WHAT: On Wednesday, 6 November 2019, the South African Domestic Service and Allied Workers Union (SADSAWU) and Sylvia Mahlangu filed an application in the Constitutional Court to confirm the unconstitutionality of the exclusion of domestic workers from the Compensation for Occupational Injuries and Diseases Act 130 of 1993 (COIDA).
SERI represents Sylvia Mahlangu, the surviving daughter of a domestic worker, Maria Mahlangu, and SADSAWU in a challenge against the constitutionality of section 1 of COIDA. Maria died at her employer’s home during the course of her employment. Under the Compensation for Occupational Injuries and Diseases Act (COIDA), her daughter was precluded from claiming from the Compensation Fund which compensates employees, or their survivors, for work-related injuries, illnesses or death.
On 23 May 2019, the North Gauteng High Court handed down an order declaring the exclusion of domestic workers from COIDA as unconstitutional. The Court, in October 2019, further ruled that the declaration of invalidity must be applied retrospectively to provide relief to other domestic workers who were injured or died at work prior to the granting of the order. SERI, on behalf of Ms Sylvia Mahlangu and SADSAWU, is now approaching the Constitutional Court to confirm these two orders.
SADSAWU, Ms Sylvia Mahlangu and SERI will address members of the media on the negative impact of the exclusion of domestic workers from COIDA and the importance of a retrospective application of the declaration of invalidity.
WHEN: Thursday, 7 November 2019 at 10:00 to 11:30.
WHERE: SERI Conference Room, 6th floor Aspern House, 54 De Korte Street, Braamfontein, Johannesburg.
WHO: Sylvia Mahlangu (main applicant), Thulani Nkosi (SERI senior attorney), Eunice Dhladhla (SADSAWU organiser) and Pinky Mashiane (former SADSAWU organiser).
ADDITIONAL INFORMATION: Read more about the case and access the court papers: https://bit.ly/2JPrAh4.
On Wednesday, 23 October 2019, SERI’s Lauren Royston presented at an Urban Land Reform Seminar focused on engaging with the report of the Presidential Advisory Panel on Land Reform. Royston was joined by Bulelwa Mabasa (Werksmans Attorneys and the Expert Advisory Panel on Land Reform and Agriculture), Prof Ruth Hall (PLAAS), and Prof Marie Huchzermeyer (SoAP and CUBES).
The speakers focused on the question of urban land reform within the context of the Final Report by the Expert Advisory Panel and on the broader questions surrounding urban land reform. Royston stressed that the meaning of section 25(5) of the constitution has yet to be interpreted judicially and that a land redistribution law would be required to give effect to this section in both urban and rural contexts. She further discussed recommendations on urban land redistribution and tenure reform contained in two forthcoming papers, and the importance of not pathologising or criminalising “off-register” use of land, but rather thinking beyond the individual register title framework to allow for tenure diversity and tenures security on a continuum.
The seminar was hosted by the South African Research Chair on Spatial Analysis and City Planning, the Center for Urban and Built Environment Studies (CUBES) at Wits University.
SERI’s informal settlement action research confirms that despite the challenges, eThekwini’s Communal Ablution Blocks (CABs) provide a higher level of sanitation service to informal settlement residents than options such as chemical toilets, portable flush toilets and others provided by other municipalities.
On 24 and 25 October, approximately 50 municipal officials from various departments including human settlements, water and sanitation, emergency services, environmental health and roads; academics from UKZN; civil society organisations such as SERI and social movements such as Abahlali baseMjondolo and SA-SDI participated in a knowledge exchange session on Sanitation Services in Dense Informal Settlements convened by eThekwini’s Municipal Learning Institute (MILE).
Alana Potter SERI’s director of research and advocacy, together with ma-Mkhize Nxumalo from Siyanda where Abahlali base Mjondolo partnered with SERI, shared findings and implications from the research on local norms, agency and practices with respect to land use management and tenure, participation, access to basic services and livelihoods.
The purpose of the exchange was to reflect on options and models for sanitation services. CABs were built in B1 and B2 informal settlements in the late 2000’s. CABs have many advantages: They meet basic service level standards; they are electrified reducing safety risks; they dispose of greywater reducing health risks and they mitigate many of the problems of shared sanitation through a caretaker model. Importantly CABs are connected to the municipal grid, which sends a positive tenure security and upgrading message to residents.
CABs however come at high capital and operational cost, and the City’s bulk sewer infrastructure is overloaded. Women, the elderly, disabled and residents living further from the facilities report lower satisfaction with the CABs, and the selection of caretakers is a delicate issue.
