Minister Dlamini to appear before inquiry to account for social grant debacle
- Lee-Anne Bruce
The Constitutional Court mandated enquiry into the Minister of Social Developments’ personal liability is set to take place from 22 - 26 January in Midrand
The Constitutional Court mandated enquiry into the Minister of Social Developments’ personal liability is set to take place from Monday 22 to Friday 26 January 2018 from 10:00 – 16:00 at the Office of the Chief Justice situated at 377 14th Road, Noordwyk, Midrand. This is an open hearing and members of the public and the media are welcome.
A narrow inquiry into Minister Bathabile Dlamini’s role ahead of last year’s social grants crisis will begin at the Office of the Chief Justice next week. This inquiry follows a Constitutional Court order declaring the Minister be joined in her personal capacity to litigation brought by the Centre for Applied Legal Studies on behalf of the Black Sash Trust against SASSA, the Minister and Cash Paymaster Services (CPS). The litigation sought to ensure the social grant payment system would be protected when the contract between SASSA and CPS ended in March 2017.
In its judgment of 17 March 2017, the Constitutional Court called upon the Minister to explain why she should not be joined to the case in her personal capacity and pay the costs of the application out of her own pocket. It further indicated that the Minister bears the primary responsibility to ensure that SASSA fulfils its functions.
After considering papers filed by the Minister, the former Chief Executive Officer of SASSA and the former Director General of the Department of Social Development, the Court ordered on 15 June 2017 that the Minister be joined to the matter in her personal capacity. Since there were a number of disputes in these papers, the Court further sought agreement from the parties to establish an inquiry to investigate any outstanding issues in terms of Section 38 of the Superior Courts Act.
On 3 August 2017, the Court appointed the Honourable Justice Bernard Ngoepe as the inquiry referee, mandating the enquiry to investigate:
Whether the Minister sought the appointment of individuals to lead the “work streams” to report directly to her;
Details of the appointments in terms of when the individuals were appointed, who they reported to and the details of the dates and contents of the report of the work streams to the Minister; and
Why the Minister did not disclose this information to the Court.
This process is part of ongoing litigation around the uncertainty beneficiaries still face about whether there will be a plan in place for the uninterrupted payment of social grants come 1 April 2018. Black Sash and CALS remain concerned about the integrity of the grant payment system and the 17 million people it assists.
CALS to argue SADC changes require public consultation
- Lee-Anne Bruce
CALS will appear in the High Court next week arguing that the Presidency cannot bind South Africa to international treaties without first consulting the public
The Centre for Applied Legal Studies, represented by the Legal Resources Centre, will appear in the Pretoria High Court next week arguing that the Presidency cannot bind South Africa to international treaties without first consulting the public.
On 5 February, the High Court will hear argument in a matter brought by the Law Society of South Africa against the Presidency and the Ministers of Justice and Constitutional Development, and International Relations. CALS, represented by the LRC, will be assisting as a ‘friend of the court’ in the matter concerning the suspension of the SADC Tribunal.
The SADC Tribunal was established in 2005 to resolve disputes involving southern African states and their citizens. In 2010, after a number of rulings against the Zimbabwean government, the Tribunal was effectively suspended. By 2014, the SADC Summit resolved that a new Tribunal should be formed and this time confined to reviewing disputes between states only, and not between states and their citizens. The South African Presidency was one of the signatories to this resolution.
“By signing this Protocol, the Presidency has effectively removed the rights of South Africans to access the Tribunal if they want to appeal cases that have been decided in our highest courts,” says Palesa Madi, attorney at CALS. “This even prevents people from other southern African countries from being able to access the court process.”
CALS and the LRC are deeply concerned that the Presidency has entered into what is in effect an international treaty without first consulting the people of South Africa. While the Protocol has not yet been ratified, the signature lends support to a process that will limit access to courts for many people in the region.
“It’s inappropriate for the Presidency to unilaterally bind the country on an international stage without first receiving a mandate from the people,” says Lisa Chamberlain, Acting Director of CALS. “We live in a participatory democracy and if public participation in decision making applies at the national level, it has to apply at the international level as well.”
The matter will be heard in the Pretoria High Court from 5 – 7 February
Alternative Mining Indaba - Mining Charter discussion
- Lee-Anne Bruce
CALS is hosting a side panel at this year's Alternative Mining Indaba on our intervention in the Mining Charter review on behalf of mining community networks
Challenge to the Mining Charter to be heard next week
- Lee-Anne Bruce
The Pretoria High Court is set to hear arguments on the Mining Charter from mining community networks from 19 – 21 February
Mining community networks representing over 150 activists and community-based organisations will be in the Pretoria High Court from Monday next week to challenge the Mining Charter published by the Department of Mineral Resources in June 2017. Mining Affected Communities United in Action (MACUA), Women Affected by Mining United in Action (WAMUA) and the Mining and Environmental Justice Community Network of South Africa (MEJCON-SA) – represented by the Centre for Applied Legal Studies – argue that the Charter should be set aside for lack of meaningful community engagement.
The Mining Charter is one of the most important mechanisms we have for promoting transformation and addressing the legacy of inequality in our mining sector. While the most recent version of the Charter may have some positive amendments, it was developed without meaningfully engaging the very people it is intended to benefit: mining affected communities. Instead, negotiations around the Charter have involved only government, mining companies and some organised labour.
Deeply concerned by this, the mining affected community networks approached the Court to join a review of the Charter brought by the Chamber of Mines against the Minister of Mineral Resources. The Court granted the networks leave to intervene in November 2017, along with the individual mining affected communities of Bakgatla Ba Sefikile, Lesethleng, Babina Phuthi Ba Ga-Makola, and Kgatlu represented by Lawyers for Human Rights.
From Monday we will be asking the Court to set aside the current Charter for its failure to meaningfully engage with mining affected communities. We further seek an order that mining affected communities are recognised as a core stakeholder who must be meaningfully engaged when developing any new Charter.
“The Court has already acknowledged that community networks have a direct and substantial interest in the Mining Charter by admitting our clients to the review,” says Wandisa Phama, attorney at the Centre for Applied Legal Studies. “We are now asking the Court, the state and mining companies to recognise mining affected communities as a core stakeholder that must form part of negotiating all policies that affect them.”
There will be a briefing outside the Pretoria High Court from 08:30 on Monday, 19 February 2018, during which community leaders will address the media. This will be followed by a picket outside the court of about 1000 mining affected community members from across South Africa.
“We have consistently tried to engage government and the Chamber of Mines, but they have continued to ignore communities,” says Meshack Mbangula, national co-ordinator of MACUA. “When the Charter was developed, communities were not engaged and so it does not reflect their needs and cannot be effective in its aims.”
“We stand together with the other community networks challenging the Mining Charter,” says Nester Ndebele, national convenor of WAMUA. “We want a say on the laws and policies that are meant to benefit us and for the Charter to recognise the burdens placed on women in particular.”
“The Mining Charter is meant to be a tool for mining affected communities, but we are not given the opportunity to be part of the decision-making process,” says Elton Thobejane, deputy chairperson of MEJCON-SA. “The Charter must be crafted for communities to have access to benefits proportionate to the negative impacts they experience.”
For inquiries, please contact:
From the mining community networks:
Meshack Mbangula, national co-ordinator of MACUA, on 074 977 5588 or at mbangulam@gmail.com
Communities informed Minister of Mineral Resources and Chamber of Mines seek to postpone Mining Charter challenge
On the eve of the Mining Charter review, the Minister of Mineral Resources and Chamber of Mines have agreed to a postponement. Mining community networks are co-applicants in the challenge but were not engaged on a postponement, and have not been given any undertaking that mining affected communities will be recognised as a core stakeholder in further engagement on the Charter.
Late this afternoon, legal representatives for mining affected community networks MACUA, WAMUA and MEJCON-SA were notified that the Chamber of Mines and Minister of Mineral Resources have agreed to a postponement in the Mining Charter review scheduled to begin tomorrow. Shortly afterwards, the Presidency released a statement announcing this agreement.
Community networks MACUA, WAMUA and MEJCON-SA, represented by the Centre for Applied Legal Studies, are co-applicants in the matter and at no stage were the networks invited to participate in these discussions between the State and the Chamber of Mines. This mirrors the daily experience of mining affected communities across South Africa and is part of the same pattern of exclusion that led communities to approach the Court in the first place.
We have not been afforded the same opportunity as the Chamber of Mines to discuss a postponement, have not received formal reasons for why the postponement is sought, and note that the statement has come through the Presidency, which is not a party to the proceedings. We have also been given no indication as to whether the Minister will bear our wasted costs caused by the postponement sought. This is highly irregular.
“There are eight applicants in this case and only one of them has agreed to a postponement,” says Wandisa Phama, attorney at CALS. “It is up to the Court to decide if the matter will be postponed, and not the Chamber of Mines, the Minister or the Presidency. They are treating our clients as if they are not a party to the case with a direct and substantial interest as the Court has already acknowledged.”
“We have received no formal request for a postponement that undertakes to engage with communities,” says Meshack Mbangula, national co-ordinator of MACUA. “We have only been informed that the Chamber has agreed to postpone the case and only they have been engaged as usual. We have once again been excluded from important discussions that impact us directly and so gravely.We still havne’t received any undertaking that we the communities are a key stakeholder that will be engaged.”
“This agreement to postpone perfectly highlights why we are asking the Court to declare mining affected communities are key stakeholders in mining decision- and policy-making,” says Elton Thobejane, deputy chairperson of MEJCON-SA. “It should be mandatory to meaningfully engage with mining affected communities on these issues, otherwise government and industry can continue to make ‘closed door’ agreements to the exclusion of communities who host mining in their backyards.”
Community networks will be appearing before the special allocation of the three judges at 10:00 tomorrow 19 February 2018 in the Pretoria High Court. A march of an expected 1000 people from across South Africa will go ahead as planned outside the Court from 08:30.
For inquiries, please contact:
From the mining community networks:
Meshack Mbangula, national co-ordinator of MACUA, on 074 977 5588 or at mbangulam@gmail.com
The Pretoria High Court has today recognised mining affected communities as core stakeholders who must be consulted on Mining Charter
The Pretoria High Court has today ordered that the Mining Charter challenge be postponed in order for the President to start an inclusive consultation process in revisiting the Charter. The Court, in granting the postponement, declared mining affected communities and networks are core stakeholders for the purpose of consultation.
Today, the Pretoria High Court heard argument on the postponement of the Mining Charter review sought by the Minister of Mineral Resources. The review hearing was scheduled to begin today, but over the weekend, the Presidency intervened to facilitate an agreement between the Chamber of Mines and the Minister to postpone the case. Unfortunately, the seven other community applicants were not engaged before this agreement was reached, but merely notified last night after the fact.
This is part of a pattern of sidelining mining affected communities from engaging on laws and policies that affect them directly. Instead, they continue to bear the burden of mining while being entirely disregarded in all decision making that impact them. This constant exclusion is what led communities and community networks to approach the Court in the first place. MACUA, WAMUA and MEJCON-SA, represented by the Centre for Applied Legal Studies, were joined to the matter in November 2017. They have asked the Court to set aside the Charter for a lack of engagement with communities and recognise that communities are core stakeholders in negotiations around the Mining Charter going forward.
