CASAC Sec27 lecture series

 

Brickhill CASAC Sec27On 1 March, SERI's director of litigation, Advocate Jason Brickhill participated in a panel discussion on 'Lawfare: The role of the courts in upholding democracy'. The panel discussion formed part of the 'Democracy and Constitutionalism: Lecture Series' hosted by Section27 and the Council for the Advancement of the South African Constitution. Jason spoke alongside panelists Advocate Tembeka Ngcukaitobi SC & Advocate Michelle le Roux SC.

In his inputs, Jason discussed the concept of lawfare and how the term's prevalent use encourages an analysis of the law in South Africa that focuses on and draws conclusions from a single outcome of a court case, without adequately assessing the broader constitutional implications and enduring constitutional principles. He argued for the need for socio-legal studies to look beyond the case and to analyse the legal, material and political impact of judgments in an effort to build a longer-term view and focus on building enduring constitutional principles and constitutional institutions.

 

 

On 29 March 2022, the Supreme Court of Appeal (SCA) upheld Yolanda Dyantyi’s application for leave to appeal the decision of the Grahamstown High Court to dismiss her review application and set aside the outcome of a disciplinary hearing process instituted by Rhodes University in March 2017. Ms Dyantyi was found guilty of committing kidnapping, assault, insubordination and defamation during the #RUReference List protests in April 2016. She has been permanently excluded from the University and interdicted from attending the University for any purpose since November 2017.

In SERI’s application for leave to appeal to the SCA, it submitted that the High Court erred in failing to consider the argument that the postponement of the disciplinary inquiry to a date when her legal counsel was not available had resulted in an unfair disciplinary process.

In its judgment, the SCA found that:

“In the particular circumstances of this case, a proper balancing of the relevant considerations would have dictated that the inquiry had to be postponed to the dates on which counsel for Ms Dyantyi were available. The failure to do so violated Ms Dyantyi’s right to procedural fairness under PAJA”

The SCA reviewed and set aside Rhodes University’s conviction and sanction of permanent exclusion against Ms Dyantyi and remitted the matter to the University “for reconsideration on condition that any continuation of the disciplinary inquiry against Ms Dyantyi shall take place before another proctor”. The SCA also ordered the University to pay Ms Dyantyi’s costs, including the costs of two counsel.

  • Read more about the case here.

Mag court COVEROn Wednesday, 23 March 2022, SERI launches the first output in its Evictions Research Series, Just and Equitable?. The series is concerned with the way in which the courts adjudicated evictions in the Johannesburg inner city between 2013 and 2018. It aims to review the courts’ implementation of relevant legislation (such as Section 26(3) of the Constitution and the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (the PIE Act)) and case law. In addition, the series maps the spatial distribution of evictions to highlight any wards in the inner city that face particular vulnerability.

The first research report in the series is entitled An analysis of eviction cases in the Johannesburg Central Magistrate’s Court and their compliance with the law. It analyses eviction cases in 12 wards in the inner city of Johannesburg and its immediate periphery litigated at the Johannesburg Central Magistrate’s Court between 2013 and 2018 and asks whether eviction applications have been examined through the just and equitable lens, as the legislation requires.  

Even with a relatively small sample, the report makes important findings about: the extent to which evictions law is being followed in the adjudication of cases; whether consideration is being given to the personal circumstances of those being evicted and potential homelessness that might ensue; the reasons why people are being evicted; and the legal representation of respondents. The findings illustrate that a more hands-on approach from the judiciary in adjudicating eviction applications is essential to ensure that the legal protections from arbitrary evictions offered to the poor and vulnerable are realised.

  • Download An analysis of eviction cases in the Johannesburg Central Magistrate’s Court and their compliance with the law here.

SERI Press Statement Mag Court Launch

On Wednesday, 23 March 2022, the Socio-Economic Rights Institute of South Africa (SERI) will launch the first output in its Just and Equitable? Evictions Research Series. The series is concerned with the way in which the courts adjudicated evictions in the Johannesburg inner city between 2013 and 2018. It aims to review the courts’ implementation of relevant legislation (such as Section 26(3) of the Constitution and the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (the PIE Act)) and case law. In addition, the series maps the spatial distribution of evictions to highlight any wards in the inner city that face particular vulnerability.

