On Tuesday, 6 October 2020, SERI launched the Claiming Water Rights in South Africa research series, documenting residents’ experiences in claiming water rights in South Africa. The research project was launched in a Water Rights Webinar Series held in partnership with the Mail and Guardian. The research forms part of the global #ClaimYourWaterRights campaign initiated by End Water Poverty.
The research examines how water rights are being claimed in South Africa, with a view to drawing lessons from the work of communities and civil society organisations in a diverse range of circumstances. This series analyses the legal and practical issues in water rights claiming. It consists of four case study reports and a synthesis report. The research was conducted in the first half of 2020 just as COVID-19 began to spread in South Africa. Access to water emerged early as integral to combatting the virus, as frequent handwashing is one of the key preventative measures. While the full extent of the impact of COVID-19 on water services in South Africa is still unfolding, the report offers some preliminary observations on this relationship.
Today, SERI launched the synthesis report and the first case study focusing on the Marikana informal settlement. This case study of the Marikana informal settlement is the second of four case studies. It illustrates how expropriation in terms of the Housing Act 107 of 1997 (the Housing Act) can be utilised as a tool to widen access to urban land for poor people and to provide them with services. The Marikana informal settlement in Cape Town is home to over 60 000 people. For years, the residents of Marikana have persistently and innovatively engaged in a diversity of strategies to improve their living conditions. These strategies have included community mobilisation, engagement with the authorities, protest, self-supply, and ultimately, precedent-setting litigation in the Fischer case which is the first case in South Africa to examine the possibilities of expropriation in terms of the Housing Act.
The publications are:
The Socio-Economic Rights Institute of South Africa (SERI) and the Mail & Guardian invite you to the
Water Rights Webinar Series
Expropriation as a tool: the Marikana experience
The Marikana informal settlement in Cape Town is home to over 60 000 people. For years, the residents of Marikana have persistently and innovatively engaged in a diversity of strategies to improve their living conditions. These strategies have included community mobilisation, engagement with the authorities, protest, self-supply, and ultimately, precedent-setting litigation in the Fischer case which is the first case in South Africa to examine the possibilities of expropriation in terms of the Housing Act. The lessons which might be learned from the experiences of the residents of Marikana are documented in the SERI’s ‘Claiming Water Rights in South Africa’ research project, as one of four case studies.
When: Tuesday, 6 October 2020; 10h30-12h00 via Zoom
Who: Nkosikhona Swaartbooi (Social Justice Coalition); Innocentia Hewukile and Mzwanele Jokani (Marikana community members); Thulani Nkosi (SERI); Sipho Kings (Mail & Guardian); and Thato Masiangoako (Facilitator, SERI).
RSVP: Register for the Zoom webinar here by 5 October 2020.
On 6 September 2020, the Daily Maverick published an op-ed written by former senior researcher Maanda Makwarela. The op-ed discusses the heavy toll that participating in the #RUReferenceList protests in 2016 has had on Yolanda Dyantyi, who was subsequently permanently expelled by Rhodes University. Yolanda Dyantyi was 19-years-old at the time of the protests.
In the op-ed, Maanda describes how harmful the characterisation of Yolanda, as just "an angry black girl" has been used as a way to discredit her protest and delegitimise her concerns. This characterisation has also been used to single her out and punish her for participating in the protest.
Maanda writes that: "Dyantyi is a symbol of opposition to gender-based violence and rape culture 365 days a year. In refusing to accept the status quo, she embodies the bravery that young women are encouraged to possess. As a country, we have to ask if we value the sacrifices made by protesters like Dyantyi, who force us to examine uncomfortable realities and help to spur change."
On 17 September 2020, the Grahamstown High Court granted Yolanda Dyantyi leave to appeal a decision to dismiss her review application. In June 2018, SERI launched the review application seeking to set aside the outcome of the disciplinary inquiry which resulted in her being permanently excluded from Rhodes University in November 2017.