The Court today declared that the matter should be postponed in order for the President to start an inclusive consultation process going forward. The Court further recognised that the community applicants’ concerns about being excluded from the process should be taken seriously. The order recognises the seven community applicants as interested and relevant stakeholders for the purposes of consultation on the Mining Charter going forward.
“This is a historic victory for mining affected communities, who now conclusively have a seat at the negotiation table,” says Wandisa Phama, attorney at CALS.
“We are the people most affected by mining activity,” says Elton Thobejane, deputy chairperson of MEJCON-SA. “What the Court has done for us to day is recognise that those who bear the costs of mining must be taken seriously. Mining affected communities must be involved in the design of the Charter and the Court order strengthens our position to do so.”
“The Court has recognised that our concerns are equally important as those of the mining industry,” says Meshack Mbangula, national co-ordinator at MACUA. “We hope that what this order means is that every time the Department consults with the Chamber of Mines, we are also consulted.”
For inquiries, please contact:
From the mining community networks:
Meshack Mbangula, national co-ordinator of MACUA, on 074 977 5588 or at mbangulam@gmail.com
CALS to present evidence on intimidation of human rights defenders
- Lee-Anne Bruce
CALS has been admitted as a ‘friend of the court’ in a defamation case brought by Mineral Sands Resources in an attempt to silence and threaten activists
On 21 February, the Centre for Applied Legal Studies (CALS) was admitted by the Western Cape High Court as amicus curiae or ‘friend of the court’ in a matter brought by mining company Mineral Sands Resources against two environmental lawyers and a community activist.
Mineral Sands Resources alleges that Christine Reddell and Tracey Davies from the Centre for Environmental Rights and activist Davine Cloete made ‘defamatory’ statements during a lecture at the Unversity of Cape Town’s Summer School Programme in January 2017. Reddell, Davies and Cloete were presenting on a previous case against the company’s Tormin mine, which had been investigated for poor environmental practices. They made these statements in exercising their rights to freedom of expression and to protect the environment.
This ‘defamation’ case appears to be an attempt by Mineral Sands Resources to censor, intimidate and silence its critics. This could be seen as an example of strategic litigation against public participation, otherwise known as a ‘SLAPP’ suit. These kinds of law suits are used around the world as a tactic to threaten and distract environmental activists and take up their already limited resources.
CALS has now been admitted as a friend of the Court to assist the Court with this important issue. We will argue that this kind of litigation can have a devastating effect on activists who are simply defending their rights or the rights of their clients and communities. We will further argue that this particular case is an issue of academic freedom and that being able to critique cases and bring real world examples into a classroom is essential to academia in general and teaching environmental law in particular.
CALS intends on presenting evidence in the form of a research report on the nature and prevalence of activist intimidation in South Africa, focusing on the Eastern Cape, KwaZulu Natal, Limpopo, Mpumalanga, the North West, and the Western Cape.
“The free exchange of ideas is a cornerstone of any open and democratic society,” says Palesa Madi, attorney at CALS. “SLAPP suits have the effect of closing down spaces for participation, discouraging free speech and costing activists time and money despite the fact that they are often entirely baseless and may have no prospects of success.”
The High Court has ruled that the Presidency acted unconstitutionally in supporting a resolution to suspend the SADC Tribunal
The Centre for Applied Legal Studies and our representatives at the Legal Resources Centre welcome this groundbreaking decision.
On 1 March, the Pretoria High Court handed down judgment in a matter brought by the Law Society of South Africa against the Presidency and the Ministers of Justice and Constitutional Development, and International Relations. The case concerned the Presidency’s involvement in suspending the SADC Tribunal, a regional human rights court. CALS, represented by the LRC, assisted in the matter as a ‘friend of the court’ supporting the Law Society’s arguments.
The SADC Tribunal was established in 2005 to resolve disputes involving southern African states and their citizens. In 2010, after a number of rulings against the Zimbabwean government, the Tribunal was effectively suspended. By 2014, the SADC Summit resolved that a new Tribunal should be formed and this time confined to reviewing disputes between states only, and not between states and their citizens. The South African Presidency was one of the signatories to this resolution.
In its judgment, the High Court found that the Presidency acted unlawfully and irrationally in signing the resolution. “It is clear that the President’s signature… severely undermined the crucial SADC institution, the Tribunal,” Judge President Dunstan Mlambo said. The Court further ordered that not only the applicants, but the two ‘friends of the court’ CALS and the Southern African Litigation Centre are entitled to have their legal costs for the matter covered by the state.
“The judgment reiterates the principle that the Presidency must respect the Constitution and the rule of law in the exercise of public power,” says Lisa Chamberlain, Acting Director at CALS. “We look forward to the Constitutional Court’s confirmation of this High Court judgment and what this step means for human rights in southern Africa.”
SASSA Back in the Constitutional Court One Year Later
- Lee-Anne Bruce
It has been nearly a year since CALS and Black Sash approached the Constitutional Court to avoid a national crisis in the social grants system
We will be back in Court tomorrow once again to ensure there is a plan in place for the uninterrupted payment of social grants come April 2018.
The Centre for Applied Legal Studies, on behalf of the Black Sash Trust, will be in the Constitutional Court tomorrow to ensure that the social grants system and its beneficiaries are protected when the unlawful contract between SASSA and Cash Paymaster Services (CPS) comes to an end later this month.
The Court previously declared the contract invalid, but suspended its declaration of invalidity to ensure there was no disruption in the payment of social grants. The Court extended this suspension and the unlawful contract again in March 2017 to give SASSA time to take over the payment of social grants from CPS. SASSA has now applied to the Constitutional Court for a further six month extension for CPS to continue to provide payments – but only to grant beneficiaries who receive cash. This extension will also allow time to migrate the SASSA bank accounts to the South African Post Office.
The Black Sash, represented by CALS, is unable to oppose this application given the significant risk posed to grant beneficiaries. However, we will be arguing that:
SASSA has placed insufficient information before the Court for the relief they seek;
SASSA’s proposed plan has inadequate safeguards for protecting beneficiaries’ personal data which leaves them vulnerable to exploitation;
There is no justification to pay CPS any additional fees for fulfilling its constitutional obligations;
The Court should extend its supervisory role in the matter.
“SASSA has known since at least 18 December 2017 that it would require a CPS cash payment extension,” says Wandisa Phama, attorney at CALS. “It delayed for nearly eight weeks before bringing this application. The conduct of SASSA is unexplained. The silence of the Minister of Social Development is deafening.”
“We remain deeply concerned that the payment of grants to over 17 million beneficiaries will be compromised due to SASSA’s failures,” says Lynette Maart, national director of the Black Sash Trust. “Black Sash is also calling for unlawful deductions on social grants to cease and for a moratorium to be placed on issuing Easy Pay Everywhere (EPE) cards.”
Closing arguments in the Constitutional Court mandated inquiry into the former Minister of Social Development’s personal liability will be heard on 19 March
The inquiry into Minister Bathabile Dlamini’s role ahead of last year’s social grants crisis began in January 2018. This follows a Constitutional Court order declaring that the Minister should be joined in her personal capacity to litigation brought by the Black Sash Trust, represented by the Centre for Applied Legal Studies (CALS), against SASSA, the Minister and Cash Paymaster Services (CPS). The litigation sought to protect the social grant system when the contract between SASSA and CPS ended in March 2017 and SASSA had no plan in place to continue paying social grants.
The purpose of the inquiry, led by the Honourable Justice Bernard Ngoepe, is to clarify certain disputes between the Minister and the former CEO of SASSA as well as the former Director General of Social Development. The disputes are linked to whether the Minister should be held personally liable for the costs of the litigation last year. The Court seeks clarity on the appointment of “work streams” within SASSA to report directly to her; the details of these appointments; the work streams’ reports relating to SASSA’s objective to insource paying social grants by April 2017; and why the Minister did not disclose this information to the Court.
It is clear from the evidence presented at the inquiry that the Minister did not approach the Court timeously when she became aware that SASSA would not meet its deadline. Further, the Minister instructed SASSA to appoint work streams costing in excess of R700 million, outside of lawful procurement processes, for targets the work streams could never have met. The Minister ought to have known that SASSA would not make its April 2017 deadline to take over paying social grants long before the appointment of the work streams in July 2016.
This means that the Minister failed in her duties. She failed to ensure that SASSA carried out the undertakings which it had made to the Constitutional Court, and she failed in her duty to report openly and comprehensively to the Court when it became clear that SASSA would not carry out those undertakings.
“Instead of fulfilling her core mandate of ensuring that grant beneficiaries get paid, the Minister put the lives of 17 million people at risk,” says Lynette Maart, national director of the Black Sash Trust. “The evidence points to her gross dereliction of duty. She is ultimately accountable for the crisis of March 2017 and should be held personally liable.”
Closing arguments in the inquiry into the former Minister of Social Development’s personal liability will be heard on Monday 19 March 2018 from 9:00 at the Office of the Chief Justice in Midrand. This is an open hearing and members of the public and media are welcome to attend.
Communities again excluded from Mining Charter discussions despite court order
- Lee-Anne Bruce
Despite a court order declaring mining affected communities are core stakeholders, they were again left out of Mining Charter talks this weekend
Despite the Pretoria High Court’s order declaring mining affected communities are core stakeholders who must be consulted in the formulation of the Mining Charter, Minister of Mineral Resources Gwede Mantashe has begun talks with only industry and some labour representatives.
CALS has learned today from a BusinessLive report that talks on the Mining Charter began over the past weekend between the Minister of Mineral Resources, the Chamber of Mines and some unions. Newly appointed Minister Gwede Mantashe has described this as the beginning of “the process of consultation with social partners in the mining industry [that] kick starts the engagements on the review of the Mining Charter.” Notably absent from among these “social partners” are mining affected communities.
This is not the first time community representatives have been excluded in this way. The weekend before the Mining Charter review was set to be heard in court exactly one month ago, the Minister and the Chamber of Mines held discussions and agreed to a postponement. Despite being co-applicants in the matter, our client mining community networks MEJCON, WAMUA and MACUA were not similarly engaged. Their argument against the Charter was that it was developed without meaningfully engaging the very people it is meant to benefit: mining affected communities.
The Pretoria High Court acknowledged that the community networks’ concerns about consultation were “well-grounded”. On 19 February, the Court ordered that not only the networks but all mining affected communities are core stakeholders who must be consulted in the formulation of any new Mining Charter. The Presidency released a statement the same day underscoring the importance of community consultation and affirming its “commitment to ensure that communities are integrally involved in consultations not only on the Mining Charter, but on all matters relating to the development of this sector.”
The Minister beginning consultations on this important piece of legislation without engaging mining affected communities at all appears to disregard both the court order and the Presidency’s undertaking.
“This is nothing new,” says Wandisa Phama, attorney at CALS. “This is part of a pattern of exclusion that led our clients to approach the court in the first place. Now the exclusion continues despite a court order.”
Minister Gwede Mantashe has called a media briefing tomorrow, 20 March 2018, at 10:00 at Tshedimosetso House in Pretoria. He is set to brief the media about the session over the weekend and his immediate plans and priorities for the mining industry. We call on the Minister to account for his lack of engagement with mining affected communities and prioritise their involvement in the Mining Charter going forward.
