The C19 People's Coalition calls for a just response to COVID-19 including equitable access to an effective vaccine
As the COVID-19 pandemic wreaks havoc in South Africa and across the globe, millions are dying and getting infected. Inoculating (vaccinating) a significant proportion of the population is the only realistic way to defeat the pandemic, globally and locally. This will require international co-operation and social solidarity, not vaccine Apartheid, nationalism and corporate profiteering. Unprecedented unity and action of all sectors of our society are of great urgency.
Our people will need to show great vigilance and social solidarity if we are to slow the rate of infection and ensure that our health facilities do not continue to be overwhelmed. Nevertheless, it is with some relief that we welcome the news that SA has managed to acquire 1,5 million doses of one of the handful of safe and effective COVID-19 vaccines for our health care workers on the front line. But this is just a start. We need millions more.
Depending on whether we use a vaccine that requires one or two doses, anywhere between 40 to 80 million doses will be needed, along with a massive roll-out effort to achieveherd immunity. This cannot be done by the government alone. We, the people, especially the millions of us who live in the direst of circumstances, must be central to this effort. Join thePeople’s Vaccine Campaignand become active in this life and death struggle. No-one is safe until everyone is safe!
A People’s Movement for the Vaccine!
Drawing on thePeople’s Vaccine AllianceandFree the Vaccinecampaigns globally, this South African call to action arises out of abroad-based demandfor urgent focus on and mobilisation around equitable vaccine access and allocation. This was endorsed by over 500 organisations and individuals to date, and pushed forward by a number of leading public health, labour formations/organisations and individuals for the formation of aPeoples’ Vaccine Campaign(more details to be found at the end).
There is a danger that elites, powerful or dominant medical schemes, private healthcare providers and other corporate interests will undermine access, through growing disparities in our two-tiered health care system, and exclude the voices of workers who belong to state medical schemes, all health workers, front line workers, working-class communities and civil society.
This is why we need a people’s movement to fight for equitable access, equity and vaccine justice. We must be part of the (already on-going) country’s discussions to shape, participate and provide oversight of and over the national vaccination roll-out programme – the details of which are still sketchy and which require greater transparency.
In recent months alone, the lack of transparency about the plans, delays in securing access to supplies (even urgent supplies), and delays in confirming financing arrangements (as yet not shared in full) highlight why the role of our people, labour (especially front-line workers), civil society, social movements, communities and people’s organisations will be crucial.
Our government’s poor record of public service delivery, alongside corruption, cronyism and mismanagement, and the profiteering motives of business and the pharmaceutical industry even in a pandemic and in emergency situations, requires not just our oversight, but an active role in shaping and delivering a national vaccination roll-out programme.
Why Do We Need a United Response to Ensure a Safe and Equitable and Urgent Vaccine Acquisition and Rollout Programme?
There are many threats and obstacles to the procurement, roll-out and administration of a national public vaccine programme, including:
SA Government’s Austerity Measures in a Pandemic:
The scale of the national vaccine roll-out programme will require a long overdue injection of billions of Rands into our public health system. Vaccine supplies have to be located, accessed and bought, additional nurses and other HCWs employed, equipment and storage facilities arranged or bought, and domestic and regional capabilities harnessed. Yet, the current budget framework envisages cutting the public health allocation by R10 billion (4.4%) in real terms over the next three years. In its February 2020 budget, the National Treasury already cut R3.4 billion in real terms from Public Health compared to the 2019 budget, just when the COVID-19 pandemic emerged here.
The Mid-Term Budget also included a reduction in the public service wage budget by R274 billion over the coming three years, compared to earlier budget allocations. These constant budgetary cuts impact directly on the state’s capacity to deliver proper and decent healthcare and in turn, an extensive national vaccination programme. We also need better human resourcing:
In 2018, the Presidential Health Summit acknowledged that there were 37 000 vacancies in our public health system, but this has not been addressed.
Thousands of qualified nurses and other health professionals who have been unemployed for several years or have no job security, are ready to serve the nation now.
2) SA’s Inequality: A Story of Two Unequal Health Systems
SA isthe most unequal country in the worldwith at least 50% of our population living in poverty with mass unemployment. This is worsening daily. Half of the country’s healthcare expenditure covers onlyabout 16% of the populationand the other half, about 84% of our people, mainly the poor and black working class.
The government decided on a more equitable National Health Insurance (NHI) strategy in 1997 to overcome this critical problem. However, NHI is yet to be implemented in our country. It is now urgent that it is.
The combined capabilities, capacities, and resources of both health systems, and social solidarity are crucial for the success of aPeoples’ Vaccine Campaignand it is critical that this is mobilised to operate in a collaborative and coordinated manner.
The predatory and profiteering practices of the private sector and pharmaceutical industry that notoriously seek profit over people’s lives must be challenged and monitored, so too bilateral partnerships between government and the private sector (PPPs) that exclude workers and civil society input and voices.
Further rampant corruption cannot be tolerated.
3)The Agreement on Trade-Related Aspects of Intellectual Property Rights
(TRIPS)is an international legal trade agreement between all the memberstatesof the World Trade Organization (WTO). It establishes minimum standards for the regulation by national governments of different forms of intellectual property. The WTO, through TRIPS, has largely served to maintain patent monopolies even in times of a public health crisis such as the Covid-19 pandemic.
The international division of labour and the hegemony of advanced and mature capitalist economies reduce the opportunities for developing countries to improve and expand their domestic productive capacities and capabilities. Enforcement of these trade agreements has effectively prevented the ability of countries such as South Africa from challenging the global patent regime in place at present. The transfer of vaccine know-how and technology for acceleratedproduction in the global south is also prevented.
The SA and Indian governmentsformally petitionedthe WTO for certain provisions of TRIPS to be temporarily waived in relation to Covid-19 technologies (diagnostics and therapeutics mainly) for the duration of the pandemic until global herd immunity is achieved. The waiver is supported by poorer countries, while rich countries and the pharmaceutical industry block and oppose it. These negotiations are on-going.
4)Vaccine Nationalism and Xenophobia:
The spread of the Covid-19 reminds us that nobody is safe until everybody is safe. Despite the reality that viral infection has no borders, many countries all over the world are addressing the pandemic on a narrow, nationalist basis instead of ensuring international cooperation and solidarity that will ensure affordable and urgent access to vaccines for everyone in need.
In particular, European countries, Canada, and the USA havepre-ordered large numbersof vaccine doses which exceed the need of their own populations. Some countries are refusing to vaccinate migrants and asylum seekers or populations under their occupation.
We cannot tolerate xenophobia and any unjustified exclusion in the rollout of vaccines in South Africa and the region among priority and vulnerable groups or communities.
Similar to what the Cuban medical brigades have accomplished incombating EbolaandCovid-19, today an internationalist approach is needed.
5) Position and Treatment of Community Healthcare Workers
For the past two decades, thousands of Community Healthcare Workers(CHW’s)have been recruited to supplement capacity and support our healthcare system at grassroot level. However, they have often been exploited as contracted volunteers with very low wages and little regard for their health and safety. They, and any newly recruited healthcare and frontline workers will now be required to play an important role in the vaccine rollout.Standardised high-quality training and provision of adequate PPEshould be ensured for all CHWs.
They should be guaranteed job security, have permanent public sector posts and be properly remunerated.
The majority of CHWs are women who are overburdened, withprecarious and insecure employment. This pandemic provides us with the opportunity to turn ‘opportunity’ into decent employment and livelihoods, and build and strengthen the public health system which is at strain now.
6) Gendered Disparities
Health and care are traditionally women’s work in the home, community and society and affects women more severely as parents, partners and care and health workers in society. Generally, they carry the burden of the sick, protect their health and family members. Given that many women also find themselves in the informal sector as the main means for supporting single women-headed households. Continued delay in vaccine roll-out will impact severely on their lives, especially those who are already oppressed by poverty. It will also worsen their circumstances byincreasing both their exposure to the virusand theimpact of caring for or taking responsibilityfor the family in the event of infection. The heavilygendered impactof the pandemic has been unmistakable, and we cannot lose sight of this in our response; even vaccine research and production has discriminated against women, with children and pregnant women excluded.
7) Disinformation and Vaccine Skepticism
The rise of misinformation, disinformation, science denialism, anti-vaxxer sentiments and vaccine hesitancy presents a worrying picture for us and the rest of the world.
SA hasthe largest drop in vaccination willingnessin surveys carried out by Ipsos. The most recent survey results reflect only a ‘53% positive willingness’ rate. To achieve country and global herd immunity, we need many more people to be willing to take a safe and effective vaccine. Public trust will now have to be rebuilt- in the vaccine itself – and requires an urgent, widespread communication strategy and plan.
Skepticism of government, the pharmaceutical industry and of the private health sector has laid fertile ground for anti-science opportunism and fear-mongering today. Social media, including Twitter, Facebook and WhatsApp, has been targeted both by those spreading disinformation, with organised campaigns building on previously existing fault lines in our society. Politicians have used both COVID-19 and the emergence of vaccines against the disease to score points and raise their profile. Both social and traditional media operate on a business model that rewards alarmist “click bait”.
Tackling disinformation and misinformation will require a multilingual public education campaign with respectful discussion, engagement & communication that cannot be reduced to government messaging.
Towards a People’s Vaccine Campaign
We are building a campaign to ensure equitable access to a vaccine for everyone who needs it in South Africa. We support the People’s Vaccine Alliance, Free the Vaccine Alliance, and are part of global People’s Health solidarity networks. We support the call for the vaccine to be declared a ‘public good’.
Without widespread vaccination, we will not be able to end this pandemic.
We must:
Build pressure on the National government
Austerity in a time of a pandemic is self-defeating, and we challenge this policy approach. There must be increased health spending to build the capacity of the national health system, and National Health Insurance (NHI) to ensure decent and equal healthcare for all in SA.
This includes full-time public sector employment for Community Healthcare Workers (CHW’s) and the appointment of additional nurses. The terms and conditions of the2018 PSCBC collective agreementshould be restored and implemented. In addition, to mitigate the socio-economic impact of Covid-19 and inequality in our country, aBasic Income Guarantee(BIG) is now necessary and urgent.
Address TRIPS and Intellectual Property
South Africa must establish a policy environment that promotes local and regional manufacturing and ensures that it is responsive to its socio-economic development objectives. This should include a simple to use compulsory licensing system that encourages local research, development, and production.
We support measures that seek to ensure that the WTO, rich countries and the pharmaceutical industry do not (in this pandemic) continue to enforce structural IP, patent and pricing barriers that undermine universal access to vaccines, and thereby also limit mass immunisation and in turn, global herd immunity. Otherwise, they must account for all needless and preventable deaths in this pandemic.
We insist on price regulation, control and price transparency of ALL vaccines. NDAs with drug companies must also be lifted, they are fueling mistrust.
Mobilise civil society to demand adequate and meaningful representation
We must lobby for our inclusion in various stakeholder committees and forums, nationally and locally. We can campaign and educate communities about vaccines as well as monitor implementation to call out any form of inequity, unfairness, corruption, theft, mismanagement or even inefficiencies.
Solidarity and the protection of communities’ interests and people’s lives must guide us in the fight against Covid-19.
Combat the wave of anti-vaccine disinformation
We learnt with HIV/AIDS that disinformation, quackery and deliberate spreading of false and misleading anti-science sentiment will cost us lives. It is urgent that we address this to save lives.
This requires national information programmes, on all platforms and accessible popular education materials, research, and better communication. Lives now depend on trust-building.
The important previous and current work by many different groups and worker formations, is a means to imagine how such a campaign of collective efforts can help to mitigate this pandemic. This campaign does not set out to duplicate existing work or to replace it, but to create a network to help coordinate and collaborate all of civil society and worker formations’ involvement. It is together that our voices are the strongest.
Emerging from the initial collaborative efforts of a number of committed organisations, this is acall to actionfor all people’s organisations to be involved:
Trade Unions/worker formations, CBOs, NGOs, Religious Bodies, Research institutions, health professionals, health care workers, social movements, communities and people living in both rural and urban areas – sign on and help build a public campaign that ensures vaccines reach every clinic, every hospital, every community, every school, every workplace!
Let us join together to help grow aPeople’s Vaccine Campaignfor South Africa.
To sign on and receive communications as an individual, and/or endorse as an organisation,pleaseadd your details here
Next Campaign Meeting: Saturday 16th January 2021, 3pm – to receive a zoom link and more details, express your intention to attend via the contact details below:
The High Court today granted CALS leave to present evidence supporting the recognition of the right to die with dignity
On Friday 22 January, the Johannesburg High Court granted an application by the Centre for Applied Legal Studies (CALS) to present expert evidence in a landmark case on assisted dying. CALS was previously admitted as a friend of the court in the matter brought by two individuals with terminal illnesses seeking to end their lives with the assistance of a doctor. CALS supports the right to die with dignity.
CALS welcomes today’s ruling by Judge Raylene Keightley of the High Court in Johannesburg, granting our application to present evidence in a case on assisted dying. The matter was first brought by two individuals with terminal illnesses, Dr Sue Walter and Mr Dieter Harck, in August 2017 against the Minister of Health and others. They approached the Court to ask that they be allowed to choose to end their lives with the assistance of a willing doctor, arguing that physician-assisted dying should not be criminalised or treated as unprofessional conduct. CALS is acting as a friend of the court in the matter.
We recognise that this case raises important constitutional issues around the rights to human dignity, life, health and bodily autonomy. We seek to assist the Court by arguing that health care services should include giving adults with terminal illnesses a choice over when and how they wish to end their lives. We intend to present evidence by experts from Canada, the Netherlands and the state of Oregon in the United States where assisted dying is legal. These specialists are well-placed to outline the policies and checks and balances in place in these areas and provide their first hand experiences in implementing them. They are also able to speak more generally to the evolution of medical ethics and the nature of terminal illnesses and end of life care generally.
Judge Keightley today agreed that it would be in the interests of justice to grant our application and have a plurality of views to assist the court in determining these difficult issues.
Joint statement on extending special COVID-19 grants
- Lee-Anne Bruce
Civil society organisations call for an extension of the COVID-19 special grants to assist people who are unemployed during the state of disaster
As the death toll of the second wave of COVID-19 continues to devastate the country and lockdown Level 3 is extended by at least six weeks, the government still appears intent onendingthe COVID-19 Social Relief of Distress (SRD) Grant to unemployed persons. Our government cannot rightly call for social distancing and solidarity on the one hand and then, on the other, create conditions where themost vulnerable are robbedof the social protection needed to survive this crisis.
The SRD Grant has been a small but important policy that has helped millions of families put food on the table following a year of massive job losses and deep economic and social distress. It has been crucial at a time where thepoverty rate increased sharply, andfood prices continue to rise(PMBEJD). It is clear that the emerging humanitarian crisis which developed last year during the first wave of infections, continues to unfold. Government knew to expect a second wave of infections and should have put the necessary protective measures in place, for individuals, households and businesses devastated by the economic crisis.
The #PayTheGrants campaign has been engaging with over a hundred applicants of the SRD Grant. Below are comments from persons who have benefitted from the grant:
“I have two daughters and I am very happy to get this relief grant so that we can buy bread. I am not happy at all that the grant is ending. These days, things are too expensive, nje. Even bread and butter is a lot. Please don’t take away our piece of cake.” – Annastasia Masilela, Johannesburg
“It’s really helpful that we receive the grant due to our high rate of poverty. I feel it should be extended because there are no job opportunities. The grant serves as a very helpful resource, it’s more of a need than a want.” – Pakiso Tsele, Soweto
“The grant affected me and my grandchildren a lot. I hope it can be increased to R500 – that would be so much better. It shouldn’t end, things are bad and we are going to suffer a lot. Our children can’t get jobs, it’s going to be really bad. I plead to our President to think about us, the poor.” – Kedibone Molefi, Mahikeng
In aprevious statement signed by over 160 civil society organisations, we called for the increase and extension of the SRD and Caregiver Grants until the end of March 2021, which marks the end of the financial year. After an intense campaign from civil society, the SRD Grant was extended for three months until the end of January 2021, but the Caregiver Grant was terminated. Wecalled this outas egregiously anti-women since the Caregiver Grant estimated to account for over half of the poverty reduction of the social relief grants by itself. The Caregiver Grant is overwhelmingly received by women (95%), whereas women only make up a third of SRD Grant recipients. This can be corrected either through the reinstatement of the Caregivers Grant, or the amendment of the SRD Grant conditions to at least include caregivers to qualify for the SRD grant.
We also highlighted the poor communication from SASSA with applicants for the SRD Grant, as well as the exclusionary conditions which have seen around one third of applicants being denied access to a grant. These are a few of the testimonies sent to us revealing the unfairness and frustration with the process:
“The grant was not paid to me. SASSA did not provide a reason for why it was not paid. It would have been a great help to my family if we received the grant since my parents do not work.” – Tebogo, Soweto
“This has affected my family badly because now I can’t provide food. I am frustrated, this relief grant supposed to be there for unemployed people for life.” – Chris Florence, Western Cape
“They declined me because I am IRP(5) registered, but I have not been receiving any income. I have two kids and we are without food. This process has left me feeling angry.” – Morake, Ekurhuleni
The extension of the grant system stood out as one of the few positive measures that the government put in place to combat the worst global economic shock of this once in a century global pandemic. South Africa before COVID was already the most unequal country in the world (the wealthiest 10% of the population hold 90-95% of the country’s wealth) and that inequality has only increased since COVID.
While inequality is not due to COVID, it has been worsened by it; therefore removal of the relief measures will deepen suffering and inequality. It is deeply disturbing then that the National Treasury has become even more intransigent in providing emergency funding for critical needs, including for a vaccinedespite numerous proposals put forward by civil society on how to unlock resources.
The facts have been clearly set outshowing the critical importance of these social relief measures, and that removing them will plunge millions into poverty, and cause a deeper humanitarian crisis; and that extension of the grants can be financed.
We don’t accept the argument that resources cannot be made available to fund the grants. Coherent, evidence based proposals have been put forward showing that this is easily affordable.There has to be a clear plan from our government on averting such a humanitarian crisis.
