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[PRESS STATEMENT] 11 years later: The victims of the Marikana Massacre still await justice (10 August 2023).

Presser Marikana 11th anniversary scrshtsOn 10 August 2012, mineworkers at what was then the Lonmin plc platinum mine, now Sibanye Stillwater, gathered to bring their grievances about their wages and working conditions to the attention of the mine’s management. Before the miners could reach Lonmin’s offices, they were stopped by the South African Police Service and the mine’s security guards. Despite their attempts to engage with management, Lonmin refused to communicate with the miners outside of the official trade union channels, which was the majority trade union, National Union of Mineworkers (NUM) at the time. Consequently, the miners decided to go on strike. Over the days that followed, 44 people would be killed including 34 miners who were shot and killed by the police on 16 August 2012 – a day now remembered as the Marikana Massacre.

Since 2012, SERI has represented 36 families of the miners killed on 13 and 16 August and supported their pursuit for justice and accountability. In 2015, the families, totalling 320 claimants, launched their civil claim seeking an apology from government and damages for loss of support, medical expenses, general damages and constitutional damages. The State has paid out settlements for loss of support claims for 34 of the 36 families, with payments made between August 2018 and September 2019.

In 2019, SERI received an offer for loss of support for the 35th family but this excluded a family member and is yet to be finalised. Concerning the 36th family, the State’s position is that it would not compensate the family for loss of support as it believes that the deceased miner did not have a duty to support his unemployed siblings and their children.

Regarding criminal justice, only nine police officers have been prosecuted to date. Four police officers were charged with crimes relating to defeating the ends of justice and for concealing the circumstances around the death of Mr Motiso Otsile van Wyk Sagalala. In 2021, all four officers, including former North West Deputy Police Commissioner Major General William Mpembe, were acquitted.

Mpembe and five other officers are currently standing trial for the events that occurred on 13 August 2012 in which three mineworkers and two police officers were killed. The officers have been charged with the death of mineworker Mr Pumzile Sokanyile. Mpembe is also standing trial for the deaths of mineworkers Mr Semi Jokanisi, Mr Thembelakhe Mati and police officers Warrant Officer Tsietsi Hendrik Monene, and Warrant Officer Sello Ronnie Lepaauku. Mpembe is further charged with the attempted murders of six surviving mineworkers and one police officer. This trial commenced in May 2021 and is yet to conclude. All this time the families whose loved ones were killed on 13 and 16 August 2012 continue to bear the brunt of delayed justice through slow-paced prosecutions.

Over the past 11 years, neither former President Jacob Zuma nor President Cyril Ramaphosa have ever visited the families to tender an apology for the loss of their loved ones. In February 2018 (during the State of the Nation address) and in April 2018 (at the funeral of Winnie Mandela), President Cyril Ramaphosa repeated a promise he made to visit the widows and families and to apologise to them, however, that is yet to take place. Instead, the State has denied that the Families are legally entitled to the apology and dragged its feet in terms of compensatory redress, by having only settled on one of the five areas for compensation – loss of support, and accountability while at the same time, the state has shouldered the cost of the legal defence of police officers standing trial, at times affording individuals separate legal teams. For example, the legal costs of former Police Commissioner Riah Phiyega’s litigation challenging the findings of the Farlam Commission of Inquiry were reported to have reached R5,5 million in August 2021. In contrast, the families have collectively been represented by three senior state prosecutors.

While the state has claimed Marikana as a dark day in South Africa’s history, it has failed to demonstrate a full appreciation of what the massacre has cost the families and what they have continued to suffer over the years. Under international law, the state has failed to uphold the victims’ and survivors’ rights to equal and effective access to justice, and their rights to adequate and prompt reparation for the harm suffered.

Some of the families suffered further deaths in the immediate aftermath of the massacre, including a family that suffered a miscarriage, and another whose mother of a deceased miner collapsed and died at the news of the massacre, for example. Over the years, three families each lost a loved one to suicide relating to the trauma caused by the massacre, while other families with elderly members have also lost loved ones with the passage of time. Many of the children whose parents were killed at Marikana are now adults and have had to contend with what their loss has meant for their childhood and how it continues to shape their lives.

We call on the South African government to prioritise the victims of the Marikana massacre by apologising to the families and survivors of the massacre. We call on the mine that acquired Lonmin, Sibanye Stillwaters, to play its role in bringing justice to the families by acknowledging the role that the mine played in the massacre and to take sincere steps to assist the families in their search for healing by engaging in a victim-centred and led reparatory initiative. We call on the state to take the steps to prosecute those responsible for the massacre ranging from state officials to representatives of the mine who are accused of being involved. Finally, we also call on the state to expedite finalising all outstanding compensatory claims.

