In it we present a few highlights from our work since our last newsletter in September. In the context of the COVID-19 pandemic, SERI continues to embolden individuals, social movements and CBOs to use legal and research support to exercise their rights and to inform pro-poor government policy and practice.
In November, the Constitutional Court handed down a ground-breaking judgment ending the exclusion of domestic workers from the Compensation for Occupational Injuries and Diseases Act, 1993 (COIDA). Also in November, SERI represented inner-city Johannesburg residents in the Constitutional Court, challenging a part of the South African Police Service Act, 1995 that allowed for warrantless raids that were conducted on their homes. SERI also appeared before the Western Cape High Court in November on behalf of Abahlali baseMjondolo who intervened as amicus curiae in a matter challenging the City of Cape Town's use of the Anti-Land Invasion Unit to conduct unlawful evictions. In September, the Grahamstown High Court granted Yolanda Dyantyi leave to appeal on the grounds that her being denied a right to legal representation during her disciplinary hearing at Rhodes University does have merit.
We launched four case studies documenting lessons and experiences in water rights claiming in South Africa and partnered with the Water Integrity Network (WIN) to launch a report on human rights and water integrity that considers implications for informal settlement water and sanitation. Together with Lawyers for Human Rights, SERI made a submission to the Gauteng Provincial Government on its draft Township Economic Development Bill.
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SERI worked with the Black Sash to produce a factsheet for domestic workers, paralegals and community advice offices to provide them with information about the Mahlangu v Minister of Labour matter, in which domestic workers successfully challenged their exclusion from the Compensation for Occupational Injuries and Diseases Act 130 of 1993 (COIDA) previously known as Workmen’s Compensation.
On 19 November 2020 the Constitutional Court handed down a ground-breaking judgment on the Mahlangu matter, declaring the constitutional invalidity of section 1(xix)(v) of COIDA which excluded domestic workers employed in private households from the definition of "employee". This exclusion precluded domestic workers from claiming from the Compensation Fund for work-related injuries, illnesses or death. Significantly, the Court ruled that the order of constitutional invalidity is to have immediate and retrospective effect from 27 April 1994.
The factsheet explains how COIDA works, summarises the facts of the court case and explains the implications of the judgment for domestic workers.
Every year on the 10th of December the world observes international Human Rights Day. This year’s Human Rights Day theme relates to the COVID-19 pandemic and focuses on the need to ensure that human rights are central to recovery efforts. The social justice sector in South Africa has been at the forefront of efforts to minimise the devastating effects of the pandemic on poor and marginalised households. In the lead-up to the COVID-19 lockdown in March 2020 the social justice sector rallied and collaborated to establish a hotline to continue to provide legal advice.
The hotline has received nearly 3,000 calls, of which 703 legal queries were taken up by the sector. Legal queries were received from all nine of South Africa’s provinces highlighting the importance of the work of the PILS sector and the need to decentralise PILS support in the country.
In addition to this the Public Interest Legal Services (PILS) website has been updated and is available at www.pils.org.za.
The PILS website is a user-friendly resource for all members of the public interested in learning more about the issues, methods, and types of organisations that contribute to expanding access to justice in South Africa.
Originally built in 2015 to house the results of a study on public interest legal services in South Africa, the site includes an interactive map which identifies and locates the full range of PILS organisations in South Africa. The map provides information about social justice organisations and community advice offices around the country. The website further describes thematic areas of work and this year specifically features the right to work.
On 9 December 2020 International Anti-Corruption Day, a closed group, comprising international and local civil society organisations, water services regulatory boards, academics, slum-dwellers networks, cities alliances and sector experts in the right to water and sanitation and water integrity sectors, gathered to discuss the advocacy implications of a paper published jointly by the Socio-Economic Rights Institute (SERI) and the Water Integrity Network (WIN).
The paper, entitled “Human Rights and Water Integrity: Implications for Informal Settlement Water and Sanitation” is written by Alana Potter, Virginia Roaf, Irene Ngunjiri and Barbara Schreiner.
The paper applies a human rights and a water integrity framework to analyse and draw implications from informal settlement case studies in South Africa and Kenya. In South Africa, the paper draws from SERI’s informal settlement action research: Ratanang in Klerksdorp in the North West province; Marikana in Philippi in the City of Cape Town, and Siyanda in KwaMashu, eThekwini municipality. In Kenya, the paper draws from the Mukuru informal settlement near Nairobi, home to an estimated half a million people.
The paper examines the interface between the right to water and sanitation and water integrity and looks at how the lack of integrity and corruption contribute to:
The paper argues that informal settlements exist generally due to state failure to recognise marginalised populations and to plan for increasing populations and migration. The research included in the paper shows that communities living in informal settlements are resourceful, resilient, creative and often have their own forms of internal organisation.
The paper goes on to argue that a framework of water integrity, which promotes human rights and protects non-discrimination and equality, participation, transparency, accountability, and anti-corruption would support improved delivery of water and sanitation in informal settlements and would allow such communities to more effectively hold government to account for failure to deliver services.
