In April 2019, the Nelson Mandela Foundation commissioned a series of papers on urban land reform. Their aim was to inform debate about land reform and propose a feasible approach to urban land reform which could, in the near future, be implemented. In line with this, SERI authored two papers on urban land reform and urban land redistribution. SERI has recently published the revised versions of the summary reports of the papers submitted to the Nelson Mandela Foundation and will be published at a later stage.
The paper on urban tenure security adopts Section 25(6)2 and Sections 26 (1), (2) and (3)3 of the Constitution as its starting points. Shortly after the Constitution was enacted, a set of tenure security laws were enacted to give immediate effect to Section 25(6), pending the development of legislation providing permanent, positive rights.4 The Prevention of Illegal Eviction and Unlawful Occupation of Land Act 19 of 1998 (the PIE Act), which gave effect to section 26(3), is one of these laws. The long-term legislation has not yet been developed.
The summary report on urban tenure security further recommends that the Department of Public Works also has a role to play in making better use of existing instruments, as it is responsible for land expropriation. Expropriation should be used to secure the tenure of a person or community living without it because of past racially discriminatory laws or practices. They should be able to request the Minister to consider whether to expropriate the land on which they reside for their benefit.
The paper on urban land redistribution adopts the redistribution clause in section 25 (5) of the Constitution as its starting point: “the state must take reasonable legislative and other measures, within its available resources, to foster conditions which enable citizens to gain access to land on an equitable basis.” On this basis, SERI argues in line with the Presidential Advisory Panel and High-Level Panel reports, that a law should be developed and enacted which gives effect to section 25(5) and that in order to operationalise the approach we propose a process for fine-tuning urban equitable access principles, the main legislative measure (the Framework Act) and the policy measures (the various programmes).
The summary report on urban land redistribution further recommends that expropriation should be employed as a significant mechanism in urban land redistribution. The voices of the urban landless should be heard on what land should be expropriated and when, either directly or indirectly. Ordinary South Africans and communities, who have not been able to gain access to land on an equitable basis, should be able to approach the Minister of Public Works to consider expropriation.
On Tuesday 6 April 2021, employees of the Red Ant Security Relocation & Eviction Services, with the supervision of the Sheriff, illegally evicted dozens of residents from their homes on a property in Dunkeld West, leaving them homeless and destitute. No court order had been sought or granted for the eviction, therefore violating section 26(3) of the Constitution which mandates that no person may be evicted from their home without a court order issued having considered all relevant circumstances.
The residents are hardworking members of the community who earn a meagre living in the affluent northern suburbs of Johannesburg. Many of them make a living as waste recyclers, car guards, informal traders and gardeners, while others carry out casual manual labour for property owners in the area. They reside in shacks and an abandoned out-building on the property, because they have nowhere else to go. Some have lived on the property for 17 years.
In conducting the eviction, the property owners relied on an interim interdict issued by the South Gauteng High Court in February 2021 protecting their property from further occupation. The interim interdict does not constitute an application for eviction and does not apply to the occupiers who had already been in occupation. The failure to seek a court order deprives the residents of the protections they are entitled to in law. In terms of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (the PIE Act), the residents are entitled to written and effective notice of any proceedings to evict them; to be evicted only where it is just and equitable to do so; and to be provided with alternative accommodation, where an eviction would otherwise lead to homelessness. The residents have been evicted from the property in breach of all these entitlements. These attacks happen despite a moratorium on evictions and are a direct contravention of the regulations in terms of the Disaster Management Act.
During the eviction, residents lost their homes and most had their furniture and personal possessions destroyed, resulting in the elderly and mothers with infants having to sleep on the street. In addition to being evicted from their homes, the residents have had to endure harassment and intimidation from law enforcement and private security. SERI has launched an urgent application for the restoration of the residents to their homes and to restrain any further interference with their occupation until a proper court order has been obtained.
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On 1 April 2021, the Mail & Guardian published an op-ed written by SERI's Amanda Duma entitled Heavy-handed police must respect the right to protest.
In the op-ed, Duma discusses the plight of 16 women from Colenso in KwaZulu-Natal who were convicted of public violence after participating in a peaceful protest. They were detained and denied bail for 60 days.
Duma's op-ed poignantly reflects on how the right to protest is infringed upon especially in remote parts of the country. She contrasts the conviction of the 16 women in 2018 with the National Prosecuting Authority's decision not to prosecute students who were arrested and charged with public violence during the recent wave of student protests.
She writes that, "rather than responding constructively to the concerns of citizens, the state has developed a tendency to use the criminal justice system to silence dissent by using arbitrary arrest and often poorly founded charges against protesters."
