Over the last two years SERI’s work in the Making a Living theme has expanded to include advocating for the rights of domestic workers. Beginning with the Domestic Workers’ Rights Guide in 2018 and throughout our involvement in Mahlangu v Minister of Labour, SERI has engaged in advocacy in this sector, including rights education workshops and engagements with government officials and civil society organisations.
Challenges faced by domestic workers during lockdown
The COVID-19 crisis and national lockdown has had a devastating impact on South Africa’s 1 million domestic workers. Since the implementation of the lockdown, many domestic workers have been put on unpaid leave or dismissed unfairly by their employers. A survey conducted by Izwi Domestic Workers Alliance found that only 38% of 600 respondents were paid full wages in the first month of the lockdown. That number dropped further in May, June and July. While very few employers continue to pay their domestic workers’ wages during the lockdown, the vast majority of domestic employers have failed to communicate a course of action to ensure that their employees’ livelihoods are protected, leaving domestic workers, who already lived hand to mouth, anxious about how they would support themselves and their families during this period.
Their vulnerability was further compounded by the closure of labour centres and CCMA offices during the first few weeks of the lockdown, and the Department of Employment and Labour’s request that workers access these services online. This meant that domestic workers who had been unfairly dismissed or had other grievances, had to use what little money they had to purchase data to use the internet, or wait until the offices were reopened to seek recourse. Labour centres reopened on 1 June, however, due to the lockdown, workers with unresolved grievances and queries are visiting the offices in large numbers, making it difficult to practice physical distancing.
One of the most significant obstacles for domestic workers during this period, however, has been difficulty accessing government’s interventions to support workers who have lost income during this period, in the form of the COVID-19 Temporary Employer/Employee Scheme (TERS), a safety net for all workers during this difficult time. During the lockdown SERI and its partners took action to address this issue.
Obstacles for domestic workers accessing TERS
At the beginning of the lockdown in all communications relating to employment and labour, the government neglected to directly address the domestic work sector, leaving this vulnerable sector without a clear direction for several weeks. When the Department of Employment and Labour initially introduced TERS, the benefit was only available to employers who were registered with the Unemployment Insurance Fund (UIF) and made monthly contributions as required by the Unemployment Insurance Contributions Act 4 of 2002 (Contributions Act). This meant that workers whose employers neglected to register them for the UIF even though they were eligible to be registered, were excluded from benefiting from TERS, despite the fact that section 10 of the Contributions Act states that the obligation to register with the UIF lies with an employer.
Women in Informal Employment: Globalizing and Organizing (WIEGO) and the University of Western Cape’s Social Law Project estimate that only 20% of domestic workers are registered for UIF. This means that hundreds of thousands of domestic workers were potentially excluded. To bring awareness to this issue SERI’s Kelebogile Khunou and Izwi Domestic Workers Alliance’s Amy Tekié wrote an op-ed calling for the inclusion of unregistered domestic workers in TERS.
Calls for Domestic Workers’ inclusion in TERS
SERI took further steps to fight for unregistered domestic workers’ access to TERS. On 7 May, the South African Domestic Service and Allied Workers’ Union (SADSAWU), represented by SERI, made recommendations to the National Command Council, the Minister of Employment and Labour and the Unemployment Insurance Fund (UIF) Commissioner seeking a declaration of domestic workers, as a class of persons, UIF contributors.
The Unemployment Insurance Act (UI Act) enables the Minister, UIF Commissioner and UIF Board to deem individuals or a class of persons as contributors for the purposes of the Act. Our letter recommended that the Minister and the UIF Board, relying on section 69 of the UI Act, declare domestic workers, as a class of persons, UIF contributors for the purpose of the UI Act and specifically for the duration of the COVID- 19 pandemic thus granting domestic workers whose employers failed to register them access to TERS. The letter also recommended that the Department create a mechanism for domestic workers to access TERS directly from the Department, as individuals, or collectively through their unions. These recommendations were endorsed by United Domestic Workers’ of South Africa (UDWOSA) and Izwi Domestic Workers’ Alliance.
In response the Minister of Employment and Labour stated that since domestic workers have been included in the UI Act since 2003, it was not necessary to deem them contributors. This response was a misunderstanding of our request which sought to ensure that workers whose employers failed to register them even though they were eligible to be registered, were not penalised for their employers’ actions. The Minister however informed SERI that the directive was due to be amended to include applications by individual employees where the employer fails or refuses to apply on their behalf.
Due to pressure from civil society organisations over the lockdown period the Department made two significant amendments to the TERS directive: as was promised in the Minister’s response, in late May the directive was amended to allow individual employees to apply for themselves if their employer failed or refused to do so and; the Department extended TERS to non-registered workers who had previously been excluded from the scheme because their employers had unlawfully failed to register them. This was victory for South Africa’s domestic workers, albeit a short-term one.
