‘Gag order’ challenged

Homeless people, from areas like Culemborg and Muizenberg, are screened after they were bused in to Strandfontein sports field by the City of Cape Town this week.

Lawyers of the South African Human Rights Commission (SAHRC) have argued that the City of Cape Town’s “gag interdict” relating to the now closed Strandfontein temporary emergency shelter for street people was impermissible and goes to the very heart of protecting free speech.

According to the Legal Resource Centre (LRC), which is representing the SAHRC, it sent “the chilling message to human rights defenders – if you seek to hold the City accountable, you will be dragged into expensive and time-consuming litigation, and be left with no option but to respond or risk personal costs order”.

According to the LRC’s media statement, they argued that the City’s attempt to withdraw the interdict application “would achieve the invidious purpose of all SLAPP (strategic lawsuit against public participation) suits – to effectively gag criticism in such a way that the matter never goes to court”.

The Cape High Court reserved judgment as to who should cover the costs of the lawsuit wherein the City of Cape Town sought an interdict and restricted SAHRC monitors from reporting on issues relating to the site on the Strandfontein sports field.

The City closed the site on Wednesday May 20, on the same day they were due in court for this legal matter.

On Tuesday June 9, the LRC and 10 other respondents against the City, who had attempted to silence the SAHRC, a Chapter 9 institution which had called for the site to be closed citing it as a health risk, met in court.

In light of the site being decommissioned, the City argued that the matter was moot and conceded, after questioning by Judge Siraj Desai, that the matter be withdrawn, but were steadfast that the respondents incur costs.

The LRC’s Cape Town regional director Sherylle Dass said the respondents were defending their rights.

“The City therefore argued the merits of the case only for the purposes of the cost order sought by the respondents,” she said.

The respondents represented by the LRC argued that the City’s application was without merit.

“The issue at the heart of this case is whether the court should be party to efforts by the City to shield its activities from scrutiny and accountability by local and international human rights defenders and the body constitutionally established to monitor human rights,” she said.

Ms Dass said the application raised constitutional issues of grave importance and that the interdict was solely based on the City avoiding accountability.

The SAHRC also argued that the allegations in the City’s court papers were unfounded, defamatory and false, which would merit a punitive costs order against the City.

“The City’s case targeted not only at an organ of state, which has stretched resources, but also individuals, seeking a costs order against all of the respondents,” said Ms Dass.

The LRC argued that the interdict sought in relation to the publication of monitoring and expert reports “would strike a blow at the heart of freedom of expression”.

The Women’s Legal Centre and Centre for Applied Legal Studies as amicus curiae (friend of the court) argued that the City‘s conduct of refusing the human rights monitors to fulfil their mandate at the site and that the “meritless case” was brought with ulterior motives of preventing the SAHRC and its inspectors from exercising and pursing their rights.

According to the City the matter is now moot because the site was closed.

The homeless were offered alternative shelter accommodation and that respondents in the case insist that the matter be argued.

Mayor Dan Plato said: “While we value and respect the important role played by Chapter 9 institutions, we also have a responsibility to protect staff and NGO (non-government) partners from abuse and harassment, as was the case with the misconduct of the monitors appointed by the SAHRC”.

He said the actions of the monitors included the blocking of entrances at the site, obstructing delivery of food and medical supplies and they attempted to incite violence.

“The City had an obligation to the homeless residents, as well as the NGOs operating the shelter, to protect them from this abuse.

“After attempts to engage the SAHRC commissioner failed, we were obligated to approach the court for relief,” he said in a media statement dated June 10.

In May, interim relief was granted to the City preventing the monitors from being on site.

Mr Plato said that the interdict was necessary and never intended to interfere with the legislation governing the SAHRC.

He said this relief enabled the City and NGO partners to decommission the temporary Strandfontein facility, and facilitate shelter placement for every homeless person willing to accept this offer.

The only outstanding matter to be settled is costs, and the court has requested written submissions in this regard by Sunday June 14.