Contact details: 

  • Asenati Tukela, SERI attorney: Asenati[at]seri-sa.org
  • Thato Masiangoako, SERI researcher: Thato[at]seri-sa.org

 

Download the statement here.

[WORKSHOP] SERI collaborates of the the Abahlali baseMjondolo’s Women’s League to host a women's spaces workshop on housing and family law (8 August 2023).

On Sunday 23 July, SERI collaborated with the Abahlali baseMjondolo’s Women’s League in a day long workshop in Tembisa as part of the Women's Spaces project. The purpose of the workshop was to inform participants of their rights under the constitution and legislation both in terms of housing as well as family law.  The workshop was attended by approximately 50 women from both Tembisa and Germiston. 

Over the course of the day, sessions  were hosted on the Constitution, the Bill of Rights, the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE) as well as introduction to marital regimes. Further sessions were held on the patriarchy as well as the role of women in the movement.  

Although both the Constitution as well as the PIE act protect the rights of unlawful occupiers by requiring that an eviction order is granted by the courts, many occupiers, particularly those in informal settlements find themselves at the receiving end of unlawful demolitions and other means of constructive evictions. For many women, these threats to tenure security are compounded because of their gender, and therefore may be vulnerable to eviction from both outside forces as well as eviction from within the household itself. 

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[ADVOCACY] SERI participates in Solidarity Centre's Domestic Worker Litigation Exchange (7 August 2023).

DW_litigation_exchange.jpegFrom 17-19 July 2023, SERI participated in a Domestic Worker Litigation Exchange organised by Solidarity Center in Rosebank, Johannesburg. The Exchange was organised to introduce South African public interest legal organisations to human rights lawyers from Ethiopia, Eswatini, Lesotho, Malawi and Zimbabwe, who want to bring impact litigation on domestic worker rights in their respective countries. The exchange provided an opportunity for the lawyers to engage with South African public interest legal organisations and learn about key cases from South Africa and the region. The exchange provided an opportunity to discuss legal approaches, strategies, arguments that have worked and might be successfully imported to other contexts; and correspondingly, strategies that did not work, and should be avoided.

SERI’s contribution to the exchange was a reflection on the Mahlangu v Minister of Labour matter. SERI gave a presentation on the interweaving of the strategies of litigation, research and advocacy in Mahlangu. The presentation started with insights of the advocacy and organising by domestic worker unions for inclusion in the Compensation for Occupational Injuries and Diseases Act (COIDA), by Eunice Dhladhla, Assistant secretary general of the South African Domestic Service and Allied Workers Union (SADSAWU).  Pinky Mashiane, president of United Domestic Workers of South Africa provided a narrative of the story of the Mahlangu family and their struggle for justice. SER's presentation highlighted the importance of the use of advocacy and research as an accompaniment to litigation, and revealed the challenges regarding the implementation of the Mahlangu judgment.

Chriscy Blauws of Women’s Legal Centre presented on their amicus intervention in the case of Mahlangu. She spoke about the importance of using an intersectional and feminist lens in litigation to achieve feminist jurisprudence that places the lived reality of black women at the forefront and to achieve substantive equality. She highlighted that the exclusion of domestic workers from COIDA discriminated against black women and violated a number of their constitutional rights as contained in the Bill of Rights of the Constitution, namely their rights to equality, dignity and social security. These exclusions reinforced historical and apartheid practices and is contradictory to the purpose and spirit of the Constitution. To round off the presentations on the Mahlangu judgment, the litigation exchange greatly benefitted from a presentation by Judge Margret Victor, who wrote the majority judgment in Mahlangu, who highlighted domestic workers’ right to equality and dignity, the importance of applying an intersectional lens and South Africa’s international and regional obligations affecting the case. 

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The 3-day programme included robust conversations on several themes, including, domestic work and the platform economy, feminist legal methods, the use of international and regional human rights instruments in litigation, litigation on gender based violence and harassment at work. Organisations involved in the exchange included SERI, Women’s Legal Centre, Initiative for Strategic Litigation in Africa, University of Johannesburg, CENTROW, Institute for Economic Justice, International Commission of Jurists, Centre for Applied Legal Studies, Lawyers for Human Rights, Southern Africa Litigation Center, and Amnesty International. Several academic experts and advocates also contributed to the programme. 

[PRESS STATEMENT] SERI condemns police use of excessive force against Slovo Park protestors (1 August 2023).

