On 19 November 2018, the Constitutional Court handed down a ruling upholding the January 2018 judgment from Judge Ndita of the Western Cape High Court, which declared section 12(1)(a) of the Regulations of Gathering Act unconstitutional.
The matter arises as a result of a protest by members and supporters of the Social Justice Coalition outside the offices of the former City of Cape Town (the City) Mayor, Ms Patricia de Lille, on 11 September 2013. Their grievances related to issues of poor sanitation for communities after lengthy engagements with the City.
The protesters, among other things, chained themselves to the railings at the City’s Civic Centre. Upon police intervention, 21 protesters were arrested and charged under section 12(1)(a) of the Regulation of Gatherings Act 205 of 1993 (“Gatherings Act”) for unlawfully and intentionally convening a gathering without providing the relevant municipal authority with any notice that the gathering would take place. In the alternative to the main charge, the accused were charged under section 12(1)(e) of the Gatherings Act for unlawfully and intentionally attending a gathering without notice and the required permission from the relevant authority.
On 24 January 2018, the Western Cape High Court declared section 12(1)(a) of the Gatherings Act unconstitutional. In declaring this provision unconstitutional, the Western Cape High Court said that a criminal sanction was "disproportionate to the offence" as it may result in people "carry[ing] with them the stigma" of a criminal conviction. Instead, judge Ndita suggested that civil liability may be a more appropriate penalty for failing to notify the municipality of an intended protest. The matter was referred to the Constitutional Court for confirmation of the order of constitutional invalidity, where the State and the Minister of Police appealed the Western Cape High Court's order.
On 21 August 2018, the matter was heard in the Constitutional Court. SERI, acting on behalf of the UN Special Rapporteur, once again made submissions based on an international law perspective and urged the court to have regard to international law standards and principles when considering the constitutionality of section 12(1)(a) of the Gatherings Act. SERI argued that holding organisers criminally liable for failing to notify authorities about a protest is a restriction to the right to freedom of peaceful assembly.
On 14 November, WIEGO (Women in Informal Employment Globalizing and Organizing) held a public event on “forging a path towards recognition and inclusion of informal workers” at the University of the Witwatersrand in Johannesburg. The dialogue was centred on the International Labour Organization’s Recommendation 204, the purpose for which, according to WIEGO, “is to provide guidance to governments to facilitate the transition to formalization, and serves as a tool for informal workers to claim their rights, through their representative organisations”. A panel discussion on the transition from the informal to the formal economy was the main event, and included perspectives from local government, civil society and informal worker organisations- South Africa Informal Traders Alliance (SAITA), South Africa Waste Pickers Association (SAWPA), HomeNet Thailand and Asociacion Nacional de Recicladores from Colombia- which represented the voices of informal workers.
SERI has produced a series of publications outlining the rights of informal traders to make a living and how local government can regulate informal trade in a manner that respects the rights of informal traders and treat them in a manner that is just, humane and inclusive.
On Thursday, 8 November 2018, SERI’s Director of Litigation, Nomzamo Zondo, joined Meshack van Wyk, MMC for Housing for the City of Johannesburg and Dr. Margot Rubin, Senior Researcher with National Research Foundation Research-Chair on Spatial Analysis and Planning at Wits University in a dialogue on inclusionary housing in the City of Johannesburg (the City).
The dialogue, hosted by the Nelson Mandela Foundation and the Hanns Seidel Foundation, aimed to help attendees gain a better understanding of inclusionary housing in Johannesburg and coincided with the launch of the Mandela Initiative final report on Grappling with poverty and inequality, which discusses and offers recommendations for eliminating poverty and addressing inequality in South Africa.
The City of Johannesburg is currently finalising its inclusionary housing policy. The first version of the policy, released on 28 February 2018, proposed to create more affordable housing by requiring any property development in the City consisting of 10 or more dwelling units to include at least 20% inclusionary housing and capping rentals at R2, 100 per month (not including utility bills). SERI’s submission on the draft policy welcomed the City’s attempt to provide affordable housing for poor and low-income families but noted that the policy did not cater for households earning less than R3,200 a month and that the proposed rent-caps would require poor and low-income families to spend the majority of their household incomes on rent.
In her comments, Nomzamo Zondo stressed that any inclusionary housing policy must allow for the thousands of people already living in inner-city Johannesburg to be able to access decent, affordable housing.
On Sunday, 4 November 2018, Matthew Wilhelm-Solomon from the Anthropology department of the University of the Witwatersrand (Wits) and SERI co-hosted a media workshop for members of the Inner City Federation (ICF). The workshop, held at the Wits University's Anthropology Museum, focused on introducing ICF members to various styles of writing for media and on strengthening the organisation’s advocacy skills. Adriana Miranda da Cunha of Santa Catarina State University in Brazil led a session to frame an inner city story; Matthew Wilhelm-Solomon led a session in which participants framed their story in different ways such as opinion editorials, features and media releases; Natasha Joseph of Conversation Africa (and former news editor at City Press) gave important insights on how to engage with the media, and social-media expert Lebohang Masango presented on how to best use Twitter and other forms of social media as ICF advocacy tools.
The ICF, founded in 2015, is a coalition of tenants and unlawful occupiers from over 40 buildings in inner-city Johannesburg that organise around shared struggles. It is comprised of two members from each building or building committee who attend monthly meetings and allows inner-city residents to share their experiences, build unity and solidarity, and functions as a platform for knowledge sharing. The workshop was designed to support the ICF’s initiatives to “take more power over your story by telling it yourself”.
On 29 October 2018, 53 tenants living in Plettenberg Mansions, an apartment building in Hillbrow, Johannesburg, have applied to the Constitutional Court for leave to appeal an eviction order granted against them by the Johannesburg High Court after their landlord, a company called Lewray Investments (Pty) Ltd, sought to renovate the building. SERI represents the tenants.
The High Court granted an order evicting the tenants from their homes in on 23 May 2018 so that the landlord could pursue renovations at the property. Judge Adams granted the order on an urgent basis, in spite of the landlord's failure to cancel the tenants' leases and follow the eviction proceedings in terms of Prevention of Illegal Evictions and Unlawful Occupation of Land Act of 1998 (the PIE Act). The order was framed as a temporary measure, pending the landlord's refurbishment of the building after which the tenants would be permitted to re-occuy "their units" at the property. However, the landlord's refurbishment plans include subdividing the units that tenants were living in, rendering any new units much smaller than the tenants' initial homes. The tenants believe that the eviction is therefore "effectively a permanent eviction through the backdoor" because "their homes will be gone and replaced by new, substantially smaller dwelling units". As rent-paying tenants, their eviction is unlwaful as it conflicts with the Gauteng Unfair Practice Regulations (2001) in terms of the Rental Housing Act of 1999.