Duma argues that, "officials in the criminal justice system, including police, correctional officers, prosecutors, and magistrates, should not weaponise the criminal justice system to stifle legitimate grievances. These officials have a duty to be impartial and uphold the values of the constitution."
On 29 March 2021, the Minister of Police Bheki Cele released the Panel of Experts Report on Policing and Crowd Management. The Panel of Experts was established in 2016 by then Minister of Police Nkosinathi Nhleko in terms of the recommendations of the Farlam Commission of Inquiry. The panel was chaired by the late judge David Sakelene Vusimuzi Ntshangase and comprised of national and international experts in policing and members of the South African Police Services (SAPS) and the Civilian Secretariat for Police. The panel submitted the report to the Minister of Police in July 2018.
The report has finally been released following concerted efforts by members of civil society and the media. The release comes at a time of immense public pressure when the excessive use of force by the police has once again come into sharp focus, following the fatal shooting of bystander Mthokozisi Ntumba during student protests in Braamfontein.
SERI represents the families of 36 miners who were killed by police at Marikana on 13 and 16 August 2012 and for them, this report comes nearly nine years after the loss of their loved ones and the lack of accountability for what happened that they have since faced. Subsequent incidents of police violence have demonstrated the failure of the police and political leadership to learn from Marikana. Each death at the hands of the police highlights the dangerous and reckless reliance on brute and excessive force to engage with members of the public, forcing compliance irrespective of whether a crime is being committed or not. Police treatment of protesters, who are often poor and black, highlights a failure to police in a manner that breaks with South Africa’s past which criminalised black people and crushed their expressions of dissent.
The Marikana Panel of Experts report is important because of its interventions to strengthen the protection of peaceful protest. Specifically, it offers guidance for effectively addressing issues related to the Regulation of Gatherings Act 205 of 1993. Many communities and groups can attest to the various ways police have increasingly misinterpreted, subverted or, in some cases, weaponised the Gatherings Act to criminalise and deter protest action. The report also addresses other key issues including weapons to be used during crowd management, accountability, and command and control. The implementation of the report’s recommendations will be critical for ensuring that members of the public can safely exercise their right to peacefully assemble without the risk of suffering death or injury caused by the excessive use of force by the police and the misuse of less-lethal weapons. The misuse of less-lethal weapons such as rubber bullets, which are widely used by police in crowd management incidents, often results in grave injuries, and in extreme cases, death.
The report specifically notes that “there is a need to consider alternatives to the rubber rounds inter alia in relation to problems with their accuracy.” and recommends that SAPS “conduct research in order to identify alternative ‘less-than-lethal’ options to replace inaccurate and indiscriminate rubber rounds used at Marikana.” In 2020, the United Nations Office of the High Commissioner for Human Rights confirmed that many kinetic impact projectiles (KIPs), such as rubber bullets discharged from shotguns, are inaccurate and indiscriminate.
As such, we are disheartened by the National Commissioner of Police’s response to a question on the use of rubber bullets during the press conference about the report on 29 March that it would be “impossible” to stop their use. We strongly urge the police ministry, under the leadership of the Minister of Police and the National Commissioner, to remain mindful of the context in which this report was written and is released. We urge them to sincerely and urgently consider this report in full and to meaningfully take on board the recommendations with the purpose of transforming the South African Police Services.
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The issue of protest and police management of protest has come into sharp focus in recent weeks. On 9 March, SERI’s Nomzamo Zondo participated in a consultation with the UN Special Rapporteur on the Rights to Freedom of Peaceful Assembly & Association, Clément Nyaletsossi Voule. The next day, the South African Police Services (SAPS) responded to peaceful student protests with excessive use of force resulting in multiple injuries and one person killed. When police violently dispersed students on Wednesday 10 March by firing rubber bullets, they killed Mthokozisi Ntumba as he was leaving a clinic in Braamfontein.
The consultation was organised by the Global Network of Movement Lawyers (GNML) as part of an initiative to gather insights and best practices from lawyers who provide legal support to those engaged in mass protests and organising. It is envisaged that the consultation will contribute to a toolkit and report intended to educate lawyers on how best to protect the rights to assembly and association of those engaged in protest and organising.
In her inputs, Zondo discussed some of the major barriers to protest as experienced by SERI’s client groups which included unlawful and arbitrary prohibitions of protests, unlawful dispersals of peaceful protests, the use of excessive force when dispersing protests and the misuse of the criminal justice system as means of deterring protest action. Zondo argued that police tend to perceive protests as unlawful unless they have consented to them and that this perception is often shared by other actors in the criminal justice system who increasingly conflate the disruption caused by protests with actual violence. She argued that the criminalisation of protest is a key issue and that lawyers have an important role to play in supporting movements and communities in need of criminal representation and litigation for policy and law reform.
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