For inquiries, please contact:
Wandisa Phama, attorney at the Centre for Applied Legal Studies on 011 717 8608 / 078 684 3140 or at Wandisa.Phama@wits.ac.za
Constitutional Court forced to extend CPS contract for another six months
- Lee-Anne Bruce
The Constitutional Court yesterday handed down judgment in the latest application to extend an unlawful contract to pay social grants
On Friday 23 March 2018, the Constitutional Court handed down a judgment following an application made by SASSA for the extension of six months for the CPS contract to facilitate the payment of social grants to beneficiaries who receive their grants in cash. This matter was heard on 6 March 2018, nearly a year since CALS and Black Sash approached the Constitutional Court to avoid a national crisis in the social grants system in which SASSA had provided no plans to take over the payment of social grants from the invalid CPS contract.
On 23 March 2018, the Constitutional Court allowed for the extension of the CPS contract for six months under its supervision and on the same conditions as the current contract. The Minister of Social Development and SASSA are to file reports on a monthly basis with the Constitutional Court from 30 April 2018 to 31 August 2018 on the steps taken to implement the court order. This extension of the CPS contract only relates to cash payments for about 2.8 million social grants beneficiaries who receive their social grants in cash. SASSA is also ordered to ensure the protection of the personal data of the grants beneficiaries in the process of this extension, which has been a challenge for grants beneficiaries under the CPS contract.
The Constitutional Court has further called on the former Minister of Social Development, Bathabile Dlamini as well as the acting CEO of SASSA Ms Pearl Bhengu to file written affidavits with the court by no later than 16 April 2018, to show cause as to why they should not be joined in the matter in their personal capacities and why they should not be held personally liable to pay costs of the application brought by SASSA.
It is not the first time the Constitutional Court has invited Minister Dlamini to show cause for why she should not be held personally liable for her role in the social grants crisis. She is still subject to an Inquiry handled by Judge Ngoepe which is aimed to assist the Constitutional Court to decide her personal liability, if any, for her role in the social grants in March 2017.
“The order for the former Minister and acting CEO to show cause on why they should not be joined to this matter in their personal capacities and be held personally liable to pay the costs shows the seriousness with which the court is handling the social grants crisis,” says Wandisa Phama, attorney at CALS. “Following the legacy of Minister Bathabile Dlamini in the social grants system, SASSA doesn’t seem to be moving urgently enough to restore stability in the grants payment system. It is also unclear what plans Ms Bhengu as the acting CEO is setting up in order to take over the cash payments from CPS after six months and with no proper planning in a situation like this, someone must be held accountable."
“Black Sash welcomes the measures that the Constitutional Court is putting in place to ensure the protection of personal data of grants beneficiaries,” says Lynette Maart, national director of the Black Sash Trust.
Jacqueline Moudeïna nominated for Robert F Kennedy Award
- Lee-Anne Bruce
CALS nominates lawyer responsible for bringing dictator Hissène Habré to justice for crimes against humanity for the Robert F Kennedy Human Rights Award
CALS is proud to nominate our friend and colleague Jacqueline Moudeïna for the 35th annual Robert F. Kennedy Human Rights Award. The Award is given to honour an individual or group of people who "stand up to oppression at grave personal risk in the nonviolent pursuit of human rights." With the support of the Bertha Justice Network and Human Rights Watch, CALS has submitted that Ms Moudeïna deserves to be celebrated for her human rights work in Chad, particularly in bringing dictator Hissène Habré to justice. Read more about our nomination of this extraordinary individual below.
What are the main human rights issues the nominee is working on to advance? What are the nominee's human rights goals and objectives?
Jacqueline Moudeïna is a human rights lawyer from the Republic of Chad who is most well-known for her central role in bringing former dictator Hissène Habré to justice for crimes against humanity. One of the few female lawyers in Chad, Ms Moudeïna worked tirelessly for over two decades to support victims of Habré’s regime. Her remarkable efforts saw him convicted of war crimes, torture, rape and sexual slavery by a special court in Senegal in 2016. This set an incredible precedent as the first time a head of state has been convicted for crimes against humanity in the court of another country.
She continues to combat current day human rights violations and promote the rule of law in Chad as the President of the Chadian Association for the Promotion and Defense of Human Rights (ATPDH). The organisation has a number of focus areas including protecting the rights of women, children, people in detention and victims of torture. Most recently, Ms Moudeïna has spoken out against the Chadian government’s use of child soldiers in the military and led protests against election irregularities. She is also responsible for the creation of ‘vigilance clubs’ in villages to protect children from child slavery.
What tools does the nominee use to achieve his/her human rights objectives? Please provide examples
Jacqueline Moudeïna makes use of a number of different tools to promote and defend human rights. These include developing awareness-raising campaigns, conducting training, providing legal advice, monitoring detention centres, and drawing attention to rights violations through the media, memoranda and open letters.
Much of her work involves the creative use of strategic litigation and international mechanisms to address human rights abuses, but this is also effectively supported by advocacy campaigns. Ms Moudeïna’s management of the case against Hissène Habré is a prime example.
It took many years and different strategic approaches from the time Ms Moudeïna laid the first charge against Habré in 2000 in Chad to having him prosecuted and convicted where he lived in exile in Senegal since 1990. These years saw the victims of his crimes approaching a multitude of structures, from courts in Chad and Belgium, to the International Court of Justice in the Hague, to the African Union.
When he was finally tried in a special international court in Senegal, Ms Moudeïna made sure to link the case to an advocacy campaign. This had the effect of both moving the case forward and also ensuring that the stories of Habré’s victims came to light in public for the first time in over 25 years. Not only were they able to face their persecutor in court, their voices were heard and echoed far beyond that space. Julia Duchrow has pointed out that this approach has played an important role in helping the people of Chad to come to terms with the past and “preventing these sorts of violations from recurring.”
What are the nominee's greatest accomplishments in advancing their human rights goals?
Jacqueline Moudeïna’s management of the Habré case had been described as a “masterpiece of strategic litigation” which ultimately led to his conviction of human rights abuses including torture, rape and sexual slavery. The court in Senegal sentenced him to life in prison and ordered him to pay millions as compensation for the victims of his crimes.
When Habré appealed the court’s finding, the appeals court upheld his conviction and ordered him to pay €123 million in reparations. This was a ground-breaking prosecution and conviction and a world first. It was the first time in history that a former head of state had been convicted of crimes against humanity in the court of another country. Importantly, Habré was convicted in another African country, setting an incredible precedent.
The case has also had extraordinary implications back in Chad. In 2015, a Chadian court prosecuted 22 of Habré’s security agents and convicted 20 of murder, torture, kidnapping and arbitrary detention. The court ordered the state and the 20 convicted offenders to each pay half of the €112,5 million allotted in victim compensation. Some of these men were still serving in Chad’s current government.
Among the 20 men convicted was Mahamat Wakeye, who reportedly ordered an assassination attempt on Jacqueline Moudeïna. Ms Moudeïna survived the grenade attack during a protest against election fraud, though she sustained lifelong injuries to her hearing and continues to live with shrapnel from the grenade in her feet.
Why does your nominee deserve to be chosen as the 2018 Robert F. Kennedy Human Rights Laureate?
Ms Moudeïna embodies the values of the Robert F. Kennedy Human Rights Award and all it stands for. She has stood up against a man responsible for the rape torture and murder of some 40,000 people in her country. She has done so at great personal risk over many years with little hope of success.
Jacqueline Moudeïna has faced impossible obstacles in trying to hold her government and former dictator accountable for the worst kinds of human rights violations and abuses of power. She has had her office ransacked and her car stolen; she has been followed and threatened; she has even endured violent attacks and an attempt on her life. Nevertheless, she persisted. Over the decades, she has never lost her resolve to seek justice for those who suffered human rights violations. She has fought peacefully and strategically against those abusing their power. And she has won.
Ms Moudeïna deserves to be celebrated for her work and supported as she continues her determined pursuit of justice leading an NGO at the forefront of promoting human rights in Chad. She has made a remarkable difference not only in the lives of victims of human rights abuses, but for ordinary people around the world who may be protected by the precedent she has had a hand in setting.
Johannesburg Mayor must address the inner city housing crisis
- Lee-Anne Bruce
CALS condemns Johannesburg Mayor Herman Mashaba's recent comments about "so-called" human rights lawyers
CALS is aware of Herman Mashaba’s most recent concerning remarks about human rights lawyers ‘obstructing’ the City of Johannesburg’s work in realising its constitutional obligations to the poor residing in inner city Johannesburg.
What is clear is that there is an enduring housing crisis in the inner city. It is a crisis that is longstanding and severe. It is a crisis threatening thousands of some of the most vulnerable people in our country – including children, people with disabilities and the elderly. There are few organisations committed to ensuring that the poor are not left homeless by evictions and are able to access the basic services that they are entitled to by law. These human rights organisations, like SERI and others, operate on the basis of instructions from their clients – the very people that the City is supposed to serve.
Most recently, SERI notified the City’s officials of the potentially dangerous conditions in which their clients were living in a building at 39 to 41 Davies Street. Other public interest organisations have similarly alerted the City to the state of other ‘bad buildings’ in the inner city, and received no response. At Davies Street, the building continued to deteriorate until a wall collapsed recently, killing several people inside.
Instead of taking responsibility for this disaster and using this as an opportunity to address the current management and maintenance issues of inner city buildings, Mr Mashaba has declared that this is the fault of the very organisations that alerted the City to these problems in the first place. Calling the work of such organisations ‘obstructive’ is not only misleading, it diverts time and energy away from the real work that needs to be done.
Residents of the City of Johannesburg already living in poverty deserve to stay in buildings where they feel dignified, their privacy is not compromised and in particular, their lives are not threatened by unsafe conditions. We call on the City to urgently develop, share and implement a workable plan that addresses the housing crisis in a way which respects the law and its obligations to protect fundamental human rights.
CALS and Open Secrets invite you to a discussion on accountability for apartheid era economic crimes
Date: Thursday, 19 April 2018
Time: 12:30 – 14:00
Location: Centre for Applied Legal Studies
First Floor, DJ du Plessis Building
Wits University West Campus
Note: Light snacks will be served
Speakers:
Michael Marchant – Investigations and Advocacy Researcher at Open Secrets
Khuraisha Patel – Legal Researcher at Open Secrets
Wandisa Phama – Head of Business and Human Rights at CALS, Wits University
Accountability for apartheid economic crimes: Can we start with the banks?
New evidence shows that two European banks were at the centre of the apartheid era international arms money laundering machinery. For nearly two decades, Belgium’s Kredietbank and its subsidiary in Luxembourg were responsible for facilitating up to 70% of all illegal arms transactions that allowed the apartheid government to secretly buy weapons despite mandatory UN arms sanctions. These and other banks have never been held accountable for their role in supporting apartheid. In the face of this widespread impunity, is there any way to hold these financial giants to account? Open Secrets in partnership with CALS is taking the fight for accountability for historic economic crimes to the banks’ doorstep in Europe using international accountability frameworks.