The first research report in the series is entitled An analysis of eviction cases in the Johannesburg Central Magistrate’s Court and their compliance with the law. It analyses eviction cases in 12 wards in the inner city of Johannesburg and its immediate periphery litigated at the Johannesburg Central Magistrate’s Court between 2013 and 2018 and asks whether eviction applications have been examined through the just and equitable lens, as the legislation requires.  

Even with a relatively small sample, the report makes important findings about: the extent to which evictions law is being followed in the adjudication of cases; whether consideration is being given to the personal circumstances of those being evicted and potential homelessness that might ensue; the reasons why people are being evicted; and the legal representation of respondents. The findings illustrate that a more hands-on approach from the judiciary in adjudicating eviction applications is essential to ensure that the legal protections from arbitrary evictions offered to the poor and vulnerable are realised.

According to Nomzamo Zondo, executive director of SERI: “The right of access to adequate housing is undoubtedly the most fiercely contested and frequently litigated socio-economic right in South Africa. This has led to the development of a wealth of progressive jurisprudence in respect of housing and evictions law. This report provides a deep insight into how the wealth of jurisprudence is applied in the magistrates’ courts and whether our country’s constitutional imperative reaches the lives of ordinary people.”

 

When: Wednesday, 23 March 2022; 15h00-16h30 via zoom

Register herehttps://bit.ly/35Rfr9o

 

Contact details: 

  • Yvonne Erasmus, SERI senior researcher: This email address is being protected from spambots. You need JavaScript enabled to view it., 083 518 3870.
  • Nerishka Singh, SERI candidate attorney: This email address is being protected from spambots. You need JavaScript enabled to view it., 072 822 1569.

Download the statement here.

SERI Press statement KAAX FINALSERI acts for Kopanang African Against Xenophobia (KAAX), an anti-xenophobia movement. In response to the recent surge in xenophobic movements and rhetoric, KAAX organized a series of national marches scheduled to take place on Human Rights Day, 21 March, to express a public rejection of xenophobia.  KAAX sees the growing xenophobic rhetoric and activities as inimical to the Constitution and a threat to already marginalised groups in society.

The marches in other urban centres are going ahead on Human Rights Day. However, on 17 March 2022, the Johannesburg Metropolitan Police Department (JMPD) prohibited the Johannesburg march, despite KAAX’s adherence to the notification process stipulated under the Regulation of Gatherings Act 205 of 1993 (RGA). The main reasons for prohibiting the march appear to be that other groups, such as Operation Dudula, pose a threat to those intending to march against xenophobia and because one such group has issued fake pamphlets relating to KAAX’s planned march to mislead the public regarding the purpose of the march. KAAX has previously issued statements identifying and disclaiming the fake pamphlet.

The prohibition of the KAAX anti-xenophobia march comes in the wake of recent marches by xenophobic groupings, including Operation Dudula and #PutSouthAfricansFirst, with apparent approval from JMPD and the South African Police Services (SAPS). Disturbing media reports allege that police authorities have been conducting raids and arrests targeted at undocumented foreign nationals during some of these demonstrations.

On 18 March, SERI launched an urgent application in the Johannesburg High Court to overturn the prohibition. The matter is set to be heard on Tuesday, 22 March 2022 or when allocated for hearing by the court. The application seeks to have the decision to prohibit the march set aside in order for the march to take place on the rescheduled date of 26 March 2022.

It will be argued that the prohibition issued by the JMPD fails to comply with the RGA. The reasons provided for the prohibition by the JMPD are unclear, inconsistent with the RGA and the Constitution and provide no reasonable or lawful basis to prohibit the march. It will be argued that the reasons given by the JMPD do not justify prohibiting the anti-xenophobia march.

Contact details: 

  • Asenati Tukela, Attorney: This email address is being protected from spambots. You need JavaScript enabled to view it. / 078 684 7658
  • Nerishka Singh, Candidate Attorney: This email address is being protected from spambots. You need JavaScript enabled to view it. / 072 822 1569

Download the statement here.

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