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Between 9 and 16 August 2012, 37 mineworkers were shot while protesting to demand a living wage and better working conditions in Marikana. In total, 44 people were killed, 94 were wounded (78 on the 16^th), and 275 miners were arrested in a week of violence.

Three miners and two police officers died at Marikana on August 13, 2012. The police oversight body, the Independent Police Investigative Directorate (IPID), investigation determined that all of these deaths were caused by police actions. The completed dockets were forwarded to the National Prosecuting Authority (NPA) on 24 April 2017.

On 18 June 2018, nine police officers allegedly implicated in the deaths of three strikers who died on 13 August 2012 appeared briefly in the North West High Court sitting in Mogwase, North West Province in two separate cases. In the first case, five of the officers, including former North West deputy police commissioner General William Mpembe, are accused, amongst others, of murder and attempted murder, including the murder of Pumzile Sokanyile, who was shot in the head.

In the second case, four of the officers are charged with defeating the ends of justice, contravening Section (29)(1) of the IPID Act for failure to report a death in police custody to IPID and contravening Section 6(2) of the Commission Act for lying to the Commission under oath. These charges stem from the discovery of photographs of a deceased miner during the IPID investigation of the killings at Marikana.  

A photo album discovered as part of the IPID investigation contained images of a dead miner in the back of a police truck which had been used to transport miners from Scene 1 and Scene 2 to a police detention facility on 16 August 2012. IPID identified Motisaoitsile Van Wyk Sagalala as the deceased depicted in the photos. The investigation determined that Mr. Sagalala had been transported from the detention centre where the photos of his body where taken, to the Andrew Saffie Hospital, to the government mortuary.

SAPS testified in front of the Commission that Mr. Sagalala had died at the hospital. The IDIP investigation revealed that, in fact, Mr. Sagalala died inside the police truck at the detention centre, that SAPS failed to report the death to IPID as required under the IPID Act, and that SAPS lied to the Commission in testifying that Mr. Sagalala died at a hospital.

Both matters have been postponed to 14 September 2018 for pre-trial purposes. 

The deaths on August 16, 2012

Thirty-four miners died on 16 August 2012, 17 miners died in the first scene of shooting which was broadcast widely while the remaining 17 had been killed in a scene that the police had initially sought to hide. Six years after the tragedy, there have been no arrests of, or charges laid against any police officers for these deaths.

In March 2017, IPID informed Parliament that it had identified 72 police officers for prosecution for their role in the killing of 34 mine workers in Marikana.

In April 2017, IPID submitted completed dockets to the NPA. The NPA returned the dockets to IPID with further directives and the completed dockets were resubmitted on 01 August 2017. The only outstanding matter is the reconstruction of Scene 2, for which IPID has requested funding from the National Treasury.

Charges can be laid against many of the officers implicated in the docket without the reconstruction of Scene 2. In September 2017, the NPA indicated to SERI attorneys that charges would be laid within two weeks. However, as of 13 August 2018, no officers have been charged for the killings on 16 August 2012.

SERI maintains that IPID must be given the budget to reconstruct the scene so that those responsible will be held accountable for their conduct. However, until the reconstruction is done, the NPA must charge those implicated by the IPID investigation completed in 2017.

SERI was invited by the Johannesburg High Court to make a submission as an amicus curiae (friend of the court) in a case that will be heard on 28 and 29 August 2018 dealing with sales in executions or bank foreclosures. 

The case deals with process that a bank is required to follow to sell a person's home in execution. A sale in execution or bank repossession takes place when a debtor is unable to repay the monthly instalments in terms of a loan they owe to a bank and the debtor’s property is sold at a public auction by the sheriff of the court to pay off the debt. Often, the property sold will be the debtor’s home. To sell a debtor’s home, a creditor or bank must approach a court to get a court order allowing it to sell the home. The order will declare the home “specially executable”. A bank should only do this after many requests for the debtor to pay the outstanding amounts. Sales in execution are an important way for banks to enforce their rights in terms of loans, especially in cases where debtors who are able to pay their debts refuse to pay. However, there have been cases where banks have abused this process. To ensure that this does not happen, Parliament passed section 129(3) of the National Credit Act, which allows the debtor to “reinstate” a loan agreement at any time before the bank seeks to execute the loan agreement against him or her by paying their arrears and the bank’s reasonable costs occured for enforcing the agreement. 

Since section 129(3) of the National Credit Act has taken effect, the practice in the Johannesburg High Court has been to postpost applications to have a person's home declared specifically executable for a certain period in order to enable a debtor to bring up their arrears, thereby reinstating the credit agreement and ensuring that they do not lose their home. However, when an application to have a home declared specifically executable is postponed, some banks have applied for an immediate money judgment against debtors for the full accelerated outstanding balance. Once the banks have this order, they apply for a warrant to execute against debtors' moveable property and, thereafter, homes.

The question raised in this case is about whether courts have the power to postpone a money judgment against a debtor for determination simultaneously with the application for leave to execute against the debtor’s home. A question that is linked to this is whether, if courts do not have this power, the execution of a money judgment precludes a debtor from reinstating the mortgage loan agreement in terms of section 129(3) of the National Credit Act.