Instead of terminating these grants, we have written to the President requesting a meeting where we can detail our demands for the:
Extension and increase of the COVID-19 SRD Grants to at least the food poverty line of R585 per person per month
Unduly harsh and narrow criteria for accessing the grant need to be reassessed.
Inclusion of Caregivers for the SRD Grant regardless of whether they are receiving a child support grant on behalf of their children.
Urgent progress towards implementation of the long overdue Basic Income Guarantee (Grant) for those aged 18 to 59 years.
We the undersigned organisations endorse these demands, and urge government to act speedily to implement them:
Black Sash Trust
Centre for Applied Legal Studies
C19 People’s Coalition Cash Transfers Working Group
Institute for Economic Justice (IEJ)
To include your organisation as an endorser of this statement,follow this link.
Rosettenville residents defend eviction continuing during lockdown
- Lee-Anne Bruce
CALS represents a group of residents from Rosettenville who will be left homeless if an eviction order is granted against them on Monday 1 February
On Monday 1 February, the High Court in Johannesburg is set to hear an evictions case affecting a group of residents from Rosettenville. The residents, represented by the Centre for Applied Legal Studies, include women and children who would be left homeless if the eviction were granted. We argue that this would not be in the interests of justice, especially in the context of the current pandemic.
The Centre for Applied Legal Studies (CALS) represents a group of residents from Rosettenville, Johannesburg, who have faced eviction from their homes three times in the last four years. During that time, they have had limited to no access to water and electricity. The most recent eviction application against them will be heard on Monday 1 February by the High Court in Johannesburg.
We understand that there are many competing rights and interests in a matter like this one. The owners of a property have the right to use and access that property. Yet, the law around evictions is clear: no-one may be evicted from their home if they will be left homeless. In this case, our clients have been left particularly vulnerable after losing their income as a result of the pandemic and lockdown measures. They would not be able to afford other accommodation, and the City of Johannesburg has so far been unable to ensure that they would be granted emergency housing.
We are therefore asking the Court not to grant the eviction, or to grant it only on condition that alternative accommodation can be found for the residents who would otherwise be left homeless.
“Being evicted from your home inevitably affects your right to dignity,” says Vuyolethu Mntonintshi from CALS. “Being evicted onto the street has a further impact on many other rights like freedom and security and the rights of children to shelter and protection. Being evicted during a pandemic infringes in addition on the right to health and even the right to life.”
The matter is set to be heard virtually by the High Court in Johannesburg on Monday, 1 February.
On Tuesday 9 February, the Constitutional Court is set to hear an appeal brought by activist and rape survivor Andy Kawa against the Minister of Police. The case centres on the police’s failure to properly investigate the crimes of kidnapping and rape perpetrated against Ms Kawa, and whether police should be forced to pay damages for their negligence. CALS has been admitted as a friend of the court in the matter.
In December 2010, author and entrepreneur Andy Kawa was abducted and brutally gang raped near King’s Beach in Port Elizabeth, a life-changing ordeal she documents in her recent memoir Kwanele, Enough! Ms Kawa spent years pushing for the police to investigate the crimes committed against her, but was failed time and again by those who are meant to protect her. Police failed to promptly obtain physical evidence, interview potential suspects and witnesses, or pursue video evidence, among other things.
After years of fierce advocacy, Ms Kawa turned to the courts in an attempt to hold the police accountable for these failures. The High Court ruled in her favour, granting damages against the police, but this judgment was subsequently overturned by the Supreme Court of Appeal. Ms Kawa has now taken the matter on appeal to the Constitutional Court, arguing that it raises important constitutional issues.
The Centre for Applied Legal Studies (CALS) has been admitted as a friend of the court in the matter. Our argument focuses on the duty of care that police have towards victims of crime and particularly sexual offences, the importance of taking a victim-centred approach to cases of gender-based violence, and the secondary trauma and victimisation that may result from failure to investigate.
“Lack of professional, considerate, diligent policing may result in tremendous trauma to victims of sexual offences, but it may also have dire effects on the decision of other survivors to come forward and report crimes,” says Sheena Swemmer, head of the Gender Justice programme at CALS. “The treatment of victims in the criminal justice system, including by police, is one of the most often cited reasons that sexual offences are under-reported. This limits access to justice.”
“The fact that Ms Kawa’s constitutional rights have been infringed upon is not in dispute,” agrees Basetsana Koitsioe from CALS. “Failing to properly investigate limits a number of intersecting rights, including the rights to dignity, equality, bodily and psychological integrity and the right to be free from all forms of violence. We argue the failure of police to perform their duties in line with the Constitution could result in a valid damages claim against them.”
The matter is set to be heard virtually by the Constitutional Court on 9 February 2021.
High Court rules 'SLAPP' suit by mining companies constitutes abuse of process
- Lee-Anne Bruce
Deputy Judge President Goliath yesterday ruled that a defamation case brought against environmental activists is inconsistent with our constitutional values
On 9 February 2021, the Western Cape High Court handed down judgment in an application related to a defamation case brought by mining companies against environmental activists. Deputy Judge President Goliath's judgment concludes that the case matches the definition of Strategic Litigation Against Public Participation (or a ‘SLAPP’ suit) which is an abuse of court process that is inconsistent with South Africa’s constitutional values.
CALS welcomes yesterday’s judgment by the Western Cape High Court, which deals with an ‘exception’ raised as part of a larger defamation suit. The defamation suit was brought by mining company Mineral Commodities Limited and its subsidiary Mineral Sands Resources against three environmental activists for remarks made during a university lecture. The women found themselves facing years of litigation and up to R1,25 million in damages – all for promoting environmental rights. Concerned about the implications of such a case on the right to freedom of expression and the pattern of victimisation of activists in our country, CALS intervened in the matter as a friend of the court.
The ‘exception’ raised by the mining companies related to the defence raised by the defendants, in their special plea, that this case and other similar defamation suits brought by the mining companies against activists and journalists constitute an abuse of court process. CALS argued that, in fact, the case is an example of Strategic Litigation Against Public Participation (otherwise known as a ‘SLAPP’ suit) and that it is necessary to develop the law to properly respond to this kind of malicious litigation. CALS made submissions on abuse of court process, the nature of SLAPP suits and the chilling effect they have on democratic freedoms and activism.
Yesterday, Deputy Judge President Goliath handed down judgment in the defendants and CALS’ favour. In her conclusion, Judge Goliath crucially notes:
“Corporations should not be allowed to weaponise our legal system against the ordinary citizen and activists in order to intimidate and silence them. It appears that the defamation suit is not genuine and bona fide, but merely a pretext with the only purpose to silence its opponents and critics. Litigation that is not aimed at vindicating legitimate rights, but it part of a broad and purposeful strategy to intimidate, distract and silence public criticism constitutes an improper use of the judicial process and is vexatious… SLAPP suits constitute an abuse of process, and [are] inconsistent with our constitutional values and scheme.”
She continues: “The right to freedom of expression, robust public debate and the ability to participate in public debates without fear is essential in any democratic society. I am accordingly satisfied that this action matches the DNA of a SLAPP suit.”
“This is a ground-breaking judgment for the right to freedom of expression,” says Thandeka Kathi, attorney at CALS. “South Africa does not yet have legislation to adequately deal with SLAPP suits. This ruling acknowledges that these kinds of meritless cases can be used by corporations and other powerful actors to threaten and intimidate people who bring to light issues of public concern. This is a step towards addressing the victimisation and silencing of human rights defenders using the law.”
This case is part of CALS’ ongoing campaign against SLAPP suits and activist victimisation in our strategic mission of contributing to the expansion of the agency of activists and marginalised actors. CALS is currently conducting research in a follow up to our 2018 report ‘Victimisation Experiences of Activists in South Africa’ as well as engaging in litigation supporting human rights monitors in the Western Cape and human rights defenders in the Eastern Cape and Free State.
Failure to wear a mask in public is an offence under the current regulations governing adjusted lockdown alert level three
The recent death of Minister Jackson Mthembu touched a soft spot for a lot of people in South Africa. Yet, following the political giant’s funeral, it was the hashtag #ArrestRefilweMtsweni that topped the trends on Twitter. Photos and videos posted under the hashtag revealed Refilwe Mtsweni-Tsipane, the Premier of Mpumalanga, blatantly failing to wear a mask at Mthembu’s funeral – something that is clearly against the lockdown regulations which are intended to stop the spread of COVID-19.
On the day of the funeral, the Premier appeared without a face mask and proceeded to walk up to a podium to give a speech honouring Mthembu. Upon its conclusion, she even appeared to be alerted by Deputy President David Mabuza, through a hand gesture, to put on a face mask. Instead, the Premier was captured waving at and even hugging a law enforcement officer before walking away with big, uncovered smile. One may argue that if the enforcement of the regulations were consistent, the Premier should have been arrested rather than hugged.
The Premier’s conduct and the police’s failure to enforce the regulations understandably caused public outrage. In fact, the funerals of ANC members or veterans are events where lockdown regulations have been contravened more than once. In June 2020, members of the South African National Defence Force were caught on camera with masks lowered and smoking cigarettes at the funeral of Rivonia Trialist, Andrew Mlangani. This was a period, remember, where the sale of cigarettes was prohibited, and the prohibition had been in place for over three months.
The Minister of Police, Bheki Cele, was later interviewed boasting that his personnel had arrested over 7,000 people for failing to wear face masks in recent weeks. The question is whether the Premier should not be added to this number. The Minister subsequently called for an investigation into the Premier’s behaviour, emphasising that anyone “who fails to comply with a verbal instruction by a law enforcement officer, to wear a mask, commits an offence”. The Minister is relying on section 34(2) of the regulations governing the adjusted lockdown alert level three which were in force at the time, and seems to be suggesting that an investigation is necessary to determine whether the Premier ignored an instruction.
It is possible that the Premier did not commit a crime in terms of regulation 34(2) of the adjusted level 3 regulations. Regulation 34(2) implies that if the person adheres to the verbal instruction and puts on the face mask, then the law enforcement officer has no reason to arrest. Nevertheless, a verbal instruction is not benchmark prerequisite for police to effect an arrest and lay charges against a person not wearing a face mask in public spaces. Instead of wasting already limited state resources conducting an investigation, the Premier can simply be charged in terms of regulation 34(3)(b) and (c) read with regulation 47(2) of the adjusted lockdown regulations.
Regulation 34(3)(b) and (c) prohibits a person from entering a building, place, premise or be in any public open space if such person is not wearing a face mask. Regulation 47(2) provides that “any person who fails to comply with or contravenes” regulation 34(3) commits an offence. In light of this, the Premier’s conduct is a crystal-clear statutory offence. Regulation 34(3) does not require to verbal warning by law enforcement officer as a prerequisite for committing an offence. The COGTA Ministry did not put all its eggs in one basket, so to speak, and this signifies the importance of wearing face mask in public or open spaces. Criminal charges for not wearing a face mask are not constrained by the requirement that a law enforcement officer must issue a verbal instruction.
In fact, law enforcement officers are fully aware that they are not strictly duty bound to verbally instruct a person to wear face mask before they can effect an arrest. It rather appears that there is preferential treatment to the people of South Africa. Political leaders in particular are treated with soft hands and civilians are treated harshly and consequently criminalised. Post the pandemic, the number of “criminals” in this country will skyrocket because of the inconsistent enforcement of the lockdown regulations and of course the failure to adhere by the regulations.
Stanley Malematja is the attorney in the Right2Protest Project based at CALS.
CALS condemns remarks by Minister Motshekga that "an educated man won't rape"
- Lee-Anne Bruce
Though education is an important tool in addressing gender-based violence, asserting "educated" people don't rape is misleading and harmful
Today, a video clip of Basic Education Minister, Angie Motshekga, has surfaced where she asserts that “an educated man won’t rape”. The remark was reportedly made during an address to learners of a secondary school in the context of making an important statement about using education as a tool to address social ills. While education has a critical role to play in addressing gender-based violence, the statement that educated men don’t rape is not only factually incorrect, but extremely harmful to victims and survivors of gender-based violence.
There is no evidence to suggest that the propensity to commit rape or other forms of gender-based violence is linked to formal education in any way. Suggesting that only ‘uneducated’ people commit these kinds of offences is misleading and harmful. Many well-documented cases exist of so-called ‘well-educated’ people abusing their positions as academics, doctors, lawyers, activists and teachers to abuse the people under their command or care. Many more likely exist that have not been reported by the victims and survivors of these crimes. The idea that ‘educated’ people do not commit these crimes denies the experiences and trauma of these victims and survivors. The idea that only ‘uneducated’ people commit these crimes is insulting and discriminatory.
The idea of perpetrators as ‘everyday men’ has also been discussed by our courts, including the Constitutional Court. In a 2019 case before the Constitutional Court in which CALS appeared as a friend of the court, Tshabalala v S, Justice Khampepe notes in her concurring judgment:
“The notion that rape is committed by sexually deviant monsters with no self control is misplaced. Law databases are replete with cases that contradict this notion. Often, those who rape are fathers, brothers, uncles, husbands, lovers, mentors, bosses and colleagues. We commune with them. We share stories and coffee with them. We jog with them. We work with them. They are ordinary people, who lead normal lives. Terming rapists as monsters and degenerates tends to normalise the incidents of rape committed by men we know because they are not “monsters” – they are rational and well-respected men in the community. Yes, the abominable behaviour of these men is abhorrent and grotesque and the recognition that they are human does not seek to evoke sympathy – it serves to signify a switch from characterising rapists as out-of-control monsters, and centres the notion that rapists are humans who choose to abuse their power. The idea that rape is committed by monsters and animals may have adverse effects in that it may lead to the reinforcement of rape myths and stereotypes.”
With this in mind, it is important to acknowledge that those who commit rape are part of our communities. Perpetrators are a product of our society and education is an important tool to try to effect change. But we are not even close to the stage where we could say that those who go through our formal schooling system, who are ‘educated’, do not commit rape. Promoting this idea is harmful to victims and survivors who are unlikely to come forward for fear they will not be believed or met with hostility.
In light of this, we call on the Minister to issue an apology for the misleading statement and clarify her position around the myths and stereotypes related to rape and other forms of gender-based violence. We furthermore reach out to the Minister to engage with organisations like CALS and others working in the area of gender-based violence to learn more about our experiences with victims and survivors, especially regarding sexual violence in schools.
Former Minister Bathabile Dlamini defies Constitutional Court
- Lee-Anne Bruce
Ms Dlamini has so far avoided all efforts at recovering legal costs she was directed to pay by the Constitutional Court over two years ago
The Black Sash Trust, the Centre for Applied Legal Studies and Freedom Under Law are deeply concerned about Bathabile Dlamini’s refusal to pay legal costs awarded against her for her role in the social grants crisis over two years ago. The former Minister of Social Development was ordered by the Constitutional Court in 2018 to pay a portion of the costs of litigation brought in an effort to protect the social grants system. She has so far defied the order and all efforts to recover these costs.
In September 2018, the Constitutional Court handed down a historic ruling, for the first time holding a sitting cabinet minister personally responsible for their failures in carrying out their duties. The judgment related to litigation brought by the Black Sash Trust (represented by the Centre for Applied Legal Studies) and joined by Freedom Under Law. The Court found then-Minister of Social Development, Bathabile Dlamini, personally liable for her role in the crisis which led to the litigation.
The judgment not only found the Minister’s conduct had been “reckless and grossly negligent” – it went one step further and ordered her to pay 20% of the legal costs of the Black Sash Trust and Freedom Under Law from her own pocket. The South African Social Security Agency (SASSA) and the Ministry of Social Development were directed to cover the remaining 80% of the costs. This sent an important message that public officials must be held to account for their actions, and was widely applauded given how the Minister’s conduct had put millions of people’s lives and livelihoods at risk.
Yet, while the government has paid their portion of these costs, former Minister Dlamini has avoided every attempt at recovering her share – which amounts to about R55,000 for Black Sash and R600,000 for Freedom Under Law. Both organisations have tried without success to issue letters of demand to Ms Dlamini through her attorneys. Her response to these efforts was to change law firms. At this point, we are taking steps to approach the Sheriff of the Court to attach Ms Dlamini’s property in order to recover our costs. The former Minister is continuing to avoid these efforts.
“Ms Dlamini’s behaviour shows a blatant disregard for the Court,” says Anesu Dera from the Centre for Applied Legal Studies. “Personal cost orders are intended to hold officials accountable for their actions, yet how can they be effective if we cannot enforce them? The relatively small amount pales in comparison to the costs of the litigation overall.”
“We have noted excuses published in the media for Ms Dlamini’s refusal to pay, but have heard nothing from her directly,” says Lynette Maart, national director of the Black Sash Trust. “Ms Dlamini claims she has not received pension pay outs, but as a member of cabinet she would have earned a salary of over R2 million per year with perks and many expenses covered. In light of this, the costs we are asking for should surely not be out of her reach.”
Occupiers of Cissie Gool House face City of Cape Town in court
- Lee-Anne Bruce
CALS represents around 900 people currently facing eviction from Cissie Gool House in Cape Town
[UPDATE: The matter has been postponed to 22 April 2021 by agreement with the City after Judge de Villiers refused to hear it on the unopposed roll when it was clearly opposed. Find out more here.]
On Friday 26 February, the Western Cape High Court is set to hear an evictions case affecting around 900 people from Woodstock in Cape Town. The residents of Cissie Gool House, represented by the Centre for Applied Legal Studies, include elderly women who were forcibly removed from District Six during apartheid, and many others who would be left homeless during a pandemic if removed from the building.
The Centre for Applied Legal Studies (CALS) represents a large group of residents who face removal from Cissie Gool House (the former Woodstock Hospital). The City of Cape Town has approached the Western Cape High Court with the ultimate aim of removing the occupiers from the building, but with no plan in place to ensure they are not left homeless. Many of the 900 people currently living on the property are women and children with little income.
We understand that the City of Cape Town intends to evict our clients in order to develop the property into social housing units. Yet, our law around evictions is clear: no-one may be evicted from their home if they will be left homeless. It would not be in the interests of justice to remove the occupants of the building. It seems particularly unjust to do so when the land is intended to be used by exactly the kinds of people already occupying the property.