Between October and November 2020, the Socio-Economic Rights Institute in partnership with the Mail & Guardian launched its "Claiming Water Rights in South Africa" research series through its Water Rights Webinar Series. The research series forms part of the global #ClaimYourWaterRights campaign initiated by End Water Poverty.
In October, SERI launched the first two case studies from the research series as well as the synthesis report entitled, “Claiming water rights in South Africa”. The case studies, entitled “Residents of Marikana informal settlement use expropriation as a tool” and “Farm dwellers fight for access to water in uMgungundlovu district municipality”, were launched on 6 and 20 October 2020, respectively. The Marikana and uMgungundlovu case studies examine the issue of municipal services delivery on privately-owned land from the perspectives of informal settlement residents and farm dwellers.
The case study of the Marikana informal settlement explores the Fischer case in which the City of Cape Town was ordered by the High Court to expropriate the land on which the 60,000 residents of Marikana in Philippi live, in terms of section 9(3) of the Housing Act in 2017. The case illustrates how expropriation in terms of the Housing Act can be utilised as a tool to widen access to urban land for poor people and to provide them with services where they already live. The experiences of the residents of Marikana illustrate how important it is to tackle the struggle for tenure security, services and ultimately a dignified life, using a range of mutually reinforcing strategies including community organisation, engagement, protest, self-supply and litigation.
The webinar panel included Nkosikhona Swartbooi (Social Justice Coalition), Mr Mzwanele Jokani and Innocentia Hewukile (Marikana I residents), Thulani Nkosi, SERI) and Sipho Kings (Mail & Guardian). SERI’s Thato Masiangoako facilitated the discussion.
The uMgungundlovu case study is about the government providing water services on privately-owned land – a perspective from farms. The uMgungundlovu District Municipality is located in KwaZulu-Natal, South Africa. It comprises several local municipalities including uMsunduzi and uMshwathi, with the provincial capital Pietermaritzburg falling in uMsunduzi. Much of the region is agricultural and home to many labour tenants and farm dwellers who are particularly vulnerable groups, owing to the long history of land dispossession and labour tenancy in the area.
SERI’s Kelebogile Khunou facilitated the panel discussion with Siyabonga Sithole (Association for Rural Advancement), Mlungisi Mncwabe (Siyanqoba Rural Transformation Forum), Simone Gray (Legal Resources Centre) and Sarah Smit (Mail & Guardian).
In November, SERI launch the final two case studies in the research series, entitled entitled "Makana local municipality – provincial intervention in a municipal crisis" and "Maluti-a-Phofung - a community doing it for themselves ". These two case studies look at water rights claiming by communities who live in municipalities that are in deep crisis and have been the subject of multiple provincial interventions.
On 3 November 2020, SERI launched the third report on the water crisis in Makana’s local municipality which explores provincial intervention, which is framed as a key remedy to address municipal failure, from a legal and practical perspective and draws lessons from the Makana experience. The Makana Local Municipality is in crisis and has faced various challenges related to service delivery, administration, and finances, many of which have recurred over long periods of time. The Eastern Cape Provincial Executive Council has intervened several times over the years in terms of section 139 of the Constitution. Amidst growing concerns that neither of these interventions had resulted in much change, community activists, led by the Unemployed People’s Movement, began to advocate for the dissolution of the municipal council and eventually turned to the Makhanda High Court. The Court confirmed that Makana Municipality was in breach of its constitutional service delivery obligations and directed the province to dissolve the Makana Municipal Council.
Panellists included Dr. Tracy Ledger (Public Affairs Research Institute), Pam Yako (Former Provincial Administrator of Makana Local Municipality), Ayanda Kota (Unemployed People’s Movement), and Athandiwe Saba (Mail & Guardian). The discussion was facilitated by Lisa Chamberlain (lead author of the research series and Wits Law School and Research Associate at the Southern Centre for Inequality Studies, Wits University).
On 17 November 2020, SERI launched the Maluti-a-Phofung case study which reflects on the efforts of an unusual coalition of residents and community leaders in Maluti-a-Phofung – known as the Harrismith Water Heroes – who, in the face of continued poor service delivery by local government took it upon themselves to fix their town’s water infrastructure. The provision of basic services in Intabazwe, Harrismith and surrounds had deteriorated steadily over the past decade, fuelled by political in-fighting, crippling debt, and the collapse of governance and administration within Maluti-a-Phofung municipality.
SERI’s Alana Potter chaired a panel discussion including Sam Twala (Chairman, Harrismith Water Heroes), Neil MacLeod (former Head, eThekwini Water and Sanitation, eThekwini Metro), John Butterworth (Director, IRC’s Global Hub, self-supply expert) and Bongekile Macupe (Journalist, Mail & Guardian).
These are some of the key take-aways the emerged from the discussions: