On 28 February 2021, SERI made a written submission to the Portfolio Committee on Public Works and Infrastructure on the Expropriation Bill. Prior to this submission, SERI engaged with the previous version of the Expropriation Bill and made a submission in February 2019. SERI stands by its original submission and wishes to further supplement it with additional emphases on some key aspects in this submission.
SERI’s submission welcomes the Expropriation Bill as an affirmation of the state’s role in unlocking land for developmental and redistributive purposes. The submission focuses on four components that we believe will be important in fulfilling the ambitions set by government for the bill. These are:
Much of SERI’s work involves the right to access adequate housing enshrined in section 26 of the Constitution. In this respect, there is considerable overlap between SERI’s work in our ‘Securing a Home’ thematic area and the redistributive purpose of the draft Bill. Over the last ten years SERI has been involved in legal, research and advocacy work around evictions, relocations, affordable rental housing, allocation of state-subsidised houses, and informal settlement upgrading. We have published several resource guides, research reports and working papers, including commissioned papers.
SERI holds that expropriation should be employed as a significant mechanism in urban land redistribution. The voices of the urban landless should be heard on what land should be expropriated and when, either directly or indirectly. Ordinary South Africans and communities, who have not been able to gain access to land on an equitable basis, should be able to approach the Minister of Public Works to consider expropriation. Alternatively, municipalities should be able to bring requests from communities to the Ministry for consideration.
On 1 March 2020, the Daily Maverick published an op-ed by SERI's Alana Potter entitled, Beyond Kgetlengrivier: Citizen groups taking over collapsed municipal services is only a short-term solution. In the op-ed, Potter discusses the recent judgment in Kgetlengrivier Concerned Citizens & Another v Kgetlengrivier Local Municipality & Others and its implications for water services provision in municipality that are failing to meet their constitutional obligations.
In an interim order, Judge Festus Gura sentenced the Kgetlengrivier's municipal manager to 90 days imprisonment, suspended, and agreed to allow the residents’ association, Kgetlengrivier Concerned Citizens, to take control of the waterworks, paid for by local and provincial government. The judge also gave the municipality until 1 March 2021 to demonstrate why the interim order should not be made final.
In the op-ed, Potter draws on SERI's recently published case study on how the Harrismith Water Heroes in Maluti-a-Phofung are claiming their community's water rights by fixing their town’s water infrastructure, largely at their own cost. Potter argues that "as innovative as self-provision undoubtedly is, water is a public good and it is profoundly risky for water services providers to operate without public oversight."She writes that while the agreement reached in the Kgetlengrivier case "might present a short-term solution to rehabilitate and run water services in small rural towns where residents have more technical capacity than their municipalities", there is an urgent need for longer-term solutions to the crisis in municipalities and their inability to deliver basic services to the communities they serve. Potter concludes that "the dire state of water services in South Africa will not be addressed until we find ways to harness and engage constructively with communities and with their efforts to ensure access to water services."
On Monday, 1 March 2021, a cohort of 107 waste reclaimers will appear before the High Court in Johannesburg to oppose eviction from their homes. The property is undeveloped land located between a residential complex and a business park in Midrand, Johannesburg. The applicant is Rycloff-Beleggings (Pty) Ltd, the registered title-holder of the property. The occupiers are informal reclaimers who have been residing on the property for at least five years. In addition to living on the property, access to the land has enabled them to eke out a living by sorting and storing their recyclable materials on site.
The occupiers make a living collecting, sorting, recycling, and selling valuable materials disposed of as waste. As waste reclaimers, they are an important part of South Africa’s waste management system. According to a 2016 briefing note by the Council of Scientific and Industrial Research (CSIR), in 2014 more than 80% of the 52.6% recycling rate for paper and packaging was recovered through the informal sector. Furthermore, reclaimers were estimated to have saved municipalities between R309.2 – R748.8 million in landfill airspace. Through their own means, the reclaimers have secured their access to housing and work.
This eviction concerns the right to housing which, in this case, is interlinked with the right to work and hence the right to dignity. If evicted the occupiers would not only lose their homes, but their ability to earn a living would also be impacted. On Monday, the occupiers will argue that allowing for an eviction order in the absence of the provision of alternative accommodation suitable for the reclaimers’ work, amounts to a violation of a range of their constitutionally and internationally protected human rights. In identifying an alternative accommodation site, the municipality should take into consideration the need of the reclaimers to sort and store their recyclable materials. In addition, the site should be within reach of medium-income households who produce high-value waste.
Khululiwe Bhengu, SERI attorney representing the residents said: “This eviction application not only threatens the reclaimers’ access to housing but also their ability to put food on the table. We hope that when this matter is finalised the reclaimers will have a home that accommodates their right to work and dignity.”
 Godfrey, L., Strydom, W. & Phukubye , R. 2016. Integrating the Informal Sector into the south African Waste and Recycling Economy in the context of extended producer responsibility. Briefing Note February 2016. CSIR Policy Brief and Briefing Note Series.