If the eviction were to go ahead, this would constitute the largest mass displacement since the forced removals of the apartheid era. It is unclear why the City of Cape Town would seek to proceed with an eviction of this magnitude even during the current pandemic. We advocate for a moratorium on evictions until after the current pandemic and state of disaster, and argue that the residents of Cissie Gool House should be allowed to occupy the land already intended for their use.
“We know the City intends to build social housing units on the property for low income households, but there needs to be a plan in place for the people already living in the building,” says Vuyolethu Mntonintshi from CALS. “We cannot displace one set of working class people for another.”
“Many of our clients have lived through these kinds of traumatic evictions before,” says Basetsana Koitsioe from CALS. “One client and her family were among the 60,000 people removed forcibly from District Six during apartheid. This spatial inequality in cities like Cape Town has a long history.”
The matter is set to be heard by the Western Cape High Court on Friday, 26 February.
Hearing of witness testimony on assisted dying set to begin
- Lee-Anne Bruce
Next week, two individuals with terminal illnesses will begin testifying about why they want the right to die
From Monday 1 March, a retired judge of the High Court is set to begin hearing evidence from two individuals with terminal illnesses who wish to choose when and how to end their lives. Dr Sue Walter and Mr Dieter Harck are asking that they be allowed to die with the assistance of a willing doctor. CALS has entered the case as a friend of the court to support the right to die with dignity and to present expert evidence from jurisdictions where assisted dying is regulated in law.
An important case on assisted dying is currently before the High Court in Johannesburg. The matter was brought by two terminally ill individuals against the Minister of Health, the Health Professions Council of South Africa and others. Dr Sue Walter and Mr Dieter Harck approached the Court to ask that they be allowed to end their lives with the assistance of a willing doctor, arguing that assisted dying should not be criminalised or treated as professional misconduct. They further brought the matter in the public interest to ensure others might also be able to access assisted dying if they choose.
The matter takes the form of action proceedings, where evidence and facts are presented verbally in court during a civil trial. Proceedings in this matter are set to begin later this year, however Dr Walter and Mr Harck have been allowed to begin giving their testimony next week due to the severe and terminal nature of their illnesses. Their evidence will be heard by retired Judge Neels Claasen, who will be presiding as a ‘commission de bene esse’ for the witnesses who are ill and whose testimony the Court may be in danger of losing.
The Centre for Applied Legal Studies (CALS) has been admitted as a friend of the court in the matter, and earlier this year was further granted leave to present expert evidence. We hope to assist the Court on this important issue by providing evidence from specialists in bioethics, medicine and end of life care from the Netherlands, Canada and the state of Oregon in the U.S. where assisted dying is regulated in law. This evidence is set to be presented in court later this year.
Following Friday's hearing, the matter concerning the mass eviction of over 900 people from Cissie Gool House has been postponed to 22 April 2021
A statement by City of Cape Town Councillor Malusi Booi released on Friday, 26 February 2021, contains a number of factual errors regarding the events which led to the postponement of the City’s application for a court-ordered survey of the occupiers of the former Woodstock Hospital, now also known as Cissie Gool House.
Firstly, Councillor Booi omits to mention that the case was postponed after the City’s legal team adopted the wrong court procedures in placing the case on the unopposed motion roll of the Western Cape High Court.
The City knew full well from Wednesday, 24 February 2021, that CALS was representing the occupiers and that the City’s application would be opposed. CALS also wrote to the City’s attorneys that same day advising them that the procedure adopted by the City was incorrect and inviting them to remove the case from the unopposed motion roll in order for the occupiers to file answering papers and defend themselves in court.
For unknown reasons, the City nonetheless instructed its legal team to proceed on Friday, 26 February, on the unopposed motion roll in the face of the occupiers having formally filed a notice of opposition and notified the City that they would be filing answering papers.
Unsurprisingly, when the case came before the busy unopposed motion roll being heard by Acting Judge De Villiers on Friday, 26 February, the judge, after hearing submissions from our counsel, refused to grant the orders sought by the City, pointing out that the matter was opposed and obviously could not be heard on the unopposed motion roll at the expense of other litigants patiently waiting for their cases to be heard that day.
After Acting Judge De Villiers refused to grant the City’s draft orders on the unopposed motion roll, the City’s legal team proposed postponing the case to 22 April 2021 and suggested a timetable for filing further papers. CALS agreed to the City’s postponement proposal which has now been made an order of court.
Secondly, Councillor Booi incorrectly states that CALS missed a 19 February 2021 court-ordered deadline to file intention to oppose the City’s application for a court ordered survey. There is no court ordered deadline which required the occupiers to oppose the City’s application for a survey by 19 February 2021 and there was no such deadline in the City’s court papers. The City’s court papers in this regard were also non-compliant with the Court rules, which require dates to be set out for when the occupiers would have had to file notices to oppose their application and submit answering papers.
Court rules and procedures exist for a reason. One of these important reasons is to inform and allow respondents a fair and reasonable opportunity to defend themselves by obtaining legal representation and advice and filing answering papers if necessary.
Unlike the City which has large teams of expensive lawyers at its disposal, people living in poverty struggle in obtaining access to justice and legal resources in order to properly defend themselves in eviction cases.
Government litigants such as the City are therefore required to scrupulously observe court procedures in eviction cases and have due regard to the constitutional rights of persons affected by their litigation, such as the right of access to court and a fair public hearing. It is unfortunate that the City’s approach thus far in this litigation, is inconsistent with this principle.
Use of deadly force against Wits student protesters
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CALS and other member organisations of the Right2Protest Project condemn the extreme use of force which reportedly led to the killing of a bystander by police
The Right2Protest Project and its member organisations are horrified by footage circulating of extreme use of force by police against student protesters which has reportedly resulted in a person being killed. As social justice organisations, we are committed to promoting the constitutional right to protest and reforming institutional responses to protest action.
The Right2Protest Project (R2P) is a coalition of organisations working to promote the right to protest. R2P and its member organisations are aware of reports that someone has been killed by police in Braamfontein following responses to student protests at Wits University. We condemn in the strongest terms excessive use of force against protesters who are trying to exercise their constitutional rights to protest and to education, which has now reportedly resulted in a bystander’s violent death at the hands of the police.
The Constitution guarantees the right to protest in a manner that is peaceful and unarmed, which includes protest that is disruptive. Through our work, we know that protesting is one method used by people in our society to voice concerns on the issues that impact them in order to bring about meaningful social change. Financial barriers to accessing higher education is an issue that has been at the heart of our student movements since at least 2015 when #FeesMustFall protests shut down campuses around the country and successfully advocated for zero fee increases. The current #WitsAsinaMali protests originated as a means of raising awareness on the financial challenges faced by students.
We are also keenly aware that the response to protest action by both public and private bodies often seeks to suppress dissent instead of engage on the issues raised. Unfortunately, this has been compounded recently by the pandemic and regulations which necessarily limit gatherings. It is especially troublesome that this clampdown – and the fatal shooting – happens a week after the President uplifted the previous restrictions on political gatherings.
We strongly oppose excessive use of force to disband peaceful protest action which is protected under the Constitution. We call for an independent investigation into the incident to ensure police accountability and it is our fervent hope that this situation can be resolved peacefully without further violence.
Issued by:
The Right2Protest Project
The Centre for Applied Legal Studies
The Right2Know Campaign
Lawyers for Human Rights
The Centre for the Advancement of Community Advice Offices in South Africa
Announcing the semi-finalists of the PIL Moot Court Competition
- Lee-Anne Bruce
A huge congratulations to the four teams going into the semi-finals of this year's Public Interest Law Moot Court Competition
The Centre for Applied Legal Studies and the Student Litigation Society are very proud to announce that the following teams have been selected to participate in the semi-finals of this year’s Public Interest Law Moot Court Competition:
Samantha Smit, Thabo Mathule and Winnie George (representing the University of Johannesburg)
Christopher Tobaiwa, Tshwelopele Ramokoka and Cwenga Chris Gogodla (representing Rhodes University)
Zakhele Nkosi, Sanelisekile Sundu and Boitumelo Ramatsetse (representing Nelson Mandela University)
Tendai Mikioni, Benevolio Mgcini Tshuma and Zilungile Mbali (representing the University of Fort Hare)
These four teams have been chosen from over 160 registered to participate in the PIL Moot Court Competition last year. We send our deepest thanks and appreciation to everyone who submitted their written arguments, and to the generous volunteers who assisted in marking the submissions. We have been extremely impressed by the overall quality of the submissions received.
The four semi-finalist teams will in the coming weeks have the opportunity to receive coaching from practising human rights lawyers, and participate in masterclasses run by advocates who have argued before the Constitutional Court.
The semi-finals are set to take place on 15 April 2021 – with our four remaining teams making oral arguments on the hypothetical constitutional case they have been working on before a panel of guest judges. The hypothetical case raises important questions around migration, incarceration and human rights during the COVID-19 pandemic. Read the full case and find other information about the Competition here.
The final round of the PIL Moot Court Competition will see the last two teams competing head-to-head on 16 April 2021. Members of the winning team will have the opportunity to be preferentially considered for a fully paid internship at CALS.
“This is by far the most exciting project I have worked on,” says Prosper Dumani, Director of the Student Litigation Society. “I am thus far proud of the work we have done and particularly of the participants who soldiered on regardless of the pandemic and lockdown situation and gave the competition their best. Congratulations to the semi-finalists!”
Follow #PILMOOT on Facebook and Twitter for the latest news on the Competition.
Read the latest issue of our quarterly newsletter and find out about our recent wins and losses around activist victimisation and more
Hardly anyone will need reminding that it has been around a year since COVID-19 entered our country and our lives, perhaps changing them forever. One year ago, CALS was coming out of a series of strategy sessions for each of our programmes and our organisation as a whole – which almost immediately had to shift as the pandemic and lockdown arrived. Since then, we have tried to adapt, moving as much of our work online as possible, from consultations to rallies to teaching and court appearances. With many of our existing cases postponed, we took on a number of projects related to the new regulations governing the state of disaster but still within the scope of our work – many of them relating to police brutality and the suppression of human rights defenders during lockdown. Recently, more of our longer term cases have come back to life and have seen us arguing before the Constitutional Court over police failures, and supporting activists occupying state-owned land in the City of Cape Town. One of the early highlights of this year is a judgment from the Western Cape High Court which affirms that corporations should not be permitted to threaten human rights defenders using the law – a massive win for our campaign against 'SLAPP' suits and activist victimisation. Then this past week has sent a brutal reminder that this work is far from over. Not long after the near total ban on 'political' gatherings was lifted, a person was reportedly killed by police using excessive force in response to student protests in Johannesburg. CALS and our partner organisations in the Right2Protest coalition recognise that extreme use of force to disband protest is not new; and neither is the call for free, decolonised education. We will continue to promote the constitutional right to protest and reform institutional responses to protest action.
Click the image below to read more about these and other recent updates.
Celebrating ten years with our CALS mothers
- Lee-Anne Bruce
This week CALS has the honour of celebrating our ten year anniversary with two pillars of our organisation, Duduzile Mlambo and Sibongile Ncube
Something I’ve missed dearly while working remotely during the pandemic is just walking into the office in the morning. No matter how early I would arrive, Mam’D was always there before me, wearing a warm smile and an elegant outfit, greeting me with a “Good morning, my angel” and offering me something new from her selection of herbal teas. Duduzile Mlambo often introduces herself as the CALS mom, and I can’t imagine a more accurate term for the energy and love that she brings to her work in the front office. She does more than process claims, make payments and manage petty cash: she takes care of us, her children.
Later in the day, I would almost certainly need to turn to Sis’Sbo to ask if I could bug her for help on a problem I was struggling with. She would always welcome me in and get to work immediately; I can’t remember her ever saying she was busy or couldn’t help. Sibongile Ncube is a former teacher with a quiet but commanding presence, known by everyone as the office problem-solver. Working well under pressure, Sis’Sbo can be the difference between being stuck in a foreign country or getting home safe and sound. She is the person we trust to make things happen, from travel to events to recruiting new members for our growing team.
Their official titles may have something to do with senior administration, but what Mam’D and Sis’Sbo really do around the office is hold everything and everyone together. This week, we have the incredible privilege of marking ten whole years with them at CALS. After a decade of benefiting not only from their hard work and passion but also from their guidance and support, we wanted to take a moment to celebrate them and their unique contributions to our work and our lives.
The name “Duduzile” means “comforted” or “consoled” and that is a very accurate way to describe what our dear Mam’D does for us. “Mam’D, you’ve held me from the moment I joined CALS, thank you for that. You’re a constant source of wisdom,” says Busisiwe Zasekhaya, co-ordinator of the Right2Protest Project. That support goes beyond responding to crises or checking in on us, according to Palesa Madi, Acting Deputy Director: “Thank you for making sure we are well, thank you for letting us know when we ourselves don’t know that we aren’t well, thank you for brightening up our days all the time.”
“You are a major part of what makes CALS a unique organisation,” says Robert Krause. “The kindness, generosity and wisdom you bring to your role as our parent is a source of solace. You have also brought a spirit of togetherness and fun to the organisation.” Louis Snyman agrees: “To our CALS mother, you will never know how much your support has helped us through the years. Where would we be without you?”
“Wow, Mam’Mlambo is a treasure,” says attorney Thandeka Kathi. “I met her for the first time in 2013 when I interned with the Wits Justice Project and spent my Fridays at CALS. But four years later when I returned, Mam’D remembered me. That’s who Mam’D is, she remembers – be it everyone’s birthday or to remind you to hand in your claims on time, Mam’D remembers. That’s why she is a mother to us all.”
Former staff members at CALS recall what an impact Mam’D had on their work and on the environment in the office. “Ma’Dudz was my spirit guide during my directorship at CALS,” says Prof Bonita Meyersfeld, former Director. “She and I journeyed through something significant and I continue to channel her grounded generosity of spirit. Ma’Dudz, you are the personification of the society I wish to see.” Former Deputy Director Lisa Chamberlain notes: “What would CALS be without scented oil diffusers, colourful artwork, rose petals, extra blankets and exceptionally stylish hats? Dudu brings all of this in the joy she exudes when caring for people.”
“At CALS, none of our work would be possible without the pillars of the administration office,” says Baone Twala, former staff member at CALS. “Mam’Sbo and Mam’D are integral to the work, but they do their work so well that it can be easy to take their contribution for granted. It’s especially easy to take for granted their personal investment and commitment in doing their work well and to ensuring that everyone working at or visiting CALS is taken care of.”
The quiet dignity of working behind the scenes like this to keep things running has no better example than Sibongile Ncube. Sis’Sbo gets everything done with a gentle touch and incredible work ethic. “Sis’Sbo is the silent machinery behind the organisation – without her, almost everything would come to a standstill,” says Palesa Madi. “She goes the extra mile to ensure that all goes well and she makes her challenging work look easy.” Thandeka Kathi agrees: “If you are going into a battle field you need to take Sis’Sbo with you. You just have to! I cannot count the number of crises Sis’Sbo has saved me from.”
“Your kindness and grace under pressure is always a great reassurance during stressful times,” says Robert Krause. “You are always extremely supportive and bring a practical, problem-solving aptitude that makes even administrative emergencies in a very slow university bureaucracy appear easy to resolve. The calm, relaxed and compassionate energy you radiate makes CALS that much better a place.”
“Thank you for always being the calm in the storm and thank you for always treating everyone with the utmost kindness,” says Busisiwe Zasekhaya. Louis Snyman agrees: “To the one who we can always rely on, the one who never raises her voice but is always there to help with a smile. Thank you for being the rock we can always turn to when things seem to be unsteady. We will always appreciate your support and strength.”
Lisa Chamberlain recalls from her time at CALS: “Bongie is the rock-solid, formidable energy that has driven CALS for a decade without whom things just literally would not work.” Bonita Meyersfeld agrees: “Sis’Bongs is one of the most dignified people I know. Her quiet fortitude and formidable intelligence guided all our work together. I aspire to be the kind of nurturing, powerful and effective person embodied by Sis’Bongs.”
Mam’D and Sis’Sbo both have a very special relationship with our younger staff members, especially our interns and candidate attorneys. They are passionate about helping recent graduates transition into the workplace and it doesn’t go unnoticed. “Many of us enter the working and professional space at a young age and it is rare to find both a colleague and a mother in one person,” says Stanley Malematja, attorney in the Right2Protest Project. “You never cease to show me love and support.”
“I’m grateful to have had the privilege of working with Dudu and Sbo during my formative work years,” agrees Kay Mahonde, former candidate attorney at CALS. “Working with them at such a time boosted my confidence and instilled in me respect and appreciation for the role played by a strong and committed support team.”
Former interns going all the way back to 2011 and 2012 still keep in touch with Mam’D and Sis’Sbo and think of them fondly. “My time at CALS changed my life and was the launch pad into a career in international human rights law,” says Lucy Geddes, former intern from Australia. “Dudu and Sbo were instrumental in making my experience so positive – their warmth, sense of humour and care were pivotal in making me feel at home, not just at CALS, but also in Jo’burg and South Africa more generally.”
“When I think of the work that I did at CALS, I know that it was possible because of the excellent contribution that Mam’Sbo and Mam’D made,” says Baone Twala, who has worked at CALS as an intern and then later as a candidate attorney and an attorney. “More than anything, I’m grateful that Mam’Sbo and Mam’D have always made time to listen, comfort and encourage. I wish them both the very best for their future and CALS is very fortunate to have them.”
We wholeheartedly agree. We are so grateful to have had you to guide us and make sure the work happens over the last ten years, and we can only hope we will still have you with us for another ten. To our dearest Mam’D and Sis’Sbo, from all your CALS family new and old on your tenth anniversary: siyabonga kakhulu. We thank you and we see you.
Occupiers of Cissie Gool House reach settlement with City of Cape Town
- Lee-Anne Bruce
CALS represents some of the 900 people facing eviction by the City of Cape Town and are working to ensure their rights are protected during this process
On Thursday 22 April, the represented occupiers of Cissie Gool House reached a settlement agreement with the City of Cape Town. The City first approached the Western Cape High Court in February, seeking to undertake a survey of the residents as a first step towards evicting around 900 people from the building. The agreement allows the residents’ legal team at CALS to conduct the survey and provide the Court with our clients’ personal information and draw attention to their housing needs.
