Between October and November 2020, the Socio-Economic Rights Institute in partnership with the Mail & Guardian launched its "Claiming Water Rights in South Africa" research series through its Water Rights Webinar Series. The research series forms part of the global #ClaimYourWaterRights campaign initiated by End Water Poverty.

CWR Case study covers 1234Synthesis

In October, SERI launched the first two case studies from the research series as well as the synthesis report entitled, “Claiming water rights in South Africa”. The case studies, entitled “Residents of Marikana informal settlement use expropriation as a tool” and “Farm dwellers fight for access to water in uMgungundlovu district municipality”, were launched on 6 and 20 October 2020, respectively. The Marikana and uMgungundlovu case studies examine the issue of municipal services delivery on privately-owned land from the perspectives of informal settlement residents and farm dwellers.

SAM 1696The case study of the Marikana informal settlement explores the Fischer case in which the City of Cape Town was ordered by the High Court to expropriate the land on which the 60,000 residents of Marikana in Philippi live, in terms of section 9(3) of the Housing Act in 2017. The case illustrates how expropriation in terms of the Housing Act can be utilised as a tool to widen access to urban land for poor people and to provide them with services where they already live. The experiences of the residents of Marikana illustrate how important it is to tackle the struggle for tenure security, services and ultimately a dignified life, using a range of mutually reinforcing strategies including community organisation, engagement, protest, self-supply and litigation.

The webinar panel included Nkosikhona Swartbooi (Social Justice Coalition), Mr Mzwanele Jokani and Innocentia Hewukile (Marikana I residents), Thulani Nkosi, SERI) and Sipho Kings (Mail & Guardian). SERI’s Thato Masiangoako facilitated the discussion.

71088610 2668560213208637 3313673010958827520 nThe uMgungundlovu case study is about the government providing water services on privately-owned land – a perspective from farms. The uMgungundlovu District Municipality is located in KwaZulu-Natal, South Africa. It comprises several local municipalities including uMsunduzi and uMshwathi, with the provincial capital Pietermaritzburg falling in uMsunduzi.  Much of the region is agricultural and home to many labour tenants and farm dwellers who are particularly vulnerable groups, owing to the long history of land dispossession and labour tenancy in the area.

SERI’s Kelebogile Khunou facilitated the panel discussion with Siyabonga Sithole (Association for Rural Advancement), Mlungisi Mncwabe (Siyanqoba Rural Transformation Forum), Simone Gray (Legal Resources Centre) and Sarah Smit (Mail & Guardian).

In November, SERI launch the final two case studies in the research series, entitled entitled "Makana local municipality – provincial intervention in a municipal crisis" and "Maluti-a-Phofung - a community doing it for themselves ". These two case studies look at water rights claiming by communities who live in municipalities that are in deep crisis and have been the subject of multiple provincial interventions.

15Jan MakandaDissovled AM 1920x1280 NewFrameOn 3 November 2020, SERI launched the third report on the water crisis in Makana’s local municipality which explores provincial intervention, which is framed as a key remedy to address municipal failure, from a legal and practical perspective and draws lessons from the Makana experience. The Makana Local Municipality is in crisis and has faced various challenges related to service delivery, administration, and finances, many of which have recurred over long periods of time.  The Eastern Cape Provincial Executive Council has intervened several times over the years in terms of section 139 of the Constitution. Amidst growing concerns that neither of these interventions had resulted in much change, community activists, led by the Unemployed People’s Movement, began to advocate for the dissolution of the municipal council and eventually turned to the Makhanda High Court. The Court confirmed that Makana Municipality was in breach of its constitutional service delivery obligations and directed the province to dissolve the Makana Municipal Council.

Panellists included Dr. Tracy Ledger (Public Affairs Research Institute), Pam Yako (Former Provincial Administrator of Makana Local Municipality), Ayanda Kota (Unemployed People’s Movement), and Athandiwe Saba (Mail & Guardian). The discussion was facilitated by Lisa Chamberlain (lead author of the research series and Wits Law School and Research Associate at the Southern Centre for Inequality Studies, Wits University).

CarteBlanche screenshot harrismith water heroes 2On 17 November 2020, SERI launched the Maluti-a-Phofung case study which reflects on the efforts of an unusual coalition of residents and community leaders in Maluti-a-Phofung – known as the Harrismith Water Heroes – who, in the face of continued poor service delivery by local government took it upon themselves to fix their town’s water infrastructure. The provision of basic services in Intabazwe, Harrismith and surrounds had deteriorated steadily over the past decade, fuelled by political in-fighting, crippling debt, and the collapse of governance and administration within Maluti-a-Phofung municipality.

