On 18 July 2018, SERI filed an application for leave to appeal in the Constitutional Court on behalf of Makause informal settlement resident, General Moyo.
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, seeks to have sections 1(1)(b) and 1(2) of the Intimidation Act declared unconstitutional and invalid because it has the effect of criminalising a wide range of expression protected by the right of freedom of expression enshrined in section 16(1) of the Constitution. His trial in the Germiston Regional Magistrates’ Court has been postponed until this challenge is finally determined.
In the application for leave to appeal, Moyo argues that the majority judgment of the Supreme Court of Appeal (SCA) that found section 1(1)(b) of the Intimidation Act was constitutionally compliant is incorrect because the judges misconstrued the purpose and effect of this section in historical context and that the judges applied an interpretation to section 1(1)(b) that "it cannot reasonably bear". This, Moyo argues, indicates that the SCA should have declared section 1(1)(b) unconstitutional as it is "plainly inconsistent with the Constitution".
Today, on Mandela Day, we reflect on the difficult conditions faced by residents of informal settlements and the challenges they face in accessing basic services.
Since the beginning of July, 2018, the City of Johannesburg has been conducting an Expanded Social Package (ESP) awareness campaign in Slovo Park and Elias Motsoaledi informal settlements, encouraging residents to register on the city’s indigent list “to access electricity and water rebates, as well as other forms of social support”
SERI’s Tiffany Ebrahim and Maanda Makwarela have written this op-ed considering the use of the ESP in informal settlements and how it excludes poor households (whom it is meant to serve) from access to even the most basic of services.
“The ESP is touted as a lifeline for thousands of residents of Johannesburg, but will likely not apply to residents of informal settlements like Slovo Park who are still waiting for their settlements to be upgraded through improved access to basic services. Informal settlements generally have high rates of unemployment and lack access to metered services such as water and electricity. These factors make it highly unlikely that informal settlement residents will qualify for ESP subsidies.”
The water crisis in Cape Town has made a number of senior government officials in Gauteng ask very serious questions about the province's ability to deal with any potential water security issues. In late March 2018, the Gauteng premier David Makhura hosted a Premier's Coordinating Forum where the premier and mayors of all municipalities met to discuss various important issues, including water security. After the meeting, the premier established a "water war room" (where senior technical and political officials across the province can meet to engage on important water related issues) and requested that a panel of experts develop a strategic plan for dealing with water security in Gauteng.
On 5 July 2018, a review panel was assembled to consider and provide strategic input into the second draft of the strategic plan on Gauteng's water security in Braamfontein, Johannesburg. SERI's director or research and advocacy, Alana Potter, participated in the review as a water expert. Others who participated in the review included the Gauteng City Regional Observatory (GCRO) and the Pegasys Institute (these two organisations constitute the drafting team), the Gauteng planning department and the premier's office.
Potter's review highlighted a number of faultlines in the current provision of water services in Gauteng. In particular, SERI's presentation underscored that chemical toilets don’t meet the standards for adequate levels of human dignity and privacy. Accordingly, chemical toilets should not be used for more than three months according to the Emergency Housing Programme (EHP). This means that they don’t meet basic, let alone, improved standards. SERI's presentation also emphasised the need to address the backlog of households who still do not have access to safe, reliable water in Gauteng. Despite the significant gains that have been made since democracy, water and sanitation services delivery remains profoundly unequal with over 280,000 people who still do not have access to safe, reliable water in the province. These people are the most vulnerable and poorest, and primarily live in rural municipalities and informal settlements. Addressing this backlog is an urgent priority.
Based on the review, the Gauteng Water Security Plan will be finalised and taken back to the “water war room”. Thereafter, the premier’s office will host a two-day water summit with all stakeholders to be engage with interested parties, business and civil society.
On 11 July 2018, SERI attorney, Lindokuhle Mdabe, participated in a panel discussion on land and land reform in South Africa on David O'Sullivan's Breakfast show on Kaya FM 95.9. The panel discussion also included King Madzikane II Thandisizwe Diko from the KwaBhaca Great Kingdom, Advocate Tembeka Ngcukaitobi and Lyn Apies from the Griqua Royal House, and dealt with a wide array of issues, including land dispossession, customary law and the South African Constitution.
Mdabe reflected on the historical roots that underlie the spatial injustice which contiues to characterise South Africa today and spoke about the need for the state to more creatively utilise the existing mechanisms at its disposal for land reform. He specifically refers to section 9(3) of the Housing Act 107 of 1997 (the Housing Act), which enables the state to expropriate land for the purposes of providing housing. He criticised the lack of implementation by state officials, stating:
"The state has been recalcitrant in using expropriation measures in the law to expropriate for land reform."
On 6 July 2018, SERI senior research associate, Michael Clark, was interviewed on Thabiso Tema's Power Drive show on Power FM, where he discussed two recent research publications on informal trade published by the Socio-Economic Rights Institute of South Africa (SERI) and the South African Local Government Association (SALGA). These research reports dispel persistent myths associated with informal trade and clarify the often misunderstood legal and constitutional duties of municipalities towards informal traders.
In 2017, approximately 1.1 million South Africans worked as informal traders (according to Stats SA's Quaterly Labour Force Survey). Informal trade therefore makes up a significant component of the economy and has an important role to play in addressing some of South Africa’s most pervasive developmental challenges, including high levels of unemployment and poverty.
A key myth that was dispelled by the research findings was that "informal does not mean illegal". During the interview, Clark pointed out that informal traders are often acting entirely lawfully. In fact, informal traders often go out of their way to obtain valid informal trading licenses, pay rental for their demarcated trading stalls, and try to ensure that they comply with legal formalities such. For this reason:
"The findings point to the fact that we need to start reassessing why so many people stigmatise informal trade when many traders act entirely lawfully. These perceptions of informal trade as a form of 'criminality' or as something that causes 'crime and grime' in our cities are just biases that don’t necessarily have a basis in reality. So we need to not leave these biases unchecked."