h2Open Journal 5 1.cover

In February, the H2Open Journal published an article written by SERI researchers Thato Masiangoako and Kelebogile Khunou and End Water Poverty's International coordinator Alana Potter. The article, entitled Fighting for water in South Africa: public participation, water rights claiming and strengthening governance, draws on SERI's Claiming Water Rights in South Africa Research Series.

This paper examines two rights claiming strategies – protest and litigation – through the lens of two case studies. The first case study examines the struggles of the residents of Makhanda, a small town in the predominantly rural Eastern Cape Province, who formed a coalition to advocate for the dissolution of the municipal council for failing to fulfill its constitutional mandate to provide basic services. The second case examines the struggles of the residents of Marikana, an informal settlement in the City of Cape Town, where residents are forced to live in unlit, unhygienic and undignified conditions as a result of inadequate services provision.

  • Read the full article here.

New_Frame_Mag_court_YE_NS.jpgOn 1 April 2022, New Frame published an op-ed by SERI's Nerishka Singh and Yvonne Erasmus entitled, Joburg court flouts right to housingThe op-ed discusses the findings of SERI's new research report from the Evictions Research Series, Just and Equitable?, entitled An analysis of eviction cases in the Johannesburg Central Magistrate’s Court and their compliance with the law. The research on the Johannesburg magistrate’s court shows that the way in which residential evictions are adjudicated is not just and equitable because the court has not been adequately implementing evictions law.  

Singh and Erasmus write: 

"The findings reveal that in many cases eviction orders are granted in a manner not compliant with the PIE Act. The most pressing departure from the legislation is the requirement of placing the personal circumstances before the court. Without this, it would be impossible to understand what chance there may be of coming to a solution that would not result in eviction. Essentially, personal circumstances empower the court to make an order, even granting an eviction, in a manner that protects the basic human dignity of the people being evicted from their home." 

 

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

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.

SERI Press statement SCA Dyantyi FINAL.docx

Today, the Supreme Court of Appeal (SCA) has upheld Yolanda Dyantyi’s appeal against the Grahamstown High Court decision to dismiss her review application. The SCA accordingly 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 was permanently excluded from the University and interdicted from attending the University for any purpose from November 2017.

In the appeal, SERI argued that the postponement of the disciplinary inquiry to a date when her counsel were not available had resulted in an unfair disciplinary process.

In its judgment, the SCA finds 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 Court said that at common law an individual’s opportunity to present evidence in support of their case and to refute evidence against them ‘…is the essence of a fair hearing and the courts have always insisted upon it’. It acknowledges that “Ms Dyantyi, an impecunious young student, faced grave potential consequences, including three wasted years at the university, the compromising of her ability to obtain admission at another university and dashed dreams and career prospects”. These potentially grave consequences and the complexity of Ms Dyantyi’s matter entitled her to “adequate legal representation for the duration of the inquiry”. The SCA also finds that the proctor’s finding that Ms Dyantyi had no intention of testifying in her own defence was “gratuitous and wrong” given that she had been excused to prepare for her testimony on more than one occasion and had repeatedly made it clear that she would testify.

The SCA has reviewed and set aside Rhodes University’s conviction and sanction of permanent exclusion against Ms Dyantyi and has 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 has also ordered the University to pay Ms Dyantyi’s costs, including the costs of two counsel.

According to Nomzamo Zondo, SERI executive director, “The SCA’s judgment is a vindication of Yolanda’s pursuit of justice and refusal to be silenced. It restores Yolanda’s right to tell her side of the story.”

 

Contact details: 

  • Nomzamo Zondo, SERI executive director: This email address is being protected from spambots. You need JavaScript enabled to view it. / 071 301 9676.
  • Amanda Duma, SERI litigation fellow: This email address is being protected from spambots. You need JavaScript enabled to view it. / 073 074 1913.
  • Zolile Shude, SERI candidate attorney: This email address is being protected from spambots. You need JavaScript enabled to view it. / 063 848 9693.

Download the statement 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.

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