On 18 March 2020, the Mail & Guardian published an article written by SERI researcher Thato Masiangoako about the harm caused by the inner city raids and the illegal conduct of officials during the raids. These raids were conducted at the behest of the then-minister of police, Fikile Mbalula, and the then-mayor of Johannesburg, Herman Mashaba. Between 30 June 2017 and 3 May 2018, 11 inner-city buildings were raided more than 20 times, with some being raided as many as five times in 10 months.
The residents of these buildings, represented by SERI, are challenging the constitutionality of section 13(7) of the South African Police Services Act, and the grounds on which these raids were conducted. On 16 March 2020, the matter was heard before a full Bench of the High Court in Johannesburg. Judgment was reserved.
The op-ed argues that the piece of legislation relied on to conduct the raids (section 13(7) of the SAPS Act) was used to justify a violation of the residents’ constitutional rights to privacy and dignity as part of a project that envisions Johannesburg as a city that belongs to some to the exclusion of others.
Masiangoako writes: "the presumed criminality of those people who are policed and the criminal conduct of the police who raided their homes shines a light on the crisis in policing in South Africa".
On 6 March 2020, the Socio-Economic Rights Institute (SERI) submitted an objection to the City of Cape Town's proposal to renew the lease of 45.99 hectares to the Rondebosch Golf Club in accordance with the invitation to submit written comments. The proposed lease would be for a period of ten years at a cost of R1,058 per year. The City proposes the lease to allow the land to maintain its sport and social use. The City states that the existence of the golf club would provide significant benefit to the community as well as rental income, profits from tourism and the creation of jobs through substantial investment into resort developments.
The submission argued that:
The Rondebosch site represents an opportunity for the City to disrupt this inequitable pattern of development, by providing affordable housing so that poor and working class people can take advantage of the benefits of economically and socially well-located land. The land in question is 45.99 hectares in extent, or an area the size of 45 full-sized soccer fields. It is located in close proximity to public hospitals, schools and is only 10 minutes away from the city centre. According to research conducted by activist organisation and law centre, Ndifuna Ukwazi, the parcel proposed for lease could yield 165,000m2 of floor space with around 2,500 new homes.7 Of these 2,500 units, 1,433 could be cross-subsidized affordable housing, providing homes to roughly 2,400 people who could otherwise not afford to live close to economic opportunities and decent social amenities.
SERI argued in its submission that the renewal of the lease of to the Rondebosch Golf Club will entrench prevailing patterns of ownership and advantage and will contradict the City’s constitutional obligation under section 25(5) to “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.”
Read the full submission here.
On Monday, 16 March 2020, the residents of 11 buildings in inner-city Johannesburg will challenge the lawfulness and constitutionality of over 20 police raids of their homes conducted between 30 June 2017 and 3 May 2018. The raids were conducted in terms of section 13 (7) of the South African Police Services (SAPS) Act while two of the raids were conducted without any legal authority. The residents contend that section 13 (7) of the SAPS Act is unconstitutional in that it unjustifiably infringes the right to privacy, contained in section 14 of the South African Constitution.
During the raids, which were jointly conducted by the South African Police Services (SAPS), the Johannesburg Metropolitan Police Department (JMPD), the Department of Home Affairs and the City of Johannesburg, officials forced the residents out of the buildings and onto the streets, sometimes in their nightdresses, where they were searched, finger-printed and commanded to produce copies of their identity documents, passports or asylum seekers’ permits. Inside the buildings, the police left the residents’ homes in disarray. They broke down doors and partitions, damaged furniture and even stole valuable items and small amounts of cash.
The residents of 10 of the 11 buildings are involved in court proceedings against the City of Johannesburg in which they seek temporary emergency housing from the City so that they will not be rendered homeless as a result of evictions. During the raids, residents have been told that they should “get out” of the building or face eviction. The raids have been used as a means to harass the residents and divert focus from the City’s obligations towards them.
The matter will be heard in front of the full bench of the High Court in Johannesburg.
Khululiwe Bhengu, SERI attorney representing the residents said: “These raids have clearly been used by officials as a way to unjustifiably violate the rights of the most vulnerable members of society. Affected residents are standing up for themselves and asking the court to put an end to this abuse.”