In February this year, the City of Cape Town applied to the Western Cape High Court in order to undertake a survey of the occupiers of Cissie Gool House (the former Woodstock Hospital) with the intention of eventually removing them from the building. On 26 February, the Court ordered the matter to be postponed until 22 April to allow the residents to oppose the application. Many of these 900 residents are represented by the Centre for Applied Legal Studies (CALS) and strongly oppose having representatives from the City access their homes.
Yesterday, the occupiers represented by CALS reached an agreement with the City, which was later made an order of court. The order allows a team from CALS to survey our clients and prepare a confidential list with their personal details for the Court within the next three months. It then directs the City to file a report within six months of that, to show that the City has engaged with our clients on: whether they are prepared to leave the building, whether they will require alternative accommodation if evicted from the building, and whether they qualify for emergency housing or the social housing planned for the property.
The City has been permitted to survey the remaining occupiers of the building who have no legal representation. They are, however, required to inform CALS 48 hours in advance when they intend to conduct the survey. This will then give our clients sufficient notice to ensure they will not be surveyed in error or be subject to any invasive questioning or feel intimidated.
“Many of our clients have been through the trauma of evictions before,” says Basetsana Koitsioe from CALS. “Some were removed from their homes in District Six at the height of apartheid, then again when Woodstock was undergoing ‘gentrification’. Of course they resist leaving a building that they have turned into a home and a community. This order is a step towards ensuring that they are heard and respected and that the process is carried out with dignity.”
Mining community networks in court to challenge Mining Charter
- Lee-Anne Bruce
CALS is in the Pretoria High Court this week for a review of the 2018 Mining Charter which we believe was developed without meaningfully engaging communities
This week, the High Court in Pretoria is set to hear a review of the Mining Charter first brought by the Minerals Council of South Africa. Mining community networks, individual communities and trade unions have all joined the review following a High Court order. CALS represents MACUA and WAMUA, two of the country’s largest community networks, and argues that the Charter was developed without meaningfully engaging the communities it impacts.
The Mining Charter is intended as a tool for addressing inequality and promoting transformation in the mining sector in our country. Yet, the Charter itself has a history of being developed without engaging the very people it is meant to benefit: mining-affected communities. Communities have fought to change that, with networks like Mining Affected Communities United in Action (MACUA) and Women Affected by Mining United in Action (WAMUA) joining a High Court case challenging the Charter. In February 2018, they secured a historic victory, with the High Court declaring communities were key stakeholders in mining who must be consulted on the laws and policies that impact them.
Despite this, the public participation process on the new Mining Charter in the months that followed was entirely inadequate. Task teams on the Charter did not feature community representation; consultations with communities were set up with little notice in unclear venues without enough room to accommodate all those who wished to attend. Community members were at times addressed in a language which was not the main language of the area and were not given enough time to air their concerns about the draft Charter. A revised Mining Charter published in September 2018 therefore did not reflect mining communities’ needs or views.
In March 2019, the Minerals Council of South Africa (the former Chamber of Mines) brought a new review of the most recent Mining Charter against the Minister of Mineral Resources. In June last year, the High Court ordered that mining-affected communities and trade unions have direct and substantial interests in the proceedings and must be joined. This includes community networks like MACUA and WAMUA who are represented by the Centre for Applied Legal Studies, as well as other community networks and individual mining-affected communities.
The full review is now set to be heard virtually by the High Court in Pretoria from 3 – 6 May 2021.
The Civil Society Working Group on State Capture publishes an open letter on state capture and corruption to mark Freedom Day 2021
State capture and corruption has had a clear impact on the people of this country. The consequences of the looting have been dire and have undoubtedly contributed to deepening inequality, poverty and unemployment and extends beyond a financial loss. The capacity of the state has been severely eroded; and Human rights, such as health care, social security, the public transport system and basic education, to name only a few, have been compromised by the actions of corrupt individuals and powerful corporations.
The struggle against corruption and the rebuilding of our institutions, cannot only be left to law enforcement agencies and the justice system. The people of South Africa should also play their part in holding those in power to account.
We therefore continue to mobilise around the work of the Zondo Commission and issues of state capture and corruption because the reality is that, South Africa’s struggle for social justice and human rights will not be realised if those who loot with impunity in the public and private sector remain unaccountable.
To the political elites who write ruminating columns and use the loud hailers of social media to fuel the fires of hate, violence and division for political machinations we say: no single political organisation can claim ownership of “speaking for the people”. That voice belongs to each and every one of us – the people of South Africa.
To the powerful corporations, that have enabled state capture and corruption, we call on you to come clean and to stop placing profits above people and human rights – you have enabled injustice for too long.
To the media – and the media owners – now is the time to be more critical and considered in your reporting, not less. Clearly separate fact from fiction, avoid stepping onto the stage of sceptical distraction and help ensure the continued restoration of the publics’ faith in a free and fair press.
To all those hardworking civil servants in government who relentlessly work for our people and help carry the nation through this terrible pandemic, we thank you. To the brave whistle-blowers that continue to come forward, often at great personal cost, we also say thank you. We stand with you and will be forever grateful for your courage and sacrifice.
To the Zondo Commission we say: keep up the hard work! While standing in full support of your work includes remaining critical, it cannot be stressed enough that the work you are doing, peeling back the layers of secrecy and exposing the extent of the rot in our systems of governance, is vital for the future of this country. This work is contributing to the growing knowledge of what needs to change in order for the country to move forward and for our democracy to be strengthened.
The purpose of the commission is to understand how state capture was allowed to happen. It is a question that still needs to be answered by powerful corporations and the political elite of this country. There are many people that remain in key positions of power who have been implicated in serious corruption and malfeasance.
The commission and the courts are just two bodies responsible for articulating and shepherding the constitutional aspirations of our democracy. Parliament, law enforcement and the many other institutions that make up our body politic also have a constitutional duty in holding those in power to account. To this end we call on all our institutions to publicly denounce disinformation and fabricated crises – and to purse their constitutional mandates with renewed vigour and integrity.
The patterns of behaviour, that enabled State Capture in the first place, still continue. Amongst these we do not exclude the power hungry elite in the public and private sector that meet over tea to plot the future trajectory of the country and divide up the spoils. This needs to stop. Such practices have no place in the democracy we have worked for or were promised.
Why is this important?
We have elected leaders and bestowed on them the responsibility to govern, to enable us to achieve a better life for all – not themselves. We, as people of South Africa, have a right to know in whose interests’ decisions – supposedly in "our” name – were and continue to be made.
The culture of secrecy and impunity must come to an end if our democracy is to thrive.
Transparency and accountability are non-negotiable, as too are the requirements for transformative actions to address the injustices that remain embedded in our social, economic and political systems. Our constitution is revolutionary in its design, but the values and vision that it prescribes can only materialise if embraced by the state through which it is enacted.
As people of this country, we all support the value and vision in the Constitution which protects the rights of the people in our country, it is the bedrock of our democracy and foundation of the rule of law.
We, the undersigned, support/endorse this open letter to raise our voices in solidarity against state capture and impunity, and to say now is the time for us to be heard.
The realities of the current moment cannot be met with silence and complacency.
Alternative Information and Development Centre (AIDC) Centre for Applied Legal Studies (CALS) Council for the Advancement of the South African Constitution (CASAC) Corruption Watch (CW) Dullah Omar Institute (DOI) Equal Education (EE) Freedom Under Law (FUL) Legal Resources Centre (LRC) My Vote Counts (MVC) Open Secrets Organisation for Undoing Tax Abuse (OUTA) Public Affairs Research Institute (PARI) Section27 (S27) Southern African Faith Communities’ Environment Institute (SAFCEI) Right2Know (R2K)
Challenge to secretive appointments process for financial regulator
- Lee-Anne Bruce
CALS represents Open Secrets and the Unpaid Benefits Campaign in a challenge to the secretive process for making appointments to the FSCA
Open Secrets and the Unpaid Benefits Campaign (UBC), represented by the Centre for Applied Legal Studies (CALS), have approached the Gauteng High Court to set aside portions of the regulations that were made in terms of the Financial Sector Regulation, relating to the appointment process of the Commissioner and Deputy Commissioners of the Financial Sector Conduct Authority (FSCA).
This forms part of ongoing efforts by both organisations to ensure that the FSCA and other key public institutions intended to regulate powerful private sector corporations act in a manner that serves broad the public interest. Leadership appointments are key to achieving this.
The FSCA is the oversight body for the financial sector, which has a duty to act in the public interest, and therefore has far-reaching implications for all people in South Africa. Because of its role in safeguarding the public interest, it is crucial that the appointment process for the leadership of the FSCA is open and transparent, which the Constitution also demands. Given the pervasive role of the financial sector in state capture and corporate fraud, South Africa needs a regulator that will serve the public and regulate corporations without fear or favour – an appointment process that is transparent and open helps to ensure that this is so. As the Zondo Commission has shown with devastating clarity, we cannot and should not simply trust public officials to act in the public interest, and that secretive appointment processes have catastrophic consequences for people in South Africa and our democracy.
Our application in the High Court seeks a review of the regulations to ensure that they are constitutionally compliant. Open Secrets and the UBC argue that the process as set out in the regulations does not provide for an appointment process that is transparent, open and one that facilitates meaningful public participation. In our application, we ask the court to set aside the regulations in so far as they do not provide for these constitutional requirements.
We are not asking for the recent appointments to the FSCA to be set aside, as that process was already hugely delayed by Minister Mboweni despite numerous reminders over two years by our organisations to prioritise this. Instead, we seek a forward-looking decision that declares for all future processes that:
Meaningful participation is required, which is more than a retrospective ‘tick-box’ exercise. The public must be afforded an opportunity to meaningfully engage and influence decisions.
Minister Mboweni, though he might not want to engage with the public he serves, must do so as a constitutional check on the exercise of his power as a public official. The public is not passive- we have a voice and Minister Mboweni is constitutionally obliged to listen to us and apply his mind to what we have to say. He cannot delegate or outsource this.
Therefore, Open Secrets and the Unpaid Benefits Campaign approached the Gauteng High Court in Pretoria, asking the court to review and set aside the regulations in so far as they do not provide for meaningful public participation and transparency in the appointment process.
It is unfortunate that Minister Mboweni chooses to only engage civil society through court processes. We hope that this litigation will change his mind generally about how he engages with the public, and specifically about how he makes appointments and better acts in the public’s interest.
Open Secrets is a non-profit organisation which exposes and builds accountability for private sector economic crimes and related human rights abuses through investigative research, advocacy, and the law.
The Unpaid Benefits Campaign is a membership based organisation and a coalition of coalition of groups of former workers, community organisations, advice offices, NGOs and individual activists, campaigning for the payment of the estimated R50+ billion in pensions, provident or compensation funds held by the private sector.
The Centre for Applied Legal Studies (CALS) is a human rights organisation based at the Wits School of law. CALS uses a combination of research, advocacy and litigation to advance social justice.
Former Minister Bathabile Dlamini pays costs of social grants litigation
- Lee-Anne Bruce
CALS, Black Sash and Freedom Under Law note that former Minister of Social Development Bathabile Dlamini has paid the costs awarded against her personally
The Black Sash Trust, the Centre for Applied Legal Studies and Freedom Under Law note that Bathabile Dlamini has paid the costs awarded against her personally by the Constitutional Court for her role in the social grants crisis almost three years ago. The former Minister of Social Development was ordered to pay a portion of the costs of litigation brought by civil society organisations in an effort to protect the social grants system.
In September 2018, the Constitutional Court handed down a historic ruling, for the first time holding a sitting cabinet minister personally responsible for their failures in carrying out their duties. The judgment related to urgent litigation brought by the Black Sash Trust (represented by the Centre for Applied Legal Studies) and joined by Freedom Under Law, which sought to protect the social grants system. The Court found then-Minister of Social Development, Bathabile Dlamini, personally liable for her role in the crisis which led to the litigation.
The judgment found the Minister’s conduct had been “reckless and grossly negligent” and went one step further by ordering her to pay a portion of the legal costs of the Black Sash Trust and Freedom Under Law from her own pocket. This sent an important message that public officials must be held to account for their actions and was widely applauded given how the Minister had put millions of people’s lives and livelihoods at risk.
Yet, until recently, Ms Dlamini had made every effort to avoid paying the costs she owed of around R650,000 total – not only ignoring letters of demand but even going as far as to change attorneys in the process. Nevertheless, our organisations have persisted in holding her accountable and ensuring the Court’s order is enforced, even approaching the Sheriff of the court for assistance. We have been gratified to note that in the past two weeks the order has now been complied with and Ms Dlamini has paid our costs.
“We have been very pleased to see our democracy at work in this case to hold even those occupying some of our highest offices accountable in their personal capacity,” says Ariella Scher, attorney at the Centre for Applied Legal Studies. “We are confident that this is an approach that can be used in future to combat corruption at all levels of government, from local municipalities to cabinet.”
“It is essential that government leaders entrusted with such important positions of care and responsibility for those most vulnerable in our society be required to face real reckoning when they so starkly fail to discharge their responsibilities,” says Nicole Fritz, CEO of Freedom Under Law. “At the same time, litigation efforts are ongoing to ensure that the private actors involved – specifically Cash Paymaster Services (CPS) – fully comply with the Constitutional Court’s orders in the social grants matter.”
“The struggle to advance the right to social security is far from over,” says Lynette Maart, national director of the Black Sash Trust. “We continue to demand that government keep its promises of working towards a universal basic income grant, and we condemn the manner in which the special COVID-19 relief of distress grants and caregiver grants have been brought to an end despite the ongoing state of disaster and unparalleled time of hardship.”
Members of the Bertha Justice Network speak out about the current humanitarian crisis in Palestine
We, the members of the Bertha Justice Network, a global network of human rights and movement lawyering organisations working in pursuit of social justice, are observing with the greatest concern the situation in Palestine.
The world is witnessing the forced expulsion of Palestinians in the Sheikh Jarrah neighborhood of Jerusalem by settlers supported by Israeli armed forces, indiscriminate violence against Palestinian protestors, attacks on Palestinian holy sites, and indiscriminate bombing of Gaza which has been under blockade for 15 years. As of May 19, Palestinian human rights organisations have documented the deaths of 219 Palestinians in Gaza, including 63 children. In the same period, 10 deaths have been recorded in Israel, including 2 children. The United Nations states nearly 75,000 Palestinians in the Gaza Strip had been displaced from their homes. In Gaza, COVID-19 vaccinations have stopped, and an Israeli strike knocked out the only lab in the territory that processed coronavirus tests.
We recognise the suffering of the people of Palestine and also their strength and resistance against Israeli apartheid, racism, colonialism and other forms of oppression. We take our lead from respected members of our Network such as Raji Sourani and the team at the Palestinian Centre for Human Rights (PCHR) who share their expertise in endeavours for social justice, and we stand with them as they pursue legal accountability through local, national and international courts.
As a network of people and organisations who stand for human rights, and against all forms of oppression and racism, we express our solidarity by:
Affirming the right to life in condemning the targeting of civilians and civilian objects in Palestine and Israel. A fundamental rule of international law is that the attack of civilian populations is a war crime.
Affirming that while both Israeli forces and Palestinian armed groups must reach a ceasefire, there are disproportionate levels of Israeli state violence and other forms of collective punishment against the Palestinian people from Gaza to Jerusalem, including Palestinian citizens of Israel.
Affirming the right of the Palestinian people to Humanitarian Assistance, which requires for an end to Israel’s nearly 15-year land, sea and air blockade of the Gaza Strip, which has undermined fundamental human rights of Palestinians and access to essential services, including humanitarian aid during this escalation. The latest military attack, which takes place in the context of COVID-19, has further destroyed or damaged important infrastructure, severely affecting the provision of water, sanitation, healthcare, education, housing and electricity supply. Denial of humanitarian access to civilians, including children, and attacks against humanitarian workers such as first responders and medical staff are prohibited under the International Humanitarian Law (IHL) in the 4th Geneva Convention and its Additional Protocols and International Human Rights Law, amounting to a crime against humanity and a war crime.
Demanding a UN arms embargo to Israel and for any country that has bilateral arms trade agreements with Israel to immediately halt further assistance to military units involved in war crimes and crimes against humanity, and condition any agreements on compliance with human rights and international law.
Supporting the pursuit for legal accountability, for ethnic cleansing, ongoing war crimes and crimes against humanity, including the crime of apartheid, in our global and local legal institutions.
Affirming the illegality of the Israeli settlement enterprise and the dispossession of Palestinians from their homes and properties, recognizing that the 4th Geneva Convention prohibits an occupying power from unlawfully appropriating territory, relocating its own citizens to occupied territory, among other things.
Affirming the legal right for Palestinian self-determination, through UN Resolution 3236 , which reaffirms the inalienable rights of the Palestinian people to self-determination, national independence and sovereignty, and the right of Palestinians to return to their homes and property. The resolution appeals to all States and international organizations to extend their support to the Palestinian people in their struggle for human rights.
Affirming continued support for the current International Criminal Court investigations announced by the ICC Prosecutor 3rd March 2021 to investigate alleged war crimes since 2014 by the Israeli Defence Force (IDF) and Palestinian armed groups.
Demanding that the international community end their financial, military and political support for or acquiescence to Israeli policies and practices which violate Palestinian rights.
