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On 13 and 14 October, public interest legal services (PILS) organisations held the 2021 Public Interest Law Gathering (PILG) which was the first ever to be held virtually. At this year’s PILG, SERI’s Yvonne Erasmus shared information about the Public Interest Legal Sector website that connects the public with PILS organisations.

SERI also facilitated a panel discussion entitled, “Informal and precarious livelihoods during the COVID-19 pandemic- impacts and responses”. The panel was facilitated by SERI researcher Kelebogile Khunou and included panelists Eva Mokoena from the African Reclaimers Organisation (ARO), Thandeka Chauke from Lawyers for Human Rights (LHR), SERI’s Nerishka Singh and Kelly Kropman of Kropman Attorneys. The session was attended by approximately 30 people.

Khunou introduced and contextualised the panel’s focus by reflecting on the context and scale of informal and precarious work as a share of the world’s population and the global economy. The International Labour Organization (ILO) estimates that 61% of the world's workers earn their living in the informal economy making a majority of the world's workforce informal. In South Africa, Women in Employment: Globalizing and Organizing (WIEGO) estimated that around 30% of total employment is informal, which includes just under 5 million workers.

It was further noted that, according to the ILO, work in the informal economy is often characterised by “small or undefined workplaces, unsafe and unhealthy working conditions, low levels of skills and productivity, low or irregular incomes, long working hours and lack of access to information, markets, finance, training, and technology”. Furthermore, workers in the informal economy are not recognised, registered, regulated, or protected under labour legislation and social protection. However, despite exclusion, the informal economy is a significant component of South Africa’s national economy, contributing approximately 5% to South Africa’s GDP.

Khunou also provided a brief overview of how South Africa’s approach to the COVID-19 pandemic impacted informal and precarious workers’ ability to earn a living, namely the loss of income for non-essential workers due to the restrictions on movement in the lockdown period and the exclusion of informal workers from the COVID-19 Temporary Employer/Employee Relief Scheme (TERS). The panelists unpacked government’s support in respect of waste reclaimers, informal traders, and domestic workers in greater detail.

ARO’s Eva Mokoena reflected on some of the hardships that waste reclaimers experienced during the lockdown, in particular, food insecurity caused by their inability to earn an income due to the restrictions on movement. Thandeka Chauke expanded on the difficulties faced by waste reclaimers during the lockdown and spoke about LHR’s litigation in April 2020 on behalf of groups of informal waste reclaimers based in the City of Tshwane. The application sought to challenge the lockdown regulations in so far as they did not include reclaimers as “essential workers”. LHR emphasised the severity of this omission as it deprived reclaimers of the ability to support their families in a context where they had been excluded from all forms of government support.

Nerishka Singh discussed the legal support SERI provided to informal traders in the City of Johannesburg and eThekwini Municipality and discussed how the lockdown regulations and uneven police enforcement of municipal by-laws negatively affected their ability to earn a living. In the case of Johannesburg, she spoke about how a private actor capitalised on the municipality’s lack of involvement and support for informal trade, by attempting to use the COVID-19 health and safety protocols to prohibit trading, even though the traders had already self-imposed COVID-19 complaint practices.

Lastly, Kelly Kropman discussed how domestic workers who were not registered by their employers with the Unemployment Insurance Fund (UIF) were unable to benefit from the TERS. Kropman Attorneys worked closely with Izwi Domestic Workers Alliance, the Casual Workers Advice Office and Women on Farms to engage the Department of Labour, advocating for allowing workers themselves to apply for TERS and to remove UIF contribution as a prerequisite to benefit from TERS.

• Visit the PILS website here.
• Visit the PILG website here.

From 11 October to 14 October 2021, the Western Cape High Court heard arguments in a matter between the South Africa Human Rights Commission v The City of Cape Town. The matter arises from the disturbing events of 1 July 2020 when armed Metro police, members of the City Anti-Land Invasion Unit accompanied by private contractors acting on the instruction of the City, arrived at the Ethembeni informal settlement in Khayelitsha, Cape Town. They proceeded to Mr. Bulelani Qolani’s shack and dragged him out, naked and in full view of surrounding residents. The City officials proceeded to demolish his shack. None of this was authorised by a court order.

SERI represents Abahlali baseMjondolo who are amicus curiae in the case because of their extensive experience with illegal actions performed by ALIU in Durban. Abahlali seeks to show the court the ALIU's track record in terms of its conduct and to demonstrate how its conduct in Cape Town is not meaningfully different that of the anti-land invasion units in eThekwini and Johannesburg.

The SAHRC brought a two-part application against the unlawful eviction and demolition. Part A seeks to interdict the City of Cape Town from demolishing structures without a court order. Part B seeks to review and set aside the conduct of the ALIU or the decision by the City to instruct them to demolish structures without court orders. It also seeks an order declaring the existence of the ALIU to be unlawful, unconstitutional, and invalid.

