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On Friday, 15 July 2022, the Western Cape High Court handed down its judgment in a matter between the South Africa Human Rights Commission v The City of Cape Town, finding that the City of Cape Town's conduct was both unlawful and unconstitutional. The matter arises from the disturbing events of 1 July 2020 when armed Metro police, members of the City Anti-Land Invasion Unit (ALIU) accompanied by private contractors acting on the instruction of the City, arrived at the Ethembeni informal settlement in Khayelitsha, Cape Town. They proceeded to Mr. Bulelani Qolani’s shack and dragged him out, naked and in full view of surrounding residents. The City officials proceeded to demolish his shack. None of this was authorised by a court order. SERI represented Abahlali baseMjondolo who acted as amicus curiae in the matter.

The matter was brought by the SAHRC in a two-part application against a series of unlawful evictions and demolitions carried out in Cape Town in 2020. Part A sought to interdict the City of Cape Town from demolishing structures without a court order. This was granted. Part B of the application sought to review and set aside the conduct of the ALIU or the decision by the City to instruct them to demolish structures without court orders. It also sought an order declaring the existence of the ALIU to be unlawful, unconstitutional, and invalid. 

Abahlali submitted that the City is not entitled to resort to the common law remedy of counter-spoliation which it uses to summarily demolish and remove structures from its land that it decides are not “occupied” as “homes”. Abahlali also submitted that the routine and inflexible use of the counter-spoliation remedy is, in any event, at odds with the City’s duty, under section 26 (2) of the Constitution, to act reasonably to progressively give effect to the rights of poor and homeless people to access adequate housing. Abahlali submitted that this "entails a duty to engage new occupants of its land openly and compassionately in an effort to 'resolve the difficulty on a case-by-case basis after an investigation of their circumstances".

The Western Cape High Court has found that a series of demolitions and evictions that took place in 2020 by the City of Cape Town, including that of Mr Qolani in Khayelitsha, were unlawful and unconstitutional. It also found that the City's interpretation and application of counter-spoliation is inconsistent with the Constitution and is invalid insofar as it permits demolitions of and evictions from any informal dwelling whether occupied or unoccupied at the time of the eviction or demolition.

The Court accepted Abahlali's submissions that the right to counter-spoliate is significantly narrower than the state and property owners have traditionally accepted which is that the requirement of possession need only be "peaceful and undisturbed" as interpreted in Yeko v Qana. This finding explicitly overrules the broader interpretation in Ness v Greef, which is the case often cited to argue that shackdwellers must have "durable and stable" occupation before a court order is required to remove them. This means that once a person is present on land with the intent to construct a shack, and manifests that intent by beginning to erect a structure, they are in possession and a court order is required to remove them. 

As noted by the Court,

"When an interpretation and/or approach to a common law remedy could negatively affect and/or undermine constitutional values, a narrow interpretation of that common law remedy is to be favoured. As argued by amicus, when there is any ambiguity arising from interpreting the common law, then regard must be had to the Constitution as an interpretative guide, and the interpretation which more closely reflects the spirit, purport and objectives of the Constitution."

Regarding the lawfulness of the ALIU, the court declared that the City's ALIU is not per se unlawful provided that, in discharging its mandate to guard the City's land against unlawful invasions, it acts lawfully.

Read more about the case here.

On 30 June 2022, the Socio-Economic Rights Institute of South Africa made a submission to the Department of Justice and Constitutional Development on the draft Magistrates Bill and the Lower Courts Bill issued for public comment in March and April 2022.

The Magistrates Bill is aimed at regulating the procedure relating to the appointment, dismissal and disciplinary action taken against magistrates, as well as providing for the establishment of a Magistrates Commission. The Lower Courts Bill, on the other hand, is concerned with court structure and aims to provide for the establishment of lower courts, as well as provisions for their administration. Both Bills aim to align the magistrates and lower court systems with the Constitution. The Bills will replace the existing Magistrates' Courts Act(Act No. 32 of 1944) as well as the Magistrates Act(Act No. 90 of 1993).

