Today SERI, in partnership with the the Centre for Applied Legal Studies (CALS), launched an application in the North Gauteng High Court to challenge the constitutionality and validity of section 1(1)(b) of the Intimidation Act 72 of 1982. A charge of "intimidation" in terms of this section of the Act was laid against General Alfred Moyo following attempts by him and other residents of the Makause informal settlement in Germiston to hold a march against police brutality at Primrose police station in 2012.
Section 1(1)(b) of the Intimidation Act states that "Any person who –
(b) acts or conducts himself in such a manner or utters or publishes such words that it has or they have the effect, or that it might reasonably be expected that the natural and probable consequences thereof would be, that a person perceiving the act, conduct, utterance or publication-
(i) fears for his own safety or the safety of his property or the security of his livelihood, or for the safety of any other person or the safety of the property of any other person or the security of the livelihood of any other person; and
(ii) ..... [subsection repealed]
shall be guilty of an offence and liable on conviction to a fine not exceeding R40 000 or to imprisonment for a period not exceeding ten years or to both such fine and such imprisonment.”
The application argues that this provision criminalises any speech or conduct which creates a subjective state of fear in any person – whether or not the fear itself is reasonable, and whether or not the conduct or speech in question was intended to create fear. The breadth of the interference with section 16 of the Constitution (which protects freedom of expression) that section 1(1)(b) creates cannot be justified in terms of the limitation clause in section 36 of the Constitution, and the section of the Intimidation Act should therefore be declared unconstitutional and invalid. Moyo's trial will be postponed until this challenge is finally determined.
The Constitutional Court today handed down a judgment explaining its reasons for ordering the City of Johannesburg to allow informal traders to return to their stalls in the inner city of Johannesburg on 5 December last year. Evoking the spirit of Nelson Mandela, the Acting Chief Justice Dikgang Moseneke condemned “Operation Clean Sweep” as an act of “humiliation and degradation” which rendered thousands of people, and their children, destitute.
The Court expressed concern that the City had described the eviction of several thousand informal traders as “convenient” and instead characterised Operation Clean Sweep as “indiscriminate” and “flawed”, finding that the City had “gone about achieving its objectives in flagrant disregard of the traders’ rights”.
The City resisted the traders’ application to be restored to their stalls on the sole ground that it was not urgent, and said that they could claim damages later for any loss caused by the evictions. Moseneke ACJ found that this attitude “may well border on the cynical”.
Today SERI, the Centre for Applied Legal Studies (CALS) and the Community Law Centre (CLC) welcome the news from Geneva that a key United Nations (UN) resolution on the right to housing was adopted this morning at the 25th Session of the Human Rights Council.
Yesterday we expressed concern about the South African government’s perceived attempt to ‘water-down’ the resolution - on adequate housing as a component of the right to an adequate standard of living - with a number of last minute amendments. Today the resolution was adopted without a vote or any changes to the text.
The resolution is important as it reiterates the international human rights law commitment to safeguard the right of access to adequate housing. It recognises that security of tenure enhances the enjoyment of the right to adequate housing and is significant to the enjoyment of many other socio-economic and civil and political rights. The resolution specifically reinforces safeguards against arbitrary eviction or the displacement of people with insecure tenure.
The resolution outlines the difficult context in which millions of people around the world struggle for security of tenure and access to adequate housing, especially in urban areas. This includes the extremely high number of people living in unserviced urban settlements and the millions of homeowners who have been affected by mortgage foreclosure on their homes. Further, in recent years there has been “an increase in private housing rentals for the urban poor without a balanced framework to protect tenants and owners, and that rental options for the urban poor are still insufficient and inadequate.”
We are encouraged that the South African government continues to protect and support the right to adequate housing and is using its role constructively within international arenas in order to promote this right globally.
SERI, the CLC and CALS note with concern that the action of the South African delegation at the Human Rights Council may threaten a progressive resolution on the right to adequate housing.
It has come to the attention of SERI, the CLC and CALS that the South African delegation at the 25th Session of the Human Rights Council in Geneva is requesting last minute amendments to an important resolution on adequate housing as a component of the right to an adequate standard of living. After weeks of negotiation the resolution is due to be adopted at the Human Rights Council tomorrow, Friday 28 March. The proposed amendments may result in this progressive resolution not being adopted.
This resolution is the culmination of a two year process in which the South African government has actively engaged, including participating at the African regional consultation on security of tenure for the urban poor which was convened by the Special Rapporteur on adequate housing in Johannesburg in May 2013. The consultation was attended by government, civil society, academic and professional representatives from South Africa, Egypt, Brazil, Madagascar, Kenya, Nigeria, Senegal and Uganda. Out of this process the Special Rapporteur produced important guiding principles on security of tenure for the urban poor.
However by tabling several amendments to the resolution at such a late stage the South African delegation opens up room for each one of them to be considered separately, which will make the process of adoption very difficult. SERI, the CLC and CALS are also concerned that, if the proposed amendments by the South African delegation have the effect of watering down the resolution, the housing and security of tenure protections afforded to people at this important international human rights body will suffer. As this stance stands in stark contrast to constitutional and legal protections of socio-economic rights, particularly the right to adequate housing, in South Africa this is very worrying.
Given the emphasis on housing and security of tenure in the current election manifesto of the ruling party, it seems that the South African government is paying lip-service to the constitutional mandate at a time when the country is facing an ever-increasing spate of protests related to housing and tenure security issues. Instead of furthering the protections enshrined in our widely celebrated Constitution, the delegation may weaken the international status of the right to adequate housing.
According to The Con magazine, the Marikana Commission of Inquiry has heard more evidence of how deaths at Marikana were preventable, but for reckless action by high ranking police officers.
On 16 August 2012, after 17 miners were shot at scene one, the North West deputy provincial police commissioner Major General Ganasen Naidoo - responsible for deploying the fire and emergency medical teams on the day - and his men pursued miners fleeing the gunfire rather than moving to scene one. According to a report compiled by Professor Ken Boffard, clinical head at the department of surgery at Wits University’s Faculty of Health Sciences, the deaths of three of the miners at scene one was “potentially preventable” if medical assistance had arrived on time. Boffard noted that “paramedics were in attendance a few metres from the scene”, yet treatment was dispensed only “some 60 minutes after they sustained their wounds”.
Further, miners who survived being shot at scene two told the Commission that while some miners put their hands up in the air to 'surrender', they were still shot. Naidoo and other police officers have stated that they opened fire on miners at scene two in retaliation to miners charging at police. However forensic evidence pieced together by SERI appears to contradict this and an analysis of the gunshot wounds sustained by four dead miners does not correspond with the SAPS' version of events that the miners were charging at police officers.