SERI endorses a recommendation by the Centre for Applied Legal Studies (CALS) to the National Command Council that Regulation 19 be amended to reflect a full moratorium on the institution and hearing of eviction proceedings, as well as the execution of eviction orders and all home demolitions, for the entire duration of Alert Level 4. The recommendations submit that;
Any execution of an eviction order during Alert Level 4 of the national lockdown could never be deemed ‘just and equitable’ by a court; the continued restrictions on inter alia movement and transport are underscored by the need to “Stay at Home”, and thus necessarily render any eviction unjust in the current context. For this reason, the reference to this possibility in the Regulation is irrational and thus unlawful;
Even the institution of eviction proceedings during Alert Level 4 of the national lockdown would operate unjustly against the defendant; the continued restrictions on inter alia movement and travel operate to prevent defendants from accessing legal services to aid their defence during Alert Level 4. Any institution and hearing of an eviction application would thus violate the defendant’s right of access to the courts. For this reason, the Regulation’s implied reference to this possibility is irrational and thus unlawful
SERI accordingly supports the proposal that Regulation 19 be replaced in its entirety by the following: “No person may have their home demolished or be evicted from their place of residence, including in terms of the Extension of Security of Tenure Act 62 of 1997 or the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998, and regardless of whether it is a formal or informal residence or a farm dwelling, for the duration of the Alert Level 4 period.”
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. These recommendations were endorsed by United Domestic Workers’ of South Africa (UDWOSA) and Izwi Domestic Workers’ Alliance.
The COVID-19 pandemic and lockdown has had a devastating impact on the lives of domestic workers and their families across the country. A mere 20% of domestic workers are registered for UIF. This means that the majority of domestic workers cannot access the Department of Employment and Labour’s COVID-19 Temporary Employer/Employee Relief Scheme (TERS), because domestic employers did not fulfil their legal obligation to register them. Further, some registered domestic workers report that their applications for TERS have been declined.
The Unemployment Insurance Act (UI Act) enables the Minister, UIF Commissioner and UIF Board to deem individuals or a class of persons as contributors for the purposes of the Act. SERI’s letter on behalf of SADSAWU recommended that the Minister and the UIF Board, relying on section 69 of the UI Act, declare domestic workers, as a class of persons, UIF contributors for the purpose of the UI Act and specifically for the duration of the COVID- 19 pandemic. The letter also recommended that the Department create a mechanism for domestic workers to access TERS directly from the Department, as individuals, or collectively through their unions.
The letter acknowledges the Minister’s announcement on 28 April 2020, allowing employers who had not yet registered their employees for UIF, to register them in order to benefit from TERS, if the employers undertake to pay the debt owing to the UIF when they are able to do so. While this solution might aid employers and workers in other sectors, it is likely that some domestic employers, the majority of whom are rarely held accountable for their transgressions, will dismiss their employees unfairly than pay their debt. In the case of vulnerable sectors like domestic work, the Department’s needs to find creative solutions to support workers while holding employers accountable.
During the lockdown the Department has neglected to directly address the one million domestic workers and their employers, leaving this vulnerable sector without clear direction. The declaration and inclusion of domestic workers as UIF contributors will bring relief to millions of domestic workers as it will enable them to access TERS.
According to SADSAWU’s General Secretary, Myrtle Witbooi “the current COVID-19 pandemic has resulted in a loss of income for many domestic workers. Many of them are told ‘no work, no pay’ and are not able to benefit from the relief scheme. We urge the Department of Employment and Labour to seriously address this”.
On 7 May 2020, SERI submitted comments to a presentation made by the Director-General of the Department of Water and Sanitation on “Covid-19 interventions” to the joint Portfolio Committee and Select Committee on Human Settlements, Water and Sanitation on 21 April 2020.
These comments were submitted following SERI’s engagement, along with the SAWC South African Water Caucus (SAWC) and the Centre for Environmental Rights (CER), with the Minister’s Advisory Committee on 30 April 2020. The Minister’s Advisory Committee will convey our comments and questions and provide responses.
SERI requests that the Department create a mechanism for civil society engagement, and recommends that the Department:
On 5 May 2020, the North Gauteng High Court will hear arguments in an urgent application brought by the family of Mr Collins Khosa. The matter arises following the brutal death of Mr Khosa on 10 April 2020 when members of the South African National Defence Force (SANDF) who were accompanied by Johannesburg Metro Police Officers (JMPD) accused him of breaking lockdown regulations. SANDF and JMPD members who were patrolling in Alexandra township, entered Mr Khosa’s home armed with sjamboks and accused him of breaking lockdown regulations because of the unattended camp chair and a cup of partially consumed alcohol that was in the front yard of his home. Mr Collins Khosa died from injuries sustained from an attack that ensued after he tried to explain that consuming alcohol on one’s own property did not constitute a lockdown violation.
The matter revolves around concerns of abuses and brutality carried out against members of the public during the lockdown imposed by the President to combat the COVID-19 pandemic. Since the first day of the lockdown on 26 March 2020, there have been numerous reports of abuse, excessive use of force, police brutality and misconduct by members of the South African Police Service (SAPS), South African National Defence Force (SANDF), Municipal Police Departments and other law enforcement officials all of whom have been tasked with enforcing the regulations and directions issued in terms of the declared National State of Disaster.
The family is seeking a court order that will, amongst other things, afford them an independent investigation into the death of Mr Khosa, compel the Minister of Defence and Minister of Police to develop a code of conduct and operational procedure in terms of Section 19 of the Defence Act 42 of 2002, develop a clear set of guidelines for the enforcement of the lockdown regulations and directions, and establish an effective complaints and investigative mechanism to investigate all abuses by security forces during the lockdown.
Contrary to the submissions made by the Minister of Defence, SERI submits 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 submits 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.
This week, the Business Day published a co-written article by Izwi Domestic Workers Alliance’s Amy Tekie and SERI’s Kelebogile Khunou on the plight of domestic workers during the lockdown period. The domestic worker sector is the most vulnerable as few employees are registered under the Unemployment Insurance Fund (UIF) and cannot access relief funds.
“The Covid-19 pandemic and resultant lockdown in SA have had a devastating effect on the lives of domestic workers and their families across the country... Many have been dismissed unfairly or put on unpaid leave. A survey conducted earlier in the month by Izwi Domestic Workers Alliance in Johannesburg found that only 38% of 600 respondents were being paid full wages during the lockdown period.”
The article further notes that unless the department of employment and labour acts expeditiously, conditions are likely to become much worse for domestic workers in the coming months.