On 29 October 2018, 53 tenants living in Plettenberg Mansions, an apartment building in Hillbrow, Johannesburg, have applied to the Constitutional Court for leave to appeal an eviction order granted against them by the Johannesburg High Court after their landlord, a company called Lewray Investments (Pty) Ltd, sought to renovate the building. SERI represents the tenants.
The High Court granted an order evicting the tenants from their homes in on 23 May 2018 so that the landlord could pursue renovations at the property. Judge Adams granted the order on an urgent basis, in spite of the landlord's failure to cancel the tenants' leases and follow the eviction proceedings in terms of Prevention of Illegal Evictions and Unlawful Occupation of Land Act of 1998 (the PIE Act). The order was framed as a temporary measure, pending the landlord's refurbishment of the building after which the tenants would be permitted to re-occuy "their units" at the property. However, the landlord's refurbishment plans include subdividing the units that tenants were living in, rendering any new units much smaller than the tenants' initial homes. The tenants believe that the eviction is therefore "effectively a permanent eviction through the backdoor" because "their homes will be gone and replaced by new, substantially smaller dwelling units". As rent-paying tenants, their eviction is unlwaful as it conflicts with the Gauteng Unfair Practice Regulations (2001) in terms of the Rental Housing Act of 1999.
In October 2018, the Minister of Labour published the Compensation for Occupational Injuries and Diseases Amendment Bill, 2018 for public comment. The Amendment Bill seeks to amend the Compensation for Occupational Injuries and Diseases Act, 130 of 1993 (COIDA) so as “to provide coverage for domestic employees.” COIDA is a national law that provides for employees to claim compensation from the Compensation Fund for injuries, illnesses or diseases sustained in the course of their employment, or death resulting from such injuries or diseases. In its current form COIDA expressly excludes domestic workers from the definition of "employee" and precludes them from claiming from the Compensation Fund for work-related injuries, illnesses or death.
The amendment comes in the wake of a court challenge, brought by SERI along with a number of domestic workers, unions and civil society organisations, to COIDA's exclusion of domestic workers.
SERI represents Maria Mahlangu’s family in an application challenging the constitutionality of section 1 (xix)(v) of the Compensation for Occupational Injuries and Diseases Act 130 of 1993 ("COIDA") to the extent that it excludes domestic workers employed in private households from the definition of "employee." Maria was a domestic worker who died in her employers home. Her family was subsequently informed by the Department of Labour that they could not be compensated for her death as domestic workers are not covered by COIDA.
The court challenge, which is due to be heard in the Pretoria High Court, has been temporarily put on hold awating a specially allocated date from the Deputy Judge President of the High Court. Any interested and affected parties are encouraged to submit written representations on the proposed amendments within 60 days of the publication of the notice (18 October 2018).
Between 17 and 19 October 2018, the United Nations (UN) Special Rapporteur on the right to adequate housing, Leilani Farha, presented a new report on informal settlements and human rights to the UN General Assembly in New York City. The report finds that informal settlements present a critical human rights challenge: On the one hand, informal settlements represent a "systemic human rights violation" that arises as a result of state action, inaction or policy; and on the other hand, informal settlements "are often an incredible accomplishment, a profound expression of individuals, families and communities claiming their place and their rights to housing". Her report urges states to adopt a rights-based appoach to informal settlements by urgently upgrading informal settlements in situ and avoiding relocations or evictions (except in exceptional circumstances where such relocations would be unavoidable). As she writes:
"The world has come to accept the unacceptable. It is a human rights imperative that informal settlements be upgraded to meet the basic standards of human dignity."
The report follows a data gathering process in terms of which the Special Rapporteur invited interested parties to furnish her with relevant information on informal settlements and human rights from their countries. The Socio-Economic Rights Institute of South Africa (SERI), in collaboration with the Steering Group of the South Africa’s Ratification Campaign of the International Covenant on Economic, Social and Cultural Rights and its Optional Protocol (the Campaign) and some individual experts, made a submission on informal settlements and human rights in South Africa on 22 May 2018 (the submission was written by SERI's Michael Clark, Maanda Makwarela and Daiyaan Halim, SERI board member and professor at the University of the Witwatersrand, Lillian Chenwi, and the Dullah Omar Institute for Constitutional Law, Governance and Human Rights (DOI)'s Gladys Mirugi-Mukundi).