Bertha Justice Network members and Bertha Challenge Fellows:
Bertha Foundation
Center for Constitutional Rights (CCR), USA
Center for International Law (Centerlaw), Philippines
Centre for Applied Legal Studies, South Africa
Centro de Estudios Legales y Sociales (CELS), Argentina
European Center for Constitutional and Human Rights (ECCHR), Germany
Equal Education Law Centre (EELC), South Africa
Foundation for Fundamental Rights (FFR), Pakistan
Hungarian Civil Liberties Union (HCLU), Hungary
Institute for Justice and Democracy in Haiti (IJDH), USA & Haiti
Lembaga Bantuan Hukum Masyarakat (LBHM)
Legal Resources Centre (LRC), South Africa
Michael Sfard Law Office, Israel
Proyecto de Derechos Económicos, Sociales y Culturales (ProDESC), Mexico
Socio-Economic Rights Institute of South Africa (SERI), South Africa
Alex Kelly, echotango Filmmaker, Australia (Bertha Challenge 2021 Activist Fellow)
Angeles Solis, Make the Road New York, USA (Bertha Challenge 2021 Activist Fellow)
The final rounds of the PIL Moot Court Competition
- Lee-Anne Bruce
On 15 and 16 April, CALS hosted the final rounds of this year's Public Interest Law Moot Court Competition in partnership with the Student Litigation Society
CALS has been extremely proud to work with the Student Litigation Society on the first annual Public Interest Law Moot Court Competition since September last year. After two rounds of written submissions on our hypothetical constitutional case, the final four teams were selected and given the opportunity to receive coaching from practising human rights lawyers and masterclasses from advocates who have argued before the Constitutional Court. We thank all the mentors who participated and especially Lerato Phasha, Emma Webber and Salim Nakhjavani for generously giving their time. Last week, the four remaining teams travelled to Johannesburg and came together for the semi-finals at the Women's Jail at Constitution Hill.
The semi-final split saw Zakhele Nkosi, Sanelisekile Sundu and Boitumelo Ramatsetse (representing Mandela University) arguing for the applicants up against Samantha Smit, Winnie George and Thabo Gabriel Mathule (representing the University of Johannesburg) arguing for the respondents in court room one – presided over by our guest judge Stuart Wilson. Over in court room two, Christopher Tobaiwa, Tswelopele Ramokoka and Cwenga Chris Gogodla (representing Rhodes University) squared off with Tendai Mikioni, Benevolio Mgcini Tshuma and Zilungile Mbali (representing the University of Fort Hare) both arguing for the respondents – presided over my our guest judge Umunyana Rugege. You can check out some of the action from court room one at the link below.
After the scores had been tallied for the day, it was time to announce the two teams heading into the finals. Catch the announcement and an address by guest judge and executive director of our sister organisation SECTION27, Umunyana Rugege, below.
We were beyond excited to be able to host the finals of the Public Interest Law Moot Court Competition the following day on 16 April at the Constitutional Court itself. Finals day saw the team from Rhodes University arguing for the applicants going up against the team from the University of Johannesburg. The finals were overseen by our esteemed guest judges: Judge of the High Court Thina Siwendu, advocate Tembeka Ngcukaitobi SC, advocate Gina Snyman and director of the Centre for Child Law Karabo Ozah. We were fortunate to open with an address from Tembeka Ngcukaitobi on the past, present and future of public interest litigation. Listen to the welcome and finals session below.
After the fierce competition was over, it was time to annouce the winners of the first annual Public Interest Law Moot Court Competition. The awards and closing can be found here. Awards were handed out as follows:
In first place was the team from the University of Johannesburg: Samantha Smit, Winnie George and Thabo Gabriel Mathule. Winnie George and Samantha Smit also took home prizes for best orator and runner up best orator respectively.
In second place overall was the team from Rhodes University: Christopher Tobaiwa, Tswelopele Ramokoka and Cwenga Chris Gogodla. The team also took home the prize for best heads of argument.
In third place was the team from Mandela University: Zakhele Nkosi, Sanelisekile Sundu and Boitumelo Ramatsetse.
In fourth place was the team from the University of Fort Hare: Tendai Mikioni, Benevolio Mgcini Tshuma and Zilungile Mbali.
We are extremely proud of everyone who participated in this first PIL Moot and send our deepest gratitude goes to everyone who made this possible, from organisers like Busisiwe Kamolane at CALS and the team from the Student Litigation Society; to our hosts at Constitution Hill; our funding partners at the Bertha Foundation; and the many markers, mentors and judges from our partner organisations. We could not have done this without you. Finally, we would have had no competition at all without the participation of the many students who put themselves forward from the very first round. Thank you and please do come back again next year!
Palesa Madi appointed Deputy Director at CALS
- Lee-Anne Bruce
CALS is very pleased to announce that Ms Palesa Madi has officially been appointed as Deputy Director of our organisation
We are proud to report that Palesa Madi was today appointed as Deputy Director of CALS by a panel of interviewers in the Faculty of Commerce, Law and Management at Wits University. We are confident that she will continue to lead our organisation with her trademark dedication, skill and passion.
Palesa has worked at CALS since 2013, when she completed a year-long graduate internship with us. Since then, she has been appointed as a candidate attorney, retained as an attorney and then promoted to head of what was then known as the Rule of Law programme before taking on the role of acting Deputy Director. Her practice has involved cases ranging from supporting the women of Marikana to exercise their right to protest, to promoting the rights of people in detention, to challenging apartheid era legislation like the Intimidation Act.
Over the last year alone, Palesa was named one of the Mail & Guardian’s 200 Young South Africans, featured in a web series on ‘Women in Social Justice’ and completed an LLM through Wits University with a thesis entitled ‘Transformation in the public interest legal sector and transformative constitutionalism’. She continues to sit on the Board of Gun Free SA and the Steering Committee of the Right2Protest Project.
“Palesa was a member of the transition team that welcomed me with open arms, ensuring a smooth and steady transition,” says CALS Director, Prof Tshepo Madlingozi. “She performs her demanding role with compassion, fairness, diligence and exceptional professionalism. Moreover, Palesa is an exciting emerging scholar researching in the area of holistic transformation of the social justice sector. Client communities, donors and partner organisations hold her in high esteem as she promotes an atmosphere of collaboration and solidarity in all our work and in our larger civil society networks.”
We welcome her permanent appointment as Deputy Director and look forward to continuing our work together.
Rosettenville residents demand urgent reconnection of water
- Lee-Anne Bruce
CALS represents residents from Rosettenville in Johannesburg whose water supply has been unlawfully disconnected by Johannesburg Water
[UPDATE: The Court ordered that our clients' water supply must be reconnected the same day and awarded costs against the City of Johannesburg and Johannesburg Water]
On Friday, 4 June, the High Court in Johannesburg is set to hear an urgent application brought by a group of residents from Rosettenville. The residents’ water supply was unlawfully disconnected by Johannesburg Water over a week ago. Represented by the Centre for Applied Legal Studies, the residents have approached the Court to have their water urgently reconnected.
The Centre for Applied Legal Studies (CALS) represents a group of residents from Rosettenville in Johannesburg, who have had no access to water since last Wednesday, 26 May, when Johannesburg Water disconnected their supply. The reason given for this disconnection is that the account of the properties where they live are in arrears – something which is not in their control.
CALS has been working with the residents for about four years as they have faced eviction from their homes by the owners of the properties on at least three occasions during that time. The City of Johannesburg has so far failed to provide alternative accommodation for those who need it.
We are approaching the High Court urgently this week on their behalf in an effort to have their water supply reconnected. We argue that the residents have an existing right to water and that the City of Johannesburg and its agency Johannesburg Water have a constitutional obligation to provide that water. The residents’ living conditions have been made almost unbearable without water, which has made it difficult for them to attend work and school and has put them at a heightened risk of developing COVID-19.
“Many of the residents are children and older people,” says Vuyolethu Mntonintshi from CALS. “They should not have their health and education compromised simply because they are unable to pay and the owners of the property where they live want them to leave. We strongly feel that the only just and equitable solution would be for the Court to intervene to put a stop to this.”
The matter is set to be heard virtually by the High Court in Johannesburg on Friday, 4 June 2021.
Open letter on vaccinating mining-affected communities
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Civil society sends open letter to the President, Minister of Mineral Resources and Energy and Minister of Health on the need to vaccinate mining communities
Open letter to President Cyril Ramaphosa, Minister Gwede Mantashe, Minister Zweli Mkhize and Mr Mxolisi Mgojo (Minerals Council) demanding the development of a plan for vaccinating mining-affected communities and mineworkers as a matter of urgency
As members of mining-affected communities, organised labour and civil society we are alarmed that at present government and the mining industry have still yet to develop a concrete plan for the mass vaccination of mining-affected communities and mine workers, who together constitute sections of the population at particular risk from COVID-19.
On the 16 April 2020, National Command Council announced amendments on the regulations for the mining sector, which are aimed at allowing a phased economic activity which gives permission for mines to operate at 50% capacity and will gradually increase capacity. This was just over two months of the pandemic being announced and it appears that the consensus between the state and the mining industry that resulted in the rapid declaration of mining as an essential service. Many of us opposed this as irresponsible as we believed the workplace could become a centre and super-spreader sector, a driver of the virus infections into society. In addition, we feared with the movement of migrant workers to and from their home in rural areas would render communities more vulnerable. Mining is a labour intensive enterprise and in and of itself, is a danger to good health and safety as social distancing was near impossible.
We reiterate our consistent position that the government and the Minister of Mineral Resources had abdicated their responsibilities, statutory and constitutional by rushing to opening the mines. We must now take the same emergency action action and work with haste to save lives of mine-workers and the communities living in their surroundings.
Almost a year after the national lock-down, President Cyril Ramaphosa speaking at the Mining Indaba (virtually) praised the profitability of the mining sector thus:
“The industry recorded quarter on quarter growth of 288% in Q3 2020. Higher production was mainly due to increased activities in PGMs, iron ore, gold and diamonds.” https://www.miningreview.com/business-and-policy/mining-indaba-virtual-south-africa/ Later, the report continued thus: “In conclusion, Ramaphosa said that he was immensely encouraged by the positive sentiment about a COVID-19 vaccine rollout in the sector. This follows an announcement by the Minerals Council South Africa that it aims to vaccinate between 60 000 and 80 000 people per day at a total rollout cost of R300 million. He stated that mining companies are well placed to support the unprecedented vaccine programme given their experience in working to stem the spread of TB and HIV/Aids among employees.”
A quick reference on the website of the Minerals Council website reveals its position on the Covid Vaccine Roll-out and their capacities thus:
“The Minerals Council and our members are strongly supportive of government’s vaccine roll-out strategy. We will work closely with the DMRE and unions to achieve a smooth roll-out of vaccines at our mines and in mining communities, and to increase vaccine acceptance through education and communication.
We have offered our significant healthcare infrastructure and capacity to drive the vaccination process, and we hope to play a constructive role as designated points of care, particularly in those regions where there are clusters of mines and mining communities, and those remote regions where mining is the predominant economic activity. Our focus will not only be on ensuring that employees receive the vaccination, but also their families and communities.”
Given these offers and promises we ask at the time of the attempts to massify the roll-out where is the action? Where are the bottlenecks? Who is responsible for the delays in rolling out the programme for saving lives?
This is the time for us to pull together and it is a time for mining communities, most in peri-urban and rural areas must not be left behind. They must be included in real decision-making in matters that affect their lives. The time for action is long overdue but we must act with haste, to save lives.
We therefore demand that:
As a matter of urgency the government and mining companies pool their respective expertise resources to urgently develop and roll out a specific vaccination plan targeted at mineworkers and local and labour sending communities
This process be led by the department of health working with citizens as a matter of great emergency.
Venues of roll out should be accessible to workers and communities (for example community halls) and should be determined in consultation with grassroots organisations and all trade unions in the sector
That the Minerals Council come out and join communities, civil society and organised labour in public support of the South African government’s demand for the waiver of intellectual property (IP) rights related to COVID-19 to level the playing field
We await your response and look forward to engaging on the implementation of a tangible and inclusive plan for providing the vaccine to mining-affected communities and mine-workers.
Yours Sincerely
ActionAid South Africa
Bench Marks Foundation
Centre for Applied Legal Studies
Lawyers for Human Rights
Legal Resources Centre
Right2Protest Project
Open letter on special COVID-19 grant
- Lee-Anne Bruce
Civil society calls on the President, Treasury and Department of Social Development to extend the special COVID-19 relief of distress grant
Terminating the COVID-19 SRD grant at the end of April 2021 would be a betrayal of the constitutional obligation to provide social assistance to those who are unable to provide for themselves.
It is unacceptable that the government intends to terminate the R350 COVID-19 Social Relief of Distress (SRD) Grant since the reason for its existence has remained unchanged as the COVID-19 pandemic continues. The government has just extended the COVID-19 loan guarantee scheme to businesses. Support for households through income transfers is equally important and has been proven to benefit the poorest. At the heart of our call, is the constitutional obligation by the state to reduce poverty and inequality. Failure to do so will increase suffering and further violate the human dignity of the most vulnerable. Instead of terminating the grant, we are writing to the Presidency, National Treasury, Ministry of Social Development and SASSA calling for the:
Extension of the COVID-19 SRD Grant until government provides permanent social assistance for those between 18 and 59 years
Increase of the COVID-19 SRD Grant to at least the Food Poverty Line, currently R585
Eligibility of recipients of the Child Support Grant (CSG), 95% of whom are women, to receive the COVID-19 SRD Grant
Expansion of the eligibility criteria and addressing administrative inefficiencies including the appeals process and the use of outdated verification databases
A more effective communication strategy with applicants and beneficiaries
Urgently implement the long overdue Basic Income Grant for those aged 18 to 59 years with no to little income
While there arevarious proposalsfor a Basic Income Grant, permanent Basic Income Support must be progressively increased to match at the very least, the Upper-Bound Poverty Line, currently R1,268.
Another termination date for the COVID-19 SRD grant looms on 30 April 2021. Terminating this grant will be premature and reckless. The COVID-19 grant remains a significant lifeline to almost seven million beneficiaries, and many more dependants, in a context of high unemployment levels, growing food insecurity and child hunger. Since the pandemic is far from over and mass vaccinations have not yet begun, its termination will have long term negative effects well beyond the pandemic. There is still no indication how long it will take to achieve population immunity and more waves of infections are expected, which is likely to be followed by tighter lockdown restrictions.
Women, as individuals in their own right, are still unjustly excluded from social protection measures. TheNIDS-CRAM wave 3study found that in October 2020, only 37% of the COVID-19 SRD grant recipients were women even though they are still ‘over-represented in total unemployment’. TheNIDS-CRAMstudy further shows that the proportion of households running out of money to buy food rose to a shocking 41% and the number of households where a child has gone hungry at least once in a week rose to 16%, following the termination of theCaregiver Grant in October 2020.
Over 11 million people are unemployed, using the broad definition. It is impossible to create enough jobs in the foreseeable future for all these unemployed and therefore the prospect of full employment, as an alternative to social protection, is a myth. Increasing employment and increasing social protection must be combined, and are complementary.
The socio-economic impacts of the crisis on the mental health of people should no longer be underestimated. There are now about23 suicides in South Africa a day. A number of these cases are linked to unemployment and the harrowing conditions facing many communities across the country. Job creation programmes must be complemented with income support measures and the delivery of quality socio-economic services.
We requested an urgent meeting to discuss the imminent termination of the COVID-19 Social Relief of Distress (SRD) grant on 31 January 2021 after requests were made to meet on 25 January 2021, 28 January 2021 and 17 February 2021. We still have not heard back from government and as yet another termination date (30 April 2021) for this important grant looms, we want to reiterate that we are long past the time for piecemeal temporary extensions.
We would once again like to request an urgent meeting with President Cyril Ramaphosa, Minister Tito Mboweni, Minister Lindiwe Zulu and CEO of SASSA, Busisiwe Memela - Khambula to discuss our concerns and ensure the indefinite extension of this grant until we have a legislative and policy framework as well as a secured budget for the implementation of a Universal Basic Income Guarantee (UBIG). This Open Letter is endorsed by 86 civil society organisations. A further 180 organisations and individuals have endorsed the #PayTheGrants campaign. If we are still ignored, we will be compelled to consider other options.
Our country will be judged by how the most marginalised, who are also the majority, are supported by the government through this pandemic. The need to prioritise social protection as an investment in our future, and not as a cost or burden, has never been greater.
This letter is endorsed by:
Act Ubumbano
Ahmed Kathrada Foundation
Albert Luthuli Human Rights Advice Centre
Alternative Information and Development Centre (AIDC)
Amandla.mobi
Archdiocese of Durban Justice and Peace Commission
Assembly of Unemployed
Beaufort West Advice Office
Bench Marks Foundation
Bertha Centre for Social Innovation and Entrepreneurship Graduate School of Business
Black Sash
Bohlabela Advice Centre in Mpumalanga
Botshabelo Unemployment Movement
Cancer Alliance
Cash Transfers Working Group of the C19 Peoples Coalition (#paythegrants)
Centre for Applied Legal Studies (CALS)
Centre for Environmental Rights
Children in Distress (CINDI)
Community Advice Offices South Africa (CAOSA)
Congress of South African Trade Unions (COSATU)
Cooperative and Policy Alternative Centre (COPAC)
Consortium for Refugees and Migrants in South Africa (CoRMSA)
Democracy Development Program
Dirang Ka Kagiso (Community Home Based Care)
Dirang Ka Kagiso (Wellness Center)
Dullah Omar Institute
Environmental Monitoring Group
Equal Education
Groundwork
Heidelberg Advice & Development Centre (HADCEN)
Hillcrest Aids Centre Trust
Ikamva Labantu
Institute for Poverty, Land and Agrarian Studies at the University of the Western Cape (PLAAS)
Institute for Economic Justice
Interchurch Local Development Agency
The International Labour Research and Information Group (ILRIG)
Jersey Farm Advice and Information Centre
Ketekani Community Project
Kgothatsanang organisation
Khutsong Youth Friendly Service
Kwafene Advice office
Lawyers For Human Rights
Legal Resources Centre
Mamadi Advice Center
Mariann Coordinating Committee (MCC)
Matlosana Development Forum
Middelburg Development and Advice Office
Muslim Judicial Council
Ndifuna Ukwazi
Open Secrets
Organised for Work
Oxfam South Africa
People’s Health Movement South Africa
Pietermaritzburg Economic Justice & Dignity Group
Public Affairs Research Institute (PARI)
Public Service Accountability Monitor (PSAM)
Refugee Social Services
Right2Know
Riversdale Advice and Community Development Agency
Scalabrini Centre of Cape Town
Section 27
Sexual and Reproductive Justice Coalition (SRJC)
Shayisfuba Feminist Collective
Sisterhood Movement
Social Change Assistance Trust (SCAT)
Social Justice Coalition
Social Work Action Network South Africa
Sonke Gender Justice
South African Domestic Services and Allied Workers Union (SADSAWU)
South African Federation Trade Unions (SAFTU)
South African Food Sovereignty Campaign
South African NGO Coalition (SANGOCO)
Southern African Social Policy Research Institute NPC
Standerton Victim Empowerment and Advice Office
Studies in Poverty and Inequality Institute (SPII)
Triangle Project
Trust for Community Outreach and Education (TCOE)
Ubuntu Rural Women and Youth Movement
Unemployed United Front (UUF)
Vianney Child and Youth Care Centre
Western Cape Forum for Intellectual Disability
Women Hope for the Nation
Women on Farms Project
Women’s Legal Centre
Workers' World Media Productions (WWMP)
Zenzeleni Project
Access to information victory for CALUSA
- Lee-Anne Bruce
The Mthatha High Court recently ordered the Sakhisizwe Local Municipality to release documents related to its state of governance
On Wednesday 9 June, the High Court in Mthatha granted an access to information request made by the Cala University Student Association (CALUSA). Represented by the Centre for Applied Legal Studies, CALUSA approached the Court for access to documents on the Sakhisizwe Local Municipality’s state of governance. This litigation forms part of ongoing efforts to address the crisis of maladministration and financial mismanagement within the Municipality.