Please join us for a discussion on what civil society can do to hold these banks to account for crimes that cast a long shadow on our present
Open Secrets and CALS go to Europe to demand accountability for the international banks that financed apartheid
New evidence shows that two European banks were at the centre of the apartheid era international arms money laundering machinery. For nearly two decades, Belgium’s Kredietbank and its subsidiary in Luxembourg were responsible for facilitating up to 70% of all illegal arms transactions that allowed the apartheid government to secretly buy weapons despite mandatory UN arms sanctions. These and other banks have never been held accountable for what a leading international bribery expert describes as ‘one of the most important global money-laundering schemes ever.’
In the face of widespread impunity, can these financial giants be held to account?
Open Secrets in partnership with the Centre for Applied Legal Studies (CALS) are taking the fight for accountability for South Africa’s historic economic crimes to Europe using international accountability frameworks. The complaint is against Belgium’s Kredietbank (now known as the KBC Group) and its subsidiary in Luxembourg (KBL) in terms of the OECD Guidelines for Multinational Enterprises.
The conduct of the bank exemplifies impunity amongst private actors who collaborated with the apartheid regime. It also shines a spotlight on similar contemporary practices involving major financial institutions that continue to undermine human rights across the globe.
The Organisation for Economic Co-operation and Development (OECD) is one of the few international mechanisms available to hold businesses accountable for their role in human rights abuses. The OECD has various contact points in member countries that are responsible for ensuring that multinational enterprises operating in their jurisdictions comply with the business operations and accountability standards set out in the OECD Guidelines. Open Secrets and CALS will be laying the OECD complaint at the banks’ doorstep by approaching the Belgium and Luxembourg National Contact Points.
As a courtesy, both banks will be served with a physical copy of the complaint.
Representatives from both Open Secrets and CALS will be in Europe during South Africa’s Freedom Week to launch the OECD complaint and hold media briefings from the 24th – 27th of April.
For more information about this intervention, Open Secrets and CALS will be holding a briefing at CALS’s offices at the University of Witwatersrand from 12:30-14:00 on Thursday, 19th of April 2018.
Wandisa Phama, Attorney and Head of Business and Human Rights on +27 78 684 3140 or at wandisa.phama@wits.ac.za
ABOUT OPEN SECRETS
Open Secrets is an independent non-profit with a mission to promote private sector accountability for economic crime and related human rights violations in Southern Africa. Our vision is to promote the right to truth and contribute towards social justice by using research, advocacy and litigation to hold powerful private actors to account for violations of human rights. Read more about our work at https://www.opensecrets.org.za/.
ABOUT CALS
The Centre for Applied Legal Studies (CALS) is a public interest law organisation based at the School of Law at the University of the Witwatersrand. Founded in 1978 by Professor John Dugard, CALS continues to use a combination of research, advocacy and litigation to advance human rights and social justice. Read more about our work at https://www.wits.ac.za/cals/.
BHRRC is recruiting
- Lee-Anne Bruce
The Business and Human Rights Resource Centre is looking for a new Researcher and Representative for Southern and Anglophone West Africa
The Business & Human Rights Resource Centre, an international non-profit organization tracking the human rights impacts of over 6500 companies worldwide, is seeking a highly-motivated person to be its Southern and Anglophone West Africa Researcher and Representative. The representative will lead our broad strategy for Southern Africa and for Anglophone West Africa, and will join our global team, which includes 18 regional researchers.
Details:
Location: South Africa
Salary: Regionally competitive consultancy fee
Contract Type: Part-time consultancy
Closing Date: 25 May 2018
Applicants must have:
5+ years’ work in the field of human rights, labour rights or equitable development, including in Southern Africa and/or Anglophone West Africa
Fluency in English; additional languages a plus
Commitment to advancing human rights in the business sector
Strong ability to work constructively with a range of stakeholders (from civil society, business, government)
Please put “Application: Southern and Anglophone West Africa Researcher and Representative”in the subject line.
Interviews will be held in Johannesburg the week of June 4.
The Organization
The Business & Human Rights Resource Centre works to put human rights at the core of companies’ business models; to empower communities and workers to secure their rights and gain accountability for abuse; and to encourage governments to create the right regulation and incentives to facilitate these outcomes. We are a global organization that is rooted in fifteen regions, and committed to cooperation with diverse actors in our movement. We have nearly 40 members of our Global Team based around the world who work with a rich network of human rights advocates in eight languages, including Arabic. Our work covers the full gamut of human rights in business, with three priority issues: labor rights; responsible resource use; and protection of civic freedoms and human rights defenders.
Our three primary global approaches to delivering this vision are:
Empower human rights advocates in civil society, business, and governments to stimulate bold leadership for human rights in business.
Strengthen corporate accountability to strengthen due diligence, and effective remedy for abuse.
Build transparency of the advances, challenges, and abuse of human rights in business.
The Position
The Researcher will work closely with organisations in Southern Africa and Anglophone West Africa to advance human rights in business and work towards eradicating abuse, with a particular emphasis on issues related to labour rights, natural resource extraction, and civic freedoms and human rights defenders when such issues touch on business activities.
Our organisation’s plans for Southern and Anglophone West Africa are focused on, among other engagements: bringing transparency to the conduct of business in the region; building and expanding effective networks and interactions among groups that are confronting the human rights impacts of business; empowering local communities, NGOs, and human rights defenders (including labour leaders) to engage with companies to improve human rights protections; promoting improved labour conditions and living wages in at-risk sectors such as agriculture and manufacturing; and addressing the land, water, and livelihood impacts of natural resource extraction.
The work will be aligned with the Resource Centre’s organizational aims of empowerment, accountability and transparency.
Specific activities include:
Working with the Africa team, participate in the development and implementation of the Resource Centre’s Africa strategy and priority areas for engagement.
Represent the Resource Centre in Southern and Anglophone West Africa, meeting not only with civil society actors but also with relevant representatives from business, government, international financial institutions and international organizations
Develop strong networks and communicate regularly with local civil society groups, and work with them to develop effective strategies for change in specific cases of abuse, including undertaking missions and visits to hear directly from local NGOs and affected communities.
Conduct trainings and workshops on business and human rights for community and labour leaders alongside local partners, on topics such as documentation of abuse, international standards, and global supply chains.
Implement projects in Southern Africa related to the impact of mining on local communities
Research and share materials on business and human rights with actors in the region, in English and local languages – via the Resource Centre’s website, social media channels, and e-newsletters, and in external publications.
Invite companies to respond to specific allegations of misconduct raised by civil society (the Resource Centre to date has invited companies over 4,000 times to respond to concerns, with a global response rate of 70%).
Work with the Development Team to develop and draft proposals for new work and report on outcomes of ongoing work.
Participate in regularly schedule Global Team and Africa team calls and ad hoc calls and meetings as needed.
Key Competencies
Values: Strong, demonstrated commitment to human rights. Shares values and ethos of the Resource Centre. Human rights experience:5+ years’ work in the field of human rights, labour rights, equitable development, law and policy, or advocacy – including in Southern and/or Anglophone West Africa. Subject matter expertise: Advanced knowledge and understanding of the business and human rights field in general, including standards and developments, and of the relevant African context in particular. Representation skills: Able to foster productive, professional relationships with a broad range of contacts, including representatives of civil society, business and government. Existing networks:Established networks and contacts with relevant stakeholders in Southern and/or Anglophone West Africa. Research & analytical skills: Able to search and identify relevant information online and offline; persistent in seeking out difficult-to-find information; creative in identifying new sources of information. Communications:Strong writing skills, including succinct writing for the web, and strong public speaking skills. Strategic insight: Able to identify new opportunities to increase the Resource Centre’s impact and role in Sub-Saharan Africa. Teamwork: Able to operate effectively and constructively as part of a global team, and ensure smooth communication despite geographical distances between team members. Self-initiative and motivation: Able to use own initiative, and work independently within agreed framework; motivated by achieving results and completing tasks. Organization and prioritization: Strong organizational and prioritisation skills, enabling efficient and effective work.
Terms and conditions
Note that this is a part-time consultancy position. Payment will be made on the researcher’s presentation of invoices. The consultant will be responsible for paying from the fees his/her own taxes, health insurance, pension, etc., and those costs are taken into account in calculating the fees. The Resource Centre will reimburse necessary work-related expenses such as for travel.
Hours:The person will be expected to work 3 days (21 hours) per week. The hours worked are flexible, provided that there is effective communication with team members in other regions, and that the hours are spread reasonably throughout a week.
Reports to: Deputy Director, based in Washington, DC
Fees:Regionally competitive consultancy fee
The consultant will have the freedom to organize paid days off from doing consulting work for the Resource Centre, in an amount expected to be 10 days during the year (70 hours) – i.e. equivalent to four weeks per year for full-time work. The consultant will not be expected to work on national holidays in the country where she/he is based.
Workplace: From home, or if the consultant does not wish to work from home, from an agreed hosting institution.
Duration: The consultancy contract will be a one-year contract, which can be extended by mutual agreement.
Former CALS Director appointed NRF SARChI Chair
- Lee-Anne Bruce
Prof Cathi Albertyn has been awarded the NRF SARChI Research Chair in Equality, Law and Social Justice
CALS is proud to announce that Prof Cathi Albertyn has been awarded a Research Chair by the National Reseach Foundation / South African Research Chairs Initiative (SARChI). Prof Albertyn holds the Research Chair in Equality, Law and Social Justice. This prestigious honour is awarded to “established researchers that are recognized internationally in their field and/or have received substantial international recognition for their research contributions" according to the National Research Foundation.
Prof Albertyn was Director of CALS from 2001 - 2007 and prior to that headed our Gender Research Programme for ten years from 1992 - 2001. We would like to wish her our warmest congratulations on this honour.
Land colloquium
- Lee-Anne Bruce
CALS and the South African Journal on Human Rights are hosting a day long colloquium entitled 'Land and property in a contested terrain' on 2 July 2018
The South African Journal on Human Rights and the Centre for Applied Legal Studies invite you to join us for a colloquium on land and property. Panel discussions will include a wide range of topics from different disciplines including law and sociology. The main colloquium will take place from 08:30 – 17:00 and will be followed immediately by a facilitated conversation with Adv Tembeka Ngcukaitobi (author of The Land is Ours) and Stha Yeni (national co-ordinator of Tshintsha Amakhaya). See the programme below or read more about the colloquium.
Update: Blow to apartheid's banks
- Lee-Anne Bruce
UN Independent Expert supports complaint by CALS and Open Secrets against European banks complicit in defying UN arms sanctions during apartheid
A heavy blow has been dealt to two European banks at the centre of the apartheid-era international arms money machine. The implicated banks are KBC Group (previously Kredietbank) and Kredietbank Luxembourg (KBL). Evidence in the possession of Open Secrets shows that the banks were responsible for channelling billions of dollars through a global money-laundering scheme used to secretly buy weapons. This, despite mandatory UN arms sanctions against apartheid South Africa at the time. The impact of this action was to prolong the apartheid regime and effectively support a crime against humanity.
UN expert weighs in
On 28 May 2018, UN Independent Expert on the effects of foreign debt, Mr. Juan Pablo Bohoslavsky, submitted an amicus application to the Belgium and Luxembourg OECD National Contact Points (NCPs) in support of the complaint lodged by Open Secrets and CALS in April this year. This complaint uses the OECD Guidelines, one of the few international accountability mechanisms available, to attempt to hold the banks accountable for decades of impunity.
