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[PRESS STATEMENT] Constitutional Court confirms Mashaba’s inner city raids unconstitutional (25 October 2021).

Raids CC Judgment statementOn Friday 22 October 2021, the Constitutional Court 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 insofar as it allows for warrantless searches. 

In this matter, SERI represents residents of 11 buildings in inner city Johannesburg challenging the lawfulness and constitutionality of over 20 warrantless police raids of their homes which took place between June 2017 and May 2018. During the raids, which were conducted jointly by the South African Police Service (SAPS), the Johannesburg Metropolitan Police Department (JMPD), the Department of Home Affairs and the City of Johannesburg, officials forced the residents out of their homes and onto the streets where they were searched, finger-printed and commanded to produce copies of their identity documents, passports or asylum seekers’ permits. Anyone who was unable to produce a form of identification was detained. 

The Constitutional Court expanded the declaration of invalidity provided by the High Court finding that even searches of people and property outside private homes violate the right to privacy. Pertinently, the court interdicted the City of Johannesburg and Department of Home Affairs from raiding two buildings raided during the same period without section 13(7) authorisations.

In its judgment, the Constitutional Court found that the raids of the residents’ homes were egregious and showed no consideration for the residents’ rights to privacy and dignity. The raids were used by officials as a way to unjustifiably violate the rights of the most vulnerable members of society. The Constitutional Court found that far from being a way of restoring public order, the raids were conducted with an ulterior purpose: “not only to seek out and arrest undocumented immigrants but also to frighten and harass the applicants into leaving their homes”. 

The Court further condemned the calculated disregard of the law by officials in the misuse of written authorisations provided for in section 13(7) to enable the Department of Home Affairs to arrest those suspected of being “illegal immigrants”. The officials erroneously believed that they could get away with the blatant disregard of the rights to privacy and dignity of those they deemed to be non-citizens or undocumented. In this judgment the Court affirmed the Constitutional rights of everyone in the country.

Khululiwe Bhengu, SERI’s attorney representing the residents said: “We welcome this judgment as a necessary affirmation of the residents’ right to dignity and privacy, especially after the recent police raids in the aftermath of the unrest in July. It brings an end to intrusive and warrantless raids specifically targeting poor and marginalised groups.” 

Contact details:  

  • Edward Molopi, SERI research and advocacy officer: This email address is being protected from spambots. You need JavaScript enabled to view it./ 072 210 2984. 
  • Nkosinathi Sithole, SERI attorney: This email address is being protected from spambots. You need JavaScript enabled to view it./ 076 407 4761 
  • Nerishka Singh, SERI candidate attorney: This email address is being protected from spambots. You need JavaScript enabled to view it./ 072 822 1569. 

Download the full statement here

[LITIGATION UPDATE] SERI represents Abahlali baseMjondolo in a matter challenging the City of Cape Town's use of the Anti-Land Invasion Unit (21 October 2021).

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.

[ADVOCACY] Unlawful occupation in South Africa: What the law says (30 September 2021).

Isandla Royston Planning for informalityOn 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.

[ADVOCACY] SERI commemorates the 9th anniversary of the Marikana massacre (15 September 2021).

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.

 Marikana 2021 3287 days no apology   Accountability 2021   Marikana 2021 Prosecutions 

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.

SERI Panel report 1  SERI Panel report 2  SERI Panel report 3  SERI Panel report 4  SERI Panel report 5  SERI Panel report 6  SERI Panel report 7 

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.

 MarikanaCover

 

  • Download:
    • Download the infographics in pdf here.
    • Download the Panel of Experts Report on Policing and Crowd Management here.
  • Read  op-ed:
  • Read SERI Marikana press statements:
  • 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).

 

[JOB OPPORTUNITY] SERI is looking for a director of litigation to join our team (27 September 2021).

 

Vacancy

 

The Socio-Economic Rights Institue of South Africa (SERI) is looking to appoint a director of litigation to join the SERI Law Clinic. 

SERI is one of South Africa’s leading human rights organisations, and is internationally recognised for its award-winning work. SERI’s record of success in a wide range of public interest litigation is particularly well-known. SERI’s practice involves a heavy caseload of challenging, high-quality work, addressing a wide range of constitutional, administrative, property, and criminal law issues. 

Reporting to the Executive Director, the Director of Litigation will be responsible for shaping and implementing SERI’s litigation strategy across its three themes of work: “Securing a Home”, “Making a Living” and “Expanding Political Space”. The successful candidate will lead a team of attorneys who provide advice and representation to social movements, communities and individuals seeking to enforce their socio-economic rights in a variety of contexts. He or she will also be expected to develop SERI's profile and outreach with communities, media, the government and donors.

We’re looking for someone with the following qualifications, skills and experience - 

  • Bachelor of Laws Degree. A higher degree in law or the social sciences would be an added advantage. 
  • Admitted to practice as an attorney or advocate in South Africa. However, SERI will consider applications from exceptional candidates who qualified outside South Africa, and who are committed to gaining the necessary qualifications to practice in South Africa. 
  • At least 5 years’ experience of public law litigation. 
  • Prior engagement with human rights advocacy and research.
  • Experience in the training and mentorship of junior lawyers
  • Excellent written English. 
  • A record of interest in and engagement with any area of work in which SERI is currently active. 
  • Experience in media strategy and communications and/or community-based advocacy and training.

SERI offers a competitive salary, which is based on the successful candidate’s qualifications and experience. The appointment will take effect on 1 January 2022. 

SERI is committed to transformation. Black South Africans and women are strongly encouraged to apply for this post. 

If you are interested in this post, please send your CV, two unedited samples of recent written work, together with a covering letter, to Princess Nkuna at This email address is being protected from spambots. You need JavaScript enabled to view it..

In your covering letter, please provide a detailed explanation of why you are interested in working for SERI in particular, and what qualities and experience you would bring to the post. Generalised covering letters, which do not engage with SERI’s activities and purpose, will not be considered. The closing date for applications is Friday 22 October 2021. Only shortlisted candidates will be contacted, and will be expected to make themselves available for interview in November 2021.

  • View the full advertisement here