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[PUBLICATION] African Human Rights Law Journal publishes an article by Lisa Chamberlain and Kelebogile Khunou (17 September 2021).

water reeport UmgungundlovuIn June 2021, the African Human Rights Law Journal, Volume 21 No 1 2021, published an article written by Lisa Chamberlain and Kelebogile Khunou entitled, “Realising the right of access to water for people living on farms: The impact of the KwaZulu-Natal High Court decision in Mshengu v Msunduzi Local Municipality”. The article discusses farm dwellers’ struggles to access water services on privately-owned land. Their biggest challenge has been that farm owners claim that the provision of water is a municipal responsibility, while municipalities argue that, even if they wanted to, they have no jurisdiction to provide services on privately-owned land.

Abstract:

Access to water is a constitutionally-protected right in South Africa and an energetic flow of laws, policies and programmes have been initiated to address historical inequalities in the supply of water since the dawn of democracy. Yet despite this, millions of people living in South Africa still have inadequate access to water. Access to water is a particular challenge for people living on farms. By providing an analysis of the case of Mshengu & Others v uMsunduzi Local Municipality & Others, decided by the High Court of South Africa, KwaZulu-Natal Division, Pietermaritzburg, this article seeks to make two key contributions. First, it highlights the challenges experienced by farm dwellers in realising their right to water and locates these challenges within a legal framework which places obligations on both municipalities and private land owners to provide access to water on farms. In particular, the mechanism of water services intermediaries envisaged in the Water Services Act 108 of 1997 is explored as a way to delineate and facilitate the role of private land owners in realising the right to water for farm dwellers. Second, drawing on debates around how the value of public interest litigation can be understood, the article interrogates the value of the litigation in the Mshengu case.

The article draws from the research from one of the case studies in the Claiming Water Rights in South Africa research series, Farm dweller fight for access to water in uMgungundlovu district municipality.

 

water reeport Umgungundlovu

[PUBLICATION] Public Space Trading Guidelines for Local Government 2021-2016 (14 September 2021).

SALGA PublicationThe South African Local Government Association (SALGA) has released Public Space Trading Guidelines for Local Government 2021-2016. SALGA is a constitutionally mandated organisation responsible for representing, promoting and protecting the interests of local government. 

Informal trade makes up a significant component of the economy. According to Statistics South Africa’s 2021 Quarterly Labour Force Survey, approximately 2.5 million people work in the informal sector, including street trading. Although informal trade has been recognised as vital to reducing unemployment and poverty in South Africa, it remains largely unsupported by the state, with traders operating in a restrictive rather than enabling regulatory environment. 

Informal traders were particularly hit hard by the COVID-19 pandemic, experiencing significant loss of income and harsh treatment from law enforcement officials during the lockdown. Furthermore, informal workers were excluded from the government’s COVID-19 Temporary Employer/Employee Relief Scheme (TERS). In the context of an economy which has contracted by 7.2% and an overall increase in unemployment and poverty, according to the Finance Minister, the urgent need for government to support the informal economy is apparent. Local government has a crucial role to play in developing and implementing a supportive and facilitative regulatory and policy environment for informal trade. 

The SALGA guidelines comprise of a compendium of three documents: the policy guidelines; the framework by-law and; the health, safety and infrastructure guidelines. The purpose of this body of work is to aid local governments in executing their regulatory and developmental mandate with respect to public-space trading. The policy guidelines, focused on identifying the most pressing policy problems, outline short, medium and long term recommendations aimed at improving the operating conditions for informal business and delivering a coherent and effective governance structure. The framework by-law, informed by recent case law related to local government and the informal sector, focuses on key themes rather than a model by-law, in order to assist municipalities in selecting and adapting the by-law material to suit their local contexts. The health, safety, and infrastructure guidelines focus on proposing a spatial response to the pandemic, and includes additional issues such as spatial governance and infrastructure supply such as water and ablutions.  

The guidelines were prepared for SALGA by a team appointed by the Government Technical Advisory Centre (GTAC), an agency of the National Treasury, and reported to the Capacity Building Programme for Employment Promotion (CBPEP). SERI joined the project steering committee in November 2020. The steering committee held extended consultations with government and informal economy advocacy actors such as Department of Cooperative Governance and Traditional Affairs, Department of Small Business Development, National Disaster Management Centre, GTAC, Women in Informal Employment: Globalising and Organising, the European Union and StreetNet International, as well as academics in local government and law (from the University of the Witwatersrand), municipalities, and representatives of national and local informal sector organisations.

The SALGA President encourages all mayors to review their regulatory frameworks and to implement these guidelines, in consideration of their local context, to kick-start inclusive economic recovery.

  • Download the guidelines here

Also see SERI and SALGA’s publications on informal trade:

  • Download Informal Trade in South Africa: Legislation, Case Law and Recommendations for Local Government (June 2018) here.
  • Download Towards Recommendations on the Regulation of Informal Trade at Local Government Level (June 2018) here.

[ADVOCACY] South African civil society submits second parallel report on the realisation of socio-economic rights to UN Treaty Body (10 September 2021).

Last week, a coalition of civil society organisations called South Africa’s Ratification Campaign of the International Covenant on Economic, Social and Cultural Rights (ICESCR) and its Optional Protocol (the Campaign) submitted a second parallel report on the South African’s government’s progress in realising socio-economic rights to the United Nations Committee on Economic, Social and Cultural Rights (the Committee). The South African government ratified ICESCR in January 2015.  