The Centre for Applied Legal Studies represents the Cala University Student Association (CALUSA) – a developmental NGO from the Sakhisizwe area of the Eastern Cape. CALUSA has spent the last three years trying to address service delivery issues in the area, including raw sewerage flowing down the streets of the towns of Cala and Elliot. They have made every effort in this time to access documents held by the Sakhisizwe Local Municipality which would assist in identifying and addressing the root cause of the current crisis, without success.
CALUSA thus contacted CALS to assist in making a formal access to information request of the Municipality using the Promotion of Access to Information Act or ‘PAIA’. After the request was refused in August last year, we approached the High Court in Mthatha to review this decision. On 9 June 2021, the High Court ordered that the Municipality must release all the documents which we requested that are in its possession. This moves us one step closer to the ultimate goal of having the Municipality dissolved and placed under administration.
“Access to information is often the first step in promoting other human rights,” says Vuyolethu Mntonintshi from CALS. “It facilitates transparency, accountability and good governance. We believe this information will be instrumental in showing that the Sakhisizwe Local Municipality is in the midst of a crisis born from maladministration and financial mismanagement. This crisis has clearly already had a devastating effect on the communities the Municipality is meant to serve.”
The Cala University Students Association (CALUSA) is a developmental non-governmental organisation based in Cala, within the jurisdiction of the Sakhisizwe Local Municipality in the Eastern Cape. CALUSA is mandated by structures such as the Sakhisizwe Moral Regeneration Movement, the Cala Ratepayers’ Association, Elliot Residents Association, Domestic Violence Monitoring Unit, Siyazakha Land and Development Forum. Find out more: http://calusa.co.za/.
CALS Quarterly Issue 13
- Lee-Anne Bruce
Read the latest issue of our quarterly newsletter and find out about our work trying to ensure justice and accountability
The last few months have provided many opportunities to reflect on what it means to for a person or institution to be held accountable. CALS and our partners at the Black Sash Trust were pleased to announcerecently that former Minister Bathabile Dlamini had complied with a Constitutional Court order to pay costs awarded against her for the role she played in the social grants crisis several years ago. This has shown personal costs orders against even high ranking government officials are both attainable and enforceable. We hope that this sends a clear message that anyone responsible for corruption, failure to exercise oversight or to ensure good governance can be held personally liable.
Yet, we are also keenly aware that the problems facing our country's social assistance programme are far from over. The pandemic continues to place already vulnerable people at risk not only of infection, but deepening poverty and hunger. What little protection they were afforded by the special COVID-19 relief of distress grants came to an end in April when pleas to extend these payments were denied. CALS and our partner organisations continue topetitionfor permanent, adequate income support and tospeak outagainst the corruption and state capture that stands in the way of realising human rights.
Revelations at the Judicial Commission of Inquiry into Allegations of State Capture have further demonstrated the consequences of the hollowing out of state institutions; the capture of state institutions by business; and the need for these institutions to be led by qualified, independent and capable persons. The constitutional promise of social justice will remain a mirage unless state institutions are functional, accountable, responsive and transparent.
We therefore remain committed, in all our work, to promoting the highest levels of transparency and accountability – whether that means a successful urgent application against Johannesburg Water for unlawfully disconnecting our clients, or a challenge to the secretive manner in which appointments are made to the financial sector regulator, or a review of the Mining Charter for failing to engage the very people it is meant to benefit. Click the image below to read more about these and other recent projects.
#HimOrMe: Trial set to begin for mother of two accused of killing abuser
- Lee-Anne Bruce
CALS is set to appear in the Palm Ridge Magistrates Court to defend a woman accused of killing her abusive partner during an incident of domestic violence
CALS is set to appear in the Palm Ridge Magistrates Court over the next three weeks to defend a mother of two who has been accused of killing her abusive partner during an incident of domestic violence. CALS will be bringing expert evidence to give the court an understanding of the patterns of abuse that occur both in our country and in our client’s life.
Domestic violence is recognised as a widespread and life-threatening problem globally, and one that particularly affects women and children. Though data can be difficult to gather because of the nature of domestic violence occurring in private spaces and the challenges survivors face in reporting abuse, it is thought that up to 50% of women may experience intimate partner violence in their lifetimes in our country.
“The almost inevitable culmination of escalating domestic violence is that someone will die, most often women,” says Sheena Swemmer, head of the Gender Justice programme at CALS. “In some instances, victims of abuse may respond to violence. For them, it literally becomes a situation of ‘him or me’. What we’re arguing is that our courts need to take this phenomenon into account, to engage properly with psychological aspects of domestic violence and trauma.”
On Monday next week, the trial of a woman accused of killing her abusive partner begins in the Palm Ridge Magistrates Court. Prior to his death, she had spent a year facing beatings from him so severe that she suffered a miscarriage. CALS will be acting in her defence. Despite the fact that she poses no threat or flight risk, our client has been denied bail. She has been forced instead to await trial in detention away from her children since November 2018. Her trial has suffered continuous postponements, including during the current pandemic due to the decision not to permit access to legal representatives at the Johannesburg Correctional Centre.
This is just one in a series of cases we intend to use to challenge how women are treated in the criminal justice system.
C19 People's Coalition statement on recent civil unrest
- C19 People's Coalition
The Coalition responds to the recent civil unrest and the role of government in addressing the underlying issues of economic injustice
The C19 People’s Coalition mourns all those who have been hurt or killed and whose livelihoods have been affected during this time of unrest. We are a traumatised society and we need to heal. But healing must go hand in hand with economic justice.
So many of our people in South Africa are hungry and landless, and are faced with the indignity of ongoing race and class-based segregation. Since 1994, our government has done little to address this dispossession and exploitation. And during the pandemic, it has enacted massive budget cuts to healthcare, education, water, social grants and municipal services. We warned the Treasury and Parliament that these budget cuts are dehumanising and break the social compact required to rebuild our society, yet the government has unconstitutionally failed to extend even basic social protection during the latest lockdown.
We must hold accountable the politicians including former President Jacob Zuma and a particular cohort of his supporters who allegedly cynically seek to appropriate people’s hunger and desperation for their own short-term gain. However the sitting government cannot deny its own role in creating the conditions for social conflict. We condemn the political targeting of key infrastructure for transporting food, fuel and medicine. This will make the lives of our impoverished people even more difficult. There is opportunistic criminality and legitimate desperation – these truths can be held at the same time.
South Africa wants more. We deserve more. We deserve a government who treats all of us as human beings, with dignity and respect and protects the lives and livelihoods of our people. A militarised solution is never ideal and, as a principle, we are against military deployment. Yet we recognise the unprecedented circumstances of this moment, the harrowing vigilante extremism that must be stopped and spiraling fears of those at danger that require an answer. Where soldiers are deployed for peacekeeping and deescalation, repression of the vulnerable, gender violence and escalation often follow. If the government cannot dare to dream alternatives, and if this is to go ahead, we must hold each and every soldier and police officer to account so as not to repeat the atrocities committed in the Level 5 deployment in 2020 where the SANDF acted as yet another criminal gang. We call on cadres in civil society and grassroots organisations and communities to help mobilise being independent watchdogs in this regard.
The C-19 People’s Coalition calls for a credible break, based on new pathways that are crafted through democratic deliberation. We call for government to:
Ensure that where the deployment of the military is unavoidable, it is used as a short term tactical intervention aimed at singularly ending the syndicated criminal violence bent on creating conditions of upheaval.
Focus protection on those who are most vulnerable to political violence, including informal traders and small businesses.
Stop the state’s tacit and explicit support for xenophobic violence. Protect all who live in South Africa and emphasise that everyone is a valued member of our society whose human rights must be protected.
Reinstate the Covid SRD grant for the unemployed and caregivers alike, at an increased amount of R585, ensure that SASSA offices are opened and protected and move rapidly to an expanded Basic Income Guarantee of at minimum R1268.
Roll back the austerity cuts to social services, including healthcare, education and water, so that our people have access to adequate healthcare, decent education, sufficient school nutrition and clean drinking water.
Ensure that vaccine and chronic medication rollout can continue unhindered, hospital admissions are managed as best as possible in this third wave of the pandemic, and further COVID-19 fatalities are minimised as a result of the unrest.
Adopt an integrated civil society and community response to establish a holistic roadmap to de-escalate the unrest and provide urgent relief for those affected.
An urgent public assembly with the President and Ministers of accountable departments, including Treasury, Cooperative Governance and Traditional Affairs and Social Development to ensure each of the above is adequately addressed through partnership with civil society.
In the face of our highly complex and rapidly changing context, no one person can identify the best response. The securitisation of property alone while rolling back on social relief will have devastating effects. As civil society we have been ignored and excluded at the hands of a kleptocratic political elite for too long. We need the deliberative wisdom of all our people to find our way forward. We deserve a government who engages in mass deliberative democracy, and not just ‘consultation’ with representatives.
CALS expresses deep concern over the current unrest and calls for a response which includes immediate social relief and long-term change to address inequality
The staff at CALS would firstly like to express our deep distress and join all those mourning the loss of lives and livelihoods during the last week. We recognise that this is an extremely complex situation with multiple historicial and contemporary causes and one that calls us to hold a number of competing thoughts together as we try to understand and respond to what is happening in our country.
A great many of the people who have been involved in recent unrest appear to have acted out of legitimate desperation and frustration born from widespread impoverishment and inequality that has only been exacerbated during the current pandemic and lockdown. Indeed, without such high rates of unemployment, food insecurity and lack of social relief that we are all so painfully aware of, this unrest likely could not have gathered such momentum. What is clear is that – as always – it is marginalised communities and especially those living and working in poverty who are bearing the brunt of the consequences.
What may have started as a protest against the arrest and incarceration of former President Jacob Zuma has morphed into something much larger. The unrest that has been taking place recently seems to be composed of many different elements. Some individuals may seek to strategically destabilise our society and undermine the rule of law. Some may see this as an opportunity to engage in criminality and self-enrichment. With this in mind, we state below a set of principles that should guide the response to the unrest.
We condemn any attempt to extort or undermine the independence of the judiciary. Our courts are central to the administration of justice and our judges must be free to apply the law impartially without fear, favour or prejudice. We cannot allow violence or threats to be used to attack individual judges or to pressure the judiciary as a whole. This would do nothing but weaken the institutions of hard-won constitutional democracy. We further condemn any incitement to violence and attempts to undercut the rule of law and insist instigators be held to account.
It is essential that government works to address not only the immediate violence, but the root causes of unrest and distress. We note that the South African National Defence Force has been mobilised to join police forces. We call on the state to fulfil its obligations to prevent violence and at the same time show restraint and use the minimum amount of force required to effectively end disorder. There should be no need for the vigilante justice we have observed that has already led to further violence, racism and xenophobia.
At the same time, it is crucial to put in place both short-term and long-term measures to reduce the poverty and inequality that have contributed to unrest. We reiterate the call to at a minimum reinstate and increase the special COVID-19 social relief of distress and caregivers grants. We also support the introduction of universal basic income support and the review of austerity measures that have inhumanely cut spending to essentials like social security, education and health care at a time of disaster. While we know that mechanisms like social grants play an important role in alleviating impoverishment and food insecurity, we acknowledge that they alone cannot hope to dismantle the widespread inequality in our country and we need a plan in place to redistribute our resources to create a more equal society.
We strongly oppose the declaration of a state of emergency in the face of current unrest. This would entail further limiting fundamental human rights and have potentially disastrous ramifications once again for people living in poverty. The scale of military and police brutality experienced under lockdown alert level five, when Collins Khoza and many others were killed, may give some idea of these consequences. While states of emergency have a place, such as during times of war, they are not an appropriate measure to be taken when state departments responsible for security and intelligence have failed in their duties.
There is understandable outrage over the violence, destruction and theft that have been taking place recently in areas of Gauteng and KwaZulu Natal. We must not lose sight of the wholesale looting of state resources that has occurred through state capture. Corruption has severely damaged our state institutions and robbed us all on a much larger scale than we have seen over the last week – yet it has resulted in less outrage and far fewer arrests. We continue to support the work of the State Capture Commission and all those, including the media and civil society, who have worked tirelessly to uncover and address corruption.
CALS would like to offer whatever assistance we can at this time. We stand firmly against the criminalisation of impoverished people and extreme use of force by the police and the military. We pledge to engage with the National Prosecuting Authority on their stance of opposing bail for all arrested during the unrest, especially for accused women and children. We will follow up on complaints relating to police and military brutality, including the searching of people’s homes without warrants. We would also follow up on complaints related to vigilantism and racial discrimination and brutality.
Above all, we will continue to advocate not only for short-term social relief but more long-term change in order to address the poverty and inequality at the heart of much despair, discontent and unrest.
Over sixty civil society organisations write an open letter expressing concern over the current situation in Eswatini
To the Government of Eswatini and the international community:
We, the undersigned 69 civil society organisations, are deeply concerned about the eruption of state violence in Eswatini. We stand in solidarity with the people of Eswatini in condemning the government’s violent repression of mass protests demanding democracy and economic justice.
We support the UN Human Rights Commissioner’s call urging the authorities to fully adhere to human rights principles and reminding them that peaceful protests are protected under international human rights law. We call on the Government of Eswatini to immediately cease its brutal crackdown against civilians, restore and maintain internet access, and engage in inclusive dialogue with pro-democracy groups and politicians.
We call on the international community, including the United Nations, African Union, Southern African Development Community, and individual governments, to demand that the Government of Eswatini respect human rights, allow a thorough, independent investigation of who authorised violence against protesters, including shoot to kill orders, and support a peaceful transition to a democratic form of government.
Reports out of Eswatini indicate that, since late June, the army and police forces have killed dozens of unarmed civilians and injured around 1,000 people, including by shooting indiscriminately at and wounding protesters. The government has reportedly imprisoned hundreds of people, many of them young people, and shut down internet access across the country for several weeks, which Amnesty International calls “a brazen violation of the rights to freedom of expression and information.” Reports further indicate that security forces have sought to intimidate human rights defenders and activists with unlawful surveillance, imposed a curfew, and restricted public gatherings and petition deliveries to the government. This political crisis caused by state-sponsored violence risks creating a humanitarian crisis, as hospitals struggle to treat the influx of people injured by security forces, food and fuel supplies become limited, and people’s movement and ability to conduct basic commerce is restricted.
Specifically, we lend our support to the demands of civil society organisations, political organisations, and people’s movements within Eswatini calling for a long-term resolution to the current political crisis through an inclusive political dialogue, the total unbanning of political parties, a transitional authority, new democratic Constitution, and a multiparty democratic dispensation.
In the immediate term, we join democracy defenders in Eswatini in the following demands, calling for action from the Government of Eswatini to cease violence, restore and maintain communications services, and provide urgently needed humanitarian support:
The immediate cessation of the killing of civilians and the return of the army to the barracks;
The immediate restoration of civic services such as the rapid issuing of death certificates for those killed in the past days;
Mandatory independent pathologists to conduct post-mortems on the deceased;
Urgent humanitarian support to the affected families, workers and citizens who need basic necessities such as food, sanitary towels, baby food, etc.
The provision of direct financial support to resuscitate affected small and medium enterprises;
The full and permanent restoration of internet and communication services and peoples' right to freedom of expression; and
The urgent availability of vaccines to all emaSwati and the end of unnecessary lockdowns.
As the Government of Eswatini, Africa’s only remaining absolute monarchy, violates the human rights of residents, suppresses freedom of speech and assembly, and jails young people for demanding a brighter future, the international community cannot remain silent. We call on partners in international civil society, regional governmental bodies, and diplomats to join us in amplifying the demands of the Eswatini people and seeking the protection of people’s human rights.
Sincerely,
AbibiNsroma Foundation
Africa Coal Network
Africa Institute for Energy Governance
African Climate Reality Project
Andy Gheorghiu Consulting
Aotearoa New Zealand Human Rights Foundation
Center for International Environmental Law
Centre for Applied Legal Studies, University of Witwatersrand
Centre for Citizens for Citizens Conserving (CECIC)
CIVICUS
Civil Society Legislative Advocacy Centre (CISLAC)
Clean Energy Action Climate Action Network International
Corporate Accountability And Public Participation Africa (CAPPA)
DITSHWANELO - The Botswana Centre for Human Rights Earth Ethics, Inc.
