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This is SERI’s first newsletter for 2024. In it, we present a few highlights from our work from the first four months of this year.

Over this period, SERI represented Abahlali baseMjondolo, who were admitted as amicus curae, in a matter brought before the Constitutional Court by the residents of Bromwell Street who are represented by Ndifuna Ukwazi. SERI has remained engaged in the Khampepe Commission of Inquiry into the Usindiso Building fire which resumed in January 2024.
 
In an advocacy heavy period, SERI co-hosted a storytelling workshop with the University of Western Cape's Politics and Urban Governance Research Group, and the University of Sheffield, in which residents from Slovo Park participated. SERI also participated in a dialogue on the Rights of Domestic Workers in terms of the amendments made to the Compensation for Occupational Injuries and Diseases Act 130 of 1993 (COIDA).

• Access the newsletter here. 

On 9 May 2024, South Africa tragically lost Justice Yvonne Mokgoro.  A founding member and the first Black woman Justice of the Constitutional Court of South Africa, Justice Mokgoro will be remembered as an esteemed academic and jurist who embodied the values of the Constitution in her leadership and service to all.

South Africa as a whole, and all of us at SERI in particular, continue to benefit from Justice Mokgoro’s jurisprudence.  In the realm of socio-economic rights, Justice Mokgoro’s jurisprudence has provided a powerful legal foundation to strive for a more just and equal society, and for the benefit of the most indigent and vulnerable in our society.

Her distinctive contribution is enormous and profound. We choose to remember her words in three landmark judgments where she reminded us that ‘everyone’ means everyone under the Bill of Rights; that socio-economic rights are essential for human dignity; and that we are a society based on the value of ubuntu.

In Khosa v Minister of Social Development [2004] ZACC 11, Justice Mokgoro interpreted ‘everyone’ under the Bill of Rights. She held that the exclusion of permanent residents from social security benefits was unreasonable in violation of the right in section 27 and constituted unfair discrimination on the ground of citizenship.  Justice Mokgoro began by affirming that ‘[t]he socio-economic rights in our Constitution are closely related to the founding values of human dignity, equality and freedom’ [40], before recognising that vulnerability is not citizenship-dependent: ‘Equality in respect of access to socio-economic rights is implicit in the reference to “everyone” being entitled to have access to such rights in section 27.  Those who are unable to survive without social assistance are equally desperate and equally in need of such assistance’ [42].  It was for this reason that ‘the word “everyone” in this section cannot be construed as referring only to “citizens”’ [47].

Justice Mokgoro emphasised the link between human dignity and socio-economic rights in Jaftha v Schoeman [2004] ZACC 25.  For Justice Mokgoro, ‘[e]ach time an applicant approaches the courts claiming that his or her socio-economic rights have been infringed the right to dignity is invariably implicated’ [21].  In holding that the statutory regime governing the sale in execution of property to satisfy a debt was unconstitutional for a lack of judicial oversight, Justice Mokgoro explained:

‘Relative to homelessness, to have a home one calls one’s own, even under the most basic circumstances, can be a most empowering and dignifying human experience.  The impugned provisions have the potential of undermining that experience.  The provisions take indigent people who have already benefited from housing subsidies and, worse than placing them at the back of the queue to benefit again from such subsidies in the future, put them in a position where they might never again acquire such assistance, without which they may be rendered homeless and never able to restore the conditions for human dignity.’ [39]

Justice Mokgoro has championed the infusion of indigenous African values into the Constitution.  In the Constitutional Court’s famous judgment declaring the death penalty unconstitutional, S v Makwanyane [1995] ZACC 3, Justice Mokgoro emphasised that despite South Africa’s divided past, ‘one shared value and ideal that runs like a golden thread across cultural lines, is the value of ubuntu’ [306].  Justice Mokgoro’s employment of ubuntu captures a communitarian conception of human dignity as distinct from Western individualism, emphasising the fundamentally moral character of our Constitution in the struggle for transformative change:

‘Generally, ubuntu translates as humaneness.  In its most fundamental sense, it translates as personhood and morality.  Metaphorically, it expresses itself in umuntu ngumuntu ngabantu, describing the significance of group solidarity on survival issues so central to the survival of communities.  While it envelops the key values of group solidarity, compassion, respect, human dignity, conformity to basic norms and collective unity, in its fundamental sense it denotes humanity and morality.’ [307]

Justice Mokgoro stands out as a hero and a role model whose principled character we aspire to emulate.  We are indebted to her for the wisdom she has left with us as we pursue the just and equal society our Constitution commands.

