SERI has today filed an application for special leave to appeal to the Supreme Court of Appeal in Rhodes.

SERI acted for students and intervening staff last year in an application to discharge a wide-ranging interim interdict, which had effectively banned campus-based protest at Rhodes University.The High Court dismissed Rhodes' application for the interdict on 1 December 2016.

A narrower interdict was, however, granted against three of SERI's clients. The interdict was granted on the basis of disputed facts or abandoned factual allegations, and substantially for the reason that, in the judge's view, SERI's clients had associated themselves with allegedly unlawful conduct committed by groups of other protestors. No particular acts of association were identified, however, other than the fact that SERI's clients played “a leadership role” in the protest.

Those aspects of the judgment create the spectre of individual protestors being held liable for the acts of other members of a group, is at odds with previous Constitutional Court decisions, and will have a chilling effect on the exercise of the right to protest.

The High Court refused leave to appeal. SERI has approached the SCA for special leave to appeal as a result.

  • Read the notice of motion in the SCA here, and the founding affidavit here.
  • Read more about the case here.

SERI extends its warmest congratulations to Ofentse Motlhasedi, who joined the organisation in January 2016 as a litigation fellow, and has today been admitted as an advocate of the High Court.

Ofentse

On behalf of the residents of Ingelosi House in Berea (52 men and women, who live together with their 32 children) SERI has filed heads of argument in an appeal against a decision of Victor J in the High Court. The appeal, which has been set down for a hearing in the Gauteng Local Division of the High Court for 10 May 2017, is against the decision of Victor J which granted an eviction against the residents.

Though some of the residents appeared in person in court before Victor J, they were not legally represented, nor were they aware of their rights in terms of the the Constitution and the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE). The residents now argue that Victor J failed to follow mandatory legal requirements set out in legislation and comprehensively interpreted in judgments of the Supreme Court of Appeal and the Constitutional Court.

Victor J, the residents argue, was obliged to proactively determine their circumstances fully and conclude whether, in all of the relevant circumstances, granting an eviction order would be just and equitable. This she failed to do. These rights, the residents argue, are not capable of being waived by unrepresented litigants such as themselves. In addition, Victor J failed to ensure that the City of Johannesburg was joined in the proceedings, a mandatory requirement in the context of eviction proceedings which may well result in the homelessness of occupiers in the residents' position.

On appeal, the residents are therefore seeking an order setting aside Victor J's eviction order, joining the City of Johannesburg to the proceedings and remitting the matter to the court a quo for a determination of whether, in all the relevant circumstances, an eviction order in terms of PIE is just and equitable. 

  • Read the residents' full heads of argument and practice note here and here.
  • Find more information about the case here.

 

SERI represents the United Nations Special Rapporteur on the rights to freedom of peaceful assembly and of association in Mlungwana and Others v The State and Others.

The Special Rapporteur has been admitted as amicus curiae in an appeal against the judgment of a magistrates’ court. The matter arises as a result of a protest by members and supporters of the Social Justice Coalition outside the offices of the 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.

The matter is currently before the Western Cape High Court. The question before the court is whether section 12(1)(a) is unconstitutional for criminalizing conveners of an assembly of over 15 people if prior notice was not provided.

In written submissions, SERI provides an international law perspective and urges the court to have regard to international law, standards and principles when considering the constitutionality of section 12(1)(a).  SERI argues that holding organisers criminally liable for not providing notification or an inadequate notification is a restriction to the right to freedom of peaceful assembly, which then must conform to international law, standards and principles.

  • Read more about the case, and full submissions, here.

 

SERI researcher Dennis Webster will take part in a GCRO symposium today on "taking the streets seriously". He will discuss SERI's work with informal street traders, and consider what mechanisms are available to local governments to secure basic rights at work and better access to the economy for street traders.

  • Download the full programme here.
  • Read SERI's informal trade research here, and a newly released resource guide for street traders here.

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