On 19 October 2018, SERI filed heads of argument on behalf of Makause informal settlement resident and political activist, General Moyo, in the Constitutional Court. Moyo is challenging the constitutional validity of sections of the Intimidation Act, which he argues infringe the right to freedom of expression as protected in section 16 of the Constitution.
This case emanates from a criminal charge laid against Moyo and two other activists from the Makause Community Development Forum (Macodefo), a community-based organisation in Makause informal settlement, following attempts by him and other residents to hold a march against police brutality in Primrose, Germiston in 2012. He was charged with “intimidating” the Station Commander of the Primrose Police Station in Germiston, in terms of section 1(1)(b) of the Intimidation Act 72 of 1982. Moyo, with the assistance of SERI, seeks to have sections 1(1)(b) and 1(2) of the Intimidation Act declared unconstitutional and invalid because it has the effect of criminalising a wide range of expression protected by the right of freedom of expression. His trial in the Germiston Regional Magistrates’ Court has been postponed until this challenge is finally determined.
In Moyo's application for leave to appeal, he argues that the majority judgment of the Supreme Court of Appeal (SCA) that found section 1(1)(b) of the Intimidation Act was constitutionally compliant is incorrect because the judges misconstrued the purpose and effect of this section in historical context and that the judges applied an interpretation to section 1(1)(b) that "it cannot reasonably bear". Moyo's heads of arguments take this argument further by asserting that the Intimidation Act "is a product of apartheid era legislation that wasdesigned to control dissent against an unjust system" that "goes beyond criminalising expressive acts intended to cause reasonable fears of imminent harm". As a result, Moyo argues, the Constitutional Court should declare section 1(1)(b) unconstitutional as it is "plainly inconsistent with the Constitution".
General Moyo at a protest march in Johannesburg. Photo by Kate Stegeman.
On 14 October 2018, SERI researcher, Kelebogile Khunou, and SERI attorney, Thulani Nkosi, wrote an op-ed published in the CIty Press about the urgent need to extend protection in terms of the Compensation of Occupational Injuries and Diseases Act 130 of 1993 (COIDA) to domestic workers and the new court case that seeks to force the Department of Labour to ensure domestic worker get the protection they deserve.
SERI represents Sylvia Mahlangu, the daughter and sole dependent of a Maria Mahlangu, a domestic worker who dead in her employers home, in an application challenging the constitutionality of the definition of "employee" in COIDA (the definition currently excludes domestic workers employed in private households). COIDA is a law that provides for employees to claim compensation from the Compensation Fund for injuries, illensses or diseases sustained in the course of their employment, or death resulting from such injuries or diseases.
Ms Mahlangu mother died on 31 March 2012 at her employer’s home in Faerie Glen, Pretoria. Her mother, who was partially blind, was washing windows outside a bedroom located next to the pool when she slipped from the step ladder on which she was standing and fell into the pool (which was unfenced and uncovered). Her mother could not swim and drowned. Her body was discovered hours later by her employer, who was at home when her mother fell. Ms Mahlangu approached the Department of Labour to enquire on getting compensation for the death of her mother but was informed that she could neither get compensation or unemployment insurance benefits for her loss (since domestic workers do not fall under the ambit of COIDA). SERI, on behalf of Ms Mahlangu, has brought an application to compel the Department of Labour to amend the definition of "employee" in COIDA to include domestic workers.
As Khunou and Nkosi write "domestic work is not viewed by the public as having occupational hazards" but many domestic workers, gardeners, drivers and caregivers experience work-related injuries, illnesses or even death, including "dog bits, blindness, deafness, arthiritis, back injuries, broken limbs, cuts tuberculosis, asthma and bone fractures". Sometimes domestic workers have even recorded incidents of physical violence from employers. While other employees can claim compensation from these injuries, dmoestic workers "are left out in the cold".
