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.
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.
On 24 November 2021, the Socio-Economic Rights Institute of South Africa (SERI) and the Nelson Mandela Foundation co-hosted a dialogue entitled, “One Year after Mahlangu: Taking Stock of Domestic Work in South Africa”. The event was held at the Nelson Mandela Foundation in Johannesburg, where approximately 30 people attended the event physically. An additional 72 000 people live-streamed the event. The aim of the event was to create a dialogue between government, civil society organisations representing domestic workers and employers, and members of the public about key issues in the domestic work sector on the first anniversary of the Mahlangu judgment, which was on 19 November 2021.
The event consisted of opening remarks by Nelson Mandela Foundation’s CEO Sello Hatang and SERI’s executive director Nomzamo Zondo, a keynote address by Eunice Dhladhla of the South African Domestic Service and Allied Workers Union (SADSAWU) followed by a panel discussion.
In a heartfelt reflection on his own mother’s experiences as a domestic worker, Sello Hatang spoke about the difficulties, racial prejudice and demeaning working conditions domestic workers experienced during apartheid, and explained that unfortunately for many domestic workers in post-Apartheid South Africa, this continues to be the case.
Nomzamo Zondo spoke about the case Mahlangu v Minister of Labour matter and the 2020 Constitutional Court judgment. Nomzamo argued that that as powerful as the Mahlangu judgment is, a lot of work is needed to ensure that domestic workers are covered and those who experienced injury after 1994 are compensated. Using the example of the Unemployment Insurance Fund (UIF) and the low levels of compliance by domestic employers, Nomzamo stated that, “the experience of the domestic work sector is proof that progressive laws alone do not change people’s conditions or behaviour”.
Mam'Eunice Dhladhla, assistant general secretary of South African Domestic Service and Allied Workers Union (SADSAWU),delivered the keynote address in which she shared the historical context of domestic workers organising in South Africa. Mam'Euniece also highlighted the contemporary issues and challenges affecting domestic workers including the difficulties of organising domestic workers; long working hours without adequate rest; unequal power relations between employers and domestic workers; and the issue of widespread non-compliance from employers.
The panel discussion which followed the keynote address was facilitated by SERI researcher Kelebogile Khunou and included panellists Linda Burnham, former research director at National Domestic Workers Alliance in the United States; Albert van der Merwe, assistant general secretary at the National Employers’ Labour Association (NELA); Nicolette Naylor, international program director, gender, racial, and ethnic justice at the Ford Foundation and Vuyo Mafata, Compensation Commissioner.
The panelists continued the discussion on the current state of domestic work and raised the following issues:
The panelists offered the following closing remarks about the short and medium-term goals that stakeholders in the sector should prioritise:
In a follow-up to the dialogue, the Nelson Mandela Foundation hosted an online discussion on Twitter Spaces about domestic worker rights and the Constitution. The discussion took place on 8 December 2021. SERI's Kelebogile Khunou and Asenati Tukela joined Lebogang Mokgoroane and Jade Louella Naidoo. Asenati discussed aspects of the Mahlangu judgment while Kelebogile reflected on the wider context of domestic work in South Africa. The discussion was attended by approximately 100 Twitter users.
Friday, 19 November 2021 will mark the first anniversary since the Constitutional Court handed down a monumental judgment in Mahlangu v Minister of Labour compelling the inclusion of domestic workers in legislation aimed at protecting workers. On Wednesday, 24 November 2021, SERI and the Nelson Mandela Foundation will host an anniversary event reflecting on the status of domestic work in South Africa since the Constitutional Court judgment.
In Mahlangu v Minister of Labour, the Court confirmed the constitutional invalidity of section 1(xix)(v) of the Compensation for Occupational Injuries and Diseases Act 130 of 1993 (COIDA), which excluded domestic workers employed in private households from the definition of "employee", thus precluding them from claiming from the Compensation Fund for work-related injuries, illness or death. Significantly, the Court ruled that the order of constitutional invalidity is to have immediate and retrospective effect from 27 April 1994, which means 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 claims.
At the start of the democratic era, “servants” became “workers” through their inclusion in labour legislation like the Basic Conditions of Employment Act 75 of 1997 and the Labour Relations Act 66 of 1995. In fact, South Africa is known to have one of the most progressive legal frameworks for domestic workers globally. However, in reality, the majority of domestic workers do not enjoy the employment rights they are entitled to, such as decent working hours, overtime pay and fair dismissal procedures. Research suggests that only about 20% of the country’s 1 million domestic workers are registered with the UIF.
The Mahlangu victory offers the opportunity to take stock of domestic work in South Africa, reflect on achievements, find solutions to the challenges of employer compliance and strengthen enforcement mechanisms. Mahlangu potentially represents a turning point in the implementation of domestic worker laws in South Africa.
The event to be hosted on Wednesday will bring together domestic workers, government, civil society and private actors in conversation about key issues in the sector and the future of domestic work. The event will be livestreamed and it will also be available on the Nelson Mandela Foundation’s YouTube channel (available here).
Download the full statement here.
On 11 November 2021, the Daily Maverick published an op-ed entitled "Rapid land release for housing sounds great in theory, but well-structured delivery is key to its success", written by former SERI intern Amaarah Garda and SERI’s research and advocacy officer, Edward Molopi. The op-ed considers the claims and prospects of the land release programme and its implications for local government.
“As the dust settles on the local government elections amidst a crisis at the municipal sphere, fiscal “austerity” and deteriorating livelihoods, we need to hold government to account on where resources are spent and how. While rapid land delivery holds much promise, it could fall short without transparency, consultation, quality service delivery and timeous approvals”, they conclude.
Read the full op-ed here.