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.

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  • 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).

 

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

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.

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

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

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