Today the Supreme Court of Appeal (SCA) dismissed Legal Aid SA’s appeal against the High Court’s decision in Magidiwana v President of the Republic of South Africa handed down last year. In that case, Judge Makgoka directed Legal Aid SA to provide legal aid to around 270 arrested and injured miners represented at the Marikana Commission of Inquiry. SERI represents the Association of Mineworkers and Construction Union (AMCU) and the families of 36 of the deceased miners killed at Marikana, in the legal proceedings.
The SCA today indicated that it will give full reasons for its decision at a later stage. It made its ruling after asking the parties to address it solely on whether the appeal would have any practical effect or result. This was partly because Legal Aid SA had promised to fund the miners’ representation at the Marikana Commission whether or not it won the appeal. Section 16 of the Superior Courts Act 10 of 2013 permits the SCA to dismiss an appeal if its outcome would have no practical effect.
The injured and arrested miners, together AMCU and the families of the deceased argued that Legal Aid SA’s promise to fund the miners meant that the appeal would have no practical effect. They further argued that the circumstances surrounding the High Court’s decision and the Marikana Commission were unique, so that there would be no value in giving judgment in a situation that was unlikely to arise again.
Adv Stuart Wilson, appearing on behalf of AMCU and the 36 families represented by SERI at the Commission, also submitted that the essence of Judge Makgoka’s decision in the High Court was to instruct Legal Aid SA not to draw irrational distinctions between the families of those who died at Marikana, and the miners who were arrested and injured there. Both were in need of legal aid, and in granting legal aid to the families, but not the miners, Legal Aid SA acted irrationally. There would be no point in a judgment from the SCA telling Legal Aid SA to do what it knew it must do all along: treat like cases alike.
On 4 September 2014, SERI hosted a workshop to present the findings of the Community Practice Notes: Informal Settlement Series published in August. SERI's first series of community practice notes documents how community-based organisations (CBOs) in four informal settlements have organised and mobilised in their struggles for development, particularly around in situ upgrading of informal settlements. In doing so the series analyses the relationship between evictions, development, community organisation and mobilisation, local politics, protest and the use of courts. The four settlements included in the series are: Makause, Rooigrond, Thembelihle and Slovo Park.
Approximately 20 representatives from the CBOs profiled in the series participated in the workshop, which aimed to discuss and evaluate the tactics and strategies employed by CBOs, as well as unpack the challenges faced by communities fighting for development.
Today GroundUp News published an excellent article by SERI board member Sandra Liebenberg, entitled "What the law has to say about evictions".
The article discusses progress made in evictions law since the Grootboom judgment was handed down in 2000 by the Constitutional Court. Liebenberg argues that while this ruling has helped to transform evictions law in South Africa, the question remains: "What do the Grootboom judgment and housing legislation mean in practice for people facing eviction or demolition of their homes?" She also discusses the very relevant issue of "what counts as a home" in the eyes of municipalities and the law.
Today SERI will launch an urgent intervention application in the Fischer case, on behalf of those who occupied the Marikana informal settlement in Philippi on or before 30 June 2014. SERI is intervening to ensure that the City of Cape Town does not confirm the interim interdict issued by the Western Cape High Court in January 2014.
SERI argues that the interdict is strikingly similar in wording to the one obtained and used by SANRAL in the eviction of Nomzamo informal settlement. SERI fears that despite the City's assurances, it will use the interdict to circumvent the protections of the Constitution and the PIE Act to illegally evict the families living at the Marikana informal settlement. The case will be heard at 10am on 1 September 2014 in the Western Cape High Court.
In December 2011 the Constitutional Court handed down judgment in the Bapsfontein (Pheko) case, finding the removal of thousands of people from Bapsfontein by Ekurhuleni Metropolitan Municipality unlawful, and ordering the municipality to provide land to the evictees “within the immediate vicinity of Bapsfontein”. The residents are represented by Lawyers for Human Rights (LHR) and SERI made a submission to the court as amicus curiae.
A series of events and non-compliance by the municipality led to the Court enrolling the matter again, a decision that arose out of the extraordinary events which have occurred since the judgment was handed down in 2011.
The enforcement and contempt proceedings were heard in the Constitutional Court on 12 August 2014. SERI was again admitted as amicus curiae, represented by Adv Tembeka Ngcukaitobi. SERI argued that it is equitable for the Court to issue a declaratory order that the municipality is in contempt of an order handed down on 12 March 2014, and that any punitive or structural consequences of the declaratory order cannot be addressed without a joinder of the Mayor or the Municipal Manager, the functionaries who bear constitutional and statutory obligations to ensure compliance with court orders. SERI argued that a rule nisi calling upon the Mayor and the Municipal Manager to show cause why they should not be joined as parties to the application and why the orders have not been complied with would be a just and equitable order.
On 28 August 2014 the Court handed down an order declaring the municipality in breach of its constitutional obligations by failing to abide by the two court orders. The Court ordered the Mayor and City Manager to show cause why they should not be joined to proceedings, and for the municipality to identify to the Court any other office-bearers or officials who are responsible for compliance with orders of the court.