On 30 August 2017, the Western Cape High Court dismissed an application to evict 60 000 people living in the “Marikana” informal settlement in Philippi near Cape Town. In its ground-breaking case, the court ordered the City of Cape Town (the City) to enter into good faith negotiations with the property owners about purchasing the land for the Marikana residents. If negotiations fail, the court ordered the City to expropriate the land or provide reasons why it is unable to do so.
SERI represented the majority of the residents of the Marikana informal settlement. The residents moved into the Marikana informal settlement because they had been evicted from backyard shacks or other rented accommodation or informal settlements elsewhere in Cape Town. In February, SERI argued to court that state purchase or expropriation of the Marikana land are the only reasonable options that could be pursued in order to avoid making the Marikana residents homeless again. SERI further submitted that section 9(3) of the Housing Act 107 of 1997 provides the appropriate legal framework within which to manage the purchase or expropriation of the Marikana land, and that the City’s failure to initiate the process required by section 9(3) is unreasonable and unconstitutional.
In July 2017, the Gauteng Department of Human Settlements (the Department) published the Gauteng Land Invasion Management and Prevention Policy, 2017, and invited interested parties to comment on the policy. The policy seeks to regulate unlawful occupation of land in the province. SERI submitted written comments on the policy on 28 August 2017.
In our submission, SERI welcomes the Department's attempts to address unlawful land occupation in a manner that respects the constitutional rights of unlawful occupiers and takes stock of the legal framework governing evictions. In particular, SERI recognises that the principles and positions underlying the policy affirm the rights of unlawful occupiers in significant ways.
However, despite the principles and positions underlying the policy, there are various concerns with the policy. The bulk of SERI's submission deals with these concerns. In this respect, SERI's submission clarifies the law related to evictions and the constitutional duty of municipaltities to provide alternative accommodation to occupiers who would be rendered homeless as a result of an eviction; argues that the policy is an inappropriate response to urbanisation and is likely to encourage evictions; questions the lack of clarity about “registration permits” and “site allocations” and the Department’s silence on the appropriateness of Anti-Land Invasion Units; and raises concerns about the policy's failure to prioritise proactive ways to address unlawful land occupation.
On 25 August 2017, SERI's executive director, Stuart Wilson, discussed urban regeneration and the City of Johannesburg (the City)'s recent raids on inner-city buildings with Stephen Groottes on the Midday Report on 702 Radio.
Wilson charaterised the ongoing raids by the Joburg Metropolitan Police Department (JMPD), the South African Police Service (SAPS) and the City as inhumane and unconstitutional. He said that the City needs to adopt a regeneration strategy that respects people's constitutional rights and focuses on ensuring that low-income households have access to affordable housing:
"What we need to see in an inner city regeneration strategy is one that expands access to affordable housing, truly affordable housing for poor people and treats them as human beings."
On 24 August, SERI filed heads of arguments before the Supreme Court of Appeal on behalf of Makause community activist, General Moyo.
This case in the 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 unconstitutional and invalid. His trial in the Germiston Regional Magistrates’ Court will be postponed until this challenge is finally determined.
Section 1(1)(b) of the Intimidation Act criminalises expressive acts which “have the effect” or “might reasonably be expected” to have the effect of placing any person in fear for their personal safety, the safety of their property or their livelihood, or the safety of the person, property or livelihood of another. In the heads of argument before the Supreme Court of Appeal, SERI, on behalf of Moyo, argues that this provision is overbroad, and has the effect of criminalising a wide range of expression protected in terms of the right of freedom of expression enshrined in section 16(1) of the Constitution.
In addition, Moyo challenges section 1(2) of the Act, which creates a reverse onus in all proceedings brought under section 1(1)(a) of the Act. Section 1(1)(a)(ii) of the Act criminalises threats made “without lawful reason” to “kill, assault, injure, or cause damage” to any person with the intention of inducing that person to “do or restrain from doing any act” or “assume or abandon a particular standpoint”. The effect of the reverse onus in section 1(2) is that an accused person must prove, on a balance of probabilities, that he or she had a lawful reason to issue the threat criminalised under section 1(1)(a)(ii), unless he or she makes a statement “clearly indicating the existence” of a lawful reason before the prosecution closes its case. If no such statement is made, the threat is presumed to have been unlawful. On this basis, Moyo argues that section 1(2) breaches the right to silence, the right not to be compelled to make self-incriminating admissions, and the right to be presumed innocent (contained in section 35 of the Constitution). This is due to the fact that an accused person must sacrifice the rights to silence and against self-incrimination, if he or she is to be given the benefit of the presumption of innocence. If, on the other hand, he or she wishes to exercise his or her rights to silence and protection from self-incrimination, he or she must accept that he or she will not be presumed innocent.
Photo by Kate Stegeman.
On 14 August 2017, SERI's director of ligitation, Nomzamo Zondo, was interviewed on SABC's Morning Live, where she discussed the City of Johannesburg's use of "shock and awe" military tactics against the urban poor and the City's constitutional housing obligations.