Domestic workers’ struggles continue
Many domestic workers are reporting that they have been unable to access TERS, even with the two amendments to the TERS directive because of the lack of clear information about the channels to be used workers, registered and unregistered, to apply for the scheme individually, leaving many workers without an income for up to four months. This is an issue several organisations are working to resolve.
From 1 June 2020 the level 3 regulations permitted domestic workers to return to work, which has been met with a sense of relief for many workers who were without an income for months, but also presents them with a significant concern: contracting COVID-19 at their places of work.
On 23 March 2020, the Compensation Commissioner published a notice in terms of section 6A of the Compensation for Occupational Injuries and Diseases Act 130 of 1993 (COIDA), stating that an employee contracting the coronavirus in the course of their employment is entitled to claim compensation, thus establishing COVID-19 as an occupational disease under COIDA. Domestic workers are however still excluded from the ambit of COIDA, pending the outcome Mahlangu v Minister of Labour court case, which is awaiting judgment from the Constitutional Court. Impatient and desperate, domestic workers are now campaigning for the COIDA Amendment Bill to be passed through parliament. Myrtle Witbooi, General Secretary of SADSAWU stated,
“The inclusion of domestic workers in COIDA is long overdue, SADSAWU is now campaigning for the COIDA Bill to be signed by the President”
The COVID-19 pandemic and the lockdown in South Africa has put a spotlight on just how devastating the effects of the lack of enforcement of labour legislation in the domestic work sector are.
On Thursday, 30 July 2020, SERI launched “Some Gains At Last”, a second edition of the Slovo Park Community Practice Note. This edition of the Slovo Park community practice note expands on the SPCDF’s struggle for incremental service delivery through the implementation of a court order.
The first edition of the community practice note, Slovo Park: Twenty Years of Broken Promises, summarises key events in the history of Slovo park from 1991 – 2014. It draws attention to community engagements between the SPCDF and government officials and politicians over a 20 year period to improve living conditions at Slovo Park, leading up to the community’s decision to litigate against the City of Johannesburg in 2015.
The second edition of the community practice note, Some Gains At Last, is a continuation of Slovo Park’s story since receiving a High Court Judgment from the Gauteng Local Division that ordered the City of Johannesburg to upgrade Slovo Park in situ. This edition documents the SPCDF’s strategies and tactics to implement their court order in collaboration with government through the establishment of a multi-stakeholder Task Team that facilitated the installation of electricity and continues to engage around the upgrading and layout plan.
Slovo Park, located in Johannesburg South adjacent to Nancefield, is an informal settlement that has experienced the neglect identified in the opening paragraph for twenty years. Only recently has this begun to shift, offering important insights for what constrains the use of the programme and what is required to implement it.
In 2014, the Slovo Park Community Development Forum (SPCDF) approached the Gauteng Local Division to oppose the City’s plan to relocate residents 11 kms away from the settlement. The SPCDF requested the court to compel the City to apply for funds from the Gauteng Department of Human Settlements, and implement the UISP, contained in the National Housing Code (2009).
In April 2016, the Gauteng High Court ordered the City of Johannesburg to upgrade the Slovo Park informal settlement through the UISP. The Melani judgment confirms that the UISP is binding on municipalities, and that local government’s failure or refusal to apply the policy is unlawful. It also confirms that the UISP applies to all informal settlements across South Africa and that relocation of residents must be turned to as a last resort.
2020 marks four years since Slovo Park informal settlement’s High Court victory. “Some Gains at Last” details the ground-breaking High Court judgment in 2016 and documents the concrete gains in Slovo Park informal settlement since. It speaks to the resilience of community leadership, supported by practitioners knowledgeable of the law and policy and planners who are brave enough to operate in built environments to build on what exists in order to improve the lives of people where they have made their homes. The nature and consistency of municipal leadership, and in particular the approach officials adopt, directly impacts on the progress or regression of informal settlement upgrading and the quality of policy implementation.
You are invited to SERI’s launch of the second edition of the
Slovo Park Informal Settlement Community Practice Note: “Some Gains At Last”
In April 2016, Slovo Park informal settlement won a landmark case. The Court ordered the City of Johannesburg to upgrade Slovo Park in situ through the Upgrading of Informal Settlements Programme (UISP). The UISP provides a framework for municipalities to improve the lives of informal settlement residents, however the policy remains underutilised.
The webinar will reflect on Slovo Park’s in situ upgrade experience and lessons. Government officials, policy makers, built environment practitioners, civil society organisations, field experts, academics and other interested stakeholders are welcome.
When: Thursday, 30 July 2020, 11:00 – 12:00
Who: Lerato Marole (Slovo Park Community Development Forum); Jacqui Cuyler (1:1 Agency of Engagement); Prof. Marie Huchzermeyer (Centre for Urbanism and Built Environment Studies, Wits University) and Nomzamo Zondo (Socio-Economic Rights Institute of South Africa).
RSVP: Register for the Zoom webinar here by 29 July 2020.