Earthlife Africa
Earthworks
Economic and Social Justice Trust
Environment Governance Institute
ETC Group
Empower our Future, Colorado
Fair Finance International
Food and Water Watch, USA
Foundation for Environmental Management and Campaign Against Poverty (FEMAPO)
Fridays For Future
Fridays For Future Czech
Fridays For Future Digital
Fridays For Future MAPA
Fridays For Future Sweden
Fridays For Future Windhoek
Friends of the Earth Africa
Friends of the Earth USA
Fundación Quantum
The Gaia Foundation
GASP - Grand(m)others Act to Save the Planet
Generation Zero
Global Initiative for Food Security and Ecosystem Preservation (GIFSEP)
GoBio Waste Management and Renewable Energy
GPAN
groundWork
Health of Mother Earth Foundation
The Human Rights Institute of South Africa (HURISA)
Institute for Ecology and Natural Resources Africa
Institute for Policy Studies Climate Policy Program
International Federation for Human Rights (FIDH)
Jeunes Verts Togo
Justiça Ambiental JA! - Friends of the Earth Mozambique
KAIROS Canadian Ecumenical Justice Initiatives
Keep a Cool World
Lekeh Development Foundation
Oil Change International
Oilwatch Africa
People's Justice Council
Power Shift Africa
Rainforest Action Network
South Durban Community Environmental Alliance
Southern Africa Human Rights Defenders Network
Southern Africa Litigation Centre
The United Church of Canada - Church in Mission
Urgewald
We the People
WoMin African Alliance
Youth Advocates for Climate Action, Philippines
Youth For Climate, Turkey
Youth for Environment and Sustainable Development (YSD)
Youth for Green Communities
350 Ghana Reducing Our Carbon (350G-ROC)
350.org
Civil Society calls on accountability for state capture criminals
- Civil Society Working Group on State Capture
The Civil Society Working Group on State Capture connects recent civil unrest to the legacy of state capture and corruption
The recent tragic days of violence in South Africa are, in large part, a legacy of state capture. The Civil Society Working Group on State Capture (CSWG) calls on state institutions to hold accountable the individuals and groups instrumental in the instigation of violence and looting in KZN, Gauteng and across South Africa. However, we believe it would be wrong for law enforcement to only criminalise individuals involved in riots when the perpetrators of state capture have not yet been held accountable. We again call for the powerful corporations and individuals who looted and enabled state capture to be held to account and brought to book. Rebuilding the country demands that this be done.
These perpetrators of economic crimes profited from their misdeeds for over 10 years while neglecting the provision of basic services to the people of South Africa. This created the conditions for political manipulation, greed and food riots, linked to hunger and poverty, with the lives of many lost in the unrest. which started 10 days ago. The enablers of state capture are responsible for creating the environment in which we find ourselves today, through weakening the country’s democratic institutions, eroding state capacity and selfishly robbing the country of its much-needed resources. The criminality and corrupt actions of these powerful corporations, politicians and individuals have been instrumental in driving people into grinding poverty and deepened inequality and unemployment.
The consequences of the looting have been dire and extend beyond financial loss. The capacity of the state has been severely eroded, the economy weakened with revenue short-falls and dysfunctional state-owned entities that are diverting funds away from social spending where it is most needed. It is unconscionable that constitutionally enshrined human rights such as health care, social security, housing and basic education, have been compromised because of the actions of corrupt individuals.
The struggle against state capture and corruption in South Africa is a struggle for human rights. The ongoing revelations at the Commission of Inquiry into State Capture (the Zondo Commission) continue to lay bare the various networks of looters in the public and private sector who have criminally enriched themselves at the expense of the most vulnerable.
Now is also the time to ensure that swift and decisive action is taken to remove and hold to account compromised individuals that remain within key state institutions, some of whom were strategically placed and continue to stall efforts towards justice, accountability and the rule of law. Many of them remain part of the fight-back network that hopes to again profit from the chaos that has erupted this month.
The Civil Society Working Group on State Capture again reiterates that law enforcement agencies should focus its attention on the individuals and corporations who have either allegedly been complicit in state capture or might have information that can assist the state in challenging the state capture networks.
Endorsed by:
Black Sash (BS)
Centre for Applied Legal Studies (CALS)
Corruption Watch (CW)
Council for the Advancement of the South African Constitution (CASAC)
Dullah Omar Institute (DOI)
Equal Education (EE)
Judges Matter (JM)
Legal Resources Centre (LRC)
MyVoteCounts (MVC)
Open Secrets (OS)
Organisation Undoing Tax Abuse (OUTA)
Public Affairs Research Institute (PARI)
Right2Know (R2K)
Southern African Faith Communities’ Environment Institute (SAFCEI)
Op-ed: Why civil unrest shows South Africa needs to implement a basic income grant
- Abongile Nkamisa
Abongile Nkamisa of CALS argues that recent civil unrest draws attention to the urgent need for universal basic income support
The public disorder and civil unrest of the past week have had devastating effects on individuals and businesses across the country. Although the initial protests were purportedly related to the #FreeZuma campaign, the unrest that followed has a number of complex political and social causes. The catalyst was the arrest of former President Jacob Zuma, with his supporters blocking the main roads in KwaZulu Natal and demanding his release.
Many were shaken by the riots that then swept through from KwaZulu-Natal and on to the economic hub of Gauteng. Already, the riots had started to take on a different tone. Many felt that the current President had failed to provide decisive leadership – either to quell the anger over Zuma's imprisonment or to reassure people in South Africa that the concerns of job losses and surging poverty are being addressed at all.
The unrest in the country's two most populous provinces reflects in many ways a unique tragedy in South Africa. The country’s generational struggle for racial equality is an example of economic inequality, where poverty is deeply trapped in the shadow of astronomical wealth. A great deal of coverage from the unrest has shown instances where people could be seen to be looting food and other basic necessities from supermarkets. This part of the protests has prompted questions and debates about the rising unemployment, perpetual poverty, and food insecurity among the majority of black people living in townships and informal settlements of South Africa. Such an occurrence further confirms that working-age adults who are without employment urgently need income support to survive.
The latest Quarterly Labour Force Survey released by StatsSA shows that the country’s current unemployment in January to March this year was recorded at 43,2% overall and amounts to 74,7% for people aged 15 – 24 using the expanded definition of unemployment. What is clear is that this does not affect all racial groups equally. Black people have the highest rate of unemployment in the age brackets 15 to 64, at 47,9% using the expanded definition of unemployment. Along gender lines, women have also been hard-hit by unemployment, the numbers likely even more alarming for black women.
The situation for young people seeking work is significantly more desperate. Many households in South Africa rely on young people between these ages to begin bringing in income; yet these are the same people who are without jobs. Persistent poverty and unemployment severely and continuously attack these groups in all aspects.
The effects of COVID-19 related job losses and the implementation of lockdowns since March 2020 have further worsened the situation for young people. Currently, under the Social Security Act of 2004, the classification for receiving social assistance is limited to children under the age of 18 years, people over 60, and people with disabilities. For adults between the ages of 18 to 59 with no disabilities, no matter how impoverished they are, there are no categories of social grants. Even with the efforts of civil society organisations to push for a state-supported and funded-Basic Income Grant (or BIG), the political will and support for introducing these policies is in question.
While I am well aware that social grants play an important part in alleviating poverty and food insecurity, I also recognise that this intervention alone is not an answer in addressing and dealing with systemic inequality and disproportionate income gaps that exist in South Africa. However, the immediate introduction of the BIG would seek to ensure that young people, who are excluded from the existing framework of social grants, can benefit and become members of society that contribute meaningfully not only to their households, but to the economy.
At a government policy level, the tabling of the BIG has been ongoing since 2002. Twenty years later, the government is still ‘discussing’ the BIG. The Constitution and the government's National Development Plan, adopted in September 2012 as a plan to eradicate poverty and reduce inequality by 2030, has generated very little concrete action to meet these stated goals. There needs to be a willingness in developing firm policies that address the redistribution of resources and equal access to the economy for all.
The government has chosen instead to respond to the challenges occasioned by the pandemic with austerity measures such as cutting down critical and focal budgets allocated for social security, education and healthcare during the COVID-19 pandemic. These are some of the reasons which might lead us to think that the introduction of the BIG is ‘wishful thinking’.
The government has over the years tied itself to policies that aim to tackle poverty, inequality, and spatial injustice with little execution. The lack of successful implementation of those policies often lies in the everyday routines, the micro-decisions and daily interactions among everyone concerned with ensuring plans translate into action. There has been a failure of consistency across the three spheres of government namely the national, provincial and local government.
The pandemic has been an opportunity to rethink national planning as government grapples with the question of what a ‘new normal’ might look like and how soon it might arrive. This includes the introduction of immediate interventions such as the BIG. As such, a sustained focus on a small number of priorities is essential.
Abongile Nkamisa is a candidate legal practitioner based at the Centre for Applied Legal Studies, Wits University
Reinstated SRD grant in need of more effective implementation
- Esley Philander
The Black Sash Trust welcomes the reinstated and extended special relief of distress grant but notes concerns about the grant amount and its implementation
The Black Sash welcomes the decision announced by President Cyril Ramaphosa on 25 July 2021 that the COVID-19 Social Relief of Distress (SRD) Grant will be reinstated until March 2022. We are pleased that the grant’s eligibility criteria has now been expanded to include unemployed caregivers who receive the Child Support Grant (CSG) on behalf of children. About 95% of CSG recipients are women who were unfairly discriminated against as individuals in their own right by not being eligible for the previous COVID-19 SRD grant.
It is concerning though that the grant was not increased to at least the Food Poverty Line, which is currently R585 per month. We will continue to advocate for permanent social assistance for the unemployed pegged at the Upper Bound Poverty Line, currently R1 268, while working towards a universal basic income as our ultimate goal. Given the country’s structural unemployment crisis, the Black Sash has repeatedly said that job creation programmes must be complemented with income support measures and a more comprehensive social security programme.
The Black Sash calls on SASSA to ensure more effective implementation of the COVID-19 SRD grant by urgently attending to the grant’s numerous administrative inefficiencies. SASSA must improve the grant’s application systems, appeals, payment processes with quicker turnaround times, and develop a more effective communication strategy with applicants and beneficiaries.
On Tuesday 27 July 2021 at 11h00 the Black Sash will launch a research publication titled, Social Protection in a Time of Covid - Lessons for Basic Income Support, where our recommendations will be outlined in more detail. The report investigates the systemic challenges involved in the implementation of the Covid-19 SRD grant and provides insights into the personal impact of the grant on beneficiaries. The findings of the report make recommendations for improving implementation of the Covid-19 SRD grant and calls for permanent Basic Income Support for those aged 18 to 59 years with little to no income.
Civil society organisations are hosting a workshop on 9 September on the threat of cost orders to public interest litigation
[UPDATE: An earlier version of this post listed the date for the workshop as 9 September 2021. Please note the virtual workshop has had to be postponed.]
The Centre for Applied Legal Studies (CALS), Open Secrets and Animal Law Reform South Africa (ALRSA) invite you to a virtual workshop on the increasing trend and threat to civil society organisations of adverse costs orders when litigating in the public interest.
There has been growing concern from civil society about the increase in adverse costs orders or the threat of costs orders by litigants and the courts. Many civil society organisations have had to appeal costs orders or fiercely defend against them, at unnecessary expense and wasted time and energy.
In particular, there are three main areas that are concerning:
Courts are increasingly disregarding the Biowatch principle and imposing adverse costs orders on civil society organisations or individuals litigating in the public interest, even when the litigation is against the state and not frivolous or vexatious.
Courts are narrowly defining what constitutes a “constitutional issue”, resulting in civil society organisations litigating in the public interest at times being precluded from the Biowatch.
Civil society organisations litigating in the public interest and / or on a constitutional principle or provision, against a private individual or company are not protected against adverse costs orders.
This is having a chilling effect on the fight for social justice, particularly in the context of litigating in the public interest against corporations.
Aim of the workshop
The aim of the workshop is to start a collective discussion about the risks associated with litigating in the public interest when it comes to adverse costs orders. The workshop aims to present organisations’ experiences in this regard, and to collectively find ways of proactively dealing with threats of adverse costs orders.
The workshop, to be facilitated by CALS Director Prof Tshepo Madlingozi, will include:
Discussions of organisational experiences with adverse costs orders;
Analysis and reflection on these experiences; and
A brainstorming session on possible proactive ways forward – including litigation and advocacy options.
The workshop will be inclusive, focused, participatory and practical. We attach some guiding questions for participants for their contemplation ahead of the workshop. The workshop is hopefully the first step on a path to fearless protection of justice for a better world.
Please feel free to contact Thuli Zulu for more information at Thuli.Zulu@wits.ac.za
A Zoom link will be shared with participants after registration and an agenda circulated the day before the workshop
Former Minister Bathabile Dlamini to be prosecuted for perjury
- Lee-Anne Bruce
Former Minister Bathabile Dlamini faces prosecution for perjury following statements to the Constitutional Court and before a section 38 inquiry
The Black Sash Trust and the Centre for Applied Legal Studies welcome the decision by the Director of Public Prosecutions in Gauteng to prosecute former Minister Bathabile Dlamini for perjury or giving false evidence. The charges relate to her testimony during an inquiry instituted by the Constitutional Court into Ms Dlamini’s role in the social grants crisis several years ago. This decision sends the message that everyone is equal before the law and public officials must be held accountable for their actions.
In early 2018, Judge Bernard Ngoepe oversaw an inquiry established by the Constitutional Court into then-Minister of Social Development Bathabile Dlamini’s role in the social grants crisis the previous year. The Centre for Applied Legal Studies represented the Black Sash Trust at the inquiry and presented evidence that the Minister had failed in her duties to ensure that SASSA was equipped to take over paying grants when an invalid contract with Cash Paymaster Services came to an end.
Judge Ngoepe later filed a report on the inquiry with the Constitutional Court which found the Minister had not only failed in her duties but had also failed to disclose information to the Court for fear of being held liable for the crisis in her personal capacity. The report describes Ms Dlamini as an “evasive” witness, answering simple questions with “I don’t know” or “I don’t remember” or simply failing to answer at all.
The Constitutional Court handed down judgment in September 2018, finding Ms Dlamini’s conduct had been “reckless and grossly negligent” and ordering her to pay a portion of the costs of litigation brought by the Black Sash, represented by CALS, and joined by Freedom Under Law in an effort to protect the grants system. The Court further ordered that this judgment and Judge Ngoepe’s report be forwarded to the National Director of Public Prosecutions to consider whether Ms Dlamini lied under oath and should be prosecuted for perjury.
On 19 August 2021, CALS and the Black Sash Trust were informed that the Director of Public Prosecutions in the Gauteng Local Division in Johannesburg has decided to prosecute Ms Dlamini for perjury or alternatively for giving false evidence. A summons has been issued for her to appear in the Johannesburg Regional Court on 21 September 2021.
“Earlier this year, we noted that Minister Dlamini had finally complied with the Constitutional Court’s order to pay the legal costs she owed to our organisations,” says Ariella Scher, attorney at CALS. “The decision to prosecute her for perjury sends the message once again that everyone is equal before the law and even those occupying some of our highest offices must be held accountable for their actions.”
“This is a significant moment for holding public officials personally accountable for the execution of their duties and to protect the integrity of the social security system,” says Rachel Bukasa, executive director at the Black Sash Trust. “The Black Sash remains committed to its goal to ensure that the right to social security is fully realised. While are pleased that the COVID-19 Social Relief of Distress Grant has been reinstated with the eligibility criteria expanded to include unemployed caregivers, we will continue to advocate for permanent social assistance for the unemployed while a universal basic income remains the ultimate aim.”
Complaint on Parliamentary interference in the Commission for Gender Equality
- Lee-Anne Bruce
CALS has filed a complaint with the Speaker of the National Assembly on behalf of a commissioner at the Commission for Gender Equality
[UPDATE: On 29 September, CALS received confirmation that the complaint had been referred to the House Chairperson for investigation]
The Centre for Applied Legal Studies (CALS) represents Mx Busisiwe Deyi, a part-time commissioner at the Commission for Gender Equality. On 25 August 2021, CALS submitted a complaint on Mx Deyi’s behalf to the Speaker of the National Assembly against the Portfolio Committee on Women, Youth and Persons with Disabilities. The complaint relates to the Portfolio Committee’s interference with the independence and/or independent functioning of the Commission for Gender Equality.
The Commission for Gender Equality is a Chapter Nine Institution established by the Constitution as an independent body to promote gender equality and to monitor, investigate and report on issues concerning gender equality. While Chapter Nine Institutions are required to report on their activities to Parliament, no organ of state is permitted to interfere with the functions of these Institutions and must instead ensure they remain impartial and perform their constitutional duties without fear, favour or prejudice.
The complaint instead outlines a number of instances where the Portfolio Committee has interfered with the functions of the Commission, including in the appointment of staff and in the Commission’s processes for handling complaints and reports. Over the last year, the Portfolio Committee has, for example, instructed the Commission not to appoint provincial and senior managers until the Portfolio Committee had approved the process, demanded the Commission review decisions on whether to investigate individual complaints and even warned the Commission against releasing a report it had not yet finalised.
Our client has become concerned that the hiring and complaints processes of the Commission have become subject to the control, review and approval of the Portfolio Committee, and in particular its Chairperson. This is a significant overreach of their mandate and threatens the Commission’s independence. Interference in the administrative duties of the Commission is not only concerning, but unconstitutional. The complaint submitted by CALS on behalf of Mx Deyi therefore calls on the Speaker of the National Assembly intervene and introduce policies that regulate the relationship between the Commission and the Portfolio Committee.
“It is significant that this complaint is being made during Women’s Month,” says Thandeka Kathi, attorney at CALS. “We need functioning systems for dealing with issues like gender-based violence and other markers of gender inequality. We know that the processes in place often fail the very people they are meant to protect, so we need to have somewhere to turn when this system lets us down. It is essential that the Commission for Gender Equality remains independent and can perform its function and promote structural change without fear or favour.”
Started in 2011, the Public Interest Law Gathering (PILG) is an annual convening of people and organisations who use law as a tool to advance social justice in South Africa. It provides a platform for public interest law practitioners, community activists, law students, academics and donors to a) reflect on their strategies; b) learn from each other; c) strengthen networks and solidarity; d) renew energy levels; and e) showcase the richness of public interest legal work to law students who may be considering a career in this field.
The theme for PILG 2021 is "Reflections on defending and advancing social justice during the COVID-19 pandemic in South Africa".
