By Kirsten Youens

This article appeared in The Daily Maverick

It has been five years since our client, Fikile Ntshangase, was shot dead in her home at Ophondweni on 22 October 2020, where she lived with her 13-year-old grandson.

She had refused to accept a R350,000 bribe to sign an agreement supporting the mine and withdrawing a court case, and at a meeting held before her murder, she stood up to say: “I refused to sign. I cannot sell out my people. And if need be, I will die for my people.”

Her words proved prophetic. Shortly after her statement, a group of men disrupted the meeting, one of whom repeatedly said “kuzochitheka igazi” (there will be bloodshed). A week later, she was dead.

Fikile was a member of the community organisation Mcejo, an environmental activist who challenged a coal mining expansion that has displaced and continues to displace communities near the Hluhluwe-iMfolozi Game Reserve in KwaZulu-Natal.

Five years after Fikile Ntshangase’s assassination, not a single person has been arrested for her murder. All three hitmen involved are reportedly deceased. Those who orchestrated her murder have not been caught.

Her case exemplifies the state’s failure to protect those who challenge powerful interests, the same situation we saw with Sikhosiphi Bazooka Rhadebe’s 2016 assassination in the Eastern Cape, and which has been evident in other killings since then.

A global crisis

Fikile’s case is not isolated. In January 2025, the UN Special Rapporteur on Human Rights Defenders, Mary Lawlor, published a report titled “Out of Sight: Human Rights Defenders Working in Isolated, Remote and Rural Contexts”.

The report features Fikile’s assassination as an emblematic case of the deadly risks facing environmental defenders in rural areas worldwide. In 2023 alone, 196 land and environmental defenders were killed globally, with at least 300 defenders murdered across 28 countries.

As the special rapporteur notes: “Many, like Fikile, who work in isolated, remote or rural contexts, face particular dangers.”

The report documents cases from around the world. In Peru, Quinto Inuma Alvarado, an indigenous Kichwa defender from the Amazon, was murdered in November 2023.

In Colombia, Abelardo Liz, an indigenous journalist and human rights defender, was killed by members of the armed forces while covering a land rights protest for a community radio station.

In the Philippines, environmental defenders Miguela Peniero and Rowena Dasig were arrested while conducting research on the impact of a planned gas turbine power project on coastal communities and local biodiversity.

The UN special rapporteur specifically highlighted All Rise Attorneys in her report as a women-led legal centre based in KwaZulu-Natal working with directly affected communities, including the Mfolozi community in litigation against the Somkhele coal mine expansion.

Despite the special rapporteur raising Fikile’s killing with the South African government multiple times since 2020, there has been no satisfactory response.

At the 18th meeting of the Human Rights Council in Geneva on 10 March 2025, the South African Human Rights Council representative responded to questions about Fikile’s case by stating her killing “is currently being investigated” and that “the perpetrators will face the full might of the law”.

However, in response to a pending  request that the case be transferred to the Directorate for Priority Crime Investigation (Hawks), All Rise was recently informed that because all the hitmen were allegedly dead, there was no point in continuing the investigation.

However, I believe that until such time as those who arranged and commissioned this assassination are identified and brought to justice, this case cannot be closed, and the investigation must continue.

The UN special rapporteur’s report notes that South Africa has yet to respond to her communications about Fikile’s case. This silence raises questions about the priority South Africa places on protecting human rights defenders and investigating attacks against them.

Litigation tactics create barriers to justice

The expression “justice delayed is justice denied” is not only applicable in the criminal justice system. It is also relevant in the context of environmental litigation, where delays purposefully orchestrated by respondents and their attorneys can have devastating consequences for vulnerable communities.

As someone who has represented coal-mining-affected communities for more than a decade, I have observed how litigation strategies centred on delays create profound challenges for both communities seeking justice and the pro bono lawyers who serve them.

Litigation is characterised by extended procedural battles that, in my experience, often overshadow substantive legal issues. In mining and environmental matters, while communities suffer immediate and ongoing harm — children developing respiratory illnesses from coal dust, homes cracking from blasting, water sources becoming contaminated, people relocated off their land without proper compensation — court processes can stretch for years through various procedural battles.

I have witnessed a pattern where applications for extensions well beyond statutory deadlines become routine and where voluminous, poorly organised court papers are filed, requiring extensive time to analyse, often with critical annexures missing and requiring repeated requests for copies or clarification.

Rule 7 applications challenging attorney-client relationships are filed at crucial junctures, only to be withdrawn just before hearings. Each individual action may appear reasonable within the bounds of zealous advocacy, yet collectively they create a systematic barrier to accessing justice.

The state’s role in these delays presents its own challenges. Government departments routinely struggle to file papers timeously, if at all; provide incomplete Rule 53 records; and fail to respond to court deadlines.

When State attorneys do eventually file papers, they often do it in a piecemeal fashion and in a state of disarray. This creates a situation where legal challenges can languish for years while mining operations, community impacts and environmental destruction continue.