SERI’s Alana Potter chaired a panel discussion including Sam Twala (Chairman, Harrismith Water Heroes), Neil MacLeod (former Head, eThekwini Water and Sanitation, eThekwini Metro), John Butterworth (Director, IRC’s Global Hub, self-supply expert) and Bongekile Macupe (Journalist, Mail & Guardian).

These are some of the key take-aways the emerged from the discussions:

  • Community resilience and agency: We witness again and again the extraordinary endurance, creativity, and resilience of communities.
  • Communities and activists employ a wide range of strategies and tactics to realise their rights including protest, litigation, local government engagement, and self-supply, each with its own costs and benefits. Various combinations and coalitions are needed at different times. It’s a long game. Self-supply has short term benefits, and although it remains controversial, it provides a fascinating lens through which to explore practical and legal implications of community agency and government regulation.
  • Strategies: Protest, self-supply, and litigation usually come after years of failed attempts to engage the state.
  • Coalition and cooperation: Rights claiming coalitions are by no means unusual. The mix of people and organisations that join forces to claim rights can be, and are, unusual. All the cases illustrate this, whether between AFRA and municipalities in uMgungundlovu, or between a farmer, community leadership, and municipal employees in Maluti and between the Grahamstown Residents Association and the Unemployed People’s Movement in Makana. 
  • Municipalities are poorly equipped as agents of service delivery, and there are clear disjuncts between political and administrative roles and functions. This, combined with corruption, is crippling.
  • Rights framework is necessary but not sufficient: Constitutional rights and state budgets and resources are desirable and necessary, but they are not sufficient to ensure that rights are realised.
  • Unresponsive, criminalising, and brutalising: Municipalities have failed to recognise informal settlements and do immense harm by criminalising informal settlement residents instead of engaging them meaningfully as occupiers who are protected by the law. This was exemplified in the brutal eviction of Bulelani Qolani during lockdown.
  • It is crucial to contextualise and understand unlawful occupation against the backdrop of historical land dispossession.
  • The important role of the language used particularly in the media and how the criminalising language used by officials plays itself out in terms of the violence communities are met with, the narratives they must confront when litigating and the tiresome work of having to paint themselves as deserving of basic services, and various other protections and freedoms.

 

  • Download all the reports here.
  • Find recordings of the webinars here.

townshipBill

 

On 26 November 2020, the Socio-Economic Rights Institute (SERI) and Lawyers for Human Rights (LHR) made a submission to the Gauteng Provincial Government on its draft Township Economic Development Bill.  

The submission was developed in collaboration with CSOs, urban planners and academic practitioners across the country. It comprises both a legal analysis, which includes a legal opinion from senior counsel, and an international and domestic law perspective on the draft Bill, and a detailed analysis of the latest research evidence on township economic development. 

The submission draws on this research in order to recommend measures that the Gauteng Provincial Government can adopt to support the development of township economies; to promote the food economy and to promote inclusionary economic development.

The submission has been endorsed by 14 civil society organisations, academic organisations, unions and networks so far.

The draft Township Economic Development Bill aims to promote and develop township economies by, inter alia,  designating certain areas as townships; introducing a regulatory framework and a fund, and by precluding international migrants from participating in the township economy, and by proposing fines and or imprisonment for any violations of its provisions.

The draft Bill explicitly deprives foreign nationals the freedom of self-employment, entrepreneurship or to conduct a business. It does so by reserving an undisclosed number of economic sectors in Gauteng’s townships for South African citizens and permanent residents.

The Constitution respects and protects the dignity of all who live in South Africa. Dignity is explicitly connected to the ability to make a living through employment, including self-employment. South Africa also has a well-established legal framework concerning the rights of and protections for refugees and asylum seekers which have been interpreted and expanded by the courts and supported in international law, and therefore provides entitlement to seek employment and to be afforded access to fair labour practices.

Key points in the submission:

  • Section 7 of the draft Bill is unconstitutional because it is an unjustifiable infringement of the right to equality, the right to dignity and the right against arbitrary deprivation of property. 
  • State-imposed restrictions, as proposed in the draft Bill, that have the effect of infringing on the rights of refugees and asylum seekers, fall beyond the bounds of well-established law. 
  • The draft Bill disregards South Africa’s binding international treaty commitments.
  • The exclusion of international migrants runs contrary to the goal of developing township economies and ignores the vital role played by international migrants in these economies. 
  • The draft Bill fails to recognise that township economies are interconnected ecosystems; that township enterprises and networks are crucial to food security, and that most township enterprises are informal.
  • Formalisation and over-regulation can stand in the way economic revitalisation and hinder enterprises from accessing much needed support.
  • Where authorities either tacitly condone or hesitate to act against xenophobia or discrimination, migrant communities are rendered vulnerable to crime and violence. 
  • Any amendment to the legal framework that increases the vulnerability of international migrants will have significant consequences for these communities. 