As part of its reporting obligations, the South African government submitted its initial period report in April 2017 to the Committee. The Campaign submitted a parallel report in September 2018, challenging some aspects of the government’s report and making recommendations with respect to food security, access to remedies, adequate housing, water and sanitation, health and social grants. 

In October 2018, the Committee took into consideration the initial report of South Africa, the reports of the South African Human Rights Commission and civil society organisations on the implementation of the ICESCR, and made a series of Concluding Observations setting out how the South African government can improve its record in fulfilling socio-economic rights. The government is required in terms of its Covenant obligations to report back on its progress on the implementation of specified recommendations by October 2020, which it fulfilled,  and is due to provide another full report to the Committee by 31 October 2023.

In its 2020 report the South African government reported on its progress in terms of the implementation of the recommendations specified by the Committee, namely the recommendations contained in paragraphs 48 (a) and (c), concerning the preparation of a composite index on the cost of living and access to social assistance for adults between 18 and 59 years of age; recommendation 57 (c), concerning the adoption of the Social Assistance Amendment Bill (2018) and; recommendation 73 (c), concerning access to education for undocumented migrant, refugee and asylum-seeking children.  

The Campaign’s second parallel report to the government’s 2020 progress report addresses recommendations 48 (c), 57 (c) and other recommendations from the Concluding Observations. Amongst several recommendations, the Campaign recommends that the Department of Social Development provide an outline for timeframes and the process for the implementation of a policy on income support for unemployed people between 18- 59 years of age, and that government use the COVID-19 Social Relief of Distress Grant to transition to permanent social assistance.  

The report also highlights the COVID-19 pandemic’s devastating impact on economic, social and cultural rights and argues that the pandemic establishes the need for urgent implementation of other recommendations in the Concluding Observations. The Campaign then provides recommendations on access to education, adequate housing and the rights of domestic workers. 

The Campaign’s Steering Group is comprised of the Socio-Economic Rights Institute of South Africa (SERI), Black Sashthe Dullah Omar Institute (DOI)the People’s Health Movement South Africa (PHM-SA), and the Studies in Poverty and Inequality Institute (SPII), and also draws on expert inputs from the Institute for Poverty, Land and Agrarian Studies (PLAAS) at the University of the Western Cape, and Prof Lilian Chenwi and Prof Jackie Dugard at the University of the Witwatersrand.

  • Read the Campaign’s report here
  • Read a summary of the Committee’s Concluding Observations here.
  • Read the Campaign’s first parallel report here.
  • Read the South African government’s initial report here

[ADVOCACY] SERI and IZWI raise awareness on domestic workers employment issues (7 September 2021).

Domestic Workers imageThis year, SERI and Izwi Domestic Workers Alliance dedicated Women’s month to raising awareness amongst employers of domestic workers of their role in the domestic employment relationship. 

Domestic workers play a significant role in contemporary society. As more and more women join the labour force, and while national policies fail to facilitate the reconciliation of family life and work, 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. Domestic workers, 95% of whom are women according to Statistics South Africa, often lack recognition as real workers and work under unfair conditions. Part of the reason for this is employer non-compliance, reinforced by the Department of Employment and Labour’s failure to hold employers accountable for their legal obligations.  

On 9 August, Women’s Day, SERI and Izwi launched, “Employing a Domestic Worker: a Legal and Practical Guide”, a user-friendly guide written for employers of domestic workers in South Africa, to inform them of their rights and obligations in the employment relationship, provide practical advice and support them to improve their employment practices. 

The guide provides legal advice and guidelines on the different phases of the employment relationship in its different sections, 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 and Frequently Asked Questions. 

  • Download the guide here.

Additionally, we collaborated with development economist, activist and radio presenter, Ayabonga Cawe, on a series of radio episodes to bring the key issues affecting domestic workers to the public discourse on Metro FM Talk, “Shop Stewards Corner” which airs weekdays between 8pm and 9pm. The guests included domestic workers, unionists, activists and researchers.  

Listen to the episodes here: 

To end Women’s Month, SERI’s Kelebogile Khunou and Izwi’s Amy Tekie wrote an op-ed, published in the Mail and Guardian, highlighting the importance of employer compliance with labour laws, to ensure that domestic workers in South Africa enjoy the rights they are entitled to such as decent working hours, overtime pay, public holidays, paid leave and fair dismissal procedures.

  • Download the op-ed here

[NEWSLETTER] SERI's August 2021 newsletter is out (3 September 2021).

                                                               Newsletter header Q2 2021

 

This is SERI’s second 2021 newsletter. In it we present a few highlights from our work in the four months (May to August) since the April newsletter which covered the January to April period.

In this period, SERI and IZWI launched a new resource guide for employers of domestic workers. Together with various partner organisations, we produced three factsheets on COIDA, police accountability and the post-Marikana Panel of Experts Report. We participated in a dialogue hosted by the Nelson Mandela Foundation where two of SERI’s urban land reform papers were launched. We launched a book by former SERI executive director, Stuart Wilson, titled “Human rights and the transformation of property”. We made policy submissions to parliament, the United Nations and the Department of Human Settlements. 

SERI’s litigation highlights include support to CSAAWU shop steward, Ms Van Wyk, to challenge her dismissal for expressing her opinion, and engagement on Ms Maria Mahlangu’s family claim under COIDA and challenging the inappropriate use of interdicts to stifle protest in the Constitutional Court. SERI has also been attending the Marikana criminal trial relating to the murders of 13 August 2012 as part of our work for justice for the Marikana Massacre.

  • Access the full newsletter here