On Tuesday, 19 February 2019, SERI argued an application in the Constitutional Court, on behalf of General Alfred Moyo, to have section 1(1)(b) of The Intimidation Act72 of 1982 declared unconstitutional.
The case emanates from a criminal charge laid against General Moyo after an attempt by him and other residents of the Makause Community Development Forum (Macodefo), a community-based organisation in Makause informal settlement, to hold a march protesting against police brutality in Primrose, Germiston in 2012.
SERI, on behalf of General Moyo, have consistently argued that section 1(1)(b) of The Intimidation Act 72 of 1982 is unconstitutional as it criminalises any speech or conduct which creates a state of fear in the person towards whom the speech or conduct is directed. This drastically limits the right to freedom of expression found in s16 of the Constitution.
The matter was heard on appeal from the Supreme Court of Appeal (SCA) which declared s1 (2) of the Act invalid, but held that s1(1)(b) was constitutionally compliant.
SERI argued that the purpose of the provision has been consistently misinterpreted by the courts which, incorrectly limited the right to freedom of expression. One of the issues recognised by the SCA was the broad language used in s1(1)(b). It believed to have remedied this issue by narrowing the interpretation of the section by “reading in” the fact that for a sense of fear to be actionable under s1(1)(b) it had to be imminent. However, SERI argued that the breadth of the language in the provision caters to a whole range of potential fears to an individual, their property, livelihoods and to third parties. If the section was limited in this way it would, in many justified situations, render the provision powerless.
SERI also argued that the section was being applied to situations which were not intended by the legislature. It was submitted, that the way in which the SCA interpreted s1(1)(b) went beyond the scope originally intended by the legislature. The SCA advocated for the broad definition of the section on the basis that it allowed the protection of s1(1)(b) to be extended to crimes such as cyber-bullying, stalking and harassment. SERI argued that not only are these offences protected by other pieces of legislation but also that stretching the section in this way defeated its purpose and again, unjustly limits the right to freedom of expression.
The pending outcome of the judgement will serve to clarify whether s1(1)(b) will continue to be considered constitutionally valid. This brings into question whether or not a person can be arrested and criminally charged for speech or publication which induces fear in another, for their own safety or the safety of their property or that of a third party.
On Wednesday, the Daily Maverick published an op-ed by SERI candidate attorney Khululiwe Bhengu which considers an upcoming court challenge by Johannesburg inner city residents against police raids conducted at the behest of the Minister of Police and the Mayor of the City of Johannesburg, Herman Mashaba, since June 2017. The op-ed considers the unlawfulness of the raids and negative effects they have had on the residents.
Bhengu argues that “far from being a way to eliminate crime, as argued and maintained by the City of Johannesburg, raids on inner-city buildings that are seen as derelict and over-run by illegal immigrants have disproportionately targeted the poor and vulnerable residents of the city.”
Read the full op-ed here.
On Friday 8 February 2019, SERI’s Lauren Royston, Maanda Makwarela and Kelebogile Aplane participated in a stakeholder roundtable on Urban Land and Human Settlements, Spatial Strategies, Property Markets, Land Governance, Development and Administration. The meeting was hosted by the Presidential Advisory Panel on Land Reform, the South African Cities Network and the National Planning Commission.
The ten-member Expert Advisory Panel, which comprises farmers, lawyers, agricultural economists and academics, was appointed by President Cyril Ramaphosa to provide the Inter-Ministerial Committee on Land Reform with a unified policy perspective on land reform in respect of restitution, redistribution and tenure reform.
The roundtable was convened to provide stakeholders to analyse, debate and recommend policy positions and legislative proposals on how to develop modalities for an effective land reform process. Recommendations from the roundtable will be included in the Panel’s report to the President in March 2019.
SERI is delighted to welcome two new interns, Nerishka Singh and Sekese Rasephei, to the team.
Nerishka Singh joins SERI as a research intern. She holds a BA (Political Studies) and LLB from the University of the Witwatersrand. She is looking to pursue a Masters Degree which focuses on human rights litigation, with specific interest in the rights of women and children in South Africa. Nerishka’s interests include, politics, legal transformation and current affairs which touch on the socio-economic realities of different groups in South Africa.
Sekese Rasephei joins SERI as a research intern. He is currently a law student at the University of the Free State where he occupied various positions in a number of student bodies. Among these he has been; Chairperson of the Faculty of Law Student Council (The Juridical Society), the Academics Officer in the Student Representative Council as well as being the Chairperson of the Transitional Student Council. He has experience in tertiary debating and Model United Nations. His interests lie in helping and ensuring individuals achieve equality of opportunity and he has a keen interest in the improvement of personality and performance.
On 31 January 2019, the residents of the Winnie Mandela informal settlement filed a contempt application to hold the Ekhurhuleni Metropolitan Municipality, the Mayor of Ekhurhuleni, the City Manager, and the Head of Municipal Department of Human Settlements to account for failing to abide by a December 2017 High Court order to provide them with housing.
SERI represents 133 residents of the Winnie Mandela informal settlement who have lived in shacks at the settlement without sufficient access to basic services since 1994. All the residents were approved and allocated a particular state-subsidised stand, only to find other people living there when they tried to move in. As a result, the residents cannot take possession of the stands allocated to them. By fraud or negligence, those stands have been given to other people, unknown to the residents.
In December 2017, the North Gauteng High Court ordered the municipality to provide each of the residents with a house at Tembisa Extension 25, or at another agreed location by 31 December 2018 and register the residents as the titleholders of their respective erven by 31 December 2019. On appeal to the Supreme Court of Appeal, the municipality was given until 30 June 2019 to provide the residents with a house and until 30 June 2020 to register them as titleholders.
As of 31 December 2018, the municipality had failed to abide by the High Court order by failing to take the intermediary steps required by the Court to ensure that the residents will receive the houses to which they are entitled. This includes the creation of a steering committee to oversee the construction process and quarterly reports on the progress of the construction of the residents’ houses. The residents contend that the municipality’s failure to comply with these aspects of the High Court order indicates that the municipality is not likely to comply with the ultimate object of the order, providing house, on time or at all.