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On Tuesday, 6 August 2024, the Socio-Economic Rights Institute of South Africa launched a report entitled A Gendered Analysis of Family Homes in South Africa. This report interrogates the concept of the family home through a gendered lens. The report finds that women and children, who are often the primary occupants of family homes are disproportionately affected by family home related disputes.  Accompanying the reports are a series of fact sheets, which are topic specific summaries of different areas of the larger report. 

The report consists of an intersectional analysis of family homes, which often fuse customary beliefs around property with private title. It traces the historical origins of family homes to the permit-based land rights systems used in township areas during the Apartheid era. Notably, the study finds that family home disputes often share similar circumstances, where male relatives leverage both formal property and customary law systems in their favor, gaining access, control, and often ownership of the property. The report also details how courts have approached family home disputes; the lack of understanding of the family home concept and how overlapping legal systems contribute to disadvantaging women from tenure security.

The report suggests a variety of potential interventions that could address the key issues in family home disputes such as recognition of the family home concept, amending procedure for administration of deceased estate and transfer of ownership such as section 18 (3) of the Administration of Deceased Estate Act. The significance of the family home report is to close the gap between the concept of a family home and the legal concept of ownership.

The family home report forms part of the Women’s Spaces project, made possible by Global Affairs Canada.

>> Access the full publication here. 

On Thursday, 1 August 2024, the Western Cape Division of the High Court granted a variation order that underscores a victory for the voices of over 100 unhoused people occupying public spaces in seven sites around the Cape Town inner city, by removing all references to the provision of alternative accommodation at the Safe Space 1 shelter in Culemborg and replacing it with the new Ebenezer Safe Space 3 and Culemborg Safe Space 2, as adequate and dignified human habitation Safe Spaces.

Upon conducting a series of consultations with our clients from 25 to 28 June 2024, it became clear that despite the amended rules in the City’s Safe Spaces, Safe Space 1 is in a deplorable and inhabitable state unacceptable to our clients as it does not have surrounding walls and would expose our clients to the elements. This concern was aggravated by the timing, considering that Cape Town is in mid-winter with low temperatures and regular rainfall expected. Such conditions are not commensurate with the spirit of the High Court’s judgment and the Constitutional Court’s jurisprudence concerning temporary adequate alternative accommodation.

For these reasons, on 9 July 2024, SERI filed a conditional application for leave to appeal against part of the judgment and order that required the City to provide alternative accommodation to all our clients to Safe Space 1. Following this, the City offered to all the occupiers, the Ebenezer Safe Space 3, a municipal depot building that will accommodate some 300 beds for single persons, and Culemborg Safe Space 2 for couples in a relationship with each other. Both these Safe Spaces have a shelter or shelters that are completely enclosed and offer absolute protection to our clients from the elements. Those people who live as a family together with their children will be referred to the Provincial Department of Social Development by the City in terms of the court order. Further, these Safe Spaces will function with amended rules taking away the day-time lock-out and allowing residency beyond six months for those residents who have not been able to secure accommodation. The unhoused occupiers of the sites agreed to these terms.

To that end, the occupiers and the City agreed to the terms of the variation order. The eviction date has shifted from 30 July 2024 to 12 August 2024 and a site-by-site relocation of all our clients will commence on 5 August 2024 up until 8 August 2024, with their current structures having to be dissembled before they are relocated and those possessions which they cannot take to the Safe Space, bagged, labelled and stored for them for 6 months. 

SERI’s Senior Attorney Nkosinathi Sithole says, “This is an important development which reaffirms the voices and the dignity of many unhoused people in the inner city of Cape Town, our clients have also welcomed these developments and look forward to seeing their lives change and being part of a society where their universal human rights are protected and promoted”.

Contact details: 

• Nkosinathi Sithole, SERI senior attorney, nkosinathi[at]seri-sa.org, 082 589 7473. 

>> Download the full statement here.

On 10 July 2024, the Supreme Court of Appeal (SCA) issued its judgment in the matter of City of Cape of Town v South African Human Rights Commission and Others. The Human Rights Commission was represented by the Legal Resources Centre. The matter, which was brought by the South African Human Rights Commission (SAHRC) against the City of Cape Town, follows the demolitions at the Ethembeni informal settlement in Khayelitsha, Cape Town in July 2020. Armed metro police officers and members of the City of Cape Town’s Anti-Land Invasion Unit (ALIU), accompanied by private contractors acting on the instruction of the City, violently removed Mr. Bulelani Qolani from his shack, while he was naked and in full view of surrounding residents and proceeded to demolish his shack without a court order. This occurred during the COVID-19 pandemic national shutdown when a nationwide moratorium on evictions was in place.

The case concerns the use  of counter‑spoliation, which is a remedy in common law to take back property that has been unlawfully taken from an owner. In this case, the City of Cape Town used counter-spoliation to demolish without going to court first to obtain a court order. The Court ruled that the remedy of counter-spoliation is not available to a property owner, in this case the municipality, under circumstances where possession of the property has already been established by a homeless person. This means that municipalities and property owners must obtain authorisation from a court either in terms of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE), mandament van spolie, an interdict or another available remedy, prior to demolishing a structure constructed to be a home regardless of the phase of construction. The SCA specified that they could only act without court authorisation before the person has begun “putting up poles, lines, corrugated iron sheets, or any similar structure with or without furniture”. 