SERI notes that overall, both Bills seem to form part of a larger initiative to reform the judicial system in South Africa. While many of the goals of the reform are welcome, SERI notes with concern the atomized manner in which change is being implemented and calls for clarity from the Department on the vision of this reform and the means to achieving it. For example, it is unclear how the Bills currently under discission relate to other proposed legislation that the Department has introduced, for example, the 2021 Land Court Bill, on which SERI also made a submission. A holistic and interactive approach is essential for reform measures to meaningfully respond to the complexities of the court system, judiciary and needs of the general public in exercising their rights through litigation.

SERI has considered the Bills and makes this submission on the basis of extensive public interest litigation, research and advocacy experience. SERI draws specifically on a SERI research report recently launched, which deals specifically with how eviction matters are adjudicated at the magistrate’s court level. SERI makes this submission because the Bill could potentially re-enforce the findings of the research and therefore negatively affect poor and vulnerable households facing eviction in the Johannesburg inner city.

Although SERI acknowledges that there is merit in reforming outdated structures, guidelines and practices of both the magistrates and the structure of the lower courts, SERI's makes the following comments and recommendations:

• The Department of Justice and Constitutional Development should provide clarity on the vision of legal reform in South Africa and how these Bills and other proposed legislation, such as the Land Court Bill, relate to one another.
• A stronger stance is needed in the Magistrates Bill on compulsory, continuous training of magistrates, as motivated for by the findings of SERI’s research on the magistrates’ courts, as well as by other external research capturing the views of magistrates themselves.
• Stronger obligations should be placed in both Bills on magistrates to ensure that unrepresented respondents are duly protected by the courts in litigation processes.
• Section 7 of the Lower Courts Bill on the establishment of municipal courts should be removed as the involvement of two arms of state in the court structure has the potential to interfere with judicial independence, and such courts could disproportionally and negatively affect the poor and vulnerable.
• Section 114 in the Lower Courts Bill limiting the right to appeal should be removed as it has the potential to negatively affect access to justice for the poor and vulnerable.

• Download the full submission here. 

The South African government recently developed the draft National Labour Migration Policy (NLMP) and the Employment Services Amendment Bill (ESAB). The draft National Labour Migration Policy (NLMP) was introduced to facilitate and regulate the flow of labour to and from South Africa. It's aimed at addressing the country's "brain drain" by keeping skilled workers in the country. Similarly, the Employment Services Amendment Bill (ESAB) was created to amend the Employment Services Act (2014) to regulate the employment of non-South African nationals.

The South African government states that, overall, the draft policy and Bill are aimed at retaining skilled labour, growing the economy, creating opportunities for South Africans and combatting unemployment.

While we welcome the introduction of laws to protect workers' rights, the NLMP and ESAB fall short in this regard. Our poster explains the shortcomings of the ESAB and NLMP and how they can be improved. 

• Download the explainer poster here. 
• Download SERI and LHR's submission on the NLMP and ESAB here. 

The Oxford Human Rights Hub has just published a podcast episode and blog post on SERI's research on how eviction cases in the Johannesburg inner city are adjudicated by the courts. 

SERI’s Just and Equitable? Evictions Research 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.

On 23 March 2022, SERI launched the first research report in the series 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.  

The recently published podcast episode entitled 'Spotlight on an understudied institution: evictions and the Magistrate's Court in South Africa' was recorded a podcast in August 2019, when the research into the magistrate’s court was still underway, with lead author of the magistrate’s court report, SERI’s Nerishka Singh and with Timothy Fish Hodgson from the International Commission of Jurists (Africa). SERI’s Yvonne Erasmus, co-author of the report, and Nerishka penned a blog for Oxford Human Rights Hub entitled, 'How Evictions Law Has Been Implemented in the Lower Courts in South Africa' to accompany the podcast and set out the key findings from the research into the magistrate’s court.

• Read the blog here.
• Listen to the podcast here.
• Read the report here