SERI argues that courts have the power to postpone money judgments and even have the power to refuse money orders in cases where the banks have established a contractuat right to it. If the courts did not have this power, the purposes of section 129(3) and the possiblity of reinstatement would be circumvented. SERI also argues that allowing a bank to claim a money judgment would preclude a dabtor from reinstating the mortgage agreement, which would effectively mean that banks can circumvent section 129(3) of the National Credit Act.

• SERI's Heads of Argument (27 July 2018) here.
• SERI's Answering Affidavit (28 June 2018) here.
• Judge President's Practice Directives (2 May 2018) here.
• Read more about the case here.

SERI, together with Two Spinning Wheels Film Production and Pegasys Institute will be producing a short documentary on sanitation for women and children living with disabilities in informal settlements.

In the lead up to the launch of the short documentary which will highlight the intersection of gender, disability and sanitation services in informal settlements, we have produced a short media interview with Lydia Lenyatsa, who lives in Park informal settlement, south of Johannesburg.

Lydia is a physically disabled mother of three who has lived in Slovo Park informal settlement for 20 years. She relies on the use of crutches to move around and on an oxygen mask to help her breath. She shares a pit latrine toilet and standpipe with other households in her community. As the toilet is outside of her home, Lydia has to ask someone to accompany her when she needs to use the toilet. She also feels it is unsafe for her or for her children to use the toilet by themselves at night as it is next to a road. If there is no-one around to escort her to the toilet, she often does not go at all.

In 2016, Stats SA found that 1 in every 5 households in metropolitan areas lived in an informal dwelling. More than more than two-thirds (68%) of households living in informal dwellings share toilet facilities. According to the 2011 census, 13.4% of households headed by persons with disabilities had no access to piped water compared with 8.2% of those headed by persons without disabilities. Less than half (45.2%) of households headed by persons with disabilities had access to a flush toilet facility and more than a third (37.1%) used pit toilets.

Informal settlements are characterised by profound inequalities in access to basic services such as water, sanitation, health and emergency services, and electricity. According to the South African Human Rights Council, difficulty accessing safe water and sanitation services impacts severely on the access of other human rights such as health, dignity and education and this impacts disproportionately on women, girls and people with disabilities. Women, in particular, are impacted as the caregivers for people with disabilities.

Government efforts to provide access to improved water and sanitation facilities in informal settlements have largely failed to take the specific needs of disabled people into account. People living with disabilities continue to face numerous challenges to accessing sanitation in informal settlements, including relying on shared toilets and chemical latrines, crawling to inaccessible sanitation facilities, inaccessible hand-washing facilities at toilets, the use of alternatives such as the bucket system to avoid travelling to distant sanitation facilities during unsafe hours, and physical violence while trying to access facilities outside the home.

Water and sanitation services in informal settlements must be improved to meet the specific needs of disabled people, specifically women and girls.

Under the Constitution of South Africa, "everyone is equal before the law and has the right to equal protection and benefit of the law. Equality includes the full and equal enjoyment of all rights and freedoms." The rights of people with disabilities are protected by the Constitution.

Government departments and state bodies have a responsibility to ensure that, in each line function, concrete steps are taken to ensure that people with disabilities are able to access the same fundamental rights and responsibilities as any other South African.

As stated in Policy Directive 9 of the Draft National Disability Rights Policy (2015): “Human settlement design should ensure that persons with disabilities are able to move about freely with their families and choose where and with whom they live. This requires a review of current spatial and human settlement planning design approaches, as well as retrospective upgrading of existing human settlement design to improve accessibility”. 

Municipalities are legally obliged to upgrade informal settlements in keeping with the Upgrading of Informal Settlements Programme (UISP), and actively engage people living with disabilities in these settlements about the tenure rights and services provided through in-situ upgrades.

Sanitation services in informal settlements must meet the National Norms and Standards for Domestic Water and Sanitation Services and be easily accessible, convenient, and comfortable for men, women, the aged, and for people living with disabilities. The norms and standards include requirements for privacy and security, adequately wide doors and space for wheelchairs, level or ramped access, and support structures such as a handrail and a toilet seat.

• Watch video interview with Lydia Lenyatsa here. 
• Read more about the Slovo Park community’s struggle for in situ upgrading here and here.

On 18 July 2018, SERI filed an application for leave to appeal in the Constitutional Court on behalf of Makause informal settlement resident, General Moyo. The matter has been set down for hearing in the Constitutional Court on 18 February 2019.

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 enshrined in section 16(1) of the Constitution. His trial in the Germiston Regional Magistrates’ Court has been postponed until this challenge is finally determined.

In the application for leave to appeal, Moyo 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". This, Moyo argues, indicates that the SCA should have declared section 1(1)(b) unconstitutional as it is "plainly inconsistent with the Constitution".

• Read the Constitutional Court's directives (1 August 2018) here.
• Read Moyo's application for leave to appeal (18 July 2018) here and founding affidavit (18 July 2018) here.
• Read more about the case here.
• Read more about Makause informal settlement and Macodefo here.