The issue of protest and police management of protest has come into sharp focus in recent weeks. On 9 March, SERI’s Nomzamo Zondo participated in a consultation with the UN Special Rapporteur on the Rights to Freedom of Peaceful Assembly & Association, Clément Nyaletsossi Voule. The next day, the South African Police Services (SAPS) responded to peaceful student protests with excessive use of force resulting in multiple injuries and one person killed. When police violently dispersed students on Wednesday 10 March by firing rubber bullets, they killed Mthokozisi Ntumba as he was leaving a clinic in Braamfontein.
The consultation was organised by the Global Network of Movement Lawyers (GNML) as part of an initiative to gather insights and best practices from lawyers who provide legal support to those engaged in mass protests and organising. It is envisaged that the consultation will contribute to a toolkit and report intended to educate lawyers on how best to protect the rights to assembly and association of those engaged in protest and organising.
In her inputs, Zondo discussed some of the major barriers to protest as experienced by SERI’s client groups which included unlawful and arbitrary prohibitions of protests, unlawful dispersals of peaceful protests, the use of excessive force when dispersing protests and the misuse of the criminal justice system as means of deterring protest action. Zondo argued that police tend to perceive protests as unlawful unless they have consented to them and that this perception is often shared by other actors in the criminal justice system who increasingly conflate the disruption caused by protests with actual violence. She argued that the criminalisation of protest is a key issue and that lawyers have an important role to play in supporting movements and communities in need of criminal representation and litigation for policy and law reform.
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For the past five days, students at the University of the Witwatersrand have embarked on protests over their grievances about the financial exclusion of students at the University. On Wednesday, 10 March, students staged a protest in Braamfontein, on Jorissen, De Korte and De Beer streets.
Members of the South African Police Service (SAPS) responded violently to the protests, resorting to firing rubber bullets, using water cannons, tear gas and stun grenades to disperse the protesting students. We have learned that numerous people have been gravely injured and that a number of students have been arrested. We have also recently learned that one person has been killed and for this we extend our deepest condolences to their family and loved ones.
SERI condemns this reckless use of force by the police. SERI is also deeply disturbed by the repeated failure, on the part of the police, to understand that the right to peaceful assembly is a constitutionally protected right that they have a duty to defend and facilitate. An immediate dispersal of peaceful protest without the necessary engagement and negotiation with protestors is unwarranted and misguided. The police have an obligation to communicate effectively, negotiate in good faith and de-escalate tensions.
Maintaining “public order” in the context of protest action requires the police to exercise restraint with the objective of facilitating the right to protest while ensuring the safety of protestors and non-protesting members of the public. Where the use of force is unavoidable, the police have a duty to ensure that its use is exercised in line with international human rights law and principles. This holds that any use of force by the police must be exercised in line with the principles of precaution, necessity, proportionality, legality and that the police will be accountable for whatever force that is exercised, particularly where there are injuries or deaths.
In past student protests, we found that the unlawful use of force by the police in 2016 left numerous people with long-term injuries, none of which the SAPS has been held accountable for. Police often resorted to firing at protestors who posed no real threat to people or property and they also carried out numerous arbitrary and unnecessary arrests. According to Viewfinder’s analysis of the Independent Police Investigative Directorate’s (IPID) data, since 2012, police have killed people in more than 70 crowd management incidents, which include strike and protest action. We are disappointed to see the past repeating itself in this tragic way.
We call on the Minister of Police to exercise decisive leadership during this time, instructing the police officers on the ground to adhere to the rule of law and to respond to the protests in a manner that minimises harm and de-escalates conflict. We call on the Minister also to denounce this misuse of the criminal justice system and the unlawful use of force to stifle protest.
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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.