On 17 September 2020, the Grahamstown High Court granted Yolanda Dyantyi leave to appeal a decision to dismiss her review application. In June 2018, SERI launched the review application seeking to set aside the outcome of the disciplinary inquiry which resulted in her being permanently excluded from Rhodes University in November 2017.
On 4 December 2019, SERI appeared on behalf of Yolanda in the Grahamstown High Court to argue the review application. SERI argued that the disciplinary inquiry was procedurally unfair, in that 1) Yolanda was denied the assistance of her chosen counsel and consequently of any reasonable opportunity to present her case; 2) that the presiding officer at the disciplinary inquiry was biased, or reasonably suspected of bias, and 3) that Yolanda was unlawfully denied the internal remedies made available to her in terms of the University’s disciplinary rules. Yolanda also argued that, even if the inquiry was procedurally fair, the conclusions reached by the Proctor were based on material errors of fact and of law and were conclusions that no reasonable decision-maker could have made on the evidence before them.
In March 2020 the High Court dismissed Yolanda’s review application and ordered her to pay the University’s costs. In April 2020, SERI then filed an application for leave to appeal, primarily submitting that the 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. Rhodes University opposed the application and the matter was then argued on 7 September and 11 September 2020.
The matter will now be appealed at the Supreme Court of Appeal.
This is SERI's second newsletter of 2020. In it we present a few highlights from our work since May 2020. Since its inception, SERI has undertaken over 500 litigious matters on behalf of hundreds of thousands of people and provided non-litigious support to many more. Our ground-breaking research and advocacy has highlighted the lived realities of marginalised South Africans and surfaced solutions that could result in the fulfilment of their socio-economic rights. SERI’s litigation, research and advocacy assist communities to resist evictions and secure basic services in their homes in informal settlements and inner-city buildings. It further assists communities to hold duty bearers to account, to safeguard the right to protest and to defend the right to work.
The COVID-19 crisis and government’s response to it has brought SERI’s areas of work in “Securing a Home”, “Making a Living” and “Expanding Political Space” into sharp focus.
Municipalities have continued to carry out unlawful evictions using private security companies, Anti-Land Invasion Units, metropolitan police and the South African Police Services (SAPS).
Government’s response to COVID-19 has had a devastating impact on the rights and livelihoods of informal and precarious workers. One of the most significant obstacles for domestic workers during the lockdown has been difficulty accessing government’s income protection measures. Due to pressure from SERI and other civil society organisations over the lockdown period, the Department of Labour and Employment made two significant amendments to the TERS directive making it possible for domestic workers to benefit from the scheme. This was a victory for South Africa’s domestic workers, albeit a short-term one.
Informal traders were not able to work at the beginning of lockdown and then only if they were trading in fresh (not cooked) food. Licensing requirements have been inconsistent across municipal areas and traders have received no support to implement public health measures. In eThekwini and Johannesburg local authorities refused to open markets while metropolitan police confiscated traders’ goods and harassed them.
The heavy-handed enforcement of lockdown regulations and the excessive use of force by the various security personnel underlined the urgent need for police accountability and the implementation of crucial reforms within the police.
SERI continues to embolden individuals, social movements and CBOs to use legal and research support to exercise their rights; to inform pro-poor government policy and practice and to inform and engage civil society.
We launched the second edition of the Slovo Park Community Practice Note, our latest policy brief on adequate temporary alternative accommodation and compiled a report on “Informal food system: Vendors, street vendors & spazas” for the C19 People’s Coalition Food Working Group, together with Centre for Applied Legal Studies (CALS), Women in Informal Employment: Globalizing and Organizing (WIEGO) and Asiye eTafuleni.
We helped defend the rights of eKhenana residents against illegal evictions during lockdown; successfully challenged the constitutionality of warrantless police raids in the homes of inner-city residents; and continue to challenge efforts by the City of Ekurhuleni to undermine the rights of Winnie Mandela residents. We have intervened as amicus in the Khosa case and represent Colenso women in appealing their conviction for participation in a non-violent protest.
Rhodes University continues its war against Yolanda Dyantyi, a former student who took part in the anti-rape protests on the University campus in April 2016. In November 2017, the University permanently expelled Ms. Dyantyi after she was convicted of “kidnapping”, “assault”, “defamation” and “insubordination” by a disciplinary inquiry instituted by the University. She was convicted by a disciplinary inquiry, which was procedurally flawed. The punishment meted out was grossly prejudicial. The terms of her expulsion have made it practically impossible for her to enrol in any other higher education institution for the foreseeable future.
Rhodes University charged Ms. Dyantyi in March 2017, almost a year after the protest. The disciplinary inquiry sat between June and October 2017, however, the University’s appointed Proctor postponed the portion of the inquiry pertaining to Ms. Dyantyi’s case to a date on which her legal representatives were unable to attend, making it impossible for Ms. Dyantyi to present her case or to continue participating in the proceedings. Ms. Dyantyi was ultimately convicted and sanctioned in her absence.
Ms. Dyantyi has sought to challenge her expulsion on the basis that she was denied the assistance of counsel and consequently of any reasonable opportunity to present her case. The Proctor who presided over the inquiry was reasonably suspected of bias and after finding Ms. Dyantyi guilty based on weak evidence, the University unlawfully denied her the right to an internal review, made available to her in terms of the University’s disciplinary rules.
Ms. Dyantyi, who was 19-years old at the time, took part in a protest that sought to address a crisis that had affected the University for years and continues to affect all women in South Africa. The spontaneous protest and movement became known as the “#RUReferenceList” and took place after a list was anonymously published on Facebook containing the names of 11 current and former male students accused of sexual assault or violence against women at Rhodes University.
