On 22 February 2022, SERI hosted a workshop on “Assisting domestic workers to claim from the Compensation Fund”. The workshop was attended by 8 case managers from South African Domestic Service and Allied Workers Union (SADSAWU), United Domestic Workers of South Africa (UDWOSA) and Izwi Domestic Workers Alliance. 

Domestic workers have been included in Compensation for Occupational Injuries and Diseases Act 130 of 1993 (COIDA) since 19 November 2020 when the Constitutional Court handed down an order in Mahlangu v Minister of Labour, declaring the constitutional invalidity of section 1(xix)(v) of  COIDA which excluded domestic workers employed in private households from the definition of "employee", precluding them from claiming from the Compensation Fund for work-related injuries, illnesses or death. The Court also ruled that the order of constitutional invalidity is to have immediate and retrospective effect from 27 April 1994, which means that those domestic workers and dependants who have experienced work-related injuries, diseases or death as far back as 27 April 1994 are also able to submit their claims.

The purpose of the workshop was to build understanding around COIDA, the claiming process and to identify the steps needed to be taken when assisting domestic workers with their claims. The workshop began with a presentation on COIDA, what constitutes an occupational injury, who can lodge a claim and the implications of the Mahlangu judgment by SERI candidate attorney, Tebogo Tshehlo, followed by a step by step overview of the claiming process by SERI researcher Kelebogile Khunou and SERI candidate attorney Asenati Tukela. Throughout the workshop the domestic worker representatives presented active cases and shared their experiences assisting domestic workers with COIDA claims. SERI senior attorney Thulani Nkosi, who has been involved in the Mahlangu case since its inception and has been involved in the processing of Ms Sylvia Mahlangu’s retrospective claim, shared his own experience and led the question and answer portions of the workshop. 

The joint experiences of the respective organisations highlighted several issues in implementing the Mahlangujudgment: 

  • The need for awareness campaigns on the inclusion of domestic workers in COIDA for the general public.
  • The need for workshops for domestic workers to understand COIDA, the benefits and the claiming process.
  • The challenges related to processing of retrospective claims, where an employer is untraceable and where supporting documents cannot be found. 

At the end of the workshop all the participants expressed that their understanding of COIDA, the Mahlangujudgment, and the steps they need to take to assist a domestic worker with a potential claim, had advanced significantly. 

 

COIDA workshop   COIDA WorkshopII

Mthokozisi Ntumba anniversary SERI Presser

Today marks a year since the police killing of Mthokozisi Ntumba in Braamfontein. On 10 March 2021, police responded to student protests at the University of the Witwatersrand about rising student debt and financial exclusion at the university. To disperse the protest, police resorted to firing rubber bullets at students, using water cannons, tear gas and stun grenades. Mr Ntumba was shot and killed in an incident where the police pursued students into Braamfontein and fired rubber bullets indiscriminately into crowds. Mr Ntumba, who was leaving doctors’ rooms and was not involved in the protests, was fatally wounded. One year later, SERI remembers Mr Ntumba and remains outraged that his death was completely avoidable.

When the Minister of Police released the Marikana Panel of Experts report on Policing and Crowd Management soon after Mr Ntumba’s death, he indicated that the police ministry had already begun implementing the report that was submitted to his office in July 2018. To date the Parliamentary Portfolio Committee on Police has expressed its support for the report, having met to discuss it in December 2021. However, it remains unclear what measures have already been implemented and what plans there are for further implementation.

Mr Ntumba’s death highlighted the urgent need for the report to be implemented. The Panel of Experts recommend that rubber bullets be used “only under strict command” and that, at a minimum, SAPS members should be enabled and obliged to implement any use of KIPs [Kinetic Impact Projectiles] in a manner consistent with the “principle of differentiation”. The principle of differentiation holds that where the use of force is unavoidable, police must use it in a targeted manner and not indiscriminately against a crowd, as was the case with Mr Ntumba.

Mr Ntumba’s death has been yet another example of the costs of the police’s approach to protest management which favours excessive and indiscriminate use of force. The trial into his death is revealing flawed police understanding of the dangers associated with the use of rubber bullets in crowd management. According to the United Nations Human Rights Guidance on LLWs in Law Enforcement, KIPs that fire multiple projectiles at the same time, like the shotguns used by SAPS, “are inaccurate and, in general, their use cannot comply with the principles of necessity and proportionality”.

SERI and its partners have advocated that: (1) the Panel of Experts report be adopted as policy by the Minister; (2) the Civilian Secretariat for Police Service provide guidance to the Minister with a clear, time-bound implementation plan; and (3) Parliament supports implementation through oversight by requiring regular reports on implementation progress. In remembering Mr. Ntumba, SERI echoes calls for the urgent implementation of the Panel of Experts report and for a ban on the use of rubber bullets in public order policing.

