On 15 May 2020, SERI's Thato Masiangoako participated in a virtual RAITH Brown Bag Session co-presented with Adele Kirsten of Gun Free South Africa. The presentation unpacked the over-reliance on heavy-handed measures to enforce the lockdown regulations by members of the South African National Defence Force (SANDF), South African Police Service (SAPS), Metro police, private security, and other law enforcement.
In the presentation, Masiangoako and Kirsten discussed specific reported incidents of excessive use of force, the misuse of weapons, and the nature of abuses as well as the impact that this nature of policing may have on community-police relations and how the work of civil society may be shaped by this period going forward.
Masiangoako began by providing an overview of South Africa's COVID-19 timeline since its first confirmed COVID-19 case on 5 March 2020 and President Cyril Ramaphosa's declaration of a national State of Disaster on 15 March 2020. The President announced that the SANDF would be deployed in support of the SAPS in implementing the lockdown regulations and directions issued in terms of the Disaster Management Act, 2002. In his address, the President said:
“I expect you, as you implement this 21-day lockdown, to do so with compassion. To do so with great understanding. To do so with respect for the people of our country. To do so with humility as well,” Ramaphosa said, in an address to police officers on Thursday...This is not a skop (kick) and donder (assault) moment. This is not a skiet (shoot) and donder (assault) moment. This is a moment where we save lives.”
Kirsten argued that the allegations of abuses witnessed during the lockdown and the misuse of weapons by the police is not a phenomenon in South Africa and that it "echoes both the recent past such as the policing of community protests and the #FMF protests as well as being reminiscent of policing in the apartheid-era during the State of Emergency in the ’80s." She went on to argue that the spike in reported and witnessed abuses during the lockdown reflect a manifestation of the existing problems within the police. She noted, however, that was new about the current abuses has been the use of unlawful equipment such as sjamboks, tasers, and hammers.
Dr Mary Rayner contributed to the discussion by highlighting some of the striking similarities in the injuries sustained from abuses reported during the lockdown and some of the injuries sustained during the #FeesMustFall protests, documented in the Double Harm report.
Masiangoako discussed the impact of the government taking a militarised and securitised approach to was is a public health emergency presented by the COVID-19 pandemic. She also discussed the Khosa case that came before the High Court as an example of some of the abuses witnessed. She further discussed some of the remedies that were sought by the family and why the lack of the code of conduct, as required by Section 19(3)(c) may have contributed to the abuses and lack of consistency in the implementation of the lockdown regulations.
RAITH Brown Bag Sessions are informative presentations and facilitated discussions hosted by the RAITH Foundation.
On 13 May 2020, SERI researcher Tiffany Ebrahim participated in New York University (NYU) Bernstein’s Institute for Human Rights webinar entitled, “Mitigating COVID-19 & Protecting Human Rights in the Global South”.
Ebrahim’s presentation discussed the vulnerability of informal settlements to COVID-19 and contextualised why the government’s blanket response of de-densification runs the risk of permanently displacing residents from their homes and livelihood opportunities. In her presentation, she drew and expanded on the Civil Society Organisation’s (CSOs) submission to the Department of Human Settlements made in April 2020, which proposes in situ upgrading as an appropriate and sustainable informal settlement intervention in the context of COVID-19.
The webinar was facilitated by Executive Director of NYU Bernstein’s Institute for Human Rights, Sukti Dhital. The panel explored the devastating consequences of a “one-size-fits-all” approach to the pandemic from a global south perspective – ranging from the rise in forced evictions, to the downfall of informal economies, and increased hunger and malnutrition. Ebrahim was joined on the panel by Jayshree Satpute (Human Rights Lawyer and Cofounder of Nazdeek in India), and Paul Christian Namphy (National Coordinator for Infectious Disease, DINEPA in Haiti).
Read the full CSO submission to the Department of Human Settlements here.
