SERI produced a series of factsheets for employers of domestic workers. The factsheets are based on SERI and Izwi’s Employing a Domestic Worker: a Legal and Practical Guide, a user-friendly guide written for employers of domestic workers in South Africa. The guide informs employers of domestic workers of their rights and obligations in the employment relationship, provides practical advice towards creating a healthy working environment and supports them to improve their employment practices. 

The factsheets cover the following topics:

The goal is for employers to share the factsheets, which are based on South African labour legislation, with each other via WhatsApp and other online platforms. This way employers have legal information about aspects of the domestic employment relationship on hand. 

  • Download Employing a Domestic Worker: A Legal and Practical Guide (August 2021) here.
  • Download Domestic Workers' Rights: A Legal and Practical Guide (June 2018) here.

 

Beginning DW   DW COIDA DW Minimum Standard  DW Mismanagement 

Screenshot 2022 02 15 at 13.18.28The devastating impact of the pandemic in the past two years has seen people from all walks of life being pushed into poverty. The informal sector continues to face the harsh reality of economic and political woes. In recent weeks the informal sector, which was the hardest hit by the prolonged lockdown compounded by policy neglect, is now being subjected to unlawful, discriminatory, and politically motivated conduct orchestrated by some political parties under the pretext of protecting employment for vulnerable South Africans.

SERI strongly condemns the political point scoring on migration which resulted in the violent breaches of the rights guaranteed by the South African Constitution to everyone within its borders.

SERI recognises and supports the role that the informal sector plays and its contribution to the South African economy, food security and the empowerment of women, who find themselves at the centre of the informal sector. It is for this reason that during the hard lockdown SERI advocated for informal traders to be allowed to continue to trade as they make an essential contribution to food security and the economy.

SERI is concerned that the current attack on informal traders and migrants’ right to make a living will result in all vulnerable people being affected. This is a cause for concern as it will push people who are already vulnerable further into poverty.

This unlawful conduct undermines our Constitutional values and democracy. Furthermore, it threatens the global commitment to promote safe and orderly migration. The Constitutional Court has long established and confirmed everyone’s right to work which cannot be separated from the right to dignity.

The unlawful victimisation of poor people is counterproductive. It does not contribute to addressing the serious socio-economic problems faced by poor people in South Africa, which has always been SERI’s priority. 

We urge all South African citizens to desist from the unlawful victimisation of the vulnerable members of our society.

Contact details:  

  • Jason Brickhill, SERI Director of Litigation: This email address is being protected from spambots. You need JavaScript enabled to view it. / 073 191 4787
  • Khululiwe Bhengu, SERI attorney: This email address is being protected from spambots. You need JavaScript enabled to view it. / 079 816 8076

 

Download the full press statement here

SERI is delighted to welcome Jason Brickhill, Muano Nemavhidi and Zolile Shude to the litigation team.

 Welcome2022

Jason joins us as a director of litigation. He has been in practice for over fifteen years, the majority of it in the public interest sector. Jason specialises in constitutional law and is interested in the potential of law and litigation to contribute to social change. He has a strong interest in access to justice and the right to civil legal aid as a key tool to realise the promise of the Constitution. Jason holds an LLB from the University of Cape Town (magna cum laude) and an MSt in International Human Rights Law from the University of Oxford (with distinction). Since 2016, Jason has been based at the University of Oxford, where he undertook a DPhil on the impact of strategic litigation in South Africa and taught on various courses at undergraduate and master’s level. He currently teaches socio-economic rights on the Master’s in International Human Rights Law at Oxford. 

Muano joins us as a candidate attorney and Bertha Justice Fellow. Prior to this, Muano worked as a Law Clerk at the Constitutional Court appointed to work for Deputy Chief Justice Raymond Zondo and Justice Nonkosi Mhlantla. She holds an LLB degree from the University of Venda and completed her practical legal training at the University of Pretoria. During her studies she served at a variety of leadership roles including Chairperson of the Law Student Council. Muano considers it a great honour and privilege to be part of the process towards attaining meaningful equality.

Zolile joins us as is a candidate attorney and Bertha Justice Fellow. Prior to this, he worked several years at human rights law firm Richard Spoor Attorneys Incorporated (RSI). He was part of RSI’s Land and Human Rights Department), first as a legal intern and later as a litigation consultant. There, Zolile worked extensively to protect the land rights and livelihoods of rural communities, and to protect and advance the work of activists in Xolobeni on the Eastern Cape Wild Coast. Zolile graduated in 2021 with a Bachelor of Laws (LLB) degree from the University of KwaZulu-Natal. 