We express our heartfelt condolences to Justice Mokgoro’s family, friends and loved ones at this time.

Contact details: 

• Nomzamo Zondo, SERI executive director, nomzamo[at]seri-sa.org.

• Download the statement here.

On 28 March 2024, the Socio-Economic Rights Institute of South Africa (SERI) made a submission to the Committee on the Elimination of Racial Discrimination (CERD) on the first draft of the Joint General Comment/Recommendation on "State Parties Obligations on Public Policies for Addressing and Eradicating Xenophobia and its impact on the rights of migrants, their families, and other non-citizens affected by racial discrimination". 

The submission shares comments and recommendations on four main areas, namely:

• South Africa's definition of xenophobia in the National Plan Against Racism, Racial Discrimination, Xenophobia and Related Intolerance (National Plan): SERI recommends that the definition be expanded to include the concept of "institutional or structural xenophobia" and practices by law enforcement officials which constitute “profiling” of people who “look” or “sound” “foreign;
• Elements of a comprehensive and holistic public policy aimed at preventing and eradicating xenophobia in migrant-receiving societies: SERI recommends that such a policy must include an early warning and rapid response mechanism, a mechanism for collating and publishing disaggregated data for tracking levels of violence and hate crimes, social mobilisation campaigns, and allow for public participation;
• The need for an intersectional lens when addressing xenophobia: SERI recommends that the South African government be required to pay attention to the intersection of xenophobia with gender and socio-economic status to adhere to the international human rights standards affecting migrant women; and 
• Accountability and the role of the criminal justice system in addressing xenophobia: SERI recommends that law enforcement agencies to investigate xenophobic crimes and convict guilty persons; act swiftly in response to an early warning and response mechanism and discipline, prosecute and convict law enforcement officials who partake in xenophobic practices.

• Download the submission here.

On 7 May 2024, the Supreme Court of Appeal (SCA) heard arguments in a matter between the South Africa Human Rights Commission v The City of Cape Town. The matter arises from the disturbing events of 1 July 2020 when armed Metro police, members of the City Anti-Land Invasion Unit accompanied by private contractors acting on the instruction of the City, arrived at the Ethembeni informal settlement in Khayelitsha, Cape Town. They proceeded to Mr. Bulelani Qolani’s shack and dragged him out, naked and in full view of surrounding residents. The City officials proceeded to demolish his shack. None of this was authorised by a court order.

SERI represents Abahlali baseMjondolo who are amicus curiae in the case because of their extensive experience with illegal actions performed by ALIU in Durban. Abahlali seeks to show the court the ALIU's track record in terms of its conduct and to demonstrate how its conduct in Cape Town is not meaningfully different that of the anti-land invasion units in eThekwini and Johannesburg.

On 15 July 2022, The Western Cape High Court handed down its order in which it found that a series of demolitions and evictions that took place in 2020 by the City of Cape Town, including that of Mr Qolani in Khayelitsha, were unlawful and unconstitutional. It also found that the City's interpretation and application of counter-spoliation is inconsistent with the Constitution and is invalid insofar as it permits demolitions of and evictions from any informal dwelling whether occupied or unoccupied at the time of the eviction or demolition.

The Court accepted Abahlali's submissions that the right to counter-spoliate is significantly narrower than the state and property owners have traditionally accepted which is that the requirement of possession need only be "peaceful and undisturbed" as interpreted in Yeko v Qana. This finding explicitly overrules the broader interpretation in Ness v Greef, which is the case often cited to argue that shackdwellers must have "durable and stable" occupation before a court order is required to remove them. This means that once a person is present on land with the intent to construct a shack, and manifests that intent by beginning to erect a structure, they are in possession and a court order is required to remove them. 

The City of Cape Town has appealed this order in the Supreme Court of Appeal. The matter was heard on 7 May 2024 and judgment was reserved. 

Read more about the case here.