On 19 February 2021, the Socio-Economic Rights Institute (SERI) made a submission to the Parliamentary Portfolio Committee on Employment and Labour on the Compensation for Occupational Injuries and Diseases Amendment Bill.
The submission focuses on the inclusion of domestic workers in the Compensation for Occupational Injuries and Diseases Act 130 of 1993 (COIDA) in the light of the Constitutional Court judgment on the Mahlangu v Minister of Labour matter. In this matter, SERI represented Sylvia Mahlangu, the daughter of domestic worker Maria Mahlangu who accidentally drowned at her employer’s home in 2012, and the South African Domestic Service and Allied Workers Union (SADSAWU).
On 19 November 2020, the Constitutional Court handed down an order declaring the constitutional invalidity of section 1(xix)(v) of COIDA 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 also ruled that the order of constitutional invalidity is to have immediate and retrospective effect from 27 April 1994, which means that 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.
The submission begins by providing context and highlights the role of domestic worker unions and allied organisations in the struggle to include domestic workers in compensation for occupational diseases and injuries, which goes as far back as the 1980s when the first domestic workers’ union South African Domestic Workers Union (SADWU) was formed. For decades, domestic workers have contended that domestic work, like all other work, is prone to accidents, injuries, diseases, and death. In a study by Solidarity Center common injuries and ailments reported by domestic workers include dog bites, back injuries, chronic spinal cord injuries, broken limbs, cuts, asthma, and bone fractures. The submission acknowledges the inclusion of domestic workers in the Amendment Bill however, asserts that the Bill does not give effect to the Mahlangu judgment which enables domestic workers and their dependents to claim for compensation for occupational injuries, diseases, and death from 27 April 1994.
The submission includes a legal analysis of the Amendment Bill which discusses how the judgment in Mahlangu v Minister of Labour can be fully complied with to ensure that domestic workers, as a class of employees, are sufficiently protected. This section of the submission does this by identifying the sections in the Bill which prevent retrospective claims from domestic workers from being processed.
Lastly, the submission highlights the need for coverage of domestic workers in COIDA to go hand in hand with enforcement and compliance, a significant challenge in the domestic work sector given its unique nature.
Overall, the submission asserts that a mechanism must be put in place to enable the Compensation Fund to process retrospective claims from domestic workers. The submission recommends that the Department of Employment and Labour should:
The submission was endorsed by South African Domestic Service and Allied Workers Union (SADSAWU), United Domestic Workers of South Africa (UDWOSA), Izwi Domestic Workers Alliance and the International Domestic Workers Federation.
A Research handbook on economic, social and cultural rights as human rights which was recently published is co-edited by SERI board members Jackie Dugard and Lilian Chenwi. The Research Handbook "offers an authoritative analysis of standards and jurisprudence" and "ultimately argues that "a robust, reinforced approach and practice is needed to meet the human rights challenges of the 2020s".
"Contested and marginalized in legal research, the field of economic, social and cultural rights has experienced a bloom in scholarly attention over the past ten years. With contributions by leading scholars and practitioners, this Research Handbook represents an up-to-date and in-depth analysis of the most salient mechanisms, doctrines and cross-cutting issues in the field. It constitutes an indispensable resource for policy-makers, scholars and advocates interested in the contribution of human rights to the eradication of poverty and inequality."
– Professor Sandra Liebenberg, HF Oppenheimer Chair in Human Rights Law, University of Stellenbosch, South Africa and Vice President, UN Committee on Economic, Social and Cultural Rights.
Part I of the Handbook includes a chapter on 'The international human rights system' by Jackie Dugard which provides a historical and contextual evolution of economic, social and cultural rights (ESCR) and the protection mechanisms provided by the various key international legal instruments and institutions. The chapter on 'The African system' by Lilian Chenwi provides an analysis of the existing human rights framework of ESCR by considering the various regional legal instruments and institutions that make up the African human rights system, relative to their mechanisms of enforcement.
Part II of the Handbook on the content of the different rights includes a chapter on 'The right to adequate housing' written by Stuart Wilson which considers the right to adequate housing in international law and includes analysis of key areas of contestation which illustrate how the right has been developed and applied in some domestic contexts including the South African context. In it, Wilson argues that,
"when concrete social struggles have reached international, regional and domestic adjudicative bodies, especially but not exclusively in South Africa, the right to adequate housing has found its greatest traction in challenges to existing property rights. It is in struggles over the upgrading of informal settlements, the eviction of illegal occupiers, the rights of residential tenants in urban areas, the rights of mortgagors and the struggles of women to access housing through, and despite, patriarchal accounts of property law, that the right to adequate housing has sharpened its teeth."
Wilson goes on to write that,
"Given the scale of housing need internationally, and given also that so much economic inequality expresses itself in skewed distributions of land, housing and property, there can be little doubt that meeting the scope and providing the content of the right to adequate housing implies a substantial revision of existing property relationships in a wide variety of contexts. It also implies a substantial redistribution of land, property and, ultimately, wealth. The right to adequate housing is, in many respects, a manifesto for a just and equal society."