reason to believe it was brought in bad faith in an attempt to discredit him and the UPM. He highlights that there is a Section 18(3) application in process to bring into effect the January 2020 court ruling in favour of the UPM. The court ruled that the Province should dissolve the Makana Council and place the municipality under administration. The Province has been granted leave to appeal the judgment in the Supreme Court of Appeal and awaits a date.
“The first applicant has done everything in its power to obstruct the implementation of that judgment,” Kota says.
He says the interdict application is another attempt to delay that implementation.
“The description of the fourth respondent renders it impossible to identify any individual as a member of the fourth respondent,” Kota says. “I am advised and believe that the description of the fourth respondent is so vague that no relief could be granted against such respondent.”
He denies that he or the UPM have engaged in illegal or unlawful conduct and that since no evidence has been provided about this, he can’t respond to those allegations.
The responding affidavit says the basis on which Makana made its application is ironic because “if the first applicant, under the direction of the municipal council, had come anywhere near close to discharging its constitutional and statutory obligations, the protests which have led to the current application would never have occurred”.
Kota claims the background the Municipal Manager sets out is “indicative of the ulterior motives of the applicants in seeking to hide from this Honourable Court the true background to the tragic situation currently prevailing in the Makana Municipality”.
The affidavit refers to the January 2020 High Court judgment to support the UPM’s accusation that the application for the interdict was brought in bad faith.
In his application, the Municipal Manager says Kota is “a recognised leader in Makhanda … whose full and further particulars are to the applicant unknown”.
In his response, Kota points out that Makana has details about him and his counsel, because they are contained in the extensive court papers concerning the successful case to have the municipality put under administration.
He says the applicants’ approach “is premised upon an intention to be able to announce that an interim interdict has been obtained, rather than on the prevailing circumstances”.
The interim interdict was withdrawn by agreement by the legal teams of Makana and the UPM.
GMDirect spoke to the Municipal Manager following this morning’s court action; however, he was waiting for a copy of the judgment before commenting.