Bohoslavsky’s independent submission provides valuable evidence of the extensive role of financial institutions in supporting regimes that commit human rights violations. Importantly, he provides support for our argument that economic assistance by private actors to such regimes is potentially criminal conduct under international law. Bohoslavsky argues that, “This case is about learning the truth relating to financial contributions to a criminal regime that violated jus cogens [the norms of international law] and how these actors have helped in the consolidation of it.”
This amicus intervention strengthens our complaint by underscoring the link between economic crimes and human rights. It highlights the importance of holding private sector actors accountable for their complicity in grave injustices, past and present.
Belgian conflicts of interest exposed
On 06 June 2018, Open Secrets and CALS sent a letter to the Belgian and Luxembourg authorities alerting them to serious conflicts of interest that we have identified within the body that will consider our complaint in Belgium. We have requested the recusal of powerful conflicted parties whose participation we fear could derail the legitimacy of this process. The Belgian NCP is a tripartite structure that includes government, trade unions, and employers’ associations. Crucially, we have identified the Federation of Enterprises in Belgium (FEB) playing a key role as one of the employers’ federations. The president, CEO, and director of KBC Group, the bank against whom the complaint was brought, all sit on the FEB’s strategy committee, which plays a key role in the FEB’s decision making. Other senior KBC executives hold similarly influential positions within the FEB. In addition, Comeos, a subsidiary association of the FEB that is independently represented on the NCP, has a stated structural partnership with KBC Group.
These individuals and bodies have a clear and direct interest in downplaying the seriousness or dismissing the OECD complaint. It is in the interests of fairness and transparency that they be immediately recused from any involvement in this matter. Challenging KBC’s influence over the consideration of this complaint is a critical step toward genuine accountability and a just outcome. We have sent a copy of this letter to officials from the Belgium and Luxembourg NCPs who are meeting with the OECD in Paris today, and expect them to treat this matter with the seriousness it deserves.
Read the OECD complaint here, and Mr. Juan Pablo Bohoslavsky’s amicus application here.
To find out more about the complaint and the next steps in the process, see the factsheet and timeline below.
For inquiries, please contact:
Khuraisha Patel, Legal Researcher at Open Secrets on +27 71 944 9990 or at kpatel@opensecrets.org.za
Open Secrets is an independent non-profit with a mission to promote private sector accountability for economic crime and related human rights violations in Southern Africa. We promote the right to truth and contribute towards social justice by using research, advocacy and litigation to hold powerful private actors to account for violations of human rights. Learn more at https://www.opensecrets.org.za/.
ABOUT CALS
The Centre for Applied Legal Studies (CALS) is a public interest law organisation based at the School of Law at the University of the Witwatersrand. Founded in 1978 by Professor John Dugard, CALS continues to use a combination of research, advocacy and litigation to advance human rights and social justice.
CALS and TBF welcome Con Court judgment
- Lee-Anne Bruce
Teddy Bear Foundation and CALS welcome Constitutional Court judgment confirming time limits for prosecuting sexual offences unconstitutional
The Teddy Bear Foundation (TBF) and the Centre for Applied Legal Studies (CALS) welcome today’s judgment by the Constitutional Court in a case brought against accused sexual offender the late Sidney Frankel. The application challenged a section of the Criminal Procedure Act which gives the state a maximum of 20 years to prosecute a crime of sexual assault while there is no such time limit for rape.
CALS representing TBF intervened in the matter as a ‘friend of the court’ to assist the Court with this important issue and support the applicants. We were able to provide evidence on the nature of sexual abuse, delayed disclosure and the obligation on the state to protect children from abuse.
In a unanimous judgment, the Court today ruled that section 18 of the Criminal Procedure Act is invalid and there should be no bar on prosecuting any sexual offences after 20 years. In its ruling, the Court accepted that the survivors of rape and sexual assault face similar personal, social and structural disincentives when reporting these offences and that the harm caused by sexual offences is similar, regardless of whether it is the consequence of rape or other forms of sexual assault.
The Court has suspended the declaration of invalidity for 24 months to give Parliament time to undertake hearings on this issue. The Court did not acknowledge that Parliament has already adopted amendments to the legislation.
CALS and TBF have made submissions on changes to the law, commending Parliament for its proactive approach. We support the suggested amendment that there should be no time limits on prosecuting any sexual offences, but emphasise our position that sex work should not be criminalised as a sexual offence. Read our full submissions here.
“This judgment is a significant step towards ensuring that the criminal justice system is responsive to all victims of sexual offences no matter when they come forward,” says Sheena Swemmer, attorney at the Centre for Applied Legal Studies. “The judgment recognises the devastating effects of sexual violence in our country on children and adults; women and men.”
“It is critical that victims of sexual abuse be treated fairly and equally before the law,” says Shaheda Omar, Clinical Director of the Teddy Bear Foundation. “This judgment acknowledges the deep trauma that sexual violence of any kind may have on victims and the Court has now demonstrated its understanding that the process of disclosure is in itself painful, complicated, lengthy and takes great bravery.”
For inquiries, please contact:
Shaheda Omar, Clinical Director: Teddy Bear Foundation, on 011 484 4554 or 083 557 3720 or at shahedao@ttbc.org.za
The TBF (previously Teddy Bear Clinic) is an NGO that was established in 1986 to provide holistic child protection services. Through our facility in Parktown Johannesburg and satellite centres across the province we provide a range of services to abused children and their families. The TBF provides a range of Victim Support Services including counselling and court preparation programmes; Outreach initiatives; Diversion programmes and Multi-Disciplinary Training. For more on our activities visit www.tbbc.org.za
ABOUT THE CENTRE FOR APPLIED LEGAL STUDIES
The Centre for Applied Legal Studies (CALS) is a public interest law organisation based at the School of Law at the University of the Witwatersrand. Founded in 1978 by Professor John Dugard, CALS continues to use a combination of research, advocacy and litigation to advance human rights and social justice. Read more about our work at https://www.wits.ac.za/cals/
Joint statement condemning attacks on civil society organisations and activists
- Lee-Anne Bruce
Over 90 organisations come together to condemn physical and verbal attacks on environmental justice activists in South Africa
The undersigned organisations condemn the recent vicious attacks on environmental justice activists in South Africa.
In one case, we are outraged at the reported murder on 11 July 2018 of Mr D Mpanza, an activist who had opposed a relocation of the community in KwaDube in KwaZulu Natal. KZN violence monitor Mary de Haas has reported that people living on this land have been informed by various authorities that they must be relocated to accommodate onshore mining operations between Mthunzini and Richards Bay. According to De Haas, Mr Mpanza was shot dead, execution-style, on 11 July when travelling home from Esikhawini. Of the companions he was travelling with he alone was targeted.
In another case, we note an escalating campaign of social media attacks by those associated with an Mpumalanga mining project, on a number of South African environmental rights organisations. The campaign is led by the senior vice president of Indian-owned mining company Atha-Africa Ventures Pty Ltd, which is facing multiple legal challenges from these organisations to its applications to mine coal in a strategic water source area and protected environment in Mpumalanga.
This campaign is made up of various accusations and threats on social media which are designed to intimidate, silence and discourage activists who are lawfully opposing a coal mine in a strategic water source area and protected environment. He has publicly accused these organisations of “treason” and an “anti-national agenda”. These unfounded attacks are intolerable in our Constitutional democracy.
The South African Constitution guarantees the right to freedom of expression, freedom of the press, the right to access to justice, and the right to just administrative action. South Africa also has a long tradition of activism and civil society mobilisation to uphold our Constitution and defend Constitutional values.
More than two years have passed since cde Bazooka Rhadebe, an anti-mining activist in Xolobeni, was assassinated on the Wild Coast in 2016. To date nobody has been brought to book for his murder. Across the world, corporations have employed intimidation and violence when their commercial interests are challenged by activists, especially activists defending natural resources and environmental rights. The murder and assault of environmental activists are already common occurrences in many parts of the world.
We strongly condemn both physical and verbal attacks on civil society organisations and activists.
In the case of Mr Mpanza, we call for the speedy arrest and successful prosecution of his killers, and immediate protection for other residents who oppose the relocation in KwaDube. Furthermore we call for the authorities to give full information and participation to the community on this proposed relocation, and respect the voices of those who oppose it.
In the case of Atha-Africa, we call on the Minerals Council of South Africa (formerly the Chamber of Mines) to state publicly that it will revoke the membership of any company whose employees engage in this type of conduct. The mining authorities cannot remain silent when companies operating in South Africa unlawfully intimidate and threaten activists exercising their Constitutional rights.
Association for Progressive Communications (International)
Bench Marks Foundation
Biowatch SA
BirdLife South Africa
Body Corporate of King Shaka Estate
Centre for Applied Legal Studies
Centre for Constitutional Rights
Centre for Environmental Rights
Children's Radio Foundation (International)
Corruption Watch
Door To Door foundation
Earthjustice (International)
Earthlife Africa Durban
Earthlife Africa Joburg
EarthLore Foundation
EDO NSW (International)
Ekogaia Foundation
Ekurhuleni Environmental Organisation
Endangered Wildlife Trust
Environmental Justice Australia (International)
Environmental Law Alliance Worldwide (International)
Environmental Monitoring Group
Federation for a Sustainable Environment
Fireflies Memorial (International)
GenderCC Southern Africa - Women for Climate Justice
Global Environmental Trust
Greenpeace Durban Local Group
groundWork
Heinrich Boell Stiftung Southern Africa (International)
Interamerican Association for Environmental Defense (International)
International Labour Research and Information Group (ILRIG)
Izingwenya Youth Development
Just Share
KRC
KZN Monitor
Land and Accountability Research Centre, University of Cape Town
Lawyers for Human Rights
Lihlithemba Community Organisation
Market Users Committee
Mayine Community Movement
MCEJO
Media Monitoring Africa
Mfolozi Community Environmental Justice Organisation
Mining and Environmental Justice Communities Network of South Africa (MEJCON-SA)
MSF (KZN)
MUC
My Vote Counts
No Nukes Asia Forum Japan (International)
Noordhoek Environmental Action Group
Open Democracy Advice Centre
Parliamentary Monitoring Group
PHA Food & Farming Campaign
Popular Education Programme
Reid Incorporated Attorneys
Right2Know Campaign
SAVE UNIZULU
Schoeman and Associates
Schubart Park community
SCLC
Sekhukhune Environmental Justice Network
SHINE
Simunye Workers Forum
Sisonke Environmental Justice Network
Social and Environmental Justice in Action
Social Justice Coalition
South African Youth Climate Change Coalition
South Durban Community Environmental Alliance
Sustaining the Wild Coast
TAC (KZN)
Teens And Youth Health C.N
The Gaia Foundation (International)
ToadNUTs
Ubukhosi bezandla NPC
Vaal Environmental Justice Alliance
Vaaloewer Ratepayers Association
Voices of the Poor Concerned Residents (VPCR)
Vukani Environmental Movement (VEM)
Waterberg Environmental Justice Forum (WEJF)
Waterberg Women Advocacy Organization
Well Worn Theatre Company
Western Cape Water Caucus
Wilderness Foundation Africa
Women and Democracy Initiative, Dullah Omar Institute
Women Revolution
WoMin African Alliance (International)
WPCN
Youens Attorneys
CALS and Black Sash back in court to ensure social grant beneficiaries protected
- Lee-Anne Bruce
CALS will be in the Supreme Court of Appeal on 16 and 17 August to ensure social grant beneficiaries are protected from unauthorised and unlawful deductions
On Thursday 16 August 2018, the Supreme Court of Appeal will hear arguments by the Black Sash, represented by the Centre for Applied Legal Studies, and the Social Security Agency of South Africa to appeal a judgment of the High Court. The judgment concerns Regulations to the Social Assistance Act passed by the Minister of Social Development in 2016 which regulate deductions made from social grants.
