RAA an Trespass Act Op ed


On 21 February 2020, the Mail & Guardian published an op-ed by SERI researcher Thato Masiangoako. The op-ed discusses the significance of the Constitutional Court hearing for Economic Freedom Fighters & Another v Minister of Justice and Constitutional Development & Another held on 18 February 2020 in which SERI has intervened as amicus curiae. The case deals with the constitutionality of section 18(2)(b) of the Riotous Assemblies Act and section 1 (1) of the Trespass Act.

The op-ed discusses the disjuncture between the law and reality when these pieces of legislation are applied and argues for the need for South Africa's laws to be brought in line with its current reality and most importantly, in line with its Constitutional framework. The op-ed discusses some of SERI’s concerns with the two apartheid-era pieces of legislation with examples drawn from the case of Ms Zwane and what many of SERI's clients experience. 

Masiangoako argues that "the co-existence of the Trespass Act and the PIE Act presents a clear example of how historical disparities cut through legislation in conflict with efforts to address these very disparities."

Read the full op-ed here.



Abahlali picOn Wednesday, 5 February 2020, the New Frame published an article by Nomfundo Xolo discussing Abahlali baseMjondolo (AbM)’s response to the draft Amendment Bill. 

The Ad Hoc Committee to Initiate and Introduce Legislation amending Section 25 of the Constitution granted an extension to comments on the draft Constitution Eighteenth Amendment Bill which will amend the Constitution to allow for expropriation without compensation. 

In April 2018, SERI made a submission to the Joint Committee on Constitutional Review which had been tasked by Parliament to review section 25 of the Constitution, specifically focusing on the issue of expropriation without compensation. SERI’s submission considered expropriation as a policy tool for the implementation of land reform and highlighted the potential it has to assist the state in unlocking speculatively held or abandoned land. It further argued that expropriation can enable the state to acquire vacant land and buildings which could then be used for the provision of permanent housing. Expropriation could help secure the tenure of millions of South Africans where they currently live. By expropriating the land on which informal settlements sit or a building that accommodates poor people, the state can ensure that poor people are not evicted, have access to a basic level of services and have access to secure housing until a more permanent solution can be found. 

The article quotes AbM’s S’bu Zikode who notes that “a fair process in the expropriation of land would be one that leads to communal ownership, and one that especially recognises black women’s underprivileged position with a view to giving them the opportunity to access and own land.” Zikode also notes that “(t)he bill in its current form is misleading the public. It has already cast aside poor black people. It needs to be stated fairly that land in fact does belong to all of us and not the elite. It is vague on fair land distribution, a clear indication that land will still be a privilege to those who have money.”

  • Read the full article here
  • Read the draft Amendment Bill here.

icescr coverSouth Africa ratified the United Nations Covenant on Economic, Social and Cultural Rights (ICESCR), two decades after it was signed by former President Nelson Mandela. In terms of the Convention, South Africa presented its report on progress made in making rights a reality to the United Nations Committee on Economic, Social and Cultural Rights. The Committee is the body of 18 independent experts that monitors implementation of the International Covenant on Economic, Social and Cultural Rights by its state parties. The Committee took into consideration the initial report of South Africa, the reports of the South African Human Rights Commission and civil society organisations on the implementation of the ICESCR in October 2018. 

The Committee made a series of Concluding Observations setting out how South Africa can improve its record in fulfilling socio-economic rights. The South African government is required in terms of its Covenant obligations to report back on its progress on the implementation of specified recommendations by October 2020 and provide another full report to the Committee by 31 October 2023.

  • Read the summary of recommendations here. The summary recommendations are also available in Afrikaans and IsiXhosa
  • Read article by Prof. Sandra Liebenberg on the emerging jurisprudence of the committee here

OSF Bandung WOrkshop Logos

On 3 December 2019, SERI researcher Kelebogile Khunou attended a strategic workshop entitled, “Challenging unjust Regulation of the Practice of Law that Restrict Access to Justice” hosted by the Open Society Justice Initiative in Bandung Indonesia. The workshop was focused on advancing new strategies to empower and protect community-based paralegals and frontline justice advocates. In attendance were civil society actors, legal practitioners and academics from Indonesia, Moldova, Nepal, Pakistan, South Africa and the United States of America. The workshop was also attended by community-based paralegals from Bandung and Jakarta.

27Jan OSF workshop Bandung

Colleagues from SERI, Black Sash, Casual Workers Advice Office (CWAO) and Hlanganisa Institute for Development in Southern Africa represented South Africa. The workshop was held alongside the 10th Worldwide Conference of the Global Alliance for Justice Education.