Today, 10 years ago the UN General Assembly recognised water and sanitation as a human right.
It’s been more than 24 years since the South African Constitution was promulgated, which stated clearly that “everyone has the right to have access to sufficient water” (section 27(1)(b)), and placed the obligation squarely on the state to “take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation” (section 27(2)) of the right of access to sufficient water.
In 2010, five years ahead of schedule, South Africa met the Millennium Development Goal (MDG) for water. Approximately 90% of the population had access to safe water despite significant population growth. In six years, 30% more people had access to improved water supply than did at the advent of democracy. This impressive achievement obscured profound inequalities, however, and it was the rural and informal poor who lacked access to safe water then, and who still do.
Today, while more homes have access to basic water supply than in 1994, as a percentage of all homes, fewer households have water now than at the end of apartheid. (National Water and Sanitation Master Plan, DWS 2019).
The poorer, more rural or less formal the home you live in, the less likely you are to have safe, affordable and reliable water services in South Africa. All over the world, the poor pay more for poorer quality, less reliable, water supply. Far from helping people to escape poverty, this entrenches it.
Water inequality mirrors global inequality. Recognising this, the Sustainable Development Goals (SDGs) urge countries to “leave no one behind”. But people are not left behind by accident. Poverty is structural and systemic. Notions of the poor as ‘undocumented’ or ‘undeserving’ are entrenched in popular narratives and influence policy decisions and budget allocations. Stigma and discrimination underlie how resources are allocated and whose rights are recognised, let alone realised.
Although water is a justiciable right in South Africa, there is a curious paucity of legal rights mobilisation, with only one court case reaching the Constitutional Court. There is, however, active water rights claiming using a diverse range of invited and invented mobilisation methods. These include all forms of protest, self-supply, persistent engagement with an often unresponsive local, provincial and national government, engagement with human rights institutions, and media and policy advocacy, among the strategies employed.
Little has been documented of these strategies and struggles. In August 2020, SERI, in partnership with End Water Poverty, will launch its research documenting lessons and experiences from water rights claiming by residents and social movements in Makana local municipality in the Eastern Cape province; by residents of the Marikana informal settlement in the City of Cape Town; by an unlikely alliance of individuals in Maluti-a-Phofung local municipality in the Free State province and by farm dwellers in uMgungundlovu district municipality in KwaZulu-Natal.
The research comes at a critical time in South Africa. Water services provision is characterised by water shortages and water quality problems, often stemming from inadequate investment in infrastructure maintenance and exacerbated by periods of drought and in the context of an alarming breakdown of governance and financial systems in municipalities across the country, deepened by the impact of years of corruption in the water sector.
From this precarious position, the water sector is now also required to expand emergency water services in order to combat the spread of COVID-19. The danger of prioritising short-term high visibility actions at the expense of building resilience is very real, and although it is vital to expand access to water to combat COVID-19, the long-term consequences of budget re-allocation from maintenance of water and sanitation infrastructure in order to fund the COVID-19 response, are very concerning.
We hope that you will join us when we launch the #ClaimYourWaterRights case studies next month, and that these examples of communities working tirelessly over long periods of time to claim their water rights using a variety of different mechanisms will inspire activists and stimulate further research, campaigning and public interest litigation on water rights.
On 20 July 2020, SERI's executive director Nomzamo Zondo participated in a panel discussion entitled "Transforming Urban Spaces: 70 year legacy of the Group Areas Act", alongside Adv Tembeka Ncgukaitobi SC. The discussion was hosted by Tshisimani and was chaired by Siviwe Mdoda.
In the discussion of the piece of legislation passed by the apartheid state on 7 July 1950, Zondo reflected on the contemporary ramifications of Group Areas Act by discussing SERI's experience of working with inner-city residents in Johannesburg, Abahlali baseMjondolo in eThekwini and the Marikana informal settlement in Philippi, Cape Town.
She reflected on the history of Johannesburg's inner city and its poor inner-city residents' experiences of exclusion and neglect by the City of Johannesburg through its various plans of 'regeneration'. She pointed out that under the previous political administrations and culminating with the former mayor Herman Mashaba's administration, plans for the City of Johannesburg have been obsessed with the aesthetics of the city without concern for poor inner-city residents. These plans have often been based on driving poor inner-city residents out of the City - much like the Group Areas Act did under apartheid to black people.
Zondo also discussed the emergence of private security bodies like the Anti-Land Invasion Unit in relation to the violent evictions of informal settlement residents ordered by municipalities. Zondo emphasised that from the work that SERI has done over the years, it has continued to ask "why it is that the state refuses to engage communities and would much rather unleash its violence on people?".
Ngcukaitobi and Zondo both emphasised that in the struggles for land reform, litigation has an important role to play but that it should not substitute or displace the critical work of grassroots mobilising and activism and should rather be viewed as an extension of that work and an additional political tool to aid movements and communities.