In March the Department of Employment and Labour set up the COVID-19 Temporary Employer/ Employee Relief Scheme (TERS) to support businesses and employers temporarily closed due to the lockdown and unable to pay workers’ salaries.
This benefit is only available to employers who are registered with the Unemployment Insurance Fund (UIF) and make monthly contributions as required by the Unemployment Insurance Contributions Act 4 of 2002 (Contributions Act). Section 10 of the Contributions Act states that the obligation to register with the UIF lies with an employer. Domestic workers themselves cannot register for UIF.
Yet there is widespread non-compliance amongst employers, especially among those employing casual or precarious workers such as domestic workers and farm labourers. According to a study by Women in Employment: Globalizing and Organizing (WIEGO) and the Social Law Project (SLP) at the University of Western Cape, only 20% of domestic workers are registered by their employers under UIF. Further, generalising from Izwi Domestic Workers Alliance’s research which found that only 37% of domestic workers were paid a full salary in April, the majority of domestic workers, many of whom are the sole breadwinners for their families, are left without an income until level 2 of the lockdown.
SERI requested an opinion on possible legal remedies. These are as follows:
On Thursday, 7 May 2020, the South African Domestic Service and Allied Workers’ Union (SADSAWU), represented by SERI, made recommendations to the National Command Council, the Minister of Employment and Labour and the Unemployment Insurance Fund (UIF) Commissioner seeking a declaration of domestic workers as UIF contributors so that they can access income protection during the state of disaster.
On Friday, 15 May 2020, the North Gauteng High Court handed down a judgement in an urgent application brought by the family of Mr Collins Khosa. The urgent application was brought following the death of Mr Khosa who succumbed to injures from an assault by members of the South African National Defence Force, accompanied by members of the Johannesburg Metropolitan Police on 10 April 2020. SERI was admitted as amicus curiae in the matter.
In reference to use of force by security forces during the lockdown, Judge Hans Fabricius held that “what we are dealing with in South Africa at this moment is the conduct of security forces aimed at mainly the most vulnerable because of the socio-economic situations that exist throughout South Africa for which the poor are certainly not to blame…”.
The Court held that the lockdown, instituted in terms of the Disaster Management Act 57 of 2002 and the declared national state of disaster, does not suspend people’s rights to dignity and life (sections 10 and 11 of the Constitution), as well as the right not to be tortured in any way or to be treated or punished in a cruel, inhuman or degrading way (sections 12(1)(d) and (e) of the Constitution).
The Court also held that the South African National Defence Force (SANDF), the South African Police Service (SAPS), and any Metropolitan Police Department (MPD) must “act in accordance with the Constitution and the law, including customary international law and international agreements binding” on the South African government. These laws include section 13(3)(b) of the South African Police Service Act, 1995 read with section 20(1)(a) of the Defence Act, 2002 on the use of minimum force that is reasonable. Other relevant laws cited include the Prevention of Torture of Persons Act, 2013, and the United Nations Convention against Torture and Other Cruel and Inhuman or Degrading Treatment or Punishment, 1984.
The Court also granted a range of remedies aimed at addressing the lockdown brutality and restoring trust between the public and security forces entrusted with enforcing the regulations and directions.
Contrary to the submissions made by the Minister of Defence, SERI submitted that Section 19 of the Defence Act must apply to the military’s deployment during the lockdown and that Section 19(3)(c) of the Act makes clear that “service in co-operation with the South African Police Service must be performed in accordance with” a code of conduct, operational procedures and guidelines published by the Minister of Defence.
SERI further submitted that “at the heart of this case is the need to fill the lacuna left by the absence of these checks, and to preclude the repetition of the tragedy that brought the applicants to court.”
Between April and May 2020, SERI has participated in a series of panel discussions looking at how Covid-19 is effecting South African society. The discussions, hosted by The Forge, are aimed at exploring and expanding our understanding of the socio-political issues being highlighted by the COVID-19 pandemic. SERI has facilitated three discussions on police brutality, illegal evictions and de-densification during the COVID-19 lockdown and participated as a panelist on another discussion exploring the meaning of a state of disaster.