Abahlali submits that the City is not is entitled to resort to the common law remedy of counter-spoliation which it uses to summarily demolish and remove structures from its land that it decides are not “occupied” as “homes”. Abahlali also submits that the routine and inflexible use of the counter-spoliation remedy is, in any event, at odds with the City’s duty, under section 26 (2) of the Constitution, to act reasonably to progressively give effect to the rights of poor and homeless people to access adequate housing. Abahlali submits that this "entails a duty to engage new occupants of its land openly and compassionately in an effort to 'resolve the difficulty on a case-by-case basis after an investigation of their circumstances".

The parties will return to court on 5 November 2021 to resume the hearings.

Read more about the case here.

On 29 September, Isandla Institute published a piece written by SERI's Edward Molopi and Lauren Royston on its blog, Planning for Informality. The article is entitled, "Unlawful occupation in South Africa: What the law says".

In it, Molopi and Royston write: "The courts have declared the use of land occupation interdicts to automatically evict people who move onto land because they have nowhere else to go to be unlawful. The High Court and Constitutional Court decisions in the Zulu case declare interdicts to be unlawful evictions. The Constitutional Court has also disapproved of the use of summary eviction in response to new land occupations in Grootboom. The use of interdicts is unlawful because interdicts against indefinite and unascertainable class of people (as is generally the case in land occupations) cannot be granted."

Molopi and Royston conclude that "a departure from a regime of evictions to a more proactive and planned approach to homelessness is important in realising a more just and equitable society. A shared understanding between state and civil society about the legal requirements and the rationale behind them is key to this ideal."

• Read the full article here.

During the month of August this year, SERI commemorated the Marikana massacre by highlighting the lack of justice and accountability and the impact it continues to have on the victims of the massacre. To date, only nine police officers have been charged, however, no one has been charged and prosecuted for the deaths of the mineworkers killed on 16 August 2012. SERI also sought to advocate for the implementation of the Panel of Experts Report on Policing and Crowd Management which was released by the Minister of Police Bheki Cele in March this year. The Panel's report was submitted to the Minister in 2018.

As part of these advocacy efforts, SERI helped organise two televised panel discussions that focused on the lack of justice for the Marikana massacre and the urgent need for the South African Police Service to implement the recently released Panel of Experts report particularly in the context of the July unrest and other public order policing failures.

The Daily Maverick published an op-ed entitled "Marikana and the many faces of justice", written by SERI's Yvonne Erasmus, which argued for the need to expand our understanding of justice beyond retribution to include justice as distribution, recognition, and transformation. In it, 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."

SERI also collaborated with partner organisations (Institute for Security Studies (ISS) Gun Free South Africa (GFSA) the African Policing Civilian Oversight Forum (APCOF)) to produce a set of infographics on the Panel of Experts Report on Policing and Crowd Management. The infographics were 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 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.

In August, 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 were inaccurate. In response, SERI issued a press statement standing by families’ claims for damages against the state and providing clarity on the particulars of those claims.

• Download:
  • Download the infographics in pdf here.
  • Download the Panel of Experts Report on Policing and Crowd Management here.
• Read  op-ed:
  • Marikana and the many faces of justice, Yvonne Erasmus, Daily Maverick (22 August 2021).
• Read SERI Marikana press statements:
  • SERI stands by claims for damages made by the deceased miners' families against the state (19 August 2021).
  • Marikana Massacre 9th Commemoration (10 August 2021).
• Access Marikana focused televised panel discussions:
  • Watch | Newzroom Afrika’s episode of In Focus which including panellists Nomzamo Zondo (SERI), Prof Gaye McDougall (Fordam Law School), Phillip Viliakazi (National Union of Mineworkers), and Lesiba Thobakgale (South African Police Union) (16 August 2021).
  • Watch | SABC’s episode of the Watchdog including panellists Gareth Newham (ISS), Ziyanda Stuurman (IJR), Thami Nkosi (R2K and Marikana Support Campaign) (10 August 2021).
• Watch some of SERI's Interviews on Marikana:
  • Watch | Thulani Nkosi interviewed on Newzroom Afrika by Ayanda Nyathi to discuss the press briefing by the Solicitor-General on the claims paid out by the state relating to the Marikana massacre (18 August 2021).
  • Watch | Nomzamo Zondo interviewed on eNCA by Sally Burdett to discuss Solicitor General, Fhedzisani Pandelani’s press briefing on the update of reparations paid to victims of the Marikana massacre (18 August 2021).
  • Watch | Asenati Tukela interviewed on SABC News’ the Agenda to discuss the plight of the widows of the deceased mineworkers from the Marikana massacre (16 August).
  • Watch | Thato Masiangoako interviewed on Newzroom Afrika to the lack of justice and accountability for the Marikana massacre (16 August 2021).
  • Listen | Dineo Phalane interviewed on Radio 2000’s show ‘the Take Off’ to discuss the 9th commemoration of the Marikana massacre (16 August).
  • Watch | Khuselwa Dyantyi appeared on Morning Live on SABC News to discuss the 9th commemoration of the Marikana massacre (16 August 2021).
  • Watch | Nomzamo Zondo interviewed on SABC News to discuss SERI’s concern over the lack of prosecutions for the Marikana massacre (13 August 2021).
  • Listen | Nomzamo Zondo interviewed by Stephen Grootes on SA FM Sunrise to discuss the lack of justice for the Marikana massacre (12 August 2021).