The Special Rapporteur relied on SERI and the Campaign's submission throughout her report. In particular, she strongly voiced her support for the South African courts' approach to informal settlements as articulated in the case of Melani and the Further Residents of Slovo Park Informal Settlement v City of Johannesburg (a case in which SERI represented the residents of the Slovo Park informal settlement). As the Special Rapporteur wrote in her report:
"The approach taken by the South African courts moves in the right direction and should be applied by other courts. In the Melani case, the Slovo Park informal settlement challenged the decision of the City of Johannesburg not to apply for in situ upgrading and instead to relocate the community to an alternative location 11 km away.The court held that the Government’s upgrading policy, as required by the constitutional right to housing, envisages 'a holistic development approach with minimum disruption or distortion of existing fragile community networks and support structures and encourages engagement between local authorities and residents living within informal settlements'.Relocation must be 'the exception and not the rule' and any relocation must be to a location 'as close as possible to the existing settlement'.On this basis, the City was ordered to reverse the decision to relocate the community and apply for funding for in situ upgrading."
On 19 October 2018, SERI filed heads of argument on behalf of Makause informal settlement resident and political activist, General Moyo, in the Constitutional Court. Moyo is challenging the constitutional validity of sections of the Intimidation Act, which he argues infringe the right to freedom of expression as protected in section 16 of the Constitution.
This case 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 declared unconstitutional and invalid because it has the effect of criminalising a wide range of expression protected by the right of freedom of expression. His trial in the Germiston Regional Magistrates’ Court has been postponed until this challenge is finally determined.
In Moyo's application for leave to appeal, he argues that the majority judgment of the Supreme Court of Appeal (SCA) that found section 1(1)(b) of the Intimidation Act was constitutionally compliant is incorrect because the judges misconstrued the purpose and effect of this section in historical context and that the judges applied an interpretation to section 1(1)(b) that "it cannot reasonably bear". Moyo's heads of arguments take this argument further by asserting that the Intimidation Act "is a product of apartheid era legislation that wasdesigned to control dissent against an unjust system" that "goes beyond criminalising expressive acts intended to cause reasonable fears of imminent harm". As a result, Moyo argues, the Constitutional Court should declare section 1(1)(b) unconstitutional as it is "plainly inconsistent with the Constitution".
General Moyo at a protest march in Johannesburg. Photo by Kate Stegeman.
On 14 October 2018, SERI researcher, Kelebogile Khunou, and SERI attorney, Thulani Nkosi, wrote an op-ed published in the CIty Press about the urgent need to extend protection in terms of the Compensation of Occupational Injuries and Diseases Act 130 of 1993 (COIDA) to domestic workers and the new court case that seeks to force the Department of Labour to ensure domestic worker get the protection they deserve.
SERI represents Sylvia Mahlangu, the daughter and sole dependent of a Maria Mahlangu, a domestic worker who dead in her employers home, in an application challenging the constitutionality of the definition of "employee" in COIDA (the definition currently excludes domestic workers employed in private households). COIDA is a law that provides for employees to claim compensation from the Compensation Fund for injuries, illensses or diseases sustained in the course of their employment, or death resulting from such injuries or diseases.
Ms Mahlangu mother died on 31 March 2012 at her employer’s home in Faerie Glen, Pretoria. Her mother, who was partially blind, was washing 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). Her mother could not swim and drowned. Her body was discovered hours later by her employer, who was at home when her mother fell. Ms Mahlangu approached the Department of Labour to enquire on getting compensation for the death of her mother but was informed that she could neither get compensation or unemployment insurance benefits for her loss (since domestic workers do not fall under the ambit of COIDA). SERI, on behalf of Ms Mahlangu, has brought an application to compel the Department of Labour to amend the definition of "employee" in COIDA to include domestic workers.
As Khunou and Nkosi write "domestic work is not viewed by the public as having occupational hazards" but many domestic workers, gardeners, drivers and caregivers experience work-related injuries, illnesses or even death, including "dog bits, blindness, deafness, arthiritis, back injuries, broken limbs, cuts tuberculosis, asthma and bone fractures". Sometimes domestic workers have even recorded incidents of physical violence from employers. While other employees can claim compensation from these injuries, dmoestic workers "are left out in the cold".