Last week, SERI made a submission to The Portfolio Committee on Justice and Correctional Services on the Land Court Bill. The Bill seeks to provide for the establishment of a Land Court and a Land Court of Appeal; to make provision for the administration and judicial functions of the Land Court and Land Court of Appeal; to provide for the exclusive jurisdiction of the Land Courts and to amend certain laws relating to the adjudication of land matters by other courts. In brief, the Bill is primarily concerned with establishing the legal basis for the Land Courts as functioning institutions. SERI considered the Bill and made this submission to The Portfolio Committee on Justice and Correctional Services in accordance with the invitation to submit written comments.
SERI’s submission highlighted a number of concerns with the Bill. They include:
The submission provides specific recommendations for each concern including: that the wealth of progressive jurisprudence in respect of housing and eviction law is taken on board and explicitly acknowledged in the Bill; that the status of the Judges and the Rules of the Land Court be clarified; that a clear transition process is outlined for new cases should the Land Court come into effect; that our significant concerns with the expertise and outlook of Legal Aid South Africa be addressed; and that the Land Court be established as a court of appeal rather than as a court of first instance.
Overall, SERI is concerned that the Bill in its current state is not perfectly suited to preside over the myriad cases that are currently before the various courts. We therefore recommend that it be amended in line with this submission.
Read the full submission here.
The trial relating to the deaths of three mineworkers (Mr. Semi Jokanisi, Mr. Thembelakhe Mati and Mr. Pumzile Sokanyile) and two officers (Warrant Officer Tsietsi Hendrik Monene, and Warrant Officer Sello Ronnie Lepaauku) resumed on 26 July 2021. The trial relating to the death of Mr. Motiso Otsile van Wyk Sagalala was concluded on 29 March 2021.
Between 13 and 16 August 2012, 37 mineworkers were shot while protesting to demand a living wage and better working conditions in Marikana. Three of the striking miners and two police officers died in an incident at Marikana on August 13, 2012. The Independent Police Investigative Directorate's (IPID) investigation determined that all of these deaths were caused by police actions. The completed dockets were forwarded to the National Prosecuting Authority (NPA) on 24 April 2017. A total of nine police officers have been charged by the NPA.
Trial relating to the circumstances around the death of Mr. Sagalala on 16 August 2012
Mr. Motiso Otsile van Wyk Sagalala is one of the 34 mineworkers who was allegedly injured at ‘scene 2’ and later died. SAPS testified at the Marikana Commission of Inquiry that Mr. Sagalala had died at the Andrew Saffie hospital.
A photo album discovered as part of the IPID investigation contained images of a dead miner in the back of a police truck that had been used to transport miners from Scene 1 and Scene 2, to a police detention facility on 16 August 2012. IPID identified Mr. Sagalala as the deceased person depicted in the photos. Their investigation determined that Mr. Sagalala had been transported from the detention centre, where the photos of his body were taken, to the government mortuary at Andrew Saffie Hospital.
The IPID investigation revealed that, firstly, Mr. Sagalala died inside the police truck at the detention centre; secondly, that SAPS failed to report the death to IPID as required under the IPID Act; and finally, that SAPS lied to the Commission in testifying that Mr. Sagalala died at a hospital.
In the case relating to the death of Mr. Sagalala, then-North West Deputy Police Commissioner Major-General William Mpembe, along with Gideon van Zyl, Dingaan Madoda and Oupa Pule were the four officers charged with defeating the ends of justice, contravening Section (29)(1) of the IPID Act for failure to report a death in police custody to IPID and contravening Section 6(2) of the Commission Act for lying to the Marikana Commission of Inquiry under oath.
On 29 March 2021, the four officers were acquitted of all three charges. Judge Ronald Hendricks ruled that the state had failed to prove the guilt of the accused officers beyond any reasonable doubt.
SERI executive director Nomzamo Zondo, who attended the trial alongside the families of the mineworkers said that “The families of the deceased Marikana miners are very disappointed with the outcome of the criminal prosecution of the police alleged to have concealed the circumstances around the death of Sagalala. What we know is that Sagalala did not die in hospital, there are no records of showing who brought him to the hospital and we know in the commission of the inquiry the SAPS did not disclose that he died in police [custody]; now we are told that a probable 30 police officers were aware of this.”
