Today SERI filed its heads of argument in the Hlophe case, to be heard in the SCA later in 2014. The City of Johannesburg is appealing a High Court judgment handed down in 2013 after residents of Chung Hua Mansions instituted proceedings to obtain an order directing the Executive Mayor, City Manager and Director of Housing ("the functionaries") to take steps in terms of their constitutional and statutory obligations, to make the City comply with its court-ordered obligations to provide accommodation to the residents.
On 3 April 2013 the High Court directed the functionaries to “take all the necessary steps” to see to it that the City discharged its court-ordered obligations. Just over a month later, the City tendered accommodation to the residents, despite having insisted for nearly a year that this was “impossible”. Once the functionaries faced the likelihood that they would have to account for the City’s consistent refusal to obey orders of court, the “impossible” became “possible”.
The main issue in this appeal arises in this context. It is whether, having endured the breach of three court orders intended to ensure the provision of alternative accommodation, the residents are prohibited, in principle, from pursuing mandatory relief against the functionaries in control of the City. The latter argue that they can never be directed to perform their constitutional and statutory duties to see to it that the City obeys court orders, no matter how protracted or severe the disobedience, and no matter how severe the consequences of non-compliance.
SERI argues that this extreme claim relies on a fundamental misconception. The functionaries suggest that the order of the High Court imposed “direct and personal” liability on them to perform obligations that properly fall on the City. But that is simply not the relief the residents sought, or what the High Court ordered. The functionaries were ordered to take the necessary steps in terms of their own constitutional and statutory obligations, to cause the City to obey a court order against it. In other words, the functionaries were not directed to perform the City’s obligations themselves. They were directed to discharge their own statutory obligations as the senior officials responsible for the City’s operations, to ensure that those operations brought about compliance with the relevant court orders.
On 15 July Minister of Human Settlements Lindiwe Sisulu delivered her Budget Vote speech to the National Assembly. A Daily Maverick opinion piece by SERI's Lauren Royston and Stuart Wilson argues that, while there are aspects of the Minister’s address that should be welcomed, there are also a number of weaknesses in her approach.
SERI wishes to correct an inaccurate and misleading report by reporter Loyiso Sidimba that appears on page 7 of today's Sunday Independent and has been picked up by other media houses.
In his report Mr Sidimba claims that lawyers for the arrested and injured miners at the Marikana Commission of Inquiry "have received about R5.13 million in legal fees". This is not true. The papers submitted to the Supreme Court of Appeal by Legal Aid SA in fact state that no money has yet been paid to the miners, but that up to R5.13 million has been budgeted in terms of a contract that has yet to be concluded between Legal Aid SA and the miners' legal team.
Mr Sidimba's erroneous claim misquotes written submissions filed by SERI at the Supreme Court of Appeal in the case of Legal Aid SA v Magidiwana, due to be heard on 8 September 2014. Paragraph 75 of those submissions makes clear that up to R5.13 million has been tendered, but not yet disbursed, to the miners' legal team. SERI submissions do not say, and could not reasonably be understood to say, that R5.13 million has been paid to the miners' lawyers.
Mr Sidimba's report that Legal Aid SA could fund 1000 people's legal fees with the up to R5.13 million it has budgeted for the miners needs requires interrogation. The fact is that there are approximately 300 miners, and the cost and complexity of representation at the Commission is far greater than that faced by an ordinary civil litigant. In SERI's view, these facts make Legal Aid SA's claim far less sensational than Mr Sidimba seems to think it is.
Today the families of 36 of the deceased miners killed at Marikana and the Association of Mineworkers and Construction Union (AMCU), who are represented by SERI, filed their Heads of Argument in the Magidiwana & Other Injured and Arrested Persons v President of the Republic of South Africa and Others. The families and AMCU provisionally withdrew from the Marikana Commission of Inquiry on 16 July 2013 in solidarity with the arrested and injured miners when the miners were denied state funding for their representation at the Commission. The families and AMCU then became party to the legal proceedings to secure this funding as they believed the legitimacy of the Commission was dependant on the participation of the injured and arrested miners.
On 14 October 2013, the North Gauteng High Court ordered Legal Aid SA to fund the legal representation of the arrested and injured miners at the Marikana Commission finding that Legal Aid’s decision to fund the legal representation of the families and not the miners “cannot be justified on any rational basis” and refusal to provide funding to the miners was unlawful. As a result, the families and AMCU returned to the Commission.
On 4 November 2013, Legal Aid SA applied for leave to appeal the High Court's funding decision. In their Heads of Argument, the families and AMCU argue that the appeal should be dismissed and the High Court decision upheld. The families and AMCU argue that there is no rational justification to distinguish between funding the legal representation of the families and the injured and arrested miners as both groups have a "substantial, proximate and material interest" in the outcome and findings of the Commission. A failure to fund the injured and arrested miners would be irrational and infringe the constitutional right to euality. The families and AMCU argue that Legal Aid SA's claim that funding the legal representation of the injured and arrested miners would impact severely on its financial resources was unfounded as it does not claim that it has insufficient resources to fund the injuerd and arrested miners' representation.
The matter will be heard in the Supreme Court of Appeal on 8 September 2014.
On 15 July 2014, SERI's excutive director Stuart Wilson published an opinion piece on evictions in South Africa on the online news platform, the Daily Maverick.
The piece debunks the myth that evictions are rare and highlights the state's failure to comply with its constitutional obligations. In addressing these issues, the op-ed draws on a number of recent high-profile evictions and two cases before the Supreme Court of Appeal and the Constitutional Court, namely Fischer and City of Cape Town v Ramahlele and 46 Others ('Fischer') and Zulu and 389 Others v eThekwini Municipality and Others('Zulu'). Both of these cases relate to instances where the state has attempted to circumvent the protections enshrined in the Prevention of Illegal Eviction and Unlawful Occupation of Land Act 19 of 1998. Stuart Wilson criticises this move writing "the role of the state is to implement the Constitution in both letter and spirit; not to devise ever more elaborate strategies to defeat its objects. To do otherwise is to let the clear and strong principles of our Constitution fall away, and to entrench a mean, evasive approach to the state’s obligations that can seem to the poor as cold as the winter weather they now endure."