 

 

December 2021 SERI newsletter

This is SERI’s final newsletter for 2021. In it we present a few highlights from our work since the August newsletter which covered the May to August period. In it, we present a few highlights from our work in the four-month period (September to December) since our last newsletter in August, which covered the May to August period.

In November, SERI welcomed a Constitutional Court judgment declaring warrantless searches invalid, effectively ending intrusive raids targeting poor people. The apex court’s judgment confirmed an earlier judgment by the Johannesburg High Court declaring section 13(7)(c) of the South African Police Services Act 68 of 1995 (the SAPS Act) constitutionally invalid. In November, we also commemorated the 1st anniversary of the Mahlangu judgment compelling the inclusion of domestic workers in legislation aimed at protecting workers.

In October and November, SERI appeared before the Western Cape High Court on behalf of Abahlali baseMjondolo who intervened as amicus curiae in an ongoing matter challenging the City of Cape Town's use of the Anti-Land Invasion Unit to conduct unlawful evictions. In October, we participated in the 2021 Public Interest Law Gathering. 

In September, SERI represented 107 Midrand waste reclaimers in their opposition to an eviction that would render them homeless and without the ability to make a decent living. We also participated in a webinar on the memorialisation of the Marikana Massacre.

 

  • Access the full newsletter here

On 18 February, SERI, representing 133 residents of the Winnie Mandela informal settlement, located in the Ekurhuleni Metropolitan Municipality appeared before the Constitutional Court for an appeal application. On 7 December 2021, the Constitutional Court handed down its judgment in the matter ‘Thubakgale and Others v Ekurhuleni Metropolitan Municipality and Others’. In a 5-4 judgment, the Constitutional Court dismissed the residents’ appeal application and rejected their claim for constitutional damages against the Ekurhuleni Metropolitan Municipality.

The residents approached the Constitutional Court to appeal a decision by the High Court denying them constitutional damages for a breach in their constitutional right to access adequate housing, after the municipality failed to provide them with houses. In December 2017, the North Gauteng High Court ordered Ekurhuleni Municipality to build houses for 133 informal settlement residents whose allocated RDP units had been given to other people as a result of fraud or negligence.

The Municipality had until 30 June 2019 to provide the residents with houses. However, on 28 June 2019, the last working day before it was due to comply with the December 2017 order, the municipality delivered a variation application to request the court to extend, by one year, the period within which it must provide the residents with plots of land and houses.

In a counter-application, the residents argued that the High Court has no power to vary orders to correct breaches of constitutional rights after those orders have come into effect. The residents also sought constitutional damages of R5 000 per resident for every month from 30 June 2019 until the date on which the municipality provides the residents with the houses to which they are entitled in terms of the December 2017 court order.

The High Court dismissed the Municipality’s variation application as well as the residents’ counter-application, to which the residents approached Constitutional Court in an appeal application. The question before the Constitutional Court was whether the award of constitutional damages is “appropriate relief” under section 38 of the Constitution, 1996, for an admitted and ongoing breach of the residents’ constitutional rights of access to adequate housing.

In the judgment handed down on 7 December, the majority held that constitutional damages could not be awarded to the residents. Three of the five justices held that constitutional damages cannot be awarded to enforce socio-economic rights because they do not impose a directly enforceable obligation upon the state to deliver by a particular date. They also held that the residents have other remedies available to them and that the only other way for the residents to enforce the 2017 High Court order is through contempt of court proceedings given that the residents had already been granted a court order in their favour.

The dissenting minority disagreed that constitutional damages are inappropriate when dealing with socio-economic rights. They also disagreed that the residents must show that constitutional damages are the only remedy available to them in order to seek them. The minority would have granted the residents an award of R 10 000 per applicant, a supervisory order to ensure that the residents received houses and an opportunity to return to the court one year later if they have not received the houses.

Despite the outcome, our clients are comforted by the recognition of the ‘sustained and egregious breach of their rights’ by the municipality. While SERI is disappointed by the dismissal of the appeal, it is also emboldened by the minority judgment which espoused a constitutionalism that can propel South Africa’s transformation into a society that is able to improve the quality of life of all citizens and free the potential of each person.

  • Watch the Constitutional Court hearing here.
  • Read more about the case and access all the papers here.

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