The High Court judgment held that these regulations should not hinder deductions made from beneficiaries’ bank accounts and that social grant beneficiaries should not be restricted in how they choose to use their SASSA bank accounts held with Grindrod Bank. The judgment stems from four court cases brought simultaneously by private companies, including Net1 and its subsidiaries Moneyline, Manje Mobile and Smartlife, against SASSA and the Department of Social Development to challenge the regulations intended to halt deductions from social grants.
The companies argued that they should be entitled to have access to SASSA bank accounts and that grant beneficiaries should have the right to contract freely, allowing deductions and debit orders to continue being made from SASSA bank accounts into which social grant are paid.The Black Sash is appealing the judgment, seeking an order that the Minister of Social Development amend the regulations to protect grant beneficiaries from exploitative practices.
“For many years, we have been witness to the dire consequences of social grants servicing debt. These practices need to be stopped by effective regulations and oversight,” says Hoodah Abrahams-Fayker, National Advocacy Manager at Black Sash.
More than 17 million South Africans depend on grants, many of whom are trapped in a cycle of debt.
Through its work and that of its partner organisations, the Black Sash receives thousands of complaints that corporate entities have unjustifiably depleted the social grants of beneficiaries. These are not isolated incidents, but endemic across South Africa, affecting millions of beneficiaries.
“It is our hope that the court will empower the State to properly protect social grants from exploitative practices. Social grant should not be used to service debt. The State has a constitutional obligation to protect social grants against exploitation,” concludes Abrahams-Fayker.
The matter will be heard on Thursday 16 August, starting from 09h00 in Court A at the Supreme Court of Appeal. Black Sash will also be mobilising members to demonstrate outside the court.
Civil society partners with DIRCO to host indaba on UN Binding Treaty
- Lee-Anne Bruce
CALS, ActionAid and Laywers for Human Rights are partnering with DIRCO to host a discussion on the proposed UN Binding Treaty from 21 August in Johannesburg
CALS, Lawyers for Human Rights and ActionAid South Africa, in cooperation with DIRCO, are preparing to host a discussion on the draft international binding treaty regulating business practices and their impact on human rights. The indaba will begin on 21 August 2018 at the Sunnyside Park Hotel in Johannesburg and is open to the public.
In June 2014, the United Nations Human Rights Council adopted a resolution sponsored by Ecuador and South Africa. This resolution established an Inter-Governmental Working Group with the purpose of developing an international legally binding instrument to regulate the activities of transnational corporations and other business enterprises with respect to human rights. The first draft of this instrument – known as the “Zero Draft” – was published in July 2018.
Transnational Corporations (or “TNCs”) are globally recognised as perpetrators of human rights violations across many sectors. Their increasing levels of economic and political power present a particular challenge in developing countries and frequently hamper the ability of communities in these jurisdictions to hold corporations accountable for abuses. The existing voluntary UN Guiding Principles on Business and Human Rights have proved inadequate in many respects in regulating and holding the operations of TNCs accountable for human rights violations.
It is critical that as corporations grow more dominant in the global context, effective mechanisms to ensure corporate accountability are implemented to take account of this growing reality. In addressing the imbalance of power between TNCs, states and human rights holders, the voices of those who stand to be most affected by TNCs must be prioritised in the responses to Zero Draft of the treaty, with a particular focus on the gendered aspects of human rights abuses.
The robust engagement of civil society, labour, business, and communities in assessing the proposed treaty is critical to providing the South African government with comprehensive feedback and in order to inform South Africa’s position in the upcoming round of treaty negotiations to be held at the United Nations in Geneva over 15 – 19 October 2018.
ActionAid South Africa, in cooperation with the Department of International Relations and Cooperation (DIRCO) and supported by Lawyers for Human Rights (LHR) and the Centre for Applied Legal Studies (CALS), invite all relevant stakeholders and the press to a critical multi-lateral engagement to influence, support and consolidate the South African position as co‐sponsor of the proposed treaty, and to ensure that the perspectives of its key stakeholder constituents are reflected in these upcoming negotiations.
Participants will include all relevant National Government Departments, Chapter 9 institutions, trade unions, civil society organisations, business, mining affected communities, and a select group of international guests. Day 1 will be spent unpacking the nature and importance of a legally binding mechanism on business and human rights, hearing from government, business, communities, and labour. Day 2 includes a site visit to a community in Mokopane, Limpopo to hear first-hand the lived experiences of those affected by TNCs.
CALS to argue in Con Court that SADC changes require public participation
- Lee-Anne Bruce
CALS & the LRC will appear in the Con Court tomorrow to highlight the importance of public consultation by the state when entering into international agreements
On 30 August, the Constitutional Court will hear arguments in a matter brought by the Law Society of South Africa against the Presidency, the Minister of Justice and Constitutional Development, and the Minister of International Relations and Co-operation. CALS, represented by the LRC, will be assisting as a ‘friend of the court’ in the matter which concerns the suspension of the SADC Tribunal.
The SADC Tribunal was established in 2005 to resolve disputes involving southern African states and their citizens. In 2010, after a number of rulings against the Zimbabwean government, the Tribunal was effectively suspended. By 2014, the SADC Summit adopted and signed a new Protocol which confined the Tribunal to reviewing disputes between states only, and not between states and individual citizens. The South African Presidency was one of the signatories to this resolution.
The Law Society of South Africa therefore approached the Pretoria High Court, arguing that signing the resolution was unconstitutional because it violated the right of access to courts. CALS, admitted as a friend of the court to assist in the matter and represented by the LRC, highlighted the importance of public consultation by the state when entering into international agreements.
On 1 March 2018, the High Court handed down judgment ruling that the Presidency acted unlawfully and irrationally in signing the resolution. The Court further ordered that both the applicants and the friends of the court should have their legal costs covered by the state. This judgment now needs to be confirmed by the Constitutional Court, which will hear arguments in the matter tomorrow.
“Public participation is integral to the Constitution’s commitment to accountability and openness; it is the very definition of a participatory democracy,” says Akhona Mehlo, attorney at CALS. “It is essential in fulfilling the right to development, which is central in the SADC context.”
CALS and the LRC remain deeply concerned that the Presidency has entered into what is in effect an international treaty without first consulting the people of South Africa. While the Protocol has not yet been ratified, the signature lends support to a process that will limit access to courts for many people in the region.
Join us for this year's Public Interest Law Gathering hosted at Wits University from 4 – 5 September 2018
You are cordially invited to register to attend PILG 2018** happening this year at Wits University, Johannesburg. The event will be taking place from 4 – 5 September 2018 in the New Commerce Building. See event programme below.
As you may know, this is a free event and refreshments will be provided.
** PILG started in 2011 and has grown significantly since then, becoming an important date on calendars of people and groups interested in social justice and public interest law. The Gathering attracts a wide range of stakeholders, including public interest attorneys and advocates, private legal professionals, representatives from Chapter Nine institutions, members of the judiciary, funders, representatives from non-governmental and community-based organisations, students, academics and others interested in engaging with topical issues and expert panellists in the broad field of public interest law.
PILG 2018 is organised by the Centre for Applied Legal Studies (CALS), Equal Education Law Clinic (EELC), Lawyers for Human Rights (LHR), Legal Resources Centre (LRC), ProBono.Org, SECTION27, Socio-economic Rights Institute (SERI), Southern Africa Litigation Centre (SALC), Students for Law and Social Justice (SLSJ), University of the Witwatersrand School of Law, Women's Legal Centre (WLC).
CALS and Black Sash note latest Con Court judgment in SASSA case
- Lee-Anne Bruce
Today's judgment provides reasons the Court granted an extension of the CPS contract and awards costs against SASSA and its CEO in her official capacity
The Centre for Applied Legal Studies and the Black Sash Trust note today's Constitutional Court judgment on social grants. This follows its order from 23 March this year when the Court extended the contract for cash payments of social grants by CPS. Today’s judgment provides reasons for this order and awards costs for the application against SASSA and its CEO in her official capacity.
Today, the Constitutional Court handed down judgment in a matter brought by the South African Social Security Agency and its CEO. The application requested a six month extension to the unlawful contract with Cash Paymaster Services to pay social grants – but only to grant beneficiaries who receive cash payments.
On 23 March, the Court granted this extension and reserved judgment on costs for the application. Today’s judgment provides reasons for the Court’s earlier ruling and orders that SASSA and its CEO must pay the costs of the application.
CALS and the Black Sash Trust welcome the judgment, which explains that the extension was granted in order to ensure beneficiaries would not face harm and would continue to receive their grants. At paragraph 32, the judgment states, “the recipients of grants would be seriously prejudiced by the failure to extend. Approximately 2.8 million recipients could have been affected. These people would not have received their grants if a further suspension of the invalidity was not granted. These are poor people with virtually no income for daily financial needs except the grants they receive from SASSA.”
The Court makes clear that the urgency of the application was “self-created” and due to a “lack of diligence on the part of SASSA in relation to its preparation for the transition on payment of social grants”. The judgment therefore orders SASSA and its CEO in her official capacity to pay the costs of the application.
“We welcome the Court’s acknowledgement of the need to protect social grant beneficiaries,” says Lynette Maart, national director of the Black Sash Trust. “We will continue to monitor the payment of beneficiaries during the handover with the Post Office and the closure of pay points.”
“The Court has played an essential role in the oversight of SASSA along with the Panel of Experts led by the Auditor General,” says Wandisa Phama, attorney at CALS. “This is part of ongoing litigation we have instituted in an effort to protect social grants and ensure beneficiaries receive their payments in full and on time.”
Panel discussion and launch of report on activist victimisation
- Lee-Anne Bruce
As part of this year's Public Interest Law Gathering, CALS will be hosting a panel and launching our report on activist victimisation
Join us for a discussion on threats to activists and strategies to protect them as part of this year's Public Interest Law Gathering. Dr Esther Gumboh from CALS will be presenting the findings of our report entitled 'Victimisation Experiences of Activists in South Africa' which forms part of the evidence we have submitted in ongoing litigation against activists. She will be joined on the panel discussion by activist Patrick Ndletshe from the Treatment Action Campaign and SECTION27 as well as Nicolette Naylor from the Ford Foundation.
CALS and community networks weigh in on draft Mining Charter
- Lee-Anne Bruce
CALS and three of SA’s largest mining community networks MACUA, WAMUA and MEJCON-SA comment on the 2018 draft Mining Charter
The Centre for Applied Legal Studies and three of South Africa’s largest mining community networks MACUA, WAMUA and MEJCON-SA have submitted comments on the 2018 draft Mining Charter. While the draft has some positive, transformative elements, both the public participation process and consequently the draft Charter itself remain flawed.