The submission concludes that there is no rational connection between the exclusion of foreigners from a wide range of economic activities in designated townships and any legitimate government purpose, and that the draft Bill requires fundamental revision for it to give effect to its intended objectives.

  • Read the full submission here.

Access all the annexures below 

On 24 November to 27 November 2020, the Western Cape High Court will hear arguments in a matter between the South Africa Human Rights Commission v The City of Cape Town. The matter arises from the disturbing events of 1 July 2020 when armed Metro police, members of the City Anti-Land Invasion Unit accompanied by private contractors acting on the instruction of the City, arrived at the Ethembeni informal settlement in Khayelitsha, Cape Town. They proceeded to Mr. Bulelani Qolani’s shack and dragged him out, naked and in full view of surrounding residents. The City officials proceeded to demolish his shack. None of this was authorised by a court order.

SERI represents Abahlali baseMjondolo who are amicus curiae in the case because of their extensive experience with illegal actions performed by ALIU in Durban. Abahlali seeks to show the court the ALIU's track record in terms of its conduct and to demonstrate how its conduct in Cape Town is not meaningfully different that of the anti-land invasion units in eThekwini and Johannesburg.

The SAHRC brought a two-part application against the unlawful eviction and demolition. Part A seeks to interdict the City of Cape Town from demolishing structures without a court order. Part B seeks to review and set aside the conduct of the ALIU or the decision by the City to instruct them to demolish structures without court orders. It also seeks an order declaring the existence of the ALIU to be unlawful, unconstitutional, and invalid.

Abahlali submits that the City is not is entitled to resort to the common law remedy of counter-spoliation which it uses to summarily demolish and remove structures from its land that it decides are not “occupied” as “homes”. Abahlali also submits that the routine and inflexible use of the counter-spoliation remedy is, in any event, at odds with the City’s duty, under section 26 (2) of the Constitution, to act reasonably to progressively give effect to the rights of poor and homeless people to access adequate housing. Abahlali submits that this "entails a duty to engage new occupants of its land openly and compassionately in an effort to 'resolve the difficulty on a case-by-case basis after an investigation of their circumstances'".

The matter was set for hearing on the 6th and 7th of October but was postponed on account of AfriForum joining in the application as amicus and filing their papers late.

Read more about the case here.

Raids Presser Con CourtToday the Constitutional Court will hear the matter of The Residents of Industry House and Others v The Minister of Police and Others in which residents of 11 buildings in inner-city Johannesburg successfully challenged, in the High Court, the lawfulness and constitutionality of over 20 police raids of their homes. 

During the raids, which were jointly conducted by the South African Police Services (SAPS), the Johannesburg Metropolitan Police Department (JMPD), the Department of Home Affairs and the City of Johannesburg, officials forced the residents out of the buildings and onto the streets, sometimes in their nightdresses, where they were searched, finger-printed and commanded to produce copies of their identity documents, passports or asylum seekers’ permits. Anyone who was unable to produce their identity document was detained. Some South African citizens who could not produce their identity documents were arrested because, according to one official, they “looked too dark” to be South African. The majority of those that were arrested were never charged. They were released after a day or two at most.

In June 2020, the full bench of the High Court in Johannesburg delivered a judgment declaring section 13 (7) (c) of the South African Police Services Act 68 of 1995 (the SAPS Act) constitutionally invalid.  The full bench found that the former Provincial Commissioner failed to apply her mind to the template-based applications for the authorisations which led to the warrantless raids of the applicants’ homes and simply rubber stamped the applications brought to her. The raids in the residents’ homes were “carried out in a manner that was cruel, humiliating, degrading and invasive” and “demonstrate an egregious abuse of, and infringement of the residents’ constitutional rights to privacy and dignity”, the court held. 

The residents have now approached the Constitutional Court to confirm the High Court order declaring section 13 (7) (c) of the SAPS Act constitutionally invalid and to appeal against the High Court judgment insofar as it declined to declare sections 13 (7) (a) and (b) of the SAPS Act unconstitutional. They also seek damages for the breach of their constitutional rights to privacy and dignity caused by the unlawful raids to which they were subjected. The residents are further seeking to interdict and restrain the police from searching their homes without an appropriate court order or warrant issued by a Magistrate or a Judge.

