In March the Department of Employment and Labour set up the COVID-19 Temporary Employer/ Employee Relief Scheme (TERS) to support businesses and employers temporarily closed due to the lockdown and unable to pay workers’ salaries.
This benefit is only available to employers who are registered with the Unemployment Insurance Fund (UIF) and make monthly contributions as required by the Unemployment Insurance Contributions Act 4 of 2002 (Contributions Act). Section 10 of the Contributions Act states that the obligation to register with the UIF lies with an employer. Domestic workers themselves cannot register for UIF.
Yet there is widespread non-compliance amongst employers, especially among those employing casual or precarious workers such as domestic workers and farm labourers. According to a study by Women in Employment: Globalizing and Organizing (WIEGO) and the Social Law Project (SLP) at the University of Western Cape, only 20% of domestic workers are registered by their employers under UIF. Further, generalising from Izwi Domestic Workers Alliance’s research which found that only 37% of domestic workers were paid a full salary in April, the majority of domestic workers, many of whom are the sole breadwinners for their families, are left without an income until level 2 of the lockdown.
SERI requested an opinion on possible legal remedies. These are as follows:
On Thursday, 7 May 2020, the South African Domestic Service and Allied Workers’ Union (SADSAWU), represented by SERI, made recommendations to the National Command Council, the Minister of Employment and Labour and the Unemployment Insurance Fund (UIF) Commissioner seeking a declaration of domestic workers as UIF contributors so that they can access income protection during the state of disaster.
On Friday, 15 May 2020, the North Gauteng High Court handed down a judgement in an urgent application brought by the family of Mr Collins Khosa. The urgent application was brought following the death of Mr Khosa who succumbed to injures from an assault by members of the South African National Defence Force, accompanied by members of the Johannesburg Metropolitan Police on 10 April 2020. SERI was admitted as amicus curiae in the matter.
In reference to use of force by security forces during the lockdown, Judge Hans Fabricius held that “what we are dealing with in South Africa at this moment is the conduct of security forces aimed at mainly the most vulnerable because of the socio-economic situations that exist throughout South Africa for which the poor are certainly not to blame…”.
The Court held that the lockdown, instituted in terms of the Disaster Management Act 57 of 2002 and the declared national state of disaster, does not suspend people’s rights to dignity and life (sections 10 and 11 of the Constitution), as well as the right not to be tortured in any way or to be treated or punished in a cruel, inhuman or degrading way (sections 12(1)(d) and (e) of the Constitution).
The Court also held that the South African National Defence Force (SANDF), the South African Police Service (SAPS), and any Metropolitan Police Department (MPD) must “act in accordance with the Constitution and the law, including customary international law and international agreements binding” on the South African government. These laws include section 13(3)(b) of the South African Police Service Act, 1995 read with section 20(1)(a) of the Defence Act, 2002 on the use of minimum force that is reasonable. Other relevant laws cited include the Prevention of Torture of Persons Act, 2013, and the United Nations Convention against Torture and Other Cruel and Inhuman or Degrading Treatment or Punishment, 1984.
The Court also granted a range of remedies aimed at addressing the lockdown brutality and restoring trust between the public and security forces entrusted with enforcing the regulations and directions.
Contrary to the submissions made by the Minister of Defence, SERI submitted that Section 19 of the Defence Act must apply to the military’s deployment during the lockdown and that Section 19(3)(c) of the Act makes clear that “service in co-operation with the South African Police Service must be performed in accordance with” a code of conduct, operational procedures and guidelines published by the Minister of Defence.
SERI further submitted that “at the heart of this case is the need to fill the lacuna left by the absence of these checks, and to preclude the repetition of the tragedy that brought the applicants to court.”
Between April and May 2020, SERI has participated in a series of panel discussions looking at how Covid-19 is effecting South African society. The discussions, hosted by The Forge, are aimed at exploring and expanding our understanding of the socio-political issues being highlighted by the COVID-19 pandemic. SERI has facilitated three discussions on police brutality, illegal evictions and de-densification during the COVID-19 lockdown and participated as a panelist on another discussion exploring the meaning of a state of disaster.