Trial relating to the deaths on 13 August 2012
On 10 May 2021, the criminal trial commenced for the murders of three mineworkers, Mr. Semi Jokanisi, Mr. Thembelakhe Mati and Mr. Pumzile Sokanyile, and two officers, Warrant Officer Tsietsi Hendrik Monene, and Warrant Officer Sello Ronnie Lepaauku. The three mineworkers and two police officers were killed as a result of a clash that occurred on 13 August 2012.
On 13 August 2012, a few days into the strike, a group of mineworkers marched from Karee shaft towards the K4 shaft of the Lonmin mine in an effort to convince other miners to join the strike and to refrain from working. The mineworkers turned back to head back to the koppie in Wonderkop, before reaching the shaft. On their way back to the koppie, the mineworkers were intercepted by the police. Police, led by then-North West Deputy Police Commissioner Major-General William Mpembe attempted to negotiate with the mineworkers, seeking to disarm them of their traditional weapons. The mineworkers expressed their desire to rejoin the rest of their peers who were at the koppie peacefully protesting and the police allowed them to continue marching without any attempts to stop them.
During the exchange between the police and the mineworkers, the police suddenly refused to continue with negotiations. The mineworkers continued with their march peacefully, moving away, however, without warning or cause a tear gas canister was set off, shortly followed by stun grenades which led to panic and commotion. Mineworkers Mr. Jokanisi, Mr. Mati and Mr. Sokanyile, and two officers, Warrant Officer Tsietsi Hendrik Monene, and Warrant Officer Sello Ronnie Lepaauku were murdered in the course of the conflict which ensued between the police and mineworkers on-site as a result of the sudden and unwarranted use of tear gas, stun grenades and rubber bullets against the mineworkers who were peaceful at the time.
Regarding the murder of Mr. Sokanyile, William Mpembe is charged, along with retired Colonel Salmon Johannes Vermaak and police officers Constable Nkosana Mguye, Warrant Officer Masilo Mogale, Warrant Officer Katlego Joseph Sekgweleya, and Khazamola Phillip Makhubela. Mr. Sokanyile died as a result of being shot in the head after allegedly being pursued by the police.
William Mpembe is the only officer charged with all the murders largely for giving the instruction to fire the teargas, stun grenades, and rubber bullets which led to the chaos that resulted in these deaths. He is also charged with the attempted murders of six surviving mineworkers and one police officer. Mpembe is charged in his capacity as head of operations during the events of 13 August 2012.
The criminal trial was heard over the course of three weeks and after a postponement, the trial resumed on 26 July 2021.
In the aftermath of the recent unrest and the looting in various industries, loss of life and racial tensions in parts of Gauteng and KwaZulu Natal, the response by the South African authorities to conduct indiscriminate warrantless searches has violated the guaranteed Constitutional rights to privacy and human dignity.
The violence and looting have had dire consequences on both the rule of law and on human life and livelihoods, compounding the effects of the current pandemic. SERI finds it unjustifiable that in a constitutional democracy, based on human dignity and equality, the state has responded in a manner that is reminiscent of the apartheid regime. The warrantless searches declared by the Minister of Police, Mr Bheki Cele, who has sworn to protect and uphold the Constitution, show the extent to which the South African government is willing to criminalise poverty.
The Constitutional Court has on numerous occasions taken a dim view on warrantless searches which infringe the guaranteed right to privacy and human dignity. The Constitutional Court has found that the state will be “hard pressed” to show that warrantless searches conducted in the course of a criminal investigation are constitutionally valid. In the recent case of Residents of Industry House, the Johannesburg High Court found that the SAPS Act, which allowed warrantless searches, is unconstitutional as it infringes the right to privacy and human dignity.
SERI is concerned that the state is ignoring the socio-economic conditions of vulnerable members of South African society. The response has largely focused on the quantification of the loss to the economy while little attention is being paid to the informal economy which will battle to recover from the unrest.
The rule of law requires the state to consistently act within their constitutional obligations despite the circumstances. SERI urges law enforcement to cease these warrantless raids as they unjustifiably infringe the right to privacy and human dignity.
On Tuesday, 27 July 2021, SERI will be launching the recently launched book by former SERI executive director, Stuart Wilson, entitled "Human Rights and The Transformation of Property". The book shows how constitutional challenges to the idea of ownership can keep the promise of a South Africa that belongs to all who live in it.
The online launch will consist of a book review presentation by Adv Tembeka Ngcukaitobi SC followed by a facilitated conversation by Ms Koketso Moeti between the author, Adv Stuart Wilson, Prof Sandra Liebenberg and Mr Lerato Marole.