 

Contact details: 

  • Thato Masiangoako, SERI researcher: This email address is being protected from spambots. You need JavaScript enabled to view it. / 078 107 2083.

 

Download the full statement here

The Socio-Economic Rights Institute of South Africa (SERI) invites you to attend our event 

 

Launch invite FINAL

The evictions research series is concerned with the way in which the courts have adjudicated evictions. It aims to assess the courts' compliance with relevant legislation and case law. In addition, the series maps the spatial distribution of evictions to highlight any areas that face particular vulnerability.

This report is the first output in the series. Its focus is eviction cases in 12 wards in the inner city of Johannesburg and its immediate periphery filed at the Johannesburg Central Magistrate’s Court between 2013 and 2018.

 

WHEN: Wednesday, 23 March 2022; 15h00-16h30 via zoom

RSVP: https://bit.ly/35Rfr9o

Abahlali Ayanda Ngila SERI Presser combinedAbahlali baseMjondolo have reported that their member, Ayanda Ngila, was shot and killed on the afternoon of Tuesday 8 March at the eKhenana settlement. His death is yet another devastating blow to Abahlali and the residents of eKhenana. This comes after a year of intensified harassment: unlawful evictions, arbitrary arrests, unfounded prosecutions, violence and assassinations targeted at the settlement and its residents. Since 2018, Abahlali have lost six members in eKhenana to targeted assassinations. SERI is deeply saddened by this loss and extends its heartfelt condolences to Mr Ngila’s loved ones and to the movement for which he lost his life.

EKhenana is an informal settlement in Cato Manor, Durban, established in 2018. The settlement is organised and managed as a cooperative where residents have established a communal kitchen, a subsistence vegetable garden named after the late Nkululeko Gwala, a poultry farm named after the late S’fiso Ngcobo and a communally run spaza shop. Gwala and Ngcobo were Abahlali leaders who were also assassinated in 2013 and 2018, respectively. Abahlali are targeted for advocating for access to land and basic services in informal settlements and for organising poor people outside formal party politics. EKhenana is the latest site of targeted harassment and intense contestation over access to land.

During the COVID-19 lockdown in 2020, the eThekwini municipality carried out evictions at the settlement despite the moratorium on evictions instituted in terms of the State of Disaster regulations. Even after a settlement was reached in April 2020, when the community approached the High Court for an urgent interdict, eThekwini’s Anti‑Land Invasion Unit allegedly fired live ammunition at the settlement leaving eKhenana resident, Yamkela Vezi, injured with a gunshot wound to the hip.

In 2021 alone, a total of eleven Abahlali leaders and eKhenana residents were arrested on various charges ranging from murder, conspiracy to commit murder and assault. None of the prosecutions have resulted in a conviction. Ayanda Ngila, a leader of the eKhenana community, was arrested on two separate occasions. In March 2021, Mr Ngila and two other eKhenana community leaders, Lindokuhle Mnguni and Landu Tshazi, were arrested after being wrongly accused of murder. In September 2021, they were eventually released when the charges against them were dropped, after spending six months in remand detention at the Westville Prison. On 10 January 2022, Mr Ngila, Mr Mnguni and Mr Tshazi were arrested again, along with Maphiwe Gasela, who was also arrested and detained under separate charges in 2021. After numerous denials, the four were granted bail and released on 22 February 2022 from Westville Prison.

Other recent incidents related to eKhenana include an attack on the settlement that took place on 23 October 2021. A group of people allegedly connected to local leadership in the African National Congress (ANC) attacked the settlement, assaulting four women. Police arrived at eKhenana while the attack took place and instead arrested one of the women who was assaulted, Phumelele Mkhize. Police also arrested Maphiwe Gasela and charged her and Ms Mkhize with assault. They were released on bail two days later on condition that they do not return to their homes in eKhenana. The three other women who were assaulted had to be treated for their injuries in hospital. The women experienced difficulty when attempting to open a case with the Cato Manor police station because the police officers allegedly had to seek permission from a local ANC leader to open the women’s case. On the evening of 26 October, the homes of Maphiwe Gasela and Phumelele Mkhize were burnt down in their absence. Cato Manor police allegedly refused to open a case of arson and to investigate the allegations. These incidents were documented in a report submitted to the South African Human Rights Commission in October 2021.

On the evening of Sunday 6 March, residents in eKhenana were attacked again by a group of people allegedly linked to the local ANC following Abahlali’s General Assembly meeting which was held at the settlement. Abahlali members Siniko Miya and Langa Mbunguzana suffered severe injuries and had to be treated in hospital. In 2021, Mr Miya was arrested along with Abahlali’s deputy president Mqapheli Bonono and Maphiwe Gasela, and detained for six months without bail. EKhenana’s communal kitchen was also vandalised in the attack.