The workshop began with a panel discussion on the current landscape of laws and policies impacting community-based paralegals and frontline justice advocates, with panelists sharing the experiences from Indonesia, Nepal, Moldova, Pakistan, and South Africa.

Komnas Poriazis of CWAO provided an overview of the regulatory restrictions impacting community advice offices and paralegals in South Africa, highlighting CWAO’s 2016 court challenge against rule 25 of the Commission for Conciliation, Mediation, and Arbitration (CCMA), which restricted the right to represent employees to lawyers and trade union officials or members. CWAO argued that since according to StatsSA 70% of workers do not belong to a trade union, the rule prejudiced non-trade union employees and denied precarious workers their rights.

Although the rule was updated in 2019 granting discretion to Commissioners on who is allowed to represent workers beyond those specified, Komnas stated that the rule is applied arbitrarily and often paralegals and organisers are excluded by Commissioners who are either unaware of the update to rule 25 or choose not to recognise them stating that paralegals and organisers are not accredited. 

* * *

SERI works closely with community-based paralegals, advice offices and associations to advance community-based justice. SERI has developed a range of legal guides (and accompanying training) to assist CAOs to provide accurate legal advice. Each guide is freely accessible online.

Download SERI’s resource guides:

The guide is also accompanied by six information sheets on leave (also available in isiZulu), wages (also available in isiZulu), the UIF (also available in isiZulu), the CCMA (also available in isiZulu), employment contracts (also available in isiZulu) and the end of the employment relationship (also available in isiZulu)

The guide is also accompanied by five information sheets available in English and Afrikaans:

    1. Does ESTA protect my rights?Beskerm die Wet op Verblyfreg?
    2. What does ESTA mean by consent?Wat bedoel die Wet op Verblyfreg met toestemming?
    3. Who is an occupier under ESTA?Wat is ‘n okkupeerder in terme van die Wet op Verblyfreg?
    4. Frequently asked questions (FAQ)Gereelde vrae.
    5. The Rights of ESTA occupiersESTA okkupeerders se regtes.

Other resources:

  • Visit the Eviction Guide website by Ndifuna Ukwazi and Reclaim the City.

On 18 October 2019, the City of Johannesburg invited interested parties to comment on three draft policies that aim to address the growing need for housing in and around Johannesburg, particularly in circumstances that may lead to homelessness. The policies are the housing allocation policy, serviced sites policy, and the temporary emergency accommodation policy. According to the City, the three policies seek to:

Philippi Cape Town7“to guide the department and provide clear processes in how the department proposes to allocate beneficiaries to RDP houses, how it proposes to implement the new directive of giving people serviced sites to build their own homes, and how to better deal with the very challenging aspect of providing temporary emergency accommodation to those in need.”

In November 2019, the Socio-Economic Rights Institute (SERI) submitted its comments on the City of Johannesburg’s Draft Policy on Temporary Emergency Accommodation in accordance with the invitation to submit written comments. SERI welcomes the City’s efforts to proactively plan for future housing needs. SERI’s comments on the draft policy draw attention to the following aspects:

  • Addressing disasters and evictions in the same section although they are substantially different emergency situations produced by different circumstances, namely natural and unforeseen events, on the one hand, and a structural imbalance in the housing market, on the other. Given the different nature of the two, the City is better placed to anticipate where and how many lawful evictions are likely to take place over a planning cycle and thereby better able to respond in light of such predictions. Natural disasters may be planned for but to a lesser extent given that they are less predictable.
  • The limiting nature of the policy’s application led process and the restrictive nature of the litigious process it initiates. SERI submits that activating the City’s response should not be limited to an application because the City should prevent homelessness following an eviction through proactive planning.
  • Lack of clarity around the funding arrangements and the qualifying criteria for beneficiaries.
  • The absence of principles that have been developed through case law such as “adequate” alternative accommodation; accountability of municipal office bearers to enforce court orders, meaningful engagement, and the procedural requirements for an eviction, among others.
  • Adequacy and quality of the temporary emergency accommodation provided.

SERI’s comments aligned closely with comments submitted by the Centre for Urbanism and Built Environmental Studies (CUBES) and the Research Chair in Spatial Analysis and City Planning (SA&CP) at the University of the Witwatersrand which submitted comments on all three of the City’s draft policies. CUBES and SA&CP’s comments on the Temporary Emergency Accommodation policy echo the need for a distinction to be made between natural disasters and evictions, and the need for the process around meaningful engagement to be reviewed.

  • Read SERI’s full submission here.

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