SERI made written comments on the draft Geneva Guidelines on Less-Lethal Weapons and related Equipment in Law Enforcement to the Geneva Academy and the Institute for International and Comparative Law in Africa (University of Pretoria). These draft set of Guidelines relate to the lawful and responsible design, production, procurement, testing, training, transfer, and use of less-lethal weapons and related equipment.

The purpose of these Guidelines is to provide guidance to states, law enforcement agencies, human rights bodies and mechanisms, private security companies, manufacturers, and individuals or agents of any bodies using force for law enforcement purposes, human rights defenders, and individuals seeking to assert their rights on the lawful and responsible design, production, procurement, testing, training, transfer, and use of less-lethal weapons and related equipment.

This draft document aims to build upon, the United Nations (UN) Code of Conduct for Law Enforcement Officials and the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials.

SERI welcomes and concurs with the broad aims of the draft Guidelines in the following aspects: 

  • FeesMustFall2To ensure accountability for the design, production, testing, transfer, deployment and use of such weapons. 
  • That there are risks of harm, including serious or even fatal injuries, where Less Lethal Weapons (LLWs) “are not used in accordance with specifications, general principles on the use of force, and fundamental human rights”; and 
  • That the intention of the Guidelinesis to promote amongst a wide range of users of LLWs “accountability for the design, production, testing, transfer, deployment and use of such weapons”
  • That in the conduct of law enforcement operations, the duty of law enforcement agencies is to “facilitate” and protect the right of peaceful assembly. 
  • That the Guidelines has included a strong iteration of the general principles on the use of force by law enforcement officials, involving legality, necessity, proportionality, non-discrimination and the principle of pre-caution
  • That the Guidelines have provided indicators for steps to entrench the accountability of law enforcement officials for “any decision to use force”, with the steps required including: 

In SERI’s experience the failure by the authorities to ensure that the above accountability measures are implemented systematically or at all, including at the level of internal post-operation reviews and lesson-learning, leaves victims of the unlawful use of force further traumatised and potentially discouraged from exercising their rights.

  • Read SERI's submission here
  • Read the draft set of guidline here.

Justice Yakoob Sanitation

Chair of SERI’s Board and former Justice of the Constitutional Court, Zak Yacoob, recently spoke about the rights of people with disabilities in an interview for an upcoming short documentary on sanitation for women and children with disabilities in informal settlements. SERI is producing the documentary together with Two Spinning Wheels Film Production and Pegasys Institute.

The Constitution guarantees the right to water and sanitation for everyone. These rights cannot only be enjoyed by the wealthy, able-bodied and people living in formal settlements to the exclusion of low-income households, people living with disabilities and those in informal settlements. The Constitution states, “[e]veryone is equal before the law and has the right to equal protection and benefit of the law. Equality includes the full and equal enjoyment of all rights and freedoms." 

Unfortunately, people with disabilities continue to face numerous challenges to accessing sanitation in informal settlements, including relying on shared toilets and chemical latrines, crawling to inaccessible sanitation facilities, inaccessible hand-washing facilities at toilets, the use of alternatives such as the bucket system to avoid travelling to distant sanitation facilities during unsafe hours, and physical violence while trying to access facilities outside the home.

Government departments and state bodies have a responsibility to ensure that people with disabilities are able to access the same fundamental rights and responsibilities as any other person. 

Watch Slovo Park’s Lydia Lenyatsa speak about the sanitation challenges faced by women with disabilities living in informal settlements here.  

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Between 10 and 14 September 2018, the Socio-Economic Rights Institute of South Africa (SERI) partnered with City University of London and the Bertha Foundation to host an advocacy workshop in Johannesburg. The workshop was attended by 26 delegates from a range of public interest legal services organisations, including Legal Aid South Africa, SERI, Legal Resources Centre (LRC), Lawyers for Human Rights (LHR), the Southern African Litigation Centre (SALC), the Centre for Applied Legal Studies (CALS), the Right2Know Campaign, and Cliffe Dekker Hofmeyr's Legal Pro Bono Department. A number of advocates from the Johannesburg Bar also attended the workshop.  

The four-day workshop was aimed at equipping candidate attorneys, attorneys, and junior advocates working in public interest legal services organisations with practical experience in litigation and advocacy, with a particular focus on witness handling (leadng evidence and cross-examining witnesses), trial skills and bail proceedings. The workshop began with two days of lectures, practical demonstrations and practice sessions focusing on key skills development, and concluded with two mock trials.

Delegates recieved instruction from Stuart Wilson (SERI's executive director and advocate at the Johannesburg Bar), Gcina Malindi SC (senior counsel at the South African Bar), Anna-Marie de Vos SC (senior councel at the South African Bar), Nikki Walsh, Stuart Lindsay, Simone Start (all senior lecturers at City University Law School's Bar Professional Training Course) and Brian Richardson (a practitioner atNexus Chambers at the London Bar, who focuses on racial equality and criminal defence cases).

