The World Comparative Law Journal (Zeitschrift Verfassung und Recht in Übersee; VRÜ) recently published an article by Wits Professor Jackie Dugard, SERI co-founder and board member. In the article, she reflects on SERI’s model of strategic litigation as a tool to advance equality in South Africa. She describes the model as:
“a distinctively responsive and integrated model…informed by research and advocacy, as well as through relationships built with socio-economically excluded individuals and communities, social movements… and other non-governmental organisations.”
In the article Dugard looks back on SERI’s 10 years of strategic litigation, with a focus on the impact made by cases that SERI has taken up over the years to advance the right to protest under the ‘Expanding Political Space’ thematic area and the right to adequate housing under the ‘Securing a Home’ as means of promoting equality. She argues that:
“SERI’s model of strategic litigation does not measure success or failure in terms of wins or losses in court. Rather, SERI’s model is based on an understanding of the strategic role that the law can play in opening up spaces in which subordinate groups can organise and mobilise for social change.”
On 5 November 2019, SERI attorney Khululiwe Bhengu presented at the French Institute of South Africa (IFAS)’s conference entitled, “Reclaiming Waste: Exploring Social and Environmental Challenges”. The international conference was held over two days (5-6 November 2019) in Braamfontein, Johannesburg and was attended by approximately 40 people, including reclaimers (often referred to as informal recyclers or waste pickers) from the African Reclaimers Organisation (ARO), social scientists, activists and government officials.
The purpose of the conference was to explore the overlap between the waste crisis and the social struggle of South Africa’s reclaimers, how to handle the millions of tonnes of waste produced by urban dwellers and at the same time ensure that reclaimers receive the recognition they deserve. In her presentation, Khululiwe outlined the statutory and legal framework that regulates reclaimers and the rights they are afforded in the Constitution. Over the two day conference, topics such as reclaimers in urban spaces, resistance, alternatives to waste management and decolonising recycling were explored.
The 9th Annual Public Interest Law Gathering (PILG) was hosted at the University of the Witwatersrand on Thursday, 31 October and Friday, 1 November 2019. Each year PILG brings together public interest litigation organisations and practitioners, legal academics, social movement leaders and students in an effort to deepen discussion and encourage collaboration amongst human rights and public interest litigation organisations. The theme for PILG 2019 was “Women in Leadership Transforming the Public Interest Law Sector”. The keynote speakers were Professor Pumla Gqola (Fort Hare University), Nicolette Naylor (Ford Foundation), who spoke on the first day and Professor Nomboniso Gasa (University of Cape Town) who spoke on the second day.
Professor Gqola gave the opening keynote address in which she discussed some of the tensions that feminism and social justice movements on the Left have to grapple with. These included the enduring nature of institutions, the increasing onslaught on solidarity in the fight against sexual harassment and rape and the dangers that cancel culture pose for building solidarity across movements.
SERI senior attorney Zamantungwa Khumalo and SERI researcher Kelebogile Khunou spoke on a panel on ‘(In)access to land and housing: A focus on gender and sexual orientation’ hosted on the first day of the gathering. They were joined by Thiyane Duda (Land and Accountability Research Centre) and Musa Gwebani (Social Justice Coalition) and the panel was chaired by Ndifuna Ukwazi’s Mandisa Shandu and Maxine Bezuidenhout.
Kelebogile Khunou’s presentation reflected on the negative impact that a lack of access to affordable, well‑located housing has on domestic workers. She argued that while some domestic workers choose to ‘live out’, often at a significant cost of transport to and from work, many domestic workers who cannot afford that cost are forced to ‘live in’ at their places of employment. This form of accommodation is usually substandard, very small and controlled by rules that are often discriminatory and paternalistic. Khunou argued that the lack of affordable and well‑located housing leaves these domestic workers vulnerable to very particular forms of abuse and mistreatment.
SERI also hosted a panel on ‘Domestic Workers Realising their Rights’ on which the speakers included Wits Professor Shireen Ally, Eunice Dhladhla (South African Domestic Service and Allied Workers Union), Maggie Mthombeni (Izwi Domestic Workers Alliance) and Amanda Duma (SERI). The panel was chaired by Kelebogile Khunou.