In the first discussion, SERI's Nomzamo Zondo joined Musawenkosi Cabe, a journalist at New Frame and Vuyo Mntonintshi, a candidate attorney at the Centre for Applied Legal Studies (CALS) to discuss what exactly it means to be in a state of disaster and how it impacts on people's rights. The discussion highlighted the difficulties faced by communities in attempting to assert their rights against police brutality, illegal evictions and a general disregard for human rights during the lockdown. The discussion also grappled with some of the challenges faced by people seeking legal assistance during the lockdown and the challenges of litigating during the lockdown. In relation to the evictions carried out by local municipalities in violation of the national directions, Nomzamo argued that, "if national government cannot make local municiplities to toe the line, it is going to be very difficult to convince private parties to do so. If we all agree that this is a national disaster and that we all need to bring our resources to try and fight against, that means that everybody must be willing to comply and toe the line."
In the discussion on police brutality during the COVID-19 lockdown, SERI's Thato Masiangoako was joined by Elisha Kunene, a candidate attorney at Richard Spoor Inc. Attorneys and Daneel Knoetze, a journalist and the editor of Viewfinder. Elisha Kunene and Daneel Knoetze discussed some of the contemporary and historical reasons behind the reported incidents of police brutality and misuse of force. They also unpacked some of the particular vulnerabilities of poor and marginal communities during the lockdown. Knoetze argued that "poor communities that often challenge the status quo are often subject to extreme and excessive uses of force by the police more often and that their avenues for reporting and for holding the police accountable, whether it be in their own communities or in the broader systemic sense, is hampered and curtailed by the fact that these avenues are inaccessible often and this is something that has been aggravated during lockdown." Knoetze also urged that members of the public continue to insist that the state and security forces be held accountable especially during the lockdown where the public is confined to their homes.
In the discussion on forced removals and evictions, SERI's Edward Molopi was joined by S'bu Zikode, the founding president of Abahlali baseMjondolo and Kelly Kropman of Kropman Attorneys. The discussion traced illegal evictions in South Africa to a long history of various modes of forced removals. The participants noted a distressful trend of a growing list of private owners and municipalities showing little regard for the ban on evictions laid down as part of the COVID-19 response package. Centrally, the discussion highlighted individual and collective rights that people have and how they can go about enforcing those rights. Kropman argued that, in eviction cases, the interest of justice should always take precedence over whether or not someone has paid for their occupation, "we shouldn't view people's values, around evictions, as purely as that of an economic story", she added. Zikode argued for a more equitable distribution and access to land through "realising the right to land" and "the removal of land as a commodity."
In the discussion on the de-densification of dense settlements, SERI's Edward Molopi was joined by Marie Huchzermeyer, a Professor in the School of Architecture and Planning at Wits University where she convenes the Master of Urban Studies degree and Axolile Notywala, an activist and General Secretary of the Social Justice Coalition. The discussion considers the use of de-densification of dense settlements as mitigation and a preventative strategy against COVID-19 and explores the social, political, economic and technical impact of de-densification and the disruption it is likely to cause. The discussion further considered the historically justified mistrust of government-sponsored temporary removal and how people respond to this state-sanctioned form of forced removal. Lastly, the discussion considered the importance of a planned approach to informal settlements. Notjwala argued against the perception of informal settlements as temporary"informal settlements have for a number of years been seen as temporary [by the state] which leads to a lack of prioritisation in investing in informal settlements and the reactionary approach when disasters arrive. We need to start recognising that informal settlements, as informal as they are, are permanent. We need to start seeing people living in informal settlements as part of our cities, they are residents belonging to our cities. When we start recognising that we will start treating people as people and involving them in planning processes." Huchzermeyer argued for a more coordinated state involvement in informal settlements "in addition to recognising the settlements as permanent the state needs to coordinate its involvement in these settlements. It needs to know those who live in these settlements and how they are organised."
