SERI has noted with concern the deletion of paragraph 1.5 from the Marikana Commission of Inquiry's Terms of Reference, and the announcement that the Commission intends to curtail its proceedings on 31 July 2014.

The clause in paragraph 1.5 empowered the Commission to investigate “the role played by the Department of Mineral Resources or any other government department or agency in relation to the incident and whether this was appropriate in the circumstances and consistent with their duties and obligations according to law." The deletion of this clause has created the impression that the Commission does not intend to require any of the relevant cabinet Ministers to testify before it in relation to the role they played in the events leading up to the 16 August 2012 massacre at Marikana.

SERI remains of the view that, in particular, the Minister of Police has questions to answer in relating to his role in instigating and escalating the police operation that led to the massacre. Any failure to require him or any other cabinet minister in possession of relevant information to testify before the Commission would seriously undermine the Commission's credibility.

Today SERI made enquiries with the Commission. We sought clarification on the meaning and effect of deleting paragraph 1.5 of the Terms of Reference. We have been assured that –

  1. Phase 1 includes a full investigation of the role of the SAPS, and why they acted as they did. If any instructions were given to the SAPS, or if any other conduct by people outside the SAPS, including cabinet ministers, led to the SAPS acting as they did, that would fall squarely within Phase 1. This issue is covered by paragraph 1.2 of the Terms of Reference, which has not been amended. (Phase 1 of the Commission’s enquiry deals with the injuries and deaths during 9 to 16 August 2012, and responsibility for those injuries and deaths.)
  2. The removal of paragraph 1.5 of the Terms of Reference does not in any way affect Phase 1 of the Commission’s enquiry.
  3. The Commission has received statements from the Minister of Police and Mr Cyril Ramaphosa with regard to their role in relation to the conduct of the SAPS. As matters currently stand, it is anticipated that they will be called to give oral evidence. The deletion of paragraph 1.5 of the terms of reference will have no impact on that.

SERI remains concerned that the deletion of paragraph 1.5 now makes it unlikely that the Commission will consider any of the broader policy determinants of the events of, and leading up to, 16 August 2012. This is a missed opportunity. Finally, SERI believes that even though the Commission’s mandate has now been significantly narrowed, it will not be able to hear all the necessary evidence before 31 July. We will be engaging with the Commission on this issue and will make further announcements in due course.

  • SERI press statement (10 May 2014) here.
  • Marikana Commission Terms of Reference (12 September 2012) here and amendments (5 May 2014) here.
  • Read more on SERI's involvement at the Marikana Commission here.

On 5 May 2014, residents of the Ekuthuleni shelter - who were moved as part of the Blue Moonlight Constitutional Court case - filed their heads of argument in Dladla case against the City of Johannesburg. The case seeks to challenge the rules and conditions in the shelter, which is run by Metro Evangelical Services (MES), an NGO operating in inner city Johannesburg.

The shelter is subject to various draconian house rules which the residents argue infringe their constitutional rights to dignity, privacy, freedom and security of the person, equality and access to adequate housing. The rules include day-time lock-out, which means residents are not allowed to stay in the shelter during the day; and gender segregated dorms, which have the effect of splitting up family units. The residents are also challenging the City’s claim that it is entitled to evict them without a court order. This, the residents argue, is contrary to section 26(3) of the Constitution, which prohibits evictions without a court order.

The Dladla case is important in that it may clarify a number of crucial legal questions, including whether alternative accommodation provided to prevent homelessness due to an eviction constitutes a home for purposes of constitutional right of access to adequate housing, and whether the managed care shelter model advocated by the City is constitutionally appropriate.

The case will most likely be argued in the South Gauteng High Court in September 2014.

  • Read the residents’ heads of argument (5 May 2014) here.
  • Read more about the case here.

On Monday, 5 May 2014, a new book entitled Socio-Economic Rights in South Africa: Symbols or Substance? will be launched at the L-70 Graduate Centre at the University of Pretoria at 5:15 pm. SERI senior researcher Jackie Dugard is one of the book's editors, together with Malcolm Langford, Ben Cousins and Tshepo Madlingozi.

This important book focuses on a range of socio-economic rights and national trends in law and political economy. The book's authors show how socio-economic rights have influenced the development of civil society discourse and action in South Africa. The evidence suggests that some strategies have achieved material and political impact but this is conditional on the nature of the claim, degree of mobilization and alliance building, and underlying constraints.

Former Justice of the Constitutional Court, Zak Yacoob, will be the guest speaker at the event.

  • Download the invitation to the book launch here.
  • Download the flyer for the book here.

Symbols

On 11 April, an op-ed by Lauren Royston and Michael Clark was published in the Mail and Guardian looking at the state's failure to satisfactorily respond to the pressing challenges of urbanisation and the dire need for low-income accommodation in the City of Johanneburg.

The op-ed argues that a shift in the discourse about urbanisation and proactive public sector responses to manage urbanisation in a way that maximises public welfare must be the first step to addressing the challenges posed by urbanisation. The housing crisis in the City of Johannesburg is highlighted as one manifestation of the state's failure to plan for urbanisation. In failing to develop a coherent, formal plan for the provision of cheaper low-cost accommodation by either the private sector or the City itself, the City is exacerbating the pressures of urbanisation.

Today SERI, in partnership with the the Centre for Applied Legal Studies (CALS), launched an application in the North Gauteng High Court to challenge the constitutionality and validity of section 1(1)(b) of the Intimidation Act 72 of 1982. A charge of "intimidation" in terms of this section of the Act was laid against General Alfred Moyo following attempts by him and other residents of the Makause informal settlement in Germiston to hold a march against police brutality at Primrose police station in 2012.

Section 1(1)(b) of the Intimidation Act states that "Any person who –

(b) acts or conducts himself in such a manner or utters or publishes such words that it has or they have the effect, or that it might reasonably be expected that the natural and probable consequences thereof would be, that a person perceiving the act, conduct, utterance or publication-

(i) fears for his own safety or the safety of his property or the security of his livelihood, or for the safety of any other person or the safety of the property of any other person or the security of the livelihood of any other person; and

(ii) ..... [subsection repealed]

shall be guilty of an offence and liable on conviction to a fine not exceeding R40 000 or to imprisonment for a period not exceeding ten years or to both such fine and such imprisonment.”

The application argues that this provision criminalises any speech or conduct which creates a subjective state of fear in any person – whether or not the fear itself is reasonable, and whether or not the conduct or speech in question was intended to create fear. The breadth of the interference with section 16 of the Constitution (which protects freedom of expression) that section 1(1)(b) creates cannot be justified in terms of the limitation clause in section 36 of the Constitution, and the section of the Intimidation Act should therefore be declared unconstitutional and invalid. Moyo's trial will be postponed until this challenge is finally determined.

  • Read more on the case and download the court papers here.
  • Read more on the pending criminal trial in the Germiston Regional Magistrate’s Court here.

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