On 31 August 2021, SERI will appear before the Constitutional Court on behalf of the Commercial, Stevedoring, Agricultural & Allied Workers Union (CSAAWU) and 173 employees to challenge an overbroad interdict that prohibited CSAAWU, striking workers, and unknown persons from protesting at Oak Valley Estates, a large farming estate in Grabouw, Western Cape.
CSAAWU began a protected strike on 6 May 2019 under picketing rules established by the CCMA. The workers went on strike to demand an increase in salary from R15 to R18 ($.86 to $1.03) per hour, an end to labour brokers, and an end to unfair and discriminatory housing practices forcing black workers to live in cramped single-sex hostels while their white and coloured counterparts were given familial accommodation.
After a few days of protesting, Oak Valley approached the Labour Court to interdict what it claimed were breaches of the picketing rules, mainly for the workers picketing outside the picketing area identified in the rules, interference with its customers, suppliers and nonstriking employees and “unlawful and criminal conduct”.
Amongst the arguments that SERI made in opposing the interdict was that the Labour Court could not interdict the strikers for criminal conduct when none of the conduct complained of could be linked to them. However, the court did not deem it necessary to determine if those interdicted were in any way linked to the conduct the employers wanted to interdict and on 21 June 2019, the court interdicted CSAAWU and all the strikers from committing unlawful and criminal conduct in furtherance of the strike.
On 6 August 2019, CSAAWU was granted leave to appeal to Labour Appeal Court, which was adjudicated in May 2020. However, SERI has now appealed to the Constitutional Court to obtain a decisive decision against the abuse of interdicts to silence activists.
SERI argues that "to restrain a striker or protestor from unlawful conduct which it has not been demonstrated they actually committed is inconsistent with the rule of law. It threatens to have a profound chilling effect on both the right to strike, and the right to protest."
SERI, together with partner organisations Institute for Security Studies (ISS) Gun Free South Africa (GFSA) the African Policing Civilian Oversight Forum (APCOF), has produced a set of infographics on the Panel of Experts Report on Policing and Crowd Management. The infographics have been developed to inform members of the public and the media about the contents of the panel report and its key recommendations.
More specifically, they provide information about the circumstances the led to the Panel of Experts being established, namely the Marikana massacre of 2012; the different issues the panel examined; what the panel said on issues of professionalisation, demilitarisation, and accountability; what the panel said on protest, the law, and crowd management; and what is needed for the successful and timeous implementation of the report.
The Panel of Experts was established in 2016 by then Minister of Police Nkosinathi Nhleko in terms of the recommendations of the Farlam Commission of Inquiry into the Marikana massacre. The Panel then developed and submitted its report to the Minister of Police in July 2018. Finally, in March 2021, weeks after the police killing of Mthokozisi Numba, the Minister of Police publically released the report. The panel was chaired by the late judge David Sakelene Vusimuzi Ntshangase and consisted of local and international policing experts in policing as well as members of the South African Police Services (SAPS).
“The Panel advocates for a professional, demilitarised and accountable police service lead by experienced, competent and credible leadership of unassailable integrity and for a system of crowd management that has as its foundation the responsibility to give full effect to the right to freedom of assembly embodied in section 17 of the Constitution, 1996.”
On 23 August 2021, the Daily Maverick published an op-ed entitled "Marikana and the many faces of justice", written by SERI's Yvonne Erasmus. The op-ed argues for the need to expand our understanding of justice beyond retribution to include justice as distribution, recognition, and transformation.
Following nine years of no justice for the Marikana massacre, Erasmus writes, "justice is not just about crime and punishment, important as they are. Justice should also be about fairness and the equal distribution of wealth, recognition of one another as equally human, and the transformation of both our institutions and ourselves. Only then can we say that justice for the events at Marikana has truly been secured."
On 17 August 2021, the Department of Justice and Constitutional Development’s Solicitor General Fhedzisani Pandelani provided an update on the reparations paid to the victims of the Marikana Massacre in a media briefing. However, some statements made by the Solicitor General are inaccurate. These statements pertain to three issues: the state’s approach to reparations relating to the Marikana Massacre; details of the claims paid out to the families for loss of support; and the families’ claims for general and constitutional damages. The families have lived with loss and trauma since 2012. The Socio-Economic Rights Institute (SERI) stands by their claims for damages.
In August 2015, SERI launched a claim on behalf of the families of 36 of the mineworkers who were killed on 13 and 16 August 2012. The families range in size from 2 to 19 members, totalling 320 claimants. In their claims, the families have asked for compensation for loss of support; future medical expenses for treatment necessitated by the death of their loved ones; general damages for emotional shock and psychological damage caused by the trauma suffered in the immediate aftermath of the massacre and in the years that have followed. They also claim for constitutional damages for emotional suffering and grief together with the loss of family life, which includes the loss of parental care for the children of the deceased and spousal support for the widows of the deceased. The families have also sued for an apology from the state.
Following the media briefing, it is important to distinguish between the different claims: claims for loss of support are separate from the claims for constitutional and general damages and from future medical expenses. Claims for loss of support aim to afford the claimants the same standard of living they had when they were being supported by the deceased.
