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The 9^th Annual Public Interest Law Gathering (PILG) was hosted at the University of the Witwatersrand on Thursday, 31 October and Friday, 1 November 2019. Each year PILG brings together public interest litigation organisations and practitioners, legal academics, social movement leaders and students in an effort to deepen discussion and encourage collaboration amongst human rights and public interest litigation organisations. The theme for PILG 2019 was “Women in Leadership Transforming the Public Interest Law Sector”. The keynote speakers were Professor Pumla Gqola (Fort Hare University), Nicolette Naylor (Ford Foundation), who spoke on the first day and Professor Nomboniso Gasa (University of Cape Town) who spoke on the second day.

Professor Gqola gave the opening keynote address in which she discussed some of the tensions that feminism and social justice movements on the Left have to grapple with. These included the enduring nature of institutions, the increasing onslaught on solidarity in the fight against sexual harassment and rape and the dangers that cancel culture pose for building solidarity across movements.

SERI senior attorney Zamantungwa Khumalo and SERI researcher Kelebogile Khunou spoke on a panel on ‘(In)access to land and housing: A focus on gender and sexual orientation’ hosted on the first day of the gathering. They were joined by Thiyane Duda (Land and Accountability Research Centre) and Musa Gwebani (Social Justice Coalition) and the panel was chaired by Ndifuna Ukwazi’s Mandisa Shandu and Maxine Bezuidenhout.

Kelebogile Khunou’s presentation reflected on the negative impact that a lack of access to affordable, well‑located housing has on domestic workers. She argued that while some domestic workers choose to ‘live out’, often at a significant cost of transport to and from work, many domestic workers who cannot afford that cost are forced to ‘live in’ at their places of employment. This form of accommodation is usually substandard, very small and controlled by rules that are often discriminatory and paternalistic. Khunou argued that the lack of affordable and well‑located housing leaves these domestic workers vulnerable to very particular forms of abuse and mistreatment.

SERI also hosted a panel on ‘Domestic Workers Realising their Rights’ on which the speakers included Wits Professor Shireen Ally, Eunice Dhladhla (South African Domestic Service and Allied Workers Union), Maggie Mthombeni (Izwi Domestic Workers Alliance) and Amanda Duma (SERI). The panel was chaired by Kelebogile Khunou.

Professor Ally’s presentation historicised and contextualised the struggle of domestic workers in South Africa dating back to the period of slavery in the Cape. Ally also pointed to the need for the struggle for domestic workers' rights to seek solutions and rely on strategies that do not depend on the role of the state in mediating the relationship between domestic workers and their employers. Eunice Dhladhla reflected on the history of SADSAWU and the work that they have done to organise domestic workers and mediate disputes between domestic workers and employers.

Maggie Mthombeni discussed some of the main challenges that domestic workers continue to face, particularly in light of the uneven power dynamics that negatively affect their ability to effectively communicate and negotiate the terms of their employment. She also reflected on Izwi’s progress to better organise domestic workers through the use of neighbourhood groups, and the use of WhatsApp as an information-sharing platform that also assists with breaking the isolation experienced by domestic workers.

Amanda Duma discussed the Mahlangu case in which SERI represents Sylvia Mahlangu, the surviving daughter of a domestic worker, Maria Mahlangu who died at her employer’s home during the course of her employment. Sylvia Mahlangu and SADSAWU successfully challenged the constitutionality of section 1  (xix)(v) of the Compensation for Occupational Injuries and Diseases Act 130 of 1993 (COIDA) which excludes domestic workers from protection. Duma also discussed the significance of ruling on the retrospective application of invalidity, allowing Sylvia to claim for relief.

WHAT: On Wednesday, 6 November 2019, the South African Domestic Service and Allied Workers Union (SADSAWU) and Sylvia Mahlangu filed an application in the Constitutional Court to confirm the unconstitutionality of the exclusion of domestic workers from the Compensation for Occupational Injuries and Diseases Act 130 of 1993 (COIDA). 

SERI represents Sylvia Mahlangu, the surviving daughter of a domestic worker, Maria Mahlangu, and SADSAWU in a challenge against the constitutionality of section 1 of COIDA. Maria died at her employer’s home during the course of her employment. Under the Compensation for Occupational Injuries and Diseases Act (COIDA), her daughter was precluded from claiming from the Compensation Fund which compensates employees, or their survivors, for work-related injuries, illnesses or death.

On 23 May 2019, the North Gauteng High Court handed down an order declaring the exclusion of domestic workers from COIDA as unconstitutional. The Court, in October 2019, further ruled that the declaration of invalidity must be applied retrospectively to provide relief to other domestic workers who were injured or died at work prior to the granting of the order. SERI, on behalf of Ms Sylvia Mahlangu and SADSAWU, is now approaching the Constitutional Court to confirm these two orders. 

SADSAWU, Ms Sylvia Mahlangu and SERI will address members of the media on the negative impact of the exclusion of domestic workers from COIDA and the importance of a retrospective application of the declaration of invalidity.  

WHEN: Thursday, 7 November 2019 at 10:00 to 11:30.

WHERE: SERI Conference Room, 6th floor Aspern House, 54 De Korte Street, Braamfontein, Johannesburg.

WHO: Sylvia Mahlangu (main applicant), Thulani Nkosi (SERI senior attorney), Eunice Dhladhla (SADSAWU organiser) and Pinky Mashiane (former SADSAWU organiser). 

ADDITIONAL INFORMATION: Read more about the case and access the court papers: https://bit.ly/2JPrAh4. 

• Download the full media alert here.

