A Commonwealth Lawyers Association (CLA) mission has found that the arrest and detention of Zimbabwean attorney Beatrice Mtetwa breached the rule of law. The CLA’s final report on the trial observation mission undertaken to monitor the trial of the Zimbabwean human rights lawyer was released on 24 February 2014. The mission was conducted between March and November 2013 by a trial observer team comprising staff at the Socio-Economic Rights Institute of SA (SERI).
Ms Mtetwa was arrested in Harare on 17 March 2013 for “obstructing the course of justice” while assisting her client, a senior legal adviser to Morgan Tsvangirai, the former Prime Minister of Zimbabwe. On 26 November 2013, she was acquitted and discharged at the end of the state’s case, the presiding Magistrate finding that she had no case to answer. While finding that Ms Mtetwa’s trial was substantially fair, the CLA report expressed grave concern that Ms Mtetwa’s arrest, detention and trial were allowed to happen in the first place. It was, says the report, evident that nothing Ms Mtetwa was alleged to have done was capable of “obstructing justice”. Instead, her arrest and subsequent detention were clearly an attempt to harass and intimidate her; to punish her for asserting her client’s rights.
SERI has taken note of the Constitutional Court’s decision in Kubyana v Standard Bank, handed down on 20 February 2014. SERI respects the decision of the Court. However, we remain concerned that the decision may not do enough to protect distressed consumers who have fallen into arrears on their credit agreements and who are genuinely in need of debt counselling and other alternative dispute resolution mechanisms. These options are a debtor’s last hope of consensually resolving disputes which may result in money judgments being taken against them, perhaps leading to the loss of a home, or other property vital to their well-being.
SERI considers that it is credit providers – who are as a rule extremely well-resourced – that are best placed to ensure that every reasonable effort is made to inform a distressed consumer of his or her options, and the rights flowing from them. Distressed consumers should not be required to say why they did not know of rights that were never explained to them. More than anything else, those in distress - whether economic, social or personal - deserve to be treated with dignity, sympathy and respect in the credit agreement enforcement process.
SERI has launched an application on behalf of approximately 7 000 people (3 709 households) living at the Slovo Park informal settlement in Johannesburg. The settlement lacks access to formal services and housing, which the residents have been promised for almost 20 years.
In the application to the High Court the residents argue that the City of Johannesburg's failure to take a decision to apply to the Gauteng Provincial Government for funding to upgrade Slovo Park in terms of the Upgrading of Informal Settlements Programme (UISP) - contained in the 2009 National Housing Code - is in breach of the constitutional principle of legality, as well as sections 26(2), 151(1)(a) and 153(a) of the Constitution. The failure to take a decision is also administrative action, and falls to be reviewed in terms of section 6(2)(g) of the Promotion of Administrative Justice Act 3 of 2000 (PAJA).
The residents therefore seek to review the City's failure to take the decision to apply in terms of the UISP, and to compel it to make such an application.
On 13 January 2014 the Constitutional Court admitted Abahlali baseMjondolo as amicus curiae in an appeal to be heard on 12 February 2014. On 23 January, Abahlali filed its written submissions in the case, which concerns the constitutional validity of an order granted to the KwaZulu-Natal MEC for Human Settlements and Public Works on 28 March 2013. The order permits and obliges eThekwini Municipality to “prevent any persons from invading and/or occupying and/or undertaking the construction of any structures” on specified land within the municipality’s area of jurisdiction, and to “remove any materials placed by any persons upon” that land. Abahlali has thousands of members with an interest in any case dealing with the validity of the MEC order.
On 21 January, SERI’s executive director, Stuart Wilson, wrote an op-ed that was published in the Daily Maverick. The op-ed comes in response to a recent article by Stephen Grootes, a radio talk show host and political correspondent for EyeWitness News, on what Grootes terms a “culture of entitlement” in South Africa. In rebuffing Grootes’ claims, the article explores the advantages of the welfare state from a comparative perspective and the pervasive lack of opportunities for socially excluded and marginalised households in South Africa.