The human cost

For rural communities living adjacent to extractive industries, every month of delay translates into continued exposure to environmental and health risks.

I have sat with elderly women describing respiratory problems from coal dust, and the fear their grandchildren experience from blasting.

Fikile was murdered. Gideon Gumede, another one of our clients, died from an unexplained lung disease. While people die, their homes crack and dust pollutes their water sources, legal proceedings that could address these issues remain bogged down in protracted legal strategy and delay.

The psychological impact extends beyond physical harm. Community members invest tremendous hope in legal processes, particularly given South Africa’s constitutional promise of environmental rights and access to justice.

When these processes stretch endlessly while mining operations expand around their homes, the resulting disillusionment can be profound. Some community members lose faith in the justice system. Some die while waiting. Others, facing mounting pressure, intimidation and sometimes violence, abandon the legal challenges altogether.

This dynamic raises uncomfortable questions about whether our legal system is fulfilling its constitutional mandate to provide accessible justice, particularly for those who cannot afford private representation.

The challenge for pro bono practice

These extended proceedings place particular strain on pro bono legal practices. Unlike large corporate law firms with substantial resources, pro bono practitioners, often small firms or NGOs operating on limited budgets, struggle to absorb the costs of protracted litigation.

Each delay or failure to comply with deadlines requires additional travel to rural communities for client consultations, repeated preparation for hearings that are postponed, and mounting administrative costs. Time spent managing respondents’ adherence to court-imposed timelines is time that is denied to other equally deserving cases.

I have experienced the frustration of preparing extensively for court dates, travelling for hours to remote venues, only to have matters delayed because of last-minute interlocutory applications or the defendant filing thousands of pages for what should be a simple affidavit.

While corporate law firms representing mining companies can deploy teams to manage these complexities, small pro bono practices must often handle multiple roles with limited resources.

This creates an inherent and unjust imbalance. Well-resourced defendants can afford to pursue delay strategies knowing that pro bono lawyers face mounting pressure to settle on unfavourable terms, and withdraw from cases entirely, resulting in moot cases.

The result is a system where the strategy of delay and overburdening sometimes matters more than legal merit. This is aside from the emotional toll of watching clients suffer while the legal system and justice fail them.

Professional and ethical considerations

These dynamics raise important questions about professional responsibility within our legal system. While zealous advocacy is fundamental to legal practice, there exists a distinction between legitimate tactical considerations and strategies that appear designed primarily to exhaust opponents’ resources, rather than advance substantive legal arguments.

It is important to acknowledge that many of these litigation tactics are commonplace in standard commercial litigation between well-resourced parties.

However, these same strategies become completely unethical and unreasonable when deployed against indigent communities and pro bono lawyers who lack the resources to respond in kind. The power imbalance transforms what might be acceptable tactical manoeuvring in corporate disputes into a mechanism for denying access to justice.

For attorneys representing corporations in environmental matters, the challenge lies in balancing client advocacy with broader considerations of justice and constitutional rights.

When litigation strategies result in continued environmental harm to vulnerable communities while legal processes are delayed, questions arise about whether such approaches align with the profession’s broader duties.

Toward better practice

Addressing these challenges requires thoughtful consideration from multiple stakeholders. Courts could benefit from enhanced case management approaches that consider the relative resources of parties and the ongoing harm to affected communities. Adhering to court rules and enforcing consequences for missing deadlines might help ensure that procedural rules serve their intended purpose of facilitating fair resolution rather than enabling endless delay.

The legal profession itself has a role to play in examining whether current practices serve the broader goals of justice and constitutional democracy. Professional development and ethical guidance could help lawyers navigate the tension between zealous advocacy and procedural fairness, particularly in matters involving vulnerable communities.

Looking forward

These issues ultimately reflect broader questions about access to justice in South Africa. Our Constitution promises environmental rights and equal access to courts, but procedural barriers can make these rights illusory for those who most need protection.

Environmental litigation often involves society’s most vulnerable members — rural communities, traditional groups, and economically marginalised families. When our legal system struggles to provide timely resolution of their legitimate claims, we risk undermining the constitutional vision of justice that should guide our democracy.

The solution lies not in eliminating procedural protections, which serve important fairness functions, but in ensuring they operate as intended. This requires ongoing reflection from legal practitioners, improved case management from courts, and recognition that in environmental law, delay is not merely strategic and procedural; it can cause irreversible harm to both communities and ecosystems.

As legal professionals, we have the opportunity to use our skills in ways that advance the constitutional values of dignity, equality and environmental protection.

How we choose to exercise that opportunity, whether in corporate boardrooms, government departments or rural communities, will ultimately determine whether our legal system serves justice or impedes it.

Today, we remember Fikile and what she died for. We push for the police to find out who orchestrated her death and ensure justice is served. And our work that Fikile put her faith in to deliver justice continues.

Justice delayed is indeed justice denied, and in environmental law, it may mean the difference between saving lives and preserving communities, or allowing their destruction while legal processes unfold at a pace that serves everyone except those most in need of protection.