In the first discussion, SERI's Nomzamo Zondo joined Musawenkosi Cabe, a journalist at New Frame and Vuyo Mntonintshi, a candidate attorney at the Centre for Applied Legal Studies (CALS) to discuss what exactly it means to be in a state of disaster and how it impacts on people's rights. The discussion highlighted the difficulties faced by communities in attempting to assert their rights against police brutality, illegal evictions and a general disregard for human rights during the lockdown. The discussion also grappled with some of the challenges faced by people seeking legal assistance during the lockdown and the challenges of litigating during the lockdown. In relation to the evictions carried out by local municipalities in violation of the national directions, Nomzamo argued that, "if national government cannot make local municiplities to toe the line, it is going to be very difficult to convince private parties to do so. If we all agree that this is a national disaster and that we all need to bring our resources to try and fight against, that means that everybody must be willing to comply and toe the line."
In the discussion on police brutality during the COVID-19 lockdown, SERI's Thato Masiangoako was joined by Elisha Kunene, a candidate attorney at Richard Spoor Inc. Attorneys and Daneel Knoetze, a journalist and the editor of Viewfinder. Elisha Kunene and Daneel Knoetze discussed some of the contemporary and historical reasons behind the reported incidents of police brutality and misuse of force. They also unpacked some of the particular vulnerabilities of poor and marginal communities during the lockdown. Knoetze argued that "poor communities that often challenge the status quo are often subject to extreme and excessive uses of force by the police more often and that their avenues for reporting and for holding the police accountable, whether it be in their own communities or in the broader systemic sense, is hampered and curtailed by the fact that these avenues are inaccessible often and this is something that has been aggravated during lockdown." Knoetze also urged that members of the public continue to insist that the state and security forces be held accountable especially during the lockdown where the public is confined to their homes.
In the discussion on forced removals and evictions, SERI's Edward Molopi was joined by S'bu Zikode, the founding president of Abahlali baseMjondolo and Kelly Kropman of Kropman Attorneys. The discussion traced illegal evictions in South Africa to a long history of various modes of forced removals. The participants noted a distressful trend of a growing list of private owners and municipalities showing little regard for the ban on evictions laid down as part of the COVID-19 response package. Centrally, the discussion highlighted individual and collective rights that people have and how they can go about enforcing those rights. Kropman argued that, in eviction cases, the interest of justice should always take precedence over whether or not someone has paid for their occupation, "we shouldn't view people's values, around evictions, as purely as that of an economic story", she added. Zikode argued for a more equitable distribution and access to land through "realising the right to land" and "the removal of land as a commodity."
In the discussion on the de-densification of dense settlements, SERI's Edward Molopi was joined by Marie Huchzermeyer, a Professor in the School of Architecture and Planning at Wits University where she convenes the Master of Urban Studies degree and Axolile Notywala, an activist and General Secretary of the Social Justice Coalition. The discussion considers the use of de-densification of dense settlements as mitigation and a preventative strategy against COVID-19 and explores the social, political, economic and technical impact of de-densification and the disruption it is likely to cause. The discussion further considered the historically justified mistrust of government-sponsored temporary removal and how people respond to this state-sanctioned form of forced removal. Lastly, the discussion considered the importance of a planned approach to informal settlements. Notjwala argued against the perception of informal settlements as temporary"informal settlements have for a number of years been seen as temporary [by the state] which leads to a lack of prioritisation in investing in informal settlements and the reactionary approach when disasters arrive. We need to start recognising that informal settlements, as informal as they are, are permanent. We need to start seeing people living in informal settlements as part of our cities, they are residents belonging to our cities. When we start recognising that we will start treating people as people and involving them in planning processes." Huchzermeyer argued for a more coordinated state involvement in informal settlements "in addition to recognising the settlements as permanent the state needs to coordinate its involvement in these settlements. It needs to know those who live in these settlements and how they are organised."