Press Statement Marikana claims 1On 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.

Contact details: 

  • Nomzamo Zondo, SERI executive director: This email address is being protected from spambots. You need JavaScript enabled to view it./ 071 301 9676.
  • Thulani Nkosi, Senior Attorney: This email address is being protected from spambots. You need JavaScript enabled to view it. / 076 117 3486.

 

  • Download the press statement here

Domestic Worker tweaked statementSERI 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,[1] 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.[2]

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

  • Download the guide here.

See also a companion guide: “Domestic Workers’ Rights: a legal and practical guide” and fact sheets on UIF and COIDA.

Contact details:

  • Kelebogile Khunou, SERI researcher: This email address is being protected from spambots. You need JavaScript enabled to view it., 079 135 4002.
  • Amy Tekie, Izwi co-founder: This email address is being protected from spambots. You need JavaScript enabled to view it., 079 277 9006.

 

[1] Statistics South Africa, Quarterly Labour Force Survey: Quarter 1, 2021.

[2] 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.

 

  • Download the press statement here

Marikana 9th commemoration SERI statementThis year marks the 9th year since the Marikana massacre. On 9 August 2012, the mineworkers embarked on a strike over their working conditions and to demand a living wage. On 16 August 2012, the South African Police Service (SAPS) attempted to end the strike by responding with lethal force. Over the course of a few days, the cumulative death toll reached 44 people including mineworkers, Lonmin security personnel and two SAPS officers.

The events of 16 August, now known as the Marikana massacre, remain a defining moment for the public, South African policing and especially for the families of the deceased and the mineworkers who witnessed and survived the harrowing experience. On the 16th, the police killed 34 mineworkers in total. Seventeen were shot and killed at ‘Scene 1’ when the miners attempted to disperse, leaving the area that they had occupied during the strike. In the moments after, police pursued the fleeing mineworkers, killing another 17 at ‘Scene 2’. At least 78 mineworkers were severely injured from gunshot wounds and over 250 mineworkers were arrested and charged with crimes including murder, attempted murder, public violence, illegal gathering, armed robbery, possession of dangerous weapons and malicious damage to property.

Since 2012, the families and surviving mineworkers have continued to bear the trauma and loss which has since been compounded by the lack of justice and accountability for the events at Marikana. To date, only nine police officers have been charged. Four police officers charged for crimes relating to hiding the circumstances around the death of Mr. Motiso Otsile van Wyk Sagalala have all been acquitted. Currently, six police officers are standing trial for the death of Mr. Pumzile Sokanyile, including then-North West Deputy Police Commissioner Major-General William Mpembe, who is also charged with the murders of mineworkers Mr. Semi Jokanisi, Mr. Thembelakhe Mati and police officers Warrant Officer Tsietsi Hendrik Monene, and Warrant Officer Sello Ronnie Lepaauku. Mpembe is also charged with the attempted murders of six surviving mineworkers and one police officer. To date, however, no one has been charged and prosecuted for the deaths of the mineworkers killed on 16 August 2012.

Marikana exposed the dire state of public order policing in South Africa. The continued lack of accountability for Marikana and the failure to learn from the lessons have resulted in more deaths and injuries since 2012. During the recent unrest and looting that took place in KwaZulu-Natal and Gauteng in July 2021, police appeared ill‑prepared and lacking in capacity. This has understandably been contrasted with police heavy-handed enforcement of the lockdown in 2020, and their disproportionate use of force against past protests and other crowd incidents.

In March this year, the Minister of Police Bheki Cele made public the Panel of Experts Report on Policing and Crowd Management which was submitted in 2018 against the backdrop of the massacre. As part of SERI’s work for justice for the victims of the Marikana massacre, SERI also urges the Minister of Police and the National Commissioner of Police to consider the report, sincerely and urgently, and to implement its recommendations. Were they to do so, South Africa could see a transformed, more effective policing system that protects the safety and rights of members of the public and ensures a more professionalised, demilitarised and accountable police service.

Contact details: 

  • Nomzamo Zondo, SERI executive director: This email address is being protected from spambots. You need JavaScript enabled to view it. / 071 301 9676.
  • Khuselwa Dyantyi, SERI Candidate Attorney: This email address is being protected from spambots. You need JavaScript enabled to view it. / 076 523 1765.

 

[END]

  • Download the statement here.

statement Domestic Workers

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,1 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.2

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 improve their employment practices. 

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

  • Download the guide here.

See also a companion guide: “Domestic Workers’ Rights: a legal and practical guide” and fact sheets on UIF and COIDA.

Contact details:

  • Kelebogile Khunou, SERI researcher: This email address is being protected from spambots. You need JavaScript enabled to view it., 079 135 4002.
  • Amy Tekie, Izwi co-founder: This email address is being protected from spambots. You need JavaScript enabled to view it., 079 277 9006.

 

[1] Statistics South Africa, Quarterly Labour Force Survey: Quarter 1, 2021.

[2] 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.

 

[END]

>> Download the statement here.

SERI Employers Rights Guide COVERThis Women’s Day, SERI launches a new resource guide entitled, Employing a Domestic Worker: a Legal and Practical Guide. This user-friendly guide has been written for employers of domestic workers in South Africa. The guide informs employers of domestic workers of their rights and obligations in the employment relationship, provides practical advice towards creating a healthy working environment and supports them to improve their employment practices. This guide follows the Domestic Workers’ Rights: A Legal and Practical Guide, a guide developed for domestic workers, published in June 2018.

Domestic workers are an essential part of how many families and households operate. The child and home-care they provide contributes to the national economy by enabling others to carry out their own jobs. However, many employers are unaware of the laws which regulate this employment relationship.

The guide provides legal advice and guidelines on the different phases of the employment relationship, namely:

  • “Beginning the domestic employment relationship”, which outlines the interview process, details the terms of employment from the Basic Conditions of Employment Act like working hours, overtime and leave, and the requirements of the written particulars of employment;
  • “Managing the domestic employment relationship”, which provides guidance on how to maintain a mutually beneficial relationship; and finally,
  • “Ending the domestic employment relationship”, which provides information on the rights and responsibilities of both parties at the end of the employment relationship under the law.

The guide also includes a section on “Creating a fair workplace” which discusses fair wages, social protections, pensions, and other benefits followed by a frequently asked questions section. This guide was produced by the Socio-Economic Rights Institute of South Africa (SERI) and Izwi Domestic Workers Alliance (Izwi). It was written by Kelebogile Khunou (SERI researcher) and Amy Tekié (Izwi co-founder).

 

  • Download Employing a Domestic Worker: A Legal and Practical Guide (August 2021) here.
  • Download Domestic Workers' Rights: A Legal and Practical Guide (June 2018) here.

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