Khululiwe Bhengu, SERI attorney representing the residents, said “The confirmation and appeal application to the Constitutional Court is important to ensure the vindication of the residents’ rights to dignity and privacy and to emphasise that as much as the sanctity of a person’s home is important, the right to privacy does not end at a person’s door step.”  

  • Read more about the case and find all the papers here.
  • Download the full statement here.

Today the Constitutional Court handed down a ground-breaking judgment on the Mahlangu v Minister of Labour matter, declaring the constitutional invalidity of section 1(xix)(v) of the Compensation for Occupational Injuries and Diseases Act 130 of 1993 (COIDA), previously known as Workmen’s Compensation, which excluded domestic workers employed in private households from the definition of "employee", precluding them from claiming from the Compensation Fund for work-related injuries, illnesses or death. The Court pointed out the stark contrast as “all other employees are protected by COIDA”. Significantly, the Court ruled that the order of constitutional invalidity is to have immediate and retrospective effect from 27 April 1994. 

The order has significant implications for the domestic workers in South Africa.  Not only can domestic workers and dependants who experience work-related injuries, diseases and death now claim from the Compensation Fund, those domestic workers and dependants who have experienced work-related injuries, diseases or death as far back as 27 April 1994 are also able to submit their claims. 

This order follows an almost decade long struggle for justice after the death of first applicant Sylvia Mahlangu’s mother, Maria Mahlangu. Maria drowned in her employers’ home in March 2012 after she slipped from a ladder and fell into the pool while washing the top windows outside a bedroom. SERI, representing Sylvia and second applicant South African Domestic Service and Allied Workers Union (SADSAWU), successfully challenged the constitutionality of Section 1(xix)(v) of COIDA in the North Gauteng High Court in 2019. 

The order also has significant implications for employers of domestic workers. Under terms prescribed by the Department of Employment and Labour, employers will, from a specified date, have to contribute a monthly amount to the Compensation Fund for their domestic employees. In the event of injuries, diseases or death arising out of and in the course of employment, statutory benefits will be paid from the Fund to employees, or to dependents of deceased employees. Employers must register their employees as they will also be protected against civil claims as all employees covered by COIDA are prevented from suing their employers for damages in terms of common law. 

Pinky Mashiane, president of United Domestic Workers of South Africa who has supported the Mahlangu case alongside other allies from the beginning, stated the following about today’s victory, 

“I knew it from the start that the exclusion of domestic workers from COIDA was unconstitutional, that is why I persisted with this case and never lost hope. This is justice which has been denied domestic workers for years. It was long overdue. Now domestic workers who have been bitten by dogs, hurt themselves from falling from step ladders, and all workers who have been injured can claim for Compensation as far back as 27 April 1994. We at United Domestic Workers of South Africa are looking forward to engaging the Department of Employment and Labour about the next steps.”

It is our hope that this important judgment is a turning point in the enforcement of domestic worker laws and policies in South Africa. To further the gains made this far we encourage the Department of Employment and Labour to: 

  • Promote the recognition of domestic work as real work; the value of domestic work to the South African economy and to raise public awareness of domestic workers rights;
  • Apply the same minimum wage across all sectors including domestic and farm workers and Expanded Public Works Programme (EPWP) employees, and for the minimum wage to be regularly adjusted to the cost of living so as to ensure an adequate standard of living for workers and their families; 
  • Strengthen their enforcement mechanisms in the domestic work sector by securing a sufficient number of qualified labour inspectors; ensuring that their compliance orders are respected and enforced; and by allowing labour inspectors to carry out unannounced labour inspections in domestic settings without notice; 
  • Ensure that domestic workers have access to effective complaint mechanisms, including by ensuring that all officials of the Department of Employment and Labour and the CCMA respond professionally to domestic workers reports of mistreatment and follow due process to ensure that employers who are not meeting labour regulations are held accountable. 

Download the judgment and read more about the case here.

Contact details:  

  • Thulani Nkosi, SERI attorney: This email address is being protected from spambots. You need JavaScript enabled to view it./ 076 117 3484.
  • Kelebogile Aplane, SERI candidate attorney: This email address is being protected from spambots. You need JavaScript enabled to view it./ 083 503 4477.
  • Eunice Dhladhla, SADSAWU assistant secretary general: 082 344 0300.

Pinky Mashiane, United Domestic Workers of South Africa (UDWOSA) president: 073 291 2244.

  • Kelebogile Khunou, SERI researcher: This email address is being protected from spambots. You need JavaScript enabled to view it./ 079 135 4002.

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