General damages pertain to the loss or harm suffered by a person which is not quantifiable in monetary terms, such as pain and suffering, emotional harm and loss of amenities of life. The families’ claims for general damages aim to compensate them for the grief, shock and trauma they suffered as a result of the violent manner in which they lost their loved ones.
Constitutional damages stem from a breach of constitutional rights caused by gross state failure. This form of compensation serves as a rectifying mechanism and as a vindication of the constitutional rights breached. Without consequences, constitutionally guaranteed rights have no meaning. Constitutional claims aim to give meaning to constitutional rights, in this case the right to family life, by compensating the claimants, in monetary terms, for the destruction of their families. The widows have lost their husbands and life partners and children have lost a parent.
The families’ claims were launched at once and therefore the Solicitor General’s statements regarding the ‘once and for all rule’, suggesting that the claims for constitutional and general damages were made belatedly, are misleading. The State chose to settle some of the heads of damages while leaving others outstanding.
To date, the State has settled the loss of support claim for 34 families and paid out just over R70 million. The amounts paid out to each family were actuarially calculated and these payments were made in three tranches in August 2018, November 2018 and September 2019. The state chose the actuary. The calculation was based partly on how many more years of employment the deceased had prior to reaching pension age, at the time of death. As such, individual families received payments for loss of support ranging from approximately R100 000 to R3 million. SERI received an offer for the 35th family and was informed that the State would not provide compensation for the 36th family as it believed that the deceased miner did not have a duty to support his unemployed siblings because he was raised in a child‑headed household.
According to the pleadings filed by the families, they have submitted claims for Constitutional and general damages as well as future medical expenses either as children, widows, parents or siblings of the deceased miners, for example. In response, the State has made an offer of R500 000 per family, which the families have rejected. They rejected the state’s offer on the basis that the state has a duty to compensate individuals for their individual loss and suffering as opposed to compensating them collectively as a family. SERI has argued that the figure of R500 000 is irrational and has no basis because an offer to pay each family as a collective would disadvantage families that are much larger in size. The Solicitor General’s assertion that families have claimed R1.5 million per claimant is incorrect. The families made a counter-claim of R1.5 million per family if the state remained unwilling to entertain the claims made for individual claimants. SERI remains amenable to good faith negotiations.
In October 2020, the families sent a letter to the State suggesting the establishment of a Marikana Welfare Fund that would take the form of a monthly grant to the widows of the deceased miners, allowing the widows to provide for their families. The State responded months later seeking direction from the families on how it could establish such fund and the legal basis for it.
Since 2012, the families have had to live with the ripple-effects of the trauma of violently losing a loved one at the hands of the state. Some of the widows had to take up work in the mine in order to provide for their families after the death of their breadwinners. Some of the children had to drop out of school in order to help support their families. The mother of one of the deceased miner’s collapsed and died, immediately after learning of the death of her loved one. A child of another deceased miner committed suicide due to incessant bullying resulting from how his father was characterised following the massacre. Their trauma is compounded by the absence of both accountability for the deaths of their loved ones and contrition by the state for what happened at Marikana. Such suffering cannot ever be fully accounted for. However, these claims are an attempt to ease the burden of what this massacre has done to the families.
Notwithstanding these inaccuracies and disagreement, SERI welcomes the State’s openness regarding outstanding claims for the Marikana massacre. SERI also welcomes the appointment of a designated point-person for dealing with all the claims relating to the massacre. It is in the interests of all involved for the State to efficiently address the outstanding claims for damages.
SERI and Izwi have written a new guide, called “Employing a Domestic Worker: a legal and practical guide”, for employers of domestic workers in South Africa to inform them of their rights and obligations in the employment relationship and to provide practical advice and support to assist them in improving their employment practices.
Domestic workers are an essential part of how many families operate. The child and homecare they provide contributes to the national economy by enabling others to carry out their own jobs. Domestic workers, over 95% of whom are women, are primary breadwinners for hundreds of thousands of families. Yet they often lack recognition as real workers and work under unfair conditions.
Many employers are unaware of the laws which regulate the domestic employment relationship, and domestic workers are often afraid to approach them. For example, although the law requires all employers to register their domestic workers for UIF, only about 20% of employers have done so.
The user-friendly guide provides legal advice and guidelines on how to begin and manage the domestic employment relationship. It provides guidance on the interview process, the terms of employment from the Basic Conditions of Employment Act (like working hours, overtime and leave), the requirements of the written particulars of employment and on maintaining a mutually beneficial relationship. The guide also provides information on the rights and responsibilities of both parties at the end of the employment relationship under the law and guidance on how to create a fair workplace, addressing issues such as fair wages, social protections, pensions and other benefits. It ends with Frequently Asked Questions and appends the legal framework informing the guide as well as sample documents to which the guide refers (written particulars of employment, the payslip and the certificate of service).
“We created this guide because we want employers to recognise that their homes are workplaces. We want to provide them with the support required to create a fair and mutually beneficial working environment for both employer and employee”- Kelebogile Khunou, SERI researcher
See also a companion guide: “Domestic Workers’ Rights: a legal and practical guide” and fact sheets on UIF and COIDA.
 Statistics South Africa, Quarterly Labour Force Survey: Quarter 1, 2021.
 International Labour Organisation, “Making decent work a reality for domestic workers: Progress and prospects ten years after the adoption of the Domestic Workers Convention, 2011 (No. 189).” 15 June 2021.