On 4 December 2019, SERI appeared on behalf of Yolanda in the Grahamstown High Court to argue the review application. SERI argued that the disciplinary inquiry was procedurally unfair, in that 1) Yolanda was denied the assistance of her chosen counsel and consequently of any reasonable opportunity to present her case; 2) that the presiding officer at the disciplinary inquiry was biased, or reasonably suspected of bias, and 3) that Yolanda was unlawfully denied the internal remedies made available to her in terms of the University’s disciplinary rules. Yolanda also argued that, even if the inquiry was procedurally fair, the conclusions reached by the Proctor were based on material errors of fact and of law and were conclusions that no reasonable decision-maker could have made on the evidence before them.
In March 2020 the High Court dismissed Yolanda’s review application and ordered her to pay the University’s costs. In April 2020, SERI then filed an application for leave to appeal, primarily submitting that the Court erred in failing to consider the argument that the postponement of the disciplinary inquiry to a date when her legal counsel was not available had resulted in an unfair disciplinary process. Rhodes University opposed the application and the matter was then argued on 7 September and 11 September 2020.
The matter will now be appealed at the Supreme Court of Appeal.
This is SERI's second newsletter of 2020. In it we present a few highlights from our work since May 2020. Since its inception, SERI has undertaken over 500 litigious matters on behalf of hundreds of thousands of people and provided non-litigious support to many more. Our ground-breaking research and advocacy has highlighted the lived realities of marginalised South Africans and surfaced solutions that could result in the fulfilment of their socio-economic rights. SERI’s litigation, research and advocacy assist communities to resist evictions and secure basic services in their homes in informal settlements and inner-city buildings. It further assists communities to hold duty bearers to account, to safeguard the right to protest and to defend the right to work.
The COVID-19 crisis and government’s response to it has brought SERI’s areas of work in “Securing a Home”, “Making a Living” and “Expanding Political Space” into sharp focus.
Municipalities have continued to carry out unlawful evictions using private security companies, Anti-Land Invasion Units, metropolitan police and the South African Police Services (SAPS).
Government’s response to COVID-19 has had a devastating impact on the rights and livelihoods of informal and precarious workers. One of the most significant obstacles for domestic workers during the lockdown has been difficulty accessing government’s income protection measures. Due to pressure from SERI and other civil society organisations over the lockdown period, the Department of Labour and Employment made two significant amendments to the TERS directive making it possible for domestic workers to benefit from the scheme. This was a victory for South Africa’s domestic workers, albeit a short-term one.
Informal traders were not able to work at the beginning of lockdown and then only if they were trading in fresh (not cooked) food. Licensing requirements have been inconsistent across municipal areas and traders have received no support to implement public health measures. In eThekwini and Johannesburg local authorities refused to open markets while metropolitan police confiscated traders’ goods and harassed them.
The heavy-handed enforcement of lockdown regulations and the excessive use of force by the various security personnel underlined the urgent need for police accountability and the implementation of crucial reforms within the police.
SERI continues to embolden individuals, social movements and CBOs to use legal and research support to exercise their rights; to inform pro-poor government policy and practice and to inform and engage civil society.
We launched the second edition of the Slovo Park Community Practice Note, our latest policy brief on adequate temporary alternative accommodation and compiled a report on “Informal food system: Vendors, street vendors & spazas” for the C19 People’s Coalition Food Working Group, together with Centre for Applied Legal Studies (CALS), Women in Informal Employment: Globalizing and Organizing (WIEGO) and Asiye eTafuleni.
We helped defend the rights of eKhenana residents against illegal evictions during lockdown; successfully challenged the constitutionality of warrantless police raids in the homes of inner-city residents; and continue to challenge efforts by the City of Ekurhuleni to undermine the rights of Winnie Mandela residents. We have intervened as amicus in the Khosa case and represent Colenso women in appealing their conviction for participation in a non-violent protest.