SERI endorses a recommendation by the Centre for Applied Legal Studies (CALS) to the National Command Council that Regulation 19 be amended to reflect a full moratorium on the institution and hearing of eviction proceedings, as well as the execution of eviction orders and all home demolitions, for the entire duration of Alert Level 4. The recommendations submit that;
Any execution of an eviction order during Alert Level 4 of the national lockdown could never be deemed ‘just and equitable’ by a court; the continued restrictions on inter alia movement and transport are underscored by the need to “Stay at Home”, and thus necessarily render any eviction unjust in the current context. For this reason, the reference to this possibility in the Regulation is irrational and thus unlawful;
Even the institution of eviction proceedings during Alert Level 4 of the national lockdown would operate unjustly against the defendant; the continued restrictions on inter alia movement and travel operate to prevent defendants from accessing legal services to aid their defence during Alert Level 4. Any institution and hearing of an eviction application would thus violate the defendant’s right of access to the courts. For this reason, the Regulation’s implied reference to this possibility is irrational and thus unlawful
SERI accordingly supports the proposal that Regulation 19 be replaced in its entirety by the following: “No person may have their home demolished or be evicted from their place of residence, including in terms of the Extension of Security of Tenure Act 62 of 1997 or the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998, and regardless of whether it is a formal or informal residence or a farm dwelling, for the duration of the Alert Level 4 period.”
On Thursday, 7 May 2020, the South African Domestic Service and Allied Workers’ Union (SADSAWU), represented by SERI, made recommendations to the National Command Council, the Minister of Employment and Labour and the Unemployment Insurance Fund (UIF) Commissioner seeking a declaration of domestic workers as UIF contributors so that they can access income protection during the state of disaster. These recommendations were endorsed by United Domestic Workers’ of South Africa (UDWOSA) and Izwi Domestic Workers’ Alliance.
The COVID-19 pandemic and lockdown has had a devastating impact on the lives of domestic workers and their families across the country. A mere 20% of domestic workers are registered for UIF. This means that the majority of domestic workers cannot access the Department of Employment and Labour’s COVID-19 Temporary Employer/Employee Relief Scheme (TERS), because domestic employers did not fulfil their legal obligation to register them. Further, some registered domestic workers report that their applications for TERS have been declined.
The Unemployment Insurance Act (UI Act) enables the Minister, UIF Commissioner and UIF Board to deem individuals or a class of persons as contributors for the purposes of the Act. SERI’s letter on behalf of SADSAWU recommended that the Minister and the UIF Board, relying on section 69 of the UI Act, declare domestic workers, as a class of persons, UIF contributors for the purpose of the UI Act and specifically for the duration of the COVID- 19 pandemic. The letter also recommended that the Department create a mechanism for domestic workers to access TERS directly from the Department, as individuals, or collectively through their unions.
The letter acknowledges the Minister’s announcement on 28 April 2020, allowing employers who had not yet registered their employees for UIF, to register them in order to benefit from TERS, if the employers undertake to pay the debt owing to the UIF when they are able to do so. While this solution might aid employers and workers in other sectors, it is likely that some domestic employers, the majority of whom are rarely held accountable for their transgressions, will dismiss their employees unfairly than pay their debt. In the case of vulnerable sectors like domestic work, the Department’s needs to find creative solutions to support workers while holding employers accountable.
During the lockdown the Department has neglected to directly address the one million domestic workers and their employers, leaving this vulnerable sector without clear direction. The declaration and inclusion of domestic workers as UIF contributors will bring relief to millions of domestic workers as it will enable them to access TERS.
According to SADSAWU’s General Secretary, Myrtle Witbooi “the current COVID-19 pandemic has resulted in a loss of income for many domestic workers. Many of them are told ‘no work, no pay’ and are not able to benefit from the relief scheme. We urge the Department of Employment and Labour to seriously address this”.