The workshop is a unique and critically important practical skills programme that supplies South African public interest legal practitioners with essential courtroom skills to enable them to provide better legal representation to the very poor and vulnerable people they work with accross a wide range of different human rights work. In this way, SERI, the Bertha Foundation and City, University of London hope to contribute to the development and strengthening of well-trained, professional advocates working on public interest law.

SERI would like to thank our partners, City, University of London and the Bertha Foundation, for their support, practical assistance and the development of a professional and challenging curriculum; and the trainers for their high-quality teaching. 

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On Wednesday, a full bench of the Johannesburg High Court held that repossessed homes may no longer be sold at auction without reserve prices.

The case deals with process that a bank is required to follow to sell a person's home in execution. A sale in execution or bank repossession takes place when a debtor is unable to repay the monthly installments in terms of a loan they owe to a bank and the debtor’s property is sold at a public auction by the sheriff of the court to pay off the debt. Often, the property sold will be the debtor’s home. To sell a debtor’s home, a creditor or bank must approach a court to get a court order allowing it to sell the home.

In order to protect the rights of debtors, section 129(3) of the National Credit Act allows the debtor to “reinstate” a loan agreement at any time before the bank seeks to execute the loan agreement against him or her by paying their arrears and the bank’s reasonable costs occurred for enforcing the agreement. 

Since section 129(3) of the National Credit Act has taken effect, the practice in the Johannesburg High Court has been to postpone applications to have a person's home declared specifically executable for a certain period in order to enable a debtor to bring up their arrears, thereby reinstating the credit agreement and ensuring that they do not lose their home.

The question raised in this case was about whether courts have the power to postpone a money judgment against a debtor for determination simultaneously with the application for leave to execute against the debtor’s home. A question that is linked to this is whether, if courts do not have this power, the execution of a money judgment precludes a debtor from reinstating the mortgage loan agreement in terms of section 129(3) of the National Credit Act.

SERI was invited by the Johannesburg High Court to make a submission as an amicus curiae (friend of the court) in the case. SERI argued that courts have the power to postpone money judgments and even have the power to refuse money orders in cases where the banks have established a contractual right to it. If the courts did not have this power, the purposes of section 129(3) and the possibility of reinstatement would be circumvented. SERI also argues that allowing a bank to claim a money judgment would preclude a debtor from reinstating the mortgage agreement, which would effectively mean that banks can circumvent section 129(3) of the National Credit Act. 

On 12 September 2018, a full bench of the Johannesburg High Court held consistently with SERI’s submissions, that the application for the money judgment should always be postponed for determination together with the application for leave to execute. The Court further held that a reserve price should, save in exceptional circumstances, always be set. This means that repossessed homes may no longer be sold at auction without reserve prices.

  • Read more about the case and access court papers here
  • Read SERI's guide on preventing or opposing a sale in execution here.

Earlier this month, a coalition of civil society organisations called South Africa’s Ratification Campaign of the International Covenant on Economic, Social and Cultural Rights (ICESCR) and its Optional Protocol (the Campaign) submitted a report on the South African government's progress in realising socio-economic rights to the United Nations Committee on Economic, Social and Cultural Rights (the Committee), the international treaty body responsible for monitoring the implementation of socio-economic rights by states. The Campaign's parallel report provides a civil society perspective on the realisation of socio-economic rights in South Africa, and raises questions about the state’s record in fulfilling these rights in order to promote greater accountability. It also reports on the compliance status of the South African government with regard to the ICESCR. 

The Campaign's report responds to, and challenges some components of, the South African government's initial periodic report on the implementation of socio-economic rights, which was submitted to the Committee in April 2017. In its report, the South African government emphasised South Africa's progressive Constitution that includes socio-economic rights such as the right to social security, right to access to adequate housing, health and education. 

The Campaign's report notes that actions to address the binding constraints to socio-economic rights realisation are increasingly urgent in the South African context of severe poverty and inequality. For this reason, the Campaign identifies the need for the state to address forced evictions and displacement; to assess the causes of under-expenditure on informal settlement upgrading; to address a lack of investment in infrastructure maintenance and services provision, and the urgent need to address intergovernmental cooperation issues that impacted severely in the management of the drought in the Western Cape. In its parallel report, the Campaign makes clear recommendations with respect to:

  • food security; 
  • access to remedies; 
  • adequate housing; 
  • water and sanitation; 
  • health and 
  • social grants. 

The Campaign's report is due for consideration by the Committee on 1-3 October 2018, during the Committee's 64th session.   The Campaign’s Steering Group is comprised of the Socio-Economic Rights Institute of South Africa (SERI), Black Sash, the Dullah Omar Institute (DOI), the People’s Health Movement South Africa (PHM-SA), and the Studies in Poverty and Inequality Institute (SPII), and also draws on expert inputs from the Institute for Poverty, Land and Agrarian Studies (PLAAS) at the University of the Western Cape, and Prof Lilian Chenwi and Prof Jackie Dugard at the University of the Witwatersrand.

  • Read the Coalition's full press statement here.
  • Download the full parallel report here.
  • Download more information about the Committee’s 64th session (24 September – 12 October 2018) here.

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