On Friday 15 June 2018, a new draft Mining Charter was released by the Department of Mineral Resources, giving interested and affected parties until today to comment on this version before the Charter is finalised. The Centre for Applied Legal Studies, Mining-Affected Communities United in Action (MACUA), Women Affected by Mining United in Action (WAMUA), and the Mining and Environmental Justice Community Network of South African (MEJCON-SA) have submitted comments accessible here.
The Mining Charter is an important tool for addressing inclusion and transformation in the mining sector. But, it is a tool that has largely been developed without consulting the very people it is meant to benefit: mining affected communities. Communities and networks went to court to challenge the previous version of the Charter on this basis. In February 2018, they were rewarded with a court order recognising them as core stakeholders in mining and ordering that all affected communities be consulted in the formulation of any new Charter going forward.
Despite this court order, the consultation process undertaken by the Department of Mineral Resources since February has not lived up to expectations. Community leaders have noted a number of problems – such as little notice given before meetings, venues for consultations being unclear and too small, and not having enough time to raise concerns about the contents of the Charter. As a result of this flawed process, we still have a number of substantive concerns about the Charter, which does not necessarily reflect the needs of the people it is intended to benefit.
Some of these concerns include:
The draft Charter does not prioritise gender transformation or equality.
Environmental sustainability is not addressed in the draft Charter.
The draft Charter does not address communities’ right to free prior and informed consent to mining.
Even the definition of ‘community’ in the draft Charter is unclear.
The draft Charter does not acknowledge the costs of mining born by communities.
There is no reference in the draft Charter to the People’s Mining Charter which contains the demands and aspirations of mining-affected communities across the country.
There are no safeguards against abuse of communal resources by traditional leaders and politicians.
The draft Charter does not require any goods or services to be procured from the mining-affected communities.
There are no principles outlining how community participation should take place when mines draft their social and labour plans.
There is no framework for regulating the scale of social and labour plans in relation to the size and impact of mines.
We also welcome some positive aspects of the draft Charter, which include:
There is a guaranteed 5% share in all mines for communities and workers.
The provision that skills development programmes should be offered to mining-affected communities as well as employees has been retained.
The draft Charter maintains the increase in the targets for Black Persons in the management of mines.
Social and labour plans are to be published in English and other languages commonly used within mining affected communities.
“Had there been true meaningful engagement on the Charter, the drafters may have been in a better position to capture the issues which matter to those it is designed to benefit – namely mining affected communities,” says Lisa Chamberlain, Acting Director at CALS. “As it stands, we have a draft Charter that does not address many of the key priorities of its beneficiaries.”
For inquiries, please contact:
From the mining community networks:
Meshack Mbangula, national co-ordinator of MACUA, on 074 977 5588 or at mbangulam@gmail.com
Mining Affected Communities United in Action (MACUA) is a co-ordinating body representing and advancing the rights and interests of mine-affected communities across eight provinces of South Africa. The network is made up of 50 community organisations and calls for communities to be granted a greater say in issues that affect their human rights and which they believe is denied to them in current regulations governing the mining sector.
ABOUT WAMUA
Women Affected by Mining United in Action (WAMUA) is an official national platform formed within MACUA with the purpose of advancing the rights and interests of women in mining affected communities. WAMUA aims to advance and support women in mining affected communities to strengthen their participation in community decision making processes and influencing local, provincial and national policy and legislative process in the mining sector.
ABOUT MEJCON-SA
The Mining and Environmental Justice Community Network of South Africa (MEJCON-SA) is a network of communities, community based organisations and community members whose environmental and human rights are affected, directly or indirectly, by mining and mining-related activities. Since its constitution on 17 October 2012, MEJCON-SA’s membership has continued to grow and includes representatives of various individuals, community-based and civil-society organisations throughout South Africa.
ABOUT CALS
The Centre for Applied Legal Studies (CALS) is a public interest law organisation based at the School of Law at the University of the Witwatersrand. Founded in 1978 by Professor John Dugard, CALS continues to use a combination of research, advocacy and litigation to advance human rights and social justice. Read more about our work at https://www.wits.ac.za/cals/.
Con Court holds Minister Dlamini personally liable for social grants crisis
- Lee-Anne Bruce
CALS and Black Sash welcome today's Con Court judgment ordering Minister Dlamini to pay a portion of legal costs resulting from last year's social grants crisis
The Centre for Applied Legal Studies and the Black Sash Trust welcome today’s Constitutional Court judgment. The Court today ordered that Minister Bathabile Dlamini should pay a portion of the costs of the litigation resulting from last year’s social grants crisis. The Court also called on the NPA to consider whether Minister Dlamini lied under oath and should be prosecuted for perjury.
Today, the Constitutional Court handed down an order in a matter brought by the Centre for Applied Legal Studies (CALS) on behalf of the Black Sash Trust against SASSA, the Minister of Social Development and Cash Paymaster Services (CPS). The litigation sought to protect the social grant system when the contract between SASSA and CPS came to an end in March 2017 and there was no plan in place to continue paying social grants.
In June 2017, the Court ordered then-Minister of Social Development, Bathabile Dlamini, be joined to the matter in her personal capacity and explain why she should not be held liable for the costs of the litigation resulting from her negligence. The Court further established an inquiry led by Judge Bernard Ngoepe to investigate outstanding issues in the case. Judge Ngoepe’s report on the inquiry describes Minister Dlamini as an ‘evasive’ witness who misled the Court to protect herself from the consequences of her conduct.
In its judgment, the Court ruled that Minister Dlamini – in her personal capacity – pay 20% of the legal costs in this application, while SASSA and the Department of Social Development must cover the remaining 80% of the costs. The Court found that her conduct was, at best, “reckless and grossly negligent” and acknowledges that “[t]his conclusion is a serious and sad one, especially in the context of the provision of social grants to the most needy in our society. But if it is not to happen again, consequences must follow.”
The Court also ordered that this judgment and Judge Ngoepe’s report be forwarded to the National Director of Public Prosecutions to consider whether Minister Dlamini lied under oath and should be prosecuted for perjury.
“This is a victory for the South African public,” says Lynette Maart, national director of the Black Sash Trust. “We welcome today’s judgment and the impact this will have for grant beneficiaries going forward.”
“The judgment sets a an important precedent for holding public officials accountable for their reckless and negligent actions in executing their duties,” says Wandisa Phama, Acting Deputy Director at CALS. “This is a step towards ensuring that a similar crisis never happens again.”
Supreme Court of Appeal rules social grants must be protected
- Lee-Anne Bruce
CALS and Black Sash note SCA ruling that it is up to government to protect social grants from predatory marketing practices and unlawful deductions
The Centre for Applied Legal Studies and the Black Sash Trust note yesterday’s judgment in the Supreme Court of Appeal concerning deductions made from social grants. The Court has ruled that it is up to government to draft legislation that protects social grants from predatory marketing practices and unlawful deductions.
Yesterday, the Supreme Court of Appeal handed down judgment in an appeal brought by SASSA against Net1 and its affiliate companies Money Line, Manje Mobile, FinBond and SmartLife. The matter concerns the interpretation of regulations aimed at limiting deductions from social grants and appeals an earlier decision of the High Court. CALS, on behalf of the Black Sash Trust and six individuals, sought to intervene to highlight the impact of unauthorised debit orders on grant beneficiaries and emphasise the state’s duty to protect social security rights.
In May 2017, the High Court ruled that the regulations developed by SASSA in response to concerns over unauthorised deductions from grants did not prohibit debit orders from beneficiaries’ bank accounts and dismissed our application to intervene in the matter. This judgment was taken on appeal to the Supreme Court of Appeal, which heard the matter on 16 August 2018.
Yesterday’s judgment emphasises the South African Post Office new Special Disbursement Account (gold card), as the SASSA payment method, does not allow for debit and stop orders, which is one mechanism to stop predatory deductions. The ruling also grants our application to intervene and acknowledges the importance of having legislation in place that does sufficiently protect social grant beneficiaries against “unscrupulous vendors and corrupt activities by employees of service providers.” The judgment concludes that what is urgently needed is legislation that provides “clearly defined, enforceable protective measures to ensure that social grants are not unlawfully depleted.”
“The judgment has sent a clear message that social grant beneficiaries must be protected from abuse and exploitation,” says Wandisa Phama, Acting Deputy Director at CALS. “In granting our application, the Court has also acknowledged the importance of giving beneficiaries of the social assistance programme a voice in the regulations that govern it.”
“We receive thousands of complaints that corporate entities have unjustifiably depleted the social grants of beneficiaries,” says Hoodah Abrahams-Fayker, National Advocacy Manager of Black Sash. “These are not isolated incidents, but endemic across South Africa, affecting millions of beneficiaries. These practices need to be stopped by effective regulations and oversight as the Court suggests.”
Book launch: John Dugard's "Confronting Apartheid"
- Lee-Anne Bruce
CALS is partnering with Jacana Media to host the launch of Prof John Dugard’s memoirs "Confronting Apartheid" in conversation with Justice Edwin Cameron.
CALS is partnering with Jacana Media to host the launch of Prof John Dugard’s memoirs, Confronting Apartheid: A Personal History of South Africa, Namibia and Palestine. The launch will take the form of a conversation with Justice Edwin Cameron on the evening of 30 October 2018 from 18:00.
CALS turns 40
- Lee-Anne Bruce
To celebrate our 40th birthday, CALS is hosting an open sympsoium on 1 November at the Chalsty Centre themed 'Reflecting on the past and dreaming of the future'
CALS turns 40 this year, which is definitely something worth celebrating! We are hosting an open symposium and reunion on 1 November 2018 from 09:00. We hope to bring together as many people as possible who have been associated with CALS over the years, including current and former staff, clients, counsel and partners - to celebrate them and their contribution to our organisation and to social justice. Take a look at the day's programmehere or below for more info.
Sexual harassment complaint
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A complaint of sexual harassment has been made to the Wits Gender Equity Office by someone in the Wits community against a staff member at CALS
A report of sexual harassment was made to the Wits Gender Equity Office at the end of August by someone in the Wits community against a member of CALS staff.
The Gender Equity Office (GEO) is a unit within the University with specialist expertise set up to deal with complaints of sexual harassment. The unit provides a safe and confidential space for staff and students to report these incidents, offers them counselling, and oversees any related disciplinary procedures.
In this case, the GEO acted swiftly to provide the complainant with support and advice and, with her consent, commenced a formal complaint process. The GEO has concluded its preliminary investigation into the report, and referred the matter to a formal disciplinary process for hearing. A few days later, and prior to the hearing, the accused staff member resigned from his position at CALS. The GEO has confirmed that in light of his resignation, the disciplinary process cannot proceed.
At Wits, the GEO is the specialist unit that handles complaints of sexual harassment. We respect and defer to their processes. In support of the work that they do, we felt it was necessary to issue this statement. This is because while reports of sexual harassment are difficult to process and manage, it is important that we deal with them candidly. Doing so may help to break the culture of silence around sexual harassment that has allowed it to thrive for so long. In addition, as a centre that actively works on cases of sexual harassment in the public and private sectors, we constantly advocate for openness and accountability. We believe firmly in these values and therefore also in holding ourselves to those same standards.