Hundreds of students took part in the protest that lasted a week. The students demanded that the University amend its rape policy, and suspend and investigate the students accused of sexual assault. Numerous other protests against gender-based violence took place at Rhodes, making similar demands. It was, however, only after the “#RUReferenceList” protest that Rhodes University eventually took steps to address the students’ concerns. The University established a “Sexual Violence Task Team”.
Rhodes University has, at the same time, taken credit for making the changes demanded by the protest, and used its institutional might to bully and punish Ms. Dyantyi for taking part in the protest.
Since Ms. Dyantyi’s expulsion, Rhodes University has remained unrelentingly determined to prevent her from challenging the outcome of the disciplinary inquiry. It has committed its resources and its power to singling out Ms. Dyantyi and attacking her character, describing her as “insidious”, arguing that she tells “outright lies” and that she is “mischievous and dishonest”. Disappointingly, this is the basis on which the University has denied her right to a procedurally just disciplinary process, at which Ms. Dyantyi would be afforded the opportunity to tell her side of the story.
Yolanda Dyantyi has said: “I’m fighting for my right to a fair trial. The University, through the Vice Chancellor's orders, has done all they can to silence me and hold me accountable for acts I was not given the opportunity to contest. Much like the accused rapists who were given an opportunity to testify as witnesses on behalf of the University, I should be given that opportunity too."
In December 2019, Ms. Dyantyi approached the Grahamstown High Court to set aside the outcome of the disciplinary hearing in a review application. In March 2020 the Grahamstown High Court dismissed Yolanda’s review application and ordered her to pay the University’s costs. In April 2020, SERI filed Ms. Dyantyi’s application for leave to appeal, primarily submitting that the Court erred in failing to consider Ms. Dyantyi’s argument that the postponement of her disciplinary hearing to a date when her legal representatives were not available had resulted in an unfair disciplinary process. Rhodes University has opposed the application and it is due to be argued on 7 September 2020.
Download the full statement here.
On Tuesday 25th August 2020, employees of the Red Ant Security Relocation & Eviction Services once again descended on a block of flats in Fleurhof, illegally evicting dozens of residents from their homes, leaving them homeless and destitute. This ruthless campaign has culminated in the eviction of thousands of residents since the beginning of August. No court order has been granted for any of the multiple evictions on the residents’ homes. These evictions violate the Constitution, which mandates that a court order considering all relevant circumstances must be granted before an eviction can be executed, as well as the regulations in terms of the Disaster Management Act.
On 1 July 2020, the South Gauteng High Court granted Calgro M3, a developer that has a co-operation agreement with the City of Joburg to deliver housing in Fleurhof, an interdict protecting the housing development from occupation. In issuing this interdict, the Court made it abundantly clear that this specific order “does not constitute an application for eviction”. Despite this admonition from the Court, Calgro M3 is now using this interdict to evict residents from homes which they have been in possession of for over three years. More worrisome is the collusion of the South African Police Services (SAPS), the Johannesburg Metropolitan Police Department (JMPD) and the Sheriff to carry out these illegal evictions. By their participation in these evictions they have not only failed to uphold their constitutional obligation to protect members of the public but have actively facilitated illegal activities.
During these evictions, residents were forced out of their homes while the Red Ants removed their belongings. In the process, crucial documents and learning materials for school children were lost, and residents’ furniture and appliances were broken. These attacks happen despite a moratorium on evictions and expose people to the COVID-19 pandemic. A home is the first line of defence against infection, it is essential to enabling people to protect themselves from contracting COVID-19.
SERI calls for an immediate halt on these illegal evictions and the reinstatement of residents to their homes. We further call for the establishment of law and order in Fleurhof and for due process to be followed.
Read the full statement here.
On 26 August 2020, Nathaniel Julius died in hospital after he was allegedly shot and wounded by police officials at Eldorado Park. Nathaniel was a 16-year-old boy living with disability. According to Nathaniel’s family, he failed to respond to questions from the police officials because of his disability and was consequently shot. The community of Eldorado Park have taken to the streets to demand justice. The police have responded with violence, further escalating tensions.
Nathaniel’s death is one too many. Since 2012, police in South Africa have killed a person each day on average. This is a direct consequence of the State’s failure to rein in the misuse and excessive use of force by the police. On 16 August 2020, we commemorated the 8th anniversary of the Marikana massacre in which police killed 37 miners. Each year since Marikana, victims, their families and our broader society have paid the cost in more deaths caused by police action, in millions of Rands paid in civil proceedings against the state, and with a police force that continues to act with impunity.
During the COVID-19 lockdown, we have witnessed violence from all security force actors. The South African Police Service, metropolitan police departments, the South African National Defence Force, private security actors and other law enforcement agencies have demonstrated a propensity for violence even in a public health crisis: a crisis that has disproportionately impacted poor and marginalised communities and a moment which has highlighted the inadequacies of policing across the world. This excessive use of force has demonstrated the lack of critical skills in communication and de-escalation which are essential for policing that is rooted by the tenets of our Constitution.
The continued use of inappropriate and deadly force by police officials since the Marikana massacre has also highlighted the police officials’ consistent blatant disrespect for the law and their lack of will to uphold their constitutional obligation to protect members of the public.
We call on the government to urgently address the continued police brutality in South Africa and to begin by holding responsible officers accountable. Failure to do so will continue to breed mistrust amongst members of the public and will continue to erode the legitimacy of officials and government more broadly.
We extend our deepest condolences to the Julius family, the community of Eldorado and all victims police violence. We demand that government address this crisis as a matter of urgency.