Professor Ally’s presentation historicised and contextualised the struggle of domestic workers in South Africa dating back to the period of slavery in the Cape. Ally also pointed to the need for the struggle for domestic workers' rights to seek solutions and rely on strategies that do not depend on the role of the state in mediating the relationship between domestic workers and their employers. Eunice Dhladhla reflected on the history of SADSAWU and the work that they have done to organise domestic workers and mediate disputes between domestic workers and employers.
Maggie Mthombeni discussed some of the main challenges that domestic workers continue to face, particularly in light of the uneven power dynamics that negatively affect their ability to effectively communicate and negotiate the terms of their employment. She also reflected on Izwi’s progress to better organise domestic workers through the use of neighbourhood groups, and the use of WhatsApp as an information-sharing platform that also assists with breaking the isolation experienced by domestic workers.
Amanda Duma discussed the Mahlangu case in which SERI represents Sylvia Mahlangu, the surviving daughter of a domestic worker, Maria Mahlangu who died at her employer’s home during the course of her employment. Sylvia Mahlangu and SADSAWU successfully challenged the constitutionality of section 1 (xix)(v) of the Compensation for Occupational Injuries and Diseases Act 130 of 1993 (COIDA) which excludes domestic workers from protection. Duma also discussed the significance of ruling on the retrospective application of invalidity, allowing Sylvia to claim for relief.
WHAT: On Wednesday, 6 November 2019, the South African Domestic Service and Allied Workers Union (SADSAWU) and Sylvia Mahlangu filed an application in the Constitutional Court to confirm the unconstitutionality of the exclusion of domestic workers from the Compensation for Occupational Injuries and Diseases Act 130 of 1993 (COIDA).
SERI represents Sylvia Mahlangu, the surviving daughter of a domestic worker, Maria Mahlangu, and SADSAWU in a challenge against the constitutionality of section 1 of COIDA. Maria died at her employer’s home during the course of her employment. Under the Compensation for Occupational Injuries and Diseases Act (COIDA), her daughter was precluded from claiming from the Compensation Fund which compensates employees, or their survivors, for work-related injuries, illnesses or death.
On 23 May 2019, the North Gauteng High Court handed down an order declaring the exclusion of domestic workers from COIDA as unconstitutional. The Court, in October 2019, further ruled that the declaration of invalidity must be applied retrospectively to provide relief to other domestic workers who were injured or died at work prior to the granting of the order. SERI, on behalf of Ms Sylvia Mahlangu and SADSAWU, is now approaching the Constitutional Court to confirm these two orders.
SADSAWU, Ms Sylvia Mahlangu and SERI will address members of the media on the negative impact of the exclusion of domestic workers from COIDA and the importance of a retrospective application of the declaration of invalidity.
WHEN: Thursday, 7 November 2019 at 10:00 to 11:30.
WHERE: SERI Conference Room, 6th floor Aspern House, 54 De Korte Street, Braamfontein, Johannesburg.
WHO: Sylvia Mahlangu (main applicant), Thulani Nkosi (SERI senior attorney), Eunice Dhladhla (SADSAWU organiser) and Pinky Mashiane (former SADSAWU organiser).
ADDITIONAL INFORMATION: Read more about the case and access the court papers: https://bit.ly/2JPrAh4.
On Wednesday, 23 October 2019, SERI’s Lauren Royston presented at an Urban Land Reform Seminar focused on engaging with the report of the Presidential Advisory Panel on Land Reform. Royston was joined by Bulelwa Mabasa (Werksmans Attorneys and the Expert Advisory Panel on Land Reform and Agriculture), Prof Ruth Hall (PLAAS), and Prof Marie Huchzermeyer (SoAP and CUBES).
The speakers focused on the question of urban land reform within the context of the Final Report by the Expert Advisory Panel and on the broader questions surrounding urban land reform. Royston stressed that the meaning of section 25(5) of the constitution has yet to be interpreted judicially and that a land redistribution law would be required to give effect to this section in both urban and rural contexts. She further discussed recommendations on urban land redistribution and tenure reform contained in two forthcoming papers, and the importance of not pathologising or criminalising “off-register” use of land, but rather thinking beyond the individual register title framework to allow for tenure diversity and tenures security on a continuum.
The seminar was hosted by the South African Research Chair on Spatial Analysis and City Planning, the Center for Urban and Built Environment Studies (CUBES) at Wits University.