Grappling with complaints of sexual harassment requires us to reflect on the broader, contextual picture. Sexual harassment is serious, widespread and systemic. It is a reflection of the damaging attitudes that pervade our society including in spaces like academia and the legal profession. Reports of incidents of sexual harassment are so often ignored, dismissed or made invisible, which can further compound the harm done. It is thus critical that when reports of sexual harassment are made, they are acknowledged and taken seriously.
As CALS we acknowledge our responsibility to each other – in our organisation, in academia, in the social justice sector and in society in general – to deal openly with reports of sexual harassment and so begin to make our spaces more supportive and safer. We also acknowledge an ongoing responsibility to reflect on our own attitudes and understanding of sexual harassment and commit ourselves to learning more about this and how we can contribute to tackling this systemic problem.
We would like to remind anyone who has experienced sexual harassment at Wits that they can contact the GEO to access support and lay a complaint. Contacting the GEO is confidential and does not commit you to following a formal process. You can call their office on 011 717 9790, contact their after-hours hotline on 076 827 4001 or email info.geo@wits.ac.za for more information or to report sexual harassment.
Competition Tribunal places a number of conditions on the merger between Lonmin and Sibanye on existing social commitments and establishing a community forum
The Centre for Applied Legal Studies (CALS) notes the Competition Tribunal’s order on the merger between Lonmin and Sibanye-Stillwater. The Tribunal has approved the merger subject to a number of conditions relating to employment, procurement and social and labour plan commitments. CALS intervened in the Tribunal hearings on behalf of Sikhala Sonke, a women’s organisation from the Marikana area, to ensure Lonmin’s social obligations to mining-affected communities are taken into account in the merger.
Lonmin is a platinum mining company, infamous for its involvement in the strike around Marikana in 2012. For several years, Lonmin has been struggling financially and has faced shutting down its mining operations unless it could find a buyer. In March this year, Lonmin announced a proposed acquisition by mining group Sibanye-Stillwater. Large mergers of this kind must be reviewed by the Competition Tribunal, which decides whether or not to approve the merger and any conditions that should be attached to an approval.
Lonmin has a history of failing to comply with these obligations (see, for example, Amnesty International’s ‘Smoke and Mirrors: Lonmin’s failure to address housing conditions at Marikana’). As such, it was important for Sikhala Sonke and other affected communities to raise concerns about the human impact of this continuous non-compliance and the need toconsider social and labour plan commitments in the merger.
In this case, the Tribunal approved the merger between Lonmin and Sibanye-Stillwater subject to a number of conditions in the public interest, including a condition specifically related to social and labour plans. The Tribunal has ordered that Sibanye honour Lonmin’s existing social and labour plan commitments and establish a Community Engagement Forum to engage nearby communities and community organisations like our clients specifically.
“Having the Tribunal recognise the importance of social obligations and declare social and labour plans a competition issue is a major victory for our clients,” says Robert Krause, researcher at CALS. “The fact that named community structures must be consulted in an official forum is essential given the mining industry’s history of selective consultation with mining-affected communities.”
South African Academics and NGOS welcome Draft of Treaty to Regulate, in International Human Rights Law, the Activities of Transnational Corporations
We, the undersigned academics and NGOs dedicated to the promotion and protection of human rights, welcome the Zero Draft of a Legally Binding Instrument to regulate, in International Human Rights Law, the Activities of Transnational Corporations and Other Business Enterprises. We commend the South African government for its leadership – together with Ecuador – in the process of negotiations towards the development of this crucial instrument, which represents a first step towards the broader acknowledgment of human rights obligations of business.
Having met to discuss the Zero Draft, we share a number of improvements that we believe should be made relating to the instrument. These include the following:
The instrument should recognize clearly in its operational provisions that business has a duty to respect all human rights which has already been recognized in the United Nations Guiding Principles;
In our view, the duties of business should be extended to include a duty to support and contribute towards the advancement of human rights;
The preamble should make reference to some historic events that have led to the need for and the development of the treaty;
Explicit reference must be made, at least in the preamble, to the Universal Declaration on Human Rights and the International Covenant on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights as explicit examples of the international human rights the treaty seeks to protect;
At the appropriate points, stronger references should be made to international humanitarian law and greater specification should be provided regarding duties in the context of areas of conflict, including armed conflict;
Consistent with the United Nations Declaration on Human Right Defenders, Human Rights Defenders should be mentioned explicitly and specific protections provided for them;
Jurisdictional grounds should be increased to include the nationality of victims and where the effects of actions are experienced;
Liability should be fault-based except for situations where strict liability is provided for in domestic legal systems;
The Fund for victims should be capable of drawing on funding not only from state contributions but through costs that are taxed from corporations found to be violating human rights and through voluntary contributions from corporations engaged in business activities of a transnational character;
The treaty should include the obligation on states to amend existing corporate law doctrines to conform with human rights - for example, the need for the fiduciary duties of directors to include human rights due diligence duties; and
The treaty should promote the recognition and enforcement of judgements across jurisdictions, including by eliminating the option for corporate defendants to avoid enforcement on public policy grounds.
A treaty on business and human rights is vital in addressing challenges faced by claimants who suffer abuses by business in our globalized world. The treaty will aim to address shortcomings both in international and domestic law: it should be welcomed by states and business corporations alike committed to advancing human rights protection. In light of this, we call on all states to engage in good faith to negotiate and reach an agreement on a treaty in this area. We also call on business corporations around the world – but, in South Africa particularly in light of businesses’ responsibility to help address the legacy of past injustice – to support the treaty seeking to regulate the conduct of Transnational Corporations and Other Business Enterprise and to engage constructively with it.
International Commission of Jurists
Lawyers for Human Rights
South African Institute for Advanced Constitutional, Public, Human Rights and International Law, a center of the University of Johannesburg
SA NRF Research Chair in International Law, University of Johannesburg
Centre for Human Rights, University of Pretoria
Centre for Applied Legal Studies, University of the Witwatersrand
Former Director named a Knight of the National Order of Merit
- Lee-Anne Bruce
Prof Bonita Meyersfeld has been named a Knight of the National Order of Merit by the President of France in recognition of her work on gender-based violence
CALS is very proud to announce that our former Director, Prof Bonita Meyersfeld, has been appointed Chevalier de l'Ordre national du Mérite ('Knight of the National Order of Merit') by the President of the French Republic. This honour is presented to French citizens and foreign nationals for distinguished military or civil achievements such as "acts of devotion, bravery, generosity, real merit or a measurable commitment to serving others".
Prof Meyersfeld received the honour in recognition of her work promoting human rights in South Africa, and in particular her commitment to combatting gender-based violence by establishing Lawyers against Abuse and through her research.
Prof Meyersfeld served CALS as Director from 2012 – 2017 and currently sits on our Board of Directors. We wish her our warmest congratulations on this award.
A member of one of our client communities, Butibuti Mabuso, has written an open letter to the President about the lack of access to water in rural Limpopo
Honourable President
I am writing this public request to you, Mr President, highlighting the suffering of the communities of Ward 15 Ephraim Mogale Local Municipality. The communities of Elandskraal, Morarela, Mbuzini, Tsantsabela and Dichoeung have been suffering for almost 17 years without proper provision of water as a result of a conspiracy against them by the Sekhukhune District Municipality.
For your information, Mr President, these communities previously had the uninterrupted supply of water on a 24 hour basis. We had our own water supply pumps. Since the establishment of the Flag Boshielo water plant, these communities no longer have water on a 24 hour basis. Water is being supplied irregularly with no clean water. Our plant was destroyed when the provision of water supply was given to Lepelle water. Our plant was destroyed under the pretext that they make one big plant that will be able to supply the region.
For the past 17 years, they changed meter at Elandskraal four times but without water. The communities have protested, approached different Ministers of water and sanitation, local government and the Presidency under the previous administration - but in vain. Also your government was taken to court in which the judgment was in our favour but nothing happened. Your Lepelle District Municipality officials just do as they like with pure impunity.
They can lie as they like because in the end no one will account for their actions. This is intentional.
When the demarcations of local municipalities came into power they found us having had fought for services, such as Home Affairs, Social Development, Public works, Provision of water and just administration. Honourable President, all these services have been taken away from us by your government. What we experience in our communities is the total abuse of our loyalty and trust we bestowed unto your government. Does that mean when we voted your party into power we voted for such services to be taken away?
Next year, we are going for elections. Should we continue to vote your government that will take all our hard fought for gains away from us? When all South Africans are enjoying the fruits of liberation and democracy, we mourn for the loss of services inflicted upon us by your officials. Using the water provision as a weapon against the people. Maybe we are not people but look like them.
Honourable President, we believe in you to come to our rescue. Please we request your intervention to ensure our dignity returns to us as humans.
Maybe your officials at Sekhukhune District Municipality do not know that we are humans. Please restore our humanity.
To show that we are not being taken serious there is a pipe that passes through our villages with water on a 24/7 basis. This pipe supplies Polokwane and Lebowakgomo. Because of poverty in these villages, we are not so important when coming to services. But we are more important for elections.
Finally, Mr President, as you embark on operation Thuma Mina we therefore "Thuma" the Honourable President to visit these villages to get first hand information from communities and restore our dignity and humanity.
I therefore avail myself if needs be for more information on this crisis. We can also provide the presidency with correspondence to show that we have approached your government in vain.
Hope our plea will today enter ears that care for humanity.
Kind regards
Butibuti Mabuso, concerned resident of Elandskraal
Civil society holds side event on UN Binding Treaty
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Join us for a side event at the UN in Geneva on 19 October 2018 discussing African perspectives on the binding treaty on business and human rights
CALS – along with Lawyers for Human Rights, ActionAid, the International Federation for Human Rights, the Zimbabwe Environmental Law Association and Democratic Governance and Human Rights Advocates – are hosting a side event at the United Nations on 19 October 2018. The discussion centres on African perspectives of the proposed UN Binding Treaty on business and human rights and will take place at the Fourth Session of the Intergovernmental Working Group on Transnational Corporations and Other Business Enterprises With Respect to Human Rights.
The event, which will take place in Room XXIII, will offer an opportunity for stakeholders to consider the lived experiences of marginalised communities across Africa, who are negatively impacted by Transnational Corporations in general, and particularly those affected by the extractives sector.
Participants on the panel will reflect on theweek’snegotiations, and the potential for the treaty to effectively contribute to the protection of human rights across the continent in future.
Meaningful engagement by African States in the process of negotiating a treaty on business and human rights is critical to ensure that the perspectives and interests of affected communities in Africa–who often experience the brunt of big business– are reflected in the final instrument”, said Fatima Vally of ActionAid. “This panel is intended toprovide a space for African States and other stakeholders to reflect on what a treaty could offer by way of protection of the human rights of the most marginalized citizens of the continent”.
The Fourth Session of the open-ended Intergovernmental Working Group is taking place from 15 to 19 October in Geneva, where substantive negotiations on the elaboration of an international legally binding instrument to regulate the activities of transnational corporations and other business enterprises are underway.