Like anyone else, informal settlement residents want affordable household connections and take action to connect at significant personal risk and financial cost in order to step into the gaps where government doesn’t provide adequate services in order to safeguard their dignity, privacy and security and in order to generate a livelihood.
In their presentations, Enoc Mudau from Johannesburg Water and Llast Mudondo from the City of Cape Town cited a reluctance to develop municipal infrastructure on privately owned land and the slow pace of incremental upgrading processes as reasons they could not provide individual household connections.
With respect to water services on privately owned land: according to legal opinion commissioned by Project Preparation Trust, municipalities have the right and the obligation to provide services on land that they do not own and they need to do so in a structured and planned manner by: including their plans in their Spatial Development Frameworks; giving notice to and taking comments from land owners, and promulgating enabling bylaws. PPT committed to sharing a briefing note on this.
Zandile Nsibande from Abahlali base Mjondolo said: “The City of Joburg needs to take a leaf from eThekwini. Those VIPs and those green toilets everywhere are not dignified. Ive been to Slovo Park and when they are not emptied, they stink. Lots of money is spent but nothing is done for people living in informal settlements. Work with organisations like SERI.”
To the City of Cape Town official, she said “SERI’s research shows that people don’t have basic services. When people took toilets to the airports they were being strategic and they were showing their anger because the City didn’t provide dignified services. I thought after all that you would be showing us improvements but I see nothing much has been done”.
City officials referred to new criteria for accessing upgrading funding as a constraint. The Upgrading Informal Settlements Grant in the USDG window requires a Business Plan per settlement which has delayed upgrading in Johannesburg this year. “R 395 million was allocated but won’t be able to spend it this year” said Enoc Mudau. Mark Misselhorn from Project Preparation Trust (PPT) noted similar challenges encountered in eThekwini.
Social movements, academics and civil society organisations sent a clear message: Municipalities need to build constructive relationships with residents, they need to actively understand and build on existing local norms, livelihoods strategies and practices in the participative upgrading process. In the meantime they need to secure residential status and provide at least interim basic services.
As ma-Mkhize Nxumalo said “Ive been living in Siyanda for 31 years. I live there because I have a strong network and it is a good place to make a living. Local government is a long distance from people living in informal settlements. In 2010 I was there when the CABs arrived. The community blamed me and asked me why I am bringing toilets instead of houses. Municipalities, why don’t you talk with us first? It is better here that we talk with officials and they give us time to listen. That is what ward committees were meant for. They would not fail if they engaged us. The problem is the land. Make us secure on the land and we will build.”
On Wednesday, 23 October 2019, The Daily Maverick published an op-ed by SERI researcher Thato Masiangoako about the recent allegations by Viewfinder against the Independent Police Investigative Directorate (IPID). The op-ed considers the allegations against IPID and its initial responses to those allegations when it presented its annual report to Parliament’s Portfolio Committee on Police on Thursday, 11 October 2019. IPID is accused of prematurely closing cases without proper investigation in order to inflate its performance statistics.
Masiangoako argues that: "such systemic dereliction leaves victims of crimes committed by police officials with no justice or closure. If the South African Police Services (SAPS) is to be meaningfully reformed then IPID and related bodies such as the National Prosecuting Authority (NPA) need to be supported."
She goes on to argue that these allegations "not only expose institutional malpractice but also shed light on how the broader structure in which IPID operates reflects a lack of regard for police accountability and reform, even after Marikana."
Despite IPID's investigation, the NPA has only prosecuted nine police officers and 16 mineworkers in connection to the deaths that occurred on 12 August 2012, in the lead up to the Marikana Massacre. They are yet to prosecute for the deaths that took place on 16 August 2012.
On 22 October 2019, the Constitutional Court, in a unanimous judgment by Ledwaba AJ, declared sections 1 (2) and 1 (1) (b) of the Intimidation Act 72 of 1982 unconstitutional.
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, argued that sections 1(1)(b) and 1(2) of the Intimidation Act had the effect of criminalising a wide range of expression protected by the right of freedom of expression.
Moyo’s case was consolidated with that of Nokulunga Primrose Sonti, who was similarly charged section 1(1)(a)(ii) and 1(1)(b)(i) of the Act and represented by the Centre for Applied Legal Studies (CALS).
The Constitutional Court concurred with SERI’s argument that section 1(1)(b) was unconstitutional in that it unjustifiably limited the right to freedom of expression. The Constitutional Court further found that the SCA erroneously applied an interpretation to section 1(1)(b) that it cannot reasonably sustain and impermissibly strained its meaning.The Constitutional Court also confirmed a Supreme Court of Appeal (SCA) order declaring section 1(2) of the Intimidation Act as unconstitutional.