CONTACT: 

• Thulani Nkosi, SERI senior attorney: This email address is being protected from spambots. You need JavaScript enabled to view it./ 011 356 5878 / 076 117 3484
• Eunice Dhladhla, SADSAWU organiser: This email address is being protected from spambots. You need JavaScript enabled to view it. / 082 344 0300

On Wednesday, 23 October 2019, SERI’s Lauren Royston presented at an Urban Land Reform Seminar focused on engaging with the report of the Presidential Advisory Panel on Land Reform. Royston was joined by Bulelwa Mabasa (Werksmans Attorneys and the Expert Advisory Panel on Land Reform and Agriculture), Prof Ruth Hall (PLAAS), and Prof Marie Huchzermeyer (SoAP and CUBES).

The speakers focused on the question of urban land reform within the context of the Final Report by the Expert Advisory Panel and on the broader questions surrounding urban land reform. Royston stressed that the meaning of section 25(5) of the constitution has yet to be interpreted judicially and that a land redistribution law would be required to give effect to this section in both urban and rural contexts. She further discussed recommendations on urban land redistribution and tenure reform contained in two forthcoming papers, and the importance of not pathologising or criminalising “off-register” use of land, but rather thinking beyond the individual register title framework to allow for tenure diversity and tenures security on a continuum.

The seminar was hosted by the South African Research Chair on Spatial Analysis and City Planning, the Center for Urban and Built Environment Studies (CUBES) at Wits University.

SERI’s informal settlement action research confirms that despite the challenges, eThekwini’s Communal Ablution Blocks (CABs) provide a higher level of sanitation service to informal settlement residents than options such as chemical toilets, portable flush toilets and others provided by other municipalities.

On 24 and 25 October, approximately 50 municipal officials from various departments including human settlements, water and sanitation, emergency services, environmental health and roads; academics from UKZN; civil society organisations such as SERI and social movements such as Abahlali baseMjondolo and SA-SDI participated in a knowledge exchange session on Sanitation Services in Dense Informal Settlements convened by eThekwini’s Municipal Learning Institute (MILE). 

Alana Potter SERI’s director of research and advocacy, together with ma-Mkhize Nxumalo from Siyanda where Abahlali base Mjondolo partnered with SERI, shared findings and implications from the research on local norms, agency and practices with respect to land use management and tenure, participation, access to basic services and livelihoods.

The purpose of the exchange was to reflect on options and models for sanitation services. CABs were built in B1 and B2 informal settlements in the late 2000’s. CABs have many advantages: They meet basic service level standards; they are electrified reducing safety risks; they dispose of greywater reducing health risks and they mitigate many of the problems of shared sanitation through a caretaker model. Importantly CABs are connected to the municipal grid, which sends a positive tenure security and upgrading message to residents. 

CABs however come at high capital and operational cost, and the City’s bulk sewer infrastructure is overloaded. Women, the elderly, disabled and residents living further from the facilities report lower satisfaction with the CABs, and the selection of caretakers is a delicate issue.

Like anyone else, informal settlement residents want affordable household connections and take action to connect at significant personal risk and financial cost in order to step into the gaps where government doesn’t provide adequate services in order to safeguard their dignity, privacy and security and in order to generate a livelihood. 

In their presentations, Enoc Mudau from Johannesburg Water and Llast Mudondo from the City of Cape Town cited a reluctance to develop municipal infrastructure on privately owned land and the slow pace of incremental upgrading processes as reasons they could not provide individual household connections.

With respect to water services on privately owned land: according to legal opinion commissioned by Project Preparation Trust, municipalities have the right and the obligation to provide services on land that they do not own and they need to do so in a structured and planned manner by: including their plans in their Spatial Development Frameworks; giving notice to and taking comments from land owners, and promulgating enabling bylaws. PPT committed to sharing a briefing note on this.  

Zandile Nsibande from Abahlali base Mjondolo said: “The City of Joburg needs to take a leaf from eThekwini. Those VIPs and those green toilets everywhere are not dignified. Ive been to Slovo Park and when they are not emptied, they stink. Lots of money is spent but nothing is done for people living in informal settlements. Work with organisations like SERI.”

To the City of Cape Town official, she said “SERI’s research shows that people don’t have basic services. When people took toilets to the airports they were being strategic and they were showing their anger because the City didn’t provide dignified services. I thought after all that you would be showing us improvements but I see nothing much has been done”.

City officials referred to new criteria for accessing upgrading funding as a constraint. The Upgrading Informal Settlements Grant in the USDG window requires a Business Plan per settlement which has delayed upgrading in Johannesburg this year. “R 395 million was allocated but won’t be able to spend it this year” said Enoc Mudau. Mark Misselhorn from Project Preparation Trust (PPT) noted similar challenges encountered in eThekwini.

Social movements, academics and civil society organisations sent a clear message: Municipalities need to build constructive relationships with residents, they need to actively understand and build on existing local norms, livelihoods strategies and practices in the participative upgrading process. In the meantime they need to secure residential status and provide at least interim basic services.

As ma-Mkhize Nxumalo said “Ive been living in Siyanda for 31 years. I live there because I have a strong network and it is a good place to make a living. Local government is a long distance from people living in informal settlements. In 2010 I was there when the CABs arrived. The community blamed me and asked me why I am bringing toilets instead of houses. Municipalities, why don’t you talk with us first? It is better here that we talk with officials and they give us time to listen. That is what ward committees were meant for. They would not fail if they engaged us. The problem is the land. Make us secure on the land and we will build.” 

• Read more about the workshop and access all the material here.