Abahlali baseMjondolo, represented by SERI,  were admitted as a friend of the court - amicus curiae - in the matter. Abahlali’s submission was informed by their own experience of the eThekwini ALIU. Abahlali and SERI welcome the judgment as an important affirmation of the rights of all people to be protected from unlawful evictions, and we commend the Human Rights Commission represented by the Legal Resources Centre for bringing the case. 

Abahlali’s submissions focused on when municipalities can use the remedy of counter-spoliation, submitting that the City’s use  is at odds with its duty under Section 26 of the Constitution, to act reasonably to progressively give effect to the right of access to adequate housing. The City cannot invoke this remedy after a homeless person has commenced the construction of their informal structure because “any act of dispossession from that stage would not be a defence against spoliation but itself amount to an act of spoliation.” The City must seek relief through the courts to ensure judicial oversight and prevent junior officials from acting on their own discretion against marginalised people.

The judgment also noted the brutalising conduct of the ALIU and other law enforcement officers: “the conduct of the City’s personnel did not only constitute a violation of the occupants’ property rights in and to their belongings, but also disrespectful and demeaning.” The judgment finds that the City must take responsibility for training and equipping the ALIU personnel with sensitivity training “to recognise that people’s rights should be respected and they should not be abused during removals”. 

SERI executive director Nomzamo Zondo commented, “I am certain that the judgment’s emphasis on the behaviour of anti-land invasion units, outlawing the confiscation of possessions, and restating the obligation to treat people with dignity will significantly protect the landless.”

Abahlali general secretary Thapelo Mohapi commented, “Abahlali welcomes the SCA judgment as a huge victory for the poor and marginalised in South Africa who have been unlawfully evicted by the ALIU rendering thousands homeless. Many people have lost their lives at the hands of the ALIU, including Samuel Hloele and Nkosinathi Mngomezulu, who we lost to ALIU violent conduct during illegal evictions.”

Contact details:  

• Nomzamo Zondo, SERI Executive Director: Nomzamo[at]seri-sa.org / 071 301 9676.
• Amanda Duma, SERI Attorney: Amanda[at]seri-sa.org / 082 590 9507.
• Thapelo Mohapi, Abahlali baseMjondolo General Secretary: thapelo[at]abahlali.org / 084 576 5117.

>> Download full statement here. 

 On Friday, 28 June 2024, police reportedly shot and killed Aphelele Jokanisi en route from Flagstaff to Lusikisiki in the Eastern Cape. Aphelele Jokanisi is the brother of the late Semi Jokanisi who was shot and killed by police in Marikana on 13 August 2012. Aphelele was 30 years old and is survived by his father and siblings. He will be laid to rest in his hometown of Lusikisiki on Sunday, 14 July 2024. SERI mourns this loss and condemns, in the strongest terms, the police violence which caused the death. We send our deepest condolences to the families and loved ones of the Jokanisi family.

The family shares that Aphelele was travelling with a friend, Yandisa Jajula, when they were reportedly attacked by the police and brutally shot multiple times in the presence of his eight-year-old nephew Ambusise Jokanisi. Ambusise survived the incident. They were returning from his grandmother’s funeral in Flagstaff, Eastern Cape.  Having viewed the body, the family report that Aphelele was shot multiple times on the arms and head. The family has opened a case against the police, and the Independent Police Investigative Directorate (IPID) is investigating the incident.

The Jokanisi family has now lost two children to police brutality. Their eldest son, Semi Jokanisi, was killed in an incident that resulted in the death of two other miners, Mr Thembelakhe Mati and Mr Pumzile Sokanyile as well as police officers Warrant Officer Tsietsi Hendrik Monene, and Warrant Officer Sello Ronnie Lepaauku. Six police officers are currently standing trial for the events of 13 August 2012. The trial, which commenced in 2021, sits intermittently at the Mahikeng High Court for a few days at a time every few months. It is unclear when the trial will be brought to conclusion.

The police have a constitutional duty to protect life. Following the Marikana Commission of Inquiry, a panel of experts was established to examine policing and crowd management. In its report, the Panel noted that “the recognition and protection of life as a key principle is a hallmark of professional policing” and thereby called for the adoption of ‘the Use of Force Policy and Guidelines developed by the Civilian Secretariat for Police Service, which were approved by the Minister of Police in 2018. However, this killing tragically demonstrates shows that neither the law nor the guidelines have prevailed.

Joyce Jokanisi, Semi Jokanisi’s mother, was laid to rest in January 2021 without seeing justice for her son’s death. Semi Jokanisi’s son, Ayabonga, tragically committed suicide due to bullying at school about his father’s death. While all families deal with loss as a difficult but certain part of life, the particular suffering and trauma that the Jokanisi family have endured can be traced to events at Marikana, which has been compounded by the lack of justice and closure. We believe that police impunity made the killing of Aphelele Jokanisi possible. We mourn with the family and stand in solidarity with their pursuit of justice for Aphelele’s death.

SERI attorney Asenati Tukela says, “It is our view that the state’s failure to fully acknowledge and provide redress for Marikana, as well as its failure to prioritise accountability and discipline, has allowed the police, once again, to act with impunity against the public. This cannot continue.”

• Download the press statement here.