SERI Presser SlovoPark protest combinedSERI condemns the indiscriminate violence and excessive force used by the South African Police Service (SAPS) in the ongoing protest in Slovo Park. On 31 July 2023, SERI learned that 16-year-old Karabo Chaka was killed after he was allegedly shot in the back of the head by the police in the Slovo Park informal settlement in the south of Johannesburg. This incident occurred during the community’s protest to draw attention to the lack of water and sanitation delivery in the settlement and a stalled informal settlement upgrading process. As part of the protest, residents blocked the N12 highway and in response, the police resorted to firing rubber bullets and tear gas into the informal settlement and pursuing fleeing protesters.

Karabo is yet another victim of violent policing by SAPS. While the specific details surrounding Karabo’s death remain unclear, we believe that it is further evidence of the police’s reliance on indiscriminate and deadly force, and a failure to facilitate protest through means such as communication, negotiation, and de-escalation.

While the context of protest is complex and dynamic, the police should be responding to protests with care for both protestors and surrounding communities and individuals who may not be a part of the protest. According to SAPS directives, the police are required to avoid the use of force “at all costs” and “must display the highest degree of tolerance”. If it is determined that the use of force is unavoidable, then the degree of force used must be proportional to the circumstances and threats present. This would require the police to act in a manner that is responsible with an awareness of their duty to protect life and prevent damage to property. Only a commander may instruct the use of any force and the use of rubber bullets in crowd management to disperse is only to be used in “extreme circumstances”.

The Slovo Park protest was a long-considered option borne out of community frustration with other avenues of engagement. The context is that in 2016, the High Court ordered the City of Johannesburg to commence the process prescribed in the Upgrading of Informal Settlements Programme (UISP) for the upgrading of the Slovo Park settlement.  However, seven years since the Melani judgment, apart from the partial electrification of the settlement in 2018, access to basic services in Slovo Park is still lacking leading  to the death of several minors.

Since the judgment, the community of Slovo Park has engaged with the City of Johannesburg through the Slovo Park Community Development Forum (SPCDF), which represents the community in the upgrading process via an upgrading task team with the relevant parties. In these engagements, they have also shared the deaths of at least two children who died after falling into pit latrines and have consistently brought to the City’s attention the lack of access to running water, sanitation, and other challenges facing the settlement.

We are disheartened by the circumstances that have driven the community of Slovo Park to take to the streets. For nearly thirty years, since its establishment in the early 1990s, Slovo Park has been on the receiving end of broken promises made by government for upgrading and development. The City of Johannesburg has failed them. The community’s decision to take to the streets in protest is a measure of last resort, having exhausted other avenues available to them.

We mourn the death Karabo Chaka and extend our deepest condolences to his family and to the community of Slovo Park. We stand behind Slovo Park and we are in solidarity with their cause. We call on the Independent Police Investigative Directorate to thoroughly investigate the circumstances of Karabo’s death and demand that those responsible for his death be held accountable.

Contact details: 

  • Thato Masiangoako, SERI researcher: thato[at]seri-sa.org.
  • Khululiwe Bhengu, SERI senior attorney: khululiwe[at]seri-sa.org.

 

Download the press statement here.

[OP-ED] SERI's Khuliliwe Bhengu and Muano Nemavhidi reflect on the implications of eThekwini's informal trade by-laws (28 July 2023).

KB MN Op Ed DailyMav eThekwini informal tradeOn 25 July 2023, the Daily Maverick published an op-ed by SERI's Khululiwe Bhengu and Muano Nemavhidi entitled 'eThekwini continues to deny informal traders full trading rights despite high court ruling'. In 2015, in the matter Makwickana v Ethekwini Municipality and Others, the Durban High Court found in favour of an informal trader, John Makwickana, who had his goods confiscated by eThewkiwni law enforcement officials. The Court found that eThekwini Municipality’s by-laws potentially violate the rights of traders if they are implemented restrictively and ordered eThekwini Municipality to compensate Mr Makwicana for the value of his goods plus interest and to revise their by-laws to be in line with the Constitution.

In the op-ed, Bhengu nd Nemavhidi reflect on the new informal trading by-laws which eThekwini passed in 2019, a year after Makckwana had passed on. They find that the new by-laws present informal traders with barriers that begin with the application process and continue with overly restrictive enforcement which puts them at odds with the judgment. They write:

"In eThekwini, traders are easily criminalised and have their goods confiscated based on the by-laws, while their day-to-day realities and vulnerabilities are overlooked or not understood. This is against the spirit of our constitutional democracy which would require a truly consultative and inclusive scheme to regulate informal trade within the inner city."

Bhengu and Nemavhidi call for more constructive engagement between the municipality and traders to overcome challenges, as well as amendment of the by-laws in the ways outlined in the op-ed.

 

  • Read the full op-ed here.