The violence and repression that Abahlali have experienced in eKhenana is reminiscent of the 2009 attack on the Kennedy Road settlement which resulted in at least two deaths, numerous injuries and arrests and widespread displacement of Abahlali members. Abahlali’s leadership had to flee from their homes and go into hiding. Since then, Abahlali have continued to face a combination of state-sanctioned and political violence in the form of repeated and often unlawful evictions, heavy-handed policing during protests, arrests and targeted harassment, threats and assassinations. Despite this, Abahlali, and similar-placed grassroots movements, have continued to advocate for their socio-economic rights and assert their civil and political rights at great risk and personal cost.

The abuse of the criminal justice system to repress social movements is an indictment on South Africa’s democracy and how it deals with dissent, particularly from marginalised groups. In any democracy, activists and social movements play a vital role in holding leaders accountable and insisting on the creation of a society that is more just. Criminal justice officials, who play a pivotal role in this context, have an obligation to carry out their duties in a manner that is unbiased and free from external influence, be it political or otherwise.

In 2018, the Moerane Commission of Enquiry report into political killings in KZN found that “acts of omission and commission by the police, through incompetence or political manipulation, has led to a loss of public confidence in the criminal justice system but especially the police services and security agencies in general, including crime intelligence, national intelligence, and the specialised policing and prosecution agencies.” The report recommended, amongst other things, that “the State take immediate measures to ensure that institutions of the entire criminal justice system are immediately depoliticised and the political manipulation of these agencies to meet political ends is immediately brought to an end and public measures be taken to instil confidence in the public that the State is acting vigorously, expeditiously, and without fear or favour.”

SERI strongly condemns the killing of Ayanda Ngila and demands that those responsible be held accountable. SERI calls for an immediate end to the repression in eKhenana and calls on the Provincial Commissioner of Police and Minister of Police to urgently intervene and investigate the conduct of police officials at the Cato Manor police station. We also call on the National Prosecuting Authority and the South African Human Rights Commission to urgently investigate the allegations of bias and misconduct by various officials involved in a series of cases brought against Abahlali members of the past year.

 

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.
  • Thato Masiangoako, SERI researcher: This email address is being protected from spambots. You need JavaScript enabled to view it. / 078 107 2083.

 

Download the full statement here

CSAAWU ConCourtOn 1 March 2022, the Constitutional Court of South Africa handed down its judgment in the matter of Commercial, Stevedoring, Agricultural & Allied Workers Union (CSAAWU) and Others v Oak Valley Estates (Pty) Limited and Another. In this matter, the Court was asked to consider if a court can grant an interdict against a group of respondents when an applicant fails to link each of the respondents to the alleged or threatened unlawful conduct. SERI represents CSAAWU and 173 workers who sought to oppose an overbroad interdict prohibiting CSAAWU, striking workers, and unknown persons from protesting at Oak Valley Estates, a large farming estate in Grabouw, Western Cape.

In 2019, CSAAWU and its members embarked on a strike to demand a salary increase and to confront Oak Valley’s discriminatory allocation of on-site housing for its employees. The workers main complaint was that Oak Valley had been allocating single-sex hostels to its black employees and familial accommodation to its white and coloured employees. These housing polices effectively prevented Oak Valley’s black employees, many of whom are from the Eastern Cape, from living with their families in the Western Cape.

Oak Valley approached the Labour Court to interdict conduct that allegedly consisted of “preventing access to and from Oak Valley’s property; causing damage to its property and the property of other persons on Oak Valley’s premises; intimidating and assaulting Oak Valley’s employees; obstructing the N2 highway at Grabouw; and engaging in other unlawful acts and criminal conduct during the strike.” 

SERI approached the Constitutional Court to appeal an order by the Labour Appeal Court partially confirming the interdict granted by the Labour Court.  SERI argued that a person cannot be interdicted and restrained from unlawful conduct they did not commit, simply because they were part of a crowd in which others acted unlawfully. SERI argued that to do so would be inconsistent with the rule of law and that “it would have a chilling effect on the both the right to strike, and the right to protest.”

In its judgment, the Constitutional Court found that “for interdictory relief to be competently granted, a factual link between an individual respondent and the actual or threatened unlawful conduct must be shown”. As such, the Court granted leave to appeal the interdict with the exception of the first applicant (CSAAWU), whose leader was arrested for intimidation, and the 23rd applicant (one of the workers named by Oak Valley in their founding affidavit), for whom a sufficient link to the unlawful conduct could be identified. SERI welcomes the judgment as an affirmation of the right to protest: it should bring an end to overbroad interdicts that seek to unjustifiably limit this right.

Contact details:  

  • Nkosinathi Sithole, SERI senior attorney: This email address is being protected from spambots. You need JavaScript enabled to view it./ 076 407 4761
  • Asenati Tukela, SERI attorney: This email address is being protected from spambots. You need JavaScript enabled to view it./ 078 684 7658

Download the full statement here

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