On Wednesday, 4 March 2020, the residents of Marikana informal settlement, represented by SERI, property owners, the City of Cape Town and the Western Cape Provincial Minister of Human Settlement reached an agreement, which was made an order of the Supreme Court of Appeal. The order requires the City of Cape Town to “purchase the properties that are subject of the High Court’s order at a price to be determined in an arbitration between the City of Cape Town and the property owners.”
The arbitration will be conducted by a three-member panel which must be appointed by 15 April 2020 who will determine the purchase price of the properties in accordance with section 12 of the Expropriation Act 63 of 1975 read with section 25(3) of the Constitution.
Section 25(3) of the Constitution states: “The amount of the compensation and the time and manner of payment must be just and equitable, reflecting an equitable balance between the public interest and the interests of those affected, having regard to all relevant circumstances, including—
(a) the current use of the property;
(b) the history of the acquisition and use of the property;
(c) the market value of the property;
(d) the extent of direct state investment and subsidy in the acquisition and beneficial capital improvement of the property; and
(e) the purpose of the expropriation.”
The order specifies that the decision of the arbitrators is not subject to appeal.
The parties reached a settlement agreement in lieu of litigating Fischer v Unlawful Occupiers and Manfred Stock & Others v Unlawful Occupiers, on appeal to the SCA from the Western Cape High Court. In 2017, the High Court dismissed the application to evict 60 000 residents of Marikana informal settlement, finding that the City of Cape Town had infringed the land owners’ property rights and breached the housing rights of the Marikana residents by failing to secure their tenure. The Court directed the City to initiate the process provided for in terms of section 9(3) of the Housing Act, by entering into good faith negotiations to purchase the Marikana land and expropriating the land in the event that purchase negotiations failed.
On 10 March 2020, the Constitutional Court will hear the Mahlangu v Minister of Labour matter. Applicants Sylvia Mahlangu, the surviving daughter of a domestic worker who drowned in her employers’ home in 2012, and the South African Domestic Service and Allied Workers Union (SADSAWU) successfully challenged the constitutionality of Section 1(xix)(v) of the Compensation for Occupational Injuries and Diseases Act 130 of 1993 ("COIDA") at the North Gauteng High Court in 2019. The application challenged the constitutionality of COIDA to the extent that it excludes domestic workers employed in private households from the definition of "employee", therefore excluding them from benefits afforded to other workers and their dependents. This exclusion has meant that, unlike other workers, domestic workers and their dependents have been left with no safety net against loss of income due to workplace injury or death. To date, Ms. Mahlangu has not received compensation for her mother’s death.
In May 2019 the North Gauteng High Court declared the exclusion of domestic workers from COIDA constitutionally invalid. Later in October, it further ruled that the declaration of invalidity must be applied retrospectively to provide relief to domestic workers who were injured or died at work prior to the granting of the order, as in the case of Ms. Mahlangu. SERI, on behalf of Ms. Mahlangu and SADSAWU, supported by United Domestic Workers of South Africa and other allies, is now approaching the Constitutional Court to confirm these two orders.
If these two orders are confirmed by the Constitutional Court, it will have significant implications for employers of domestic workers. Under terms prescribed by the Department of Employment and Labour, employers would have to contribute a monthly amount to the Compensation Fund for their domestic employees from a specified date. In the event of injuries, diseases or death arising out of and in the course of employment, statutory benefits will be paid from the Fund to employees or dependents of deceased employees. Employers who have registered their employees will be protected against civil claims; employees covered by COIDA are prevented from suing their employers for damages in terms of common law.
Domestic workers and dependants who experienced work-related injuries, diseases or death prior to the confirmation of the two orders, will be able to submit claims to the Compensation Fund even though their employers were precluded from contributing to the Fund.
It is our hope that this important issue reaching the highest court in South Africa, signals a turning point for enforcement of domestic worker laws and policies. To further the gains made this far we encourage the Department of Employment and Labour to:
>> Find out more about the case here.
>> Download the full statement here.