On 21 August 2018, the United Nations Special Rapporteur on the rights to freedom of peaceful assembly and of association, represented by SERI, presented written and oral submissions as amicus curiae in the Constitutional Court, in a matter to determine whether section 12(1)(a) of the Regulation of Gatherings Act (the Gatherings Act) unjustifiably infringes the constitutional right to peaceful assembly.
The case arose after a small group of community-based activists and members of the Social Justice Coalition (SJC) participated in a peaceful protest outside the Mayor of the City of Cape Town’s offices in Cape Town on 11 September 2013. During the protest, the protestors chained themselves to the railings of the City’s civic centre. Twenty one protesters were arrested and charged under section 12(1)(a) of the Gathering's Act for unlawfully and intentionally convening a gathering without notifying the municipality that the gathering would take place. During the criminal proceedings that followed in the Magistrates’ Court, the accused protestors were held to have convened the protest and found guilty of the charges laid against them.
The protestors appealed to the Cape Town High Court, where they asked the court to declare section 12(1)(a) of the Gathering Act unconstitutional. The protestors argue that criminalising the conveners of a protest simply because they did not notify the relevant authorities that they intended to protest unjustifiably infringes the constitutional right to peacefully assemble. The UN Special Rapporteur was admitted as an amicus curiae in the High Court and made oral and written submissions. The High Court declared section 12(1)(a) of the Gatherings Act unconstitutional. In declaring this provision unconstitutional, judge Thandazwa Ndita said that a criminal sanction was "disproportionate to the offence" as it may result in people "carry[ing] with them the stigma" of a criminal conviction. Instead, judge Ndita suggested that civil liability may be a more appropriate penalty for failing to notify the municipality of an intended protest.
In the Constitutional Court, during an application brought by the protestors and the SJC to have the High Court's order of invalidity confirmed, the UN Special Rapporteur once again made oral submissions. The UN Special Rapporteur's submission was based on 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) of the Gatherings Act. The UN Special Rapporteur argued that holding organisers criminally liable for failing to notify authorities about a protest is a restriction to the right to freedom of peaceful assembly. The Spcial Rapporteur also argued that the number of demonstrators – which is set at 16 – as the only factor for when notice must be provided, is arbitrary and not proportionate. Judgment in the case was reserved.
On 19 August 2018, SERI's executive director, Stuart Wilson, appeared on SABC News to discuss the "acute housing crisis" that the City of Johannesburg is facing and dispel myths about the unlawful occupation of abandoned buildings.
Wilson criticised the use of the word 'hijacked buildings', by stating that:
"[I]t is an extremely inappropriate way of criminalising desperately poor people who occupy buildings that have been left completely fallow by their former owners and have nowhere else to go. Buildings are not hijacked like planes or cars, they're often abandoned by their owners. We know in the late 1990s and the early 2000s many companies were liquidated, people emigrated from South Africa, and a lot of proprietary value of the inner-city of Johannesburg was abandoned; and there was a pressure on housing in Johannebsurg as influx controls were lifted and 80% of South Africa's population, which under apartheid had been consigned to 20% of the land, moved into urban South Africa... Any abandoned buildings were immediately occupied by poor people who have nowhere else to go."
Describing unlawfully occupied buildings in this way "plays into the City of Johannesburg's efforts to paint [desperately poor] people as criminals, and not as people who the City and the state generally has failed". Wilson noted that:
"The real problem we're facing is that there are at least 60,000 people in inner-city Johannesburg who are completely unable to afford to rent on the private market and there's absolutely no plan or solution fo their housing needs."
On Thursday, SERI attorney Zamantungwa Khumalo joined SABC’s #FULLVIEW to provide an update on the progress made in obtaining compensation for the families of the Marikana Massacre victims. Between 9 and 16 August 2012, 37 mineworkers were shot while protesting to demand a living wage and better working conditions in Marikana. In total, 44 people were killed, 94 were wounded (78 on the 16th), and 275 miners were arrested in a week of violence.
SERI represents 36 mineworkers’ families and has reached a settlement with the state regarding loss of support on behalf of the families. Khumalo clarifies that there are yet two outstanding claims relating to general damages and constitutional damages. Khumalo reminds us that “we can never quantify the damage that this massacre has caused the families” and further makes a call for the President and the Minister of Police to humble themselves and offer an apology to the families for the massacre.
Watch the full interview here.
On 2 August 2018, the Socio-Economic Rights Institute of South Africa (SERI) was invited to participate in a briefing session on the City of Johannesburg’s proposed Inclusionary Housing Policy at the City Council Chamber building in Johannesburg. The MMC of Development Planning, Counsellor Reuben Masango, and the City Transformation and Spatial Planning team developing the policy invited all parties who had submitted written comments on the draft policy to review the submitted comments, review the updated draft policy, and discuss the way forward.
The City had received 57 submissions commenting on the draft Inclusionary Housing Policy from property developers, academics, residents, government departments, and non-profit organisations (including SERI). Under the new policy, any new development with 20 or more units would be subject to the inclusionary housing requirement, however, that requirement could be met by ensuring that:
SERI's submission on the first draft of the City's policy welcomed the spirit of the policy for attempting to address the acute lack of rental housing that caters for poor and low-income households in the City in a manner that promotes spatial justice. However, the updated draft policy has lost that spirit and will likely fall short of addressing the lack of affordable housing for the approximately 49% of inner-city households in Johannesburg, who according the 2011 Census, earn below R3,200 a month.
On the eve of the 6th anniversary of the Marikana massacre, the Daily Maverick published an op-ed by SERI's director of litigation, Nomzamo Zondo, and SERI's senior researcher, Maanda Makwarela, which looks at the legacy of the Marikana massacre and urges the South African government to hold those responsible for the massacre accountable to prevent similar atrocities.
Zondo and Makwarela write that:
"There must be justice for Marikana. The families of the victims deserve no less than a full accounting of the events of 16 August. To ensure the events of Marikana are never repeated, SAPS and the individual role players involved must fully accept responsibility or be held accountable for the lives they took."