On Saturday, 6 October, SERI in collaboration with Izwi Domestic Workers’ Alliance hosted a workshop on domestic workers’ employment rights at Hillbrow Recreation Centre. The workshop was attended by 49 domestic workers from Johannesburg. SERI’s Kelebogile Khunou and Izwi’s Florence Sekolane welcomed the participants, sharing the purpose of the workshop which was learn about domestic worker employment rights and to explore together how domestic workers can support each other. Florence emphasised in her opening speech that, “Domestic workers need to work together to see change”.
Izwi Domestic Workers’ Alliance holds the view that domestic workers organising and supporting each other at the neighbourhood level will help to overcome the “atomised” and isolated nature of domestic work, and ultimately lead to more domestic workers realizing their employment rights. This perspective informed the workshop. Kelebogile began with a short talk about the history of domestic work in South Africa and took the participants through SERI’s domestic workers’ rights guide. The participants were then divided into five groups according to their neighbourhoods, for an exercise which entailed reading case studies on employment issues domestic workers experience, like unfair dismissal, unfair labour practices, and other employment standards, and using the guide to find out what the law says on those issues and how to resolve them. A representative from each neighbourhood then provided feedback about their group discussion in a plenary session.
The participants brought a lot of energy to the workshop, singing liberation songs and creating a spirit of solidarity. Izwi members from Alexandra performed a skit for the group depicting the unequal relationship between domestic workers and employers. Kelebogile and Izwi’s Maggie Mthombeni then jointly facilitated a question and answer session on employment rights. The workshop was closed by Izwi’s Amy Tekie, who shared with the group Izwi’s experience in assisting one of their members in a court case against her employer, to demonstrate that “Domestic workers can win cases”.
SERI also has a series of short, mobile-friendly information sheets on the rights of domestic workers in English and IsiZulu. These information sheets cover topics like wages, leave, the Unempolyment Insurance Fund (UIF), employment contracts, the end of employment and the Commission for Conciliation, Mediation and Arbitration (CCMA).
SALGA is leading a series of dialogues with municipalities to feed into a Position Paper on the Role of Local Government in the Informal Economy. Municipal local economic development, environmental health, policing, planning and tourism officials from metropolitan and secondary city municipalities in Gauteng gathered on 3 and 4 October to reflect on the challenges, opportunities, strategies, tools and priorities to foster enabling regulation and actions.
Oniah Nkosi, project coordinator of the International Labour Organisation (ILO) kick started the discussions: “The informal economy is an economy. In many countries, it is bigger than the formal economy. In all countries, it puts food on the table. It produces graduates. It can and must be decent work. Whether you are in local economic development, health, finance, planning or safety and security, ask yourself – what does my office do to achieve the NDP imperatives?”
SERI serves on the Steering Committee for the development of SALGA’s position paper.
SERI delighted to welcome two new members to the litigation team!
Anna-Marie de Vos is a practicing advocate with 33 years of experience. She obtained her LLB and LLM (Intellectual Property) at Unisa and joined the Pretoria Bar in 1985. She was granted silk in 1997 and appointed as a Judge on the North Gauteng High Court in 2001. She decided to return to practice in 2006. She specializes in Socio-Economic and land rights litigation and the Director of Legal Advice Office for Women, an NGO assisting women in the Garden Route area with legal issues. Anna-Marie was an applicant in the case of Du Toit v Minister of Welfare and Pupulation Development 2003 (2) SA 198 (CC) in which she and her life partner successfully challenged the Child Care Act 74 of 1983 that did not provide for permanent same-sex life partners to jointly adopt children.
Zeenat Sujee joined SERI in October 2018, she is an admitted attorney with an LLB from the University of the Witwatersrand. Zeenat served her articles at the Legal Resources Centre and thereafter worked as an attorney practicing in the fields of Housing, Land, Gender and Environmental law. She thereafter joined the Centre for Applied Legal Studies and worked in the Basic Services Programme, where she has dealt with rights to access to adequate housing, water and sanitation. Most recently, Zeenat has consulted on civil and political rights research for the South African Human Rights Commission.