This is SERI's first newsletter of 2019. In it we present a few highlights from our work since December 2018. SERI currently has 97 active cases through which we assist communities to resist evictions and secure basic services in their homes in informal settlements and inner city buildings; to safeguard their participation; hold duty bearers to account and defend their right to work.
We participated in a number of exciting civil society and government engagements in the lead up to the national government elections that highlighted the importance of pursuing an urban land reform agenda and safeguarding the right to protest in a democratic South Africa.
This year’s Africa Month theme is "Celebrating 25 years of Democracy: Building a Better Africa and a Better World." Africa Month is organised around Africa Day, which commemorates the founding of the Organisation of African Unity (now, the African Union) in 1963. In celebrating this day, South Africa focuses on the progress made towards building a better South Africa. To that end, we must ensure that we are building a better South Africa that focuses on equality for all, including people with disabilities living in informal settlements.
Chair of SERI’s Board and former Justice of the Constitutional Court, Zak Yacoob, explains that “[t]he Constitution makes it quite clear that women, people with disabilities and a whole range of other vulnerable people are entitled to equality and equal protection and benefits of the law. Our Constitution and the Convention [UN Convention on the Rights of Persons with Disabilities] both provide for the right to have everyone’s dignity respected and protected. In my view it is the respect and protection of dignity is at issue when we talk about sanitation”.
In 2016, Stats SA found that 1 in every 5 households in metropolitan areas lived in an informal dwelling. 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 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.
Watch the full interview here.
On Thursday, 23 May 2019, the North Gauteng High Court handed down an order declaring the exclusion of domestic workers in the Compensation for Occupational Injuries and Diseases Act (COIDA) as unconstitutional.
SERI represents the surviving daughter of a domestic worker, Maria Mahlangu, in a challenge against the constitutionality of section 1 of the workmen’s compensation act which excludes domestic workers working in the home from its definition of an “employee”. 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.
It is alleged that Maria, who was partially blind, was washing the top 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 at the time. Maria could not swim and drowned. Her body was discovered hours later by her employer, who had been present in the home at the time of the incident. Her daughter later approached the Department of Labour to enquire about getting compensation for the death of her mother. She was informed by the Department of Labour that while compensation and unemployment insurance benefits are ordinarily covered by COIDA, she did not qualify for either.
SERI, on behalf of Ms Mahlangu, brought an application to compel the Department of Labour to amend section 1 of COIDA to include domestic workers, and to put effective enforcement mechanisms in place to ensure that employers comply with COIDA and other relevant labour legislation.
The Pretoria High Court declared section 1 of COIDA unconstitutional for intentionally excluding domestic workers working in the home from its definition of “employees”. SERI will further be arguing that the declaration of invalidity must be applied retrospectively to provide relief to our client who brought the application, or other domestic workers who were injured or died at work prior to the granting of the order.
From 13-17 May 2019, SERI participated in a short course offered by the Centre for Human Rights (CHR) entitled “Judicial Enforcement of Socio-Economic Rights in Africa”, held at the University of Pretoria. The course was attended by approximately 60 participants, which comprised of legal practitioners, judges, masters students, researchers and individuals with an interest in public interest litigation and advancing human rights on the African continent.
Experts who lectured and participated during the course included, but were not limited to:
The course aimed to provide a “critical understanding of the possibilities of and possibilities associated with judicial enforcement of socio-economic rights in Africa”. The week-long course included lectures on a range of topics which included broader international human rights obligations, as well as conceptual lectures focusing on the decolonisation of human rights and a comparative study of the approach to human rights taken throughout African countries.
During the week, participants were afforded the opportunity to attend the Constitutional Court hearing for the matter of AB & another v Pridwin Preparatory & Others. The group also visited the South African Human Rights Commission to learn more about some of the practical challenges of enforcing socio-economic rights in a Constitutional democracy. SERI was represented by Nerishka Singh and Sekese Rasephei.
On Monday 15 May, SERI researcher Kelebogile Khunou attended the South African Cities Network’s workshop entitled, 'Developing a Policy and Regulatory Framework for Township Development'. The workshop was hosted in partnership with the Gauteng Provincial Government and North West University’s Chair for Cities, Law and Environmental Sustainability (CLES). The venue for the workshop was held at a successful “shisanyama”, Busy Corner Imbizo African Restaurant in Tembisa. The workshop was attended by over 50 participants with government officials from the Gauteng Office of the Premier, the Gauteng Department of Economic Development and officials from Johannesburg, Tshwane and Ekurhuleni local government departments such as Economic Development, Spatial Planning and Human Settlements. They were joined by academics and students from CLES.
The workshop consisted of a context and objective setting session by Jak Koseff from the Gauteng Office of the Premier and an interactive ideation session where all workshop participants were asked to share their understanding of township economic development, to identify key issues and challenges as well as propose solutions for these issues. The main event consisted of a panel discussion which included Professor Anel Du Plessis, Chair for CLES, Ms. Rita Zwane, founder and owner of Busy Corner, Mr. Thulani Guliwe from the Gauteng Department of Economic Development and Mr. Makgafela Thaba from the City of Johannesburg’s Public Safety Department. A highlight from the panel discussion was Ms. Zwane’s impactful story of her journey as a township entrepreneur, her challenges with respect to rezoning applications, accessing financial assistance and other barriers to running a successful business in the township.
In June 2018, SERI developed a discussion document entitled Towards Recommendations on the Regulation of Informal Trade at Local Government Level, which has a particular focus on a segment of the informal economy in townships, informal trading. The discussion document aims to provide assistance to the South African Local Government Association (SALGA) and municipalities throughout the country to encourage a better understanding of the legal and constitutional obligations of local government in formulating and implementing municipal by-laws governing informal trade. It also builds on the International Labor Organization (ILO)’s Recommendation 204 on formalizing informal work, by aiming to improve the legal and policy framework governing informal trade.
The document also sets out a number of recommendations or proposals to assist municipalities to formulate or update their by-laws, adopt policies and oversee the actions of their officials who are responsible for enforcing the by-laws or policies governing informal trade. The majority of the proposals made have been developed from the rights contained in the Constitution, other national laws and policies, and the decisions of South African courts.