If you would like to host a panel at PILG, please send a one page concept note to info@publicinterestlawgathering.com by Wednesday, 1 September 2021. Your concept note should include a 1-2 paragraph description of the panel and list the facilitator and proposed panellists.
Follow #PILG2021 for more. Information on registration for the event will follow shortly.
Supporting women in mining communities facing gender-based violence
- Lee-Anne Bruce
CALS is partnering with Women Affected by Mining United in Action to host a series of workshops around the country on gender-based violence
The Gender Justice programme at CALS is proud to partner with Women Affected by Mining United in Action (WAMUA) on a series of 26 workshops taking place around the country this year. The purpose of the workshops is to provide members of WAMUA with the information they need to support women in mining-affected communities who are impacted by gender-based violence. Members of our team have developed training materials on three important areas in which we work: domestic violence, obstetric violence and reporting sexual offences.
The project was successfully piloted online with members of WAMUA's Sekhukhune branch earlier this year. The first in-person set of workshops took place during Women's Month from 17 – 20 August in Klerksdorp. More face-to-face workshops have followed in Kraalhoek and Springbokpan and this week in Emalahleni. We have been encouraged by the level of engagement with the material so far, and we look forward to continuing these important discussions with the WAMUA community in the weeks and months to come.
A huge thank you to the MACUA-WAMUA Advice Office for inviting us to join them and for documenting the workshops. Take a look at some of the photos and videos collected below.
This week CALS and MWAO are in Klerksdorp. Today marks the first of over 26 GBV trainings that WAMUA is undertaking across the country to ensure that activists understand the law and are able to support women in mining affected communities @CALS_ZA@WoMin_Africa@Womensrightsan1pic.twitter.com/2PdvZGvBU0
— Mining Affected Communities United in Action (@macua_sa) August 17, 2021
— Mining Affected Communities United in Action (@macua_sa) August 17, 2021
Day 2 of WAMUA GBV Training: Domestic Violence Today's session will be facilitated by Sheena and Zanele from @CALS_ZA. Today's session explores the types of and risk factors of domestic violence and abuse, the physical and psychological effects. @WoMin_Africa@GlobalFundWomenpic.twitter.com/0gn7DNdkeQ
— Mining Affected Communities United in Action (@macua_sa) August 18, 2021
— Mining Affected Communities United in Action (@macua_sa) August 20, 2021
#HimOrMe: Trial continues for mother of two accused of killing abuser
- Lee-Anne Bruce
CALS recently appeared in the Palm Ridge Magistrates Court defending a woman accused of killing her abusive partner during an incident of domestic violence
Over the last two weeks, CALS has appeared in the Palm Ridge Magistrates Court representing a woman answering charges related to the death of her abusive partner. On 23 August, after awaiting trial in custody for over two years following a number of unfortunate delays, trial finally commenced. Our client pleaded not guilty to a charge of murder or alternatively culpable homicide and the state called its first two witnesses, a police officer and a pathologist.
Arguing our case in court are advocates James Grant and Nthabiseng Sepanya-Mogale. During cross-examination of the state's first witness, advocate Grant was able to uncover inconsistencies between his written and oral evidence around when he read our client her rights. His evidence was subsequently ruled inadmissible by the presiding magistrate. After the pathologist's testimony, the matter was postponed to 30 August when the state called its final witness, a neighbour who was also able to testify to a history of abuse.
From 30 August to 1 September, the defence commenced. The first witness called was a family member of our client who was able to testify in detail about her abusive relationship with the deceased. He related to the court a number of incidents including one in which he went to assist our client when the deceased locked her in a room and beat her so severely she suffered a miscarriage. We then called our client to the stand and she commenced her evidence-in-chief, providing a comprehensive account over the next two days of her relationship with the deceased, his pattern of abuse and his death during another incident of domestic violence in which he again locked her in a room and sexually assaulted her.
The matter was then postponed to 6 October for our client's cross-examination. The final witness we intend to call thereafter is an expert on psychological aspects of trauma and domestic violence. We strongly believe that our courts need to take this phenomenon into account, to engage with how patterns of abuse may influence a person's response to threats.
Since the adoption of the Convention on the Rights of Persons with Disabilities and the interpretive General Comment 1, the topic of legal capacity in mental health settings has generated considerable debate in disciplines ranging from law and psychiatry to public health and public policy. With over 180 countries having ratified the Convention, the shifts required in law and clinical practice need to be informed by interdisciplinary and contextually relevant research as well as the views of stakeholders.With an equal emphasis on the Global North and Global South, this volume offers a comprehensive, interdisciplinary analysis of legal capacity in the realm of mental health.Integrating rigorous academic research with perspectives from people with psychosocial disabilities and their caregivers, the authors provide a holistic overview of pertinent issues and suggest avenues for reform.
Features contributors from twenty-one countries, providing an international perspective
Includes lived-experience accounts about legal capacity, supported decision-making, and involuntary mental health treatment
Offers insights into law reform, clinical protocols and practices, and areas for advocacy.
Faraaz Mahomed, Michael Ashley Stein, Vikram Patel, Charlene Sunkel, Alicia Ely Yamin, Benjamin A. Barsky, Julie Hannah, Dainius Pūras, Tina Minkowitz, Gerald L. Neuman, Laura Davidson, John Dawson, George Szmukler, Mrinalini Ravi, Barbara Regeer, Archana Padmakar, Vandana Gopikumar, Joske Bunders, Alberto Vásquez Encalada, Faisal Bhabha, Soumitra Pathare, Arjun Kapoor, Adrian D. Ward, Heléne Combrinck, Enoch Chilemba, Elizabeth Kamundia, Ilze Grobbelaar-du Plessis, Bhargavi V. Davar, Kavita Pillai, Kimberly LaCroix, Ulrika Järkestig Berggren, Michelle Funk, Natalie Drew Bold, Joana Ansong, Daniel Chisholm, Melita Murko, Joyce Nato, Sally-ann Ohene, Jasmine Vergara, Edwina Zoghbi, Joel D. Corcoran, Cindy Hamersma, Steven Manning, Piers Gooding, Christopher Schnieders, Elyn R. Saks, Jonathan Martinis, Peter Blanck, Stephanie L. Smith, Andrew Turtle, Sylvio A Gravel, Iregi Mwenja, Marie Angele Abanga, Lydia X. Z. Brown, Shain M. Neumeier, Dorrit Cato Christensen, Aikaterini Nomidou, Kanna Sugiura, Sally Souraya, Sisay Abyaneh, Charlotte Hanlon, Laura Asher.
CALS Quarterly Issue 14
- Lee-Anne Bruce
Read the latest issue of our quarterly newsletter and find out about our work trying to promote equality and social change
Not long ago, our country was going through a time of unrest made up of different elements and complex causes. What was clearto us at the time was that whatever motivated this unrest initially, it could never have gathered such momentum without the high rates of impoverishment and inequality we know are still experienced keenly in South Africa. This must remain at the forefront of our work, not only responding to the immediate needs, but ensuring long-term social change.
Wewelcomedthe recent announcement that special COVID-19 relief of distress grants would not only be reinstated but extended to caregivers in an effort to alleviate food insecurity. Yet, we know that the grant system in place needs to be improved and the small amount alone is not nearly enough to bring an end to widespread poverty. We continue to advocate, along with our many civil society partners, for universal basic income support to be introduced and forcorruptionand the looting of state resources to be addressed.
In the last month, we have been encouraged by thedecisionto prosecute former Minister Bathabile Dlamini for perjury, following her testimony at an inquiry established by the Constitutional Court into her role in the social grants crisis several years ago. Though it has taken some time to get to this point, we believe this sends a message that everyone is equal before the law and even those occupying some of our highest offices must be held accountable for their actions.
Women's Month has once again also seen our teams working on a number of projects promoting gender equality – from ensuring the independence of the Commission for Gender Equality, to representing victims and survivors of abuse in court, to conducting workshops in rural areas around the country aimed at supporting women experiencing gender-based violence in mining-affected communities. Click the image below to read more about these and other recent projects.
Register for this year's Public Interest Law Gathering
- Lee-Anne bruce
Registration is open for the virtual Public Interest Law Gathering taking place on 13 and 14 October 2021
Register here for Day 1 and Day 2 of this year's Public Interest Law Gathering (PILG). The theme for PILG 2021 is "Reflections on defending and advancing social justice during the COVID-19 pandemic in South Africa". Participation is free and, budget permitting, data will be supplied for those who require it to participate.
Started in 2011, the Public Interest Law Gathering (PILG) is an annual convening of people and organisations who use law as a tool to advance social justice in South Africa. It provides a platform for public interest law practitioners, community activists, law students, academics and donors to a) reflect on their strategies; b) learn from each other; c) strengthen networks and solidarity; d) renew energy levels; and e) showcase the richness of public interest legal work to law students who may be considering a career in this field.
Regional consultation on third draft treaty on business and human rights
- Lee-Anne Bruce
CALS and our partners invite you to join a virtual consultation on the latest draft of the legally binding instrument on business and human rights on 12 October
African civil society, trade unions, affected communities and other stakeholders are invited to a consultative discussion on the third revised draft on the UN binding treaty on business and human rights. This discussion will reflect on issues such as access to remedy, prevention of corporate abuse, rights of victims, implementation mechanisms as well as gender perspectives.
CALS in partnership with the African Coalition for Corporate Accountability (ACCA), the Centre for Human Rights (CHR), the Association for Women’s Rights in Development (AWID), the Alternative Information and Development Centre (AIDC), Lawyers for Human Rights (LHR), the Sierra Leone Network on the Right to Food (SiLNoRF) and Justiça Ambiental (JA) is pleased to extend this invitation to your organisation for participation at a virtual regional CSO consultation on the third revised draft of the legally bindin instrument on business and human rights.
SACTJ calls for a national conference to develop a reparations policy
- Lee-Anne Bruce
The South African Coalition for Transitional Justice calls for a reparations policy for those who have experienced gross human rights violations
As the South African Coalition for Transitional Justice, we note with deep concern the press reports dated 1 October 2021 that the Department of Justice’s plans to change regulations covering educational benefits provided as reparation for people who suffered gross human rights violations during apartheid, without consultation with victims and survivor groups as well as other stakeholders.
The SACTJ is well aware that existing regulations cause difficulties, delays and denial of access to educational benefits for many people who qualify for reparation for apartheid crimes. For two decades since the closure of the TRC, civil society organisations and stakeholders have decried the inadequacies and broken promises of post-TRC reparations and redress. These problems cannot be resolved by tinkering with individual clauses: we need to rectify the systemic faults that underpin the unfinished business of the TRC today.
Nearly a year ago in December 2020, the SACTJ called upon government to hold an urgent national conference of civil society organisations and stakeholders that would be tasked with formulating government policy to ensure provision of redress, reparation and justice for apartheid violations. (See Appendix A: Letter to President Ramaphosa and Minister Lamola re: problems experienced with the current education assistance regulations.) This policy would provide a framework to address all outstanding issues, including those affecting education benefits, the lack of regulations covering medical benefits, the draft ‘community rehabilitation’ regulations that civil society organisations have repeatedly rejected, and the exclusion of so many people from accessing benefits through the so-called “closed list” -- the current regulations deny reparation and benefits to anyone who is not certified as a victim by the TRC).
The SACTJ’s letter of December 2020 points out that existing regulations, TRC-related benefits are open to legal challenge for failing to comply with basic provisions of the South African constitution, the Provision of National Unity Act of 1996, and the Promotion of Administrative Justice Act (PAJA). This is in clear violation of the country’s international and domestic obligations including those spelled out under the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law.
To date, the Presidency and DOJ have not responded to our request to hold a national conference to develop a reparations policy. This deafening silence echoes the DOJ’s failure to honour its commitment to address demands of SACTJ’s member organisation Khulumani Support Group, when the members held a sleep-in at the Union Buildings in October 2020 demanding long-delayed and denied reparation.
Instead, we learn through the media that the DOJ intends to tinker with existing regulations rather than repairing the whole faulty structure of post-TRC reparation and redress. These latest attempts to “fix” the education benefits follow upon the DOJ’s continuing efforts to pass into law draft regulations for community rehabilitation programmes, using money earmarked for reparations in the President’s Fund. This is a direct rejection of our plea for a national engagement to develop a just and equitable way forward for the unfinished business of the TRC.
The SACTJ calls upon the President and the Minister of Justice, to urgently hold a national conference with civil society organisations and stakeholders to create a mandated national policy covering the long-promised reparation and redress to those who suffered from apartheid human rights violations. As the SACTJ, we offer to partner with government to assist in organising this conference. We call on government to hold this conference before December 16th 2021 -- one year after we proposed it, two decades after government imposed the current flawed system of reparations. As our nation engages in democratic local elections that depend upon trust between government and citizens, we cannot continue promoting regulations without a mandated policy in place – the lack of which is a serious legal transgression and a denial of our hard-won democratic rights.
We request your response by 15 October, 2021.
Endorsed by South African Coalition for Transitional Justice organisational members:
Centre for Applied Legal Studies (CALS)
Centre for the Study of Violence and Reconciliation (CSVR)
Foundation for Human Rights (FHR)
Human Rights Media Centre (HRMC)
Imam Haron Foundation (IHF)
Institute for Healing of Memories (IHOM)
Institute for Justice and Reconciliation (IJR)
Khulumani Support Group (KSG)
Open Secrets (OS)
Southern African Litigation Centre (SALC)
Trauma Centre for Survivors of Violence and Torture Trust (TC)
Violence Prevention Agency (NPC)
Endorsed by the following Individual members:
Yasmin Sooka
Salim Essop
Howard Varney
Kaajal Ramjathan-Keogh
Haroon Gunn-Salie
Christopher Gevers
Steve Kahanovitz
Mary Burton
Neafa Kahn
Please contact the SACTJ at:
Shirley Gunn, SACTJ Chair, on 021 761 3303 or 027 824509276 or at director@hrmc.org.za
Op-ed: Judgment shows how problematic views around consent in rape cases persists
- Sheena Swemmer
Head of the Gender Justice programme, Sheena Swemmer, takes us through legal definitions of rape and consent and their misapplication in a high court judgment
On 8 October 2021, Acting Judge Ngcukaitobi and Judge Gqamana handed down judgment in an appeal against a conviction of rape, in the Eastern Cape High Court. The appeal was successful and the judges found that the previous sentence of 7 years’ incarceration for rape was ‘unduly harsh, ignores interests of society, and induces a sense of shock’.
Unfortunately, the judges seem to be wrong about the interests of society pertaining to the sentence handed down to the accused, as society’s sense of shock seems now to be centred around the judges’ rationale for overturning the Grahamstown Regional Magistrates Court’s decision. Civil society organisations such as the International Commission of Jurists – Africa quickly tweeted that ‘ICJ Africa is appalled to see Acting Judge Ngcukaitobi has ruled in favour of the appellant in Coko v S, where appellant argued that the foreplay he had with his ex-girlfriend indicated she had tacitly consented to sex’. Lawyers for Human Rights similarly replied: ‘We are disappointed in this judgment’ and ‘consent to one sexual act can never imply consent to all sexual acts’.
The case dealt with a young woman who reported her former partner ignored her explicit wishes not to engage in penetrative sexual intercourse and raped her. The accused admitted in evidence before the court that ‘sexual intercourse was not part of the plans for the evening’ and that the woman has previously discussed with him that she did not feel ready for intercourse. Yet, he admitted to the court that due to the ‘foreplay and the body language of the Complainant’, he believed that ‘she was a willing participant’.
The judges set out the various times the victim both tacitly and actively said no, such as when the accused took off her pants and she said ‘no, I don’t want to have sex with you’ and when he penetrated her and she said that she was crying and trying to push him off of her. Yet ‘[h]e wouldn’t stop and he just carried on shoving it in and out and kept saying sorry in my ear’.
Despite the evidence that the victim did not consent to intercourse with the accused and consistently objected to his advances, the judges instead find that during the alleged rape ‘the Complainant was an equally active participant, she was not merely passive’ and based this inference on the fact that the victim ‘kissed the Appellant back’ and had no objection to him taking off her clothes. The judges make another assertion that there was no rape as ‘no threats or force were used to coerce the Complainant’.
Two issues emerge from this problematic judgment. They both centre around South Africa’s prevalence of a rape culture and thus rape stereotypes. The first is that a woman must be threatened or forced in order for a rape to be considered as ‘legitimate’. This is explicitly absent from our laws on sexual offences, the Criminal Law (Sexual Offences and Related Matters) Act. Here, the definition of rape does not require any type of force or threat and instead requires intention on the part of the accused and a lack of consent from the victim. Threats and force can and often are absent from many rape cases. Even the Act acknowledges this fact and establishes that there may not be consent if there is an ‘abuse of power or authority’; where a sexual act is committed under false pretences; where a person is unconscious; or where a child is under 12 years of age, in an altered state of consciousness or has a mentally disability.
The second issue that emerges from this judgment is the idea that if one consents to one type of sexual encounter, then one consents to everything. This is not part of our law either. The Act establishes instead that there can be a lack of consent where someone agrees to one form of sexual act and then another, which they did not consent to, occurs. There is no basis in our law to support the judges’ arguments that consenting to kissing or having your clothes removed necessarily implies consent to intercourse.
In a society such as South Africa, which is plagued with gender-based violence, it is both alarming and legally dangerous to have a judgment such as this. In light of this judgment and the problematic precedent that it sets – that when one consents to one form of sexual activity this can then be understood as consenting to all forms – we must call upon the National Prosecuting Authority to appeal. Our laws and judgments must not fall prey to the stereotypes around rape and the effects of rape culture if we aim to see a country with decreasing rates of gender-based violence.
Sheena Swemmer is the head of the Gender Justice programme at the Centre for Applied Legal Studies, Wits University
Appeal against protection order silencing survivor of gender-based violence
- Lee-Anne Bruce
CALS hopes to join an appeal against a judgment ordering that a rape survivor should not disclose that her former partner raped her "to anyone in any manner"
The Centre for Applied Legal Studies is applying to intervene as a friend of the court in an appeal before the Western Cape High Court on Friday. The appeal seeks to overturn an order prohibiting a rape survivor from disclosing details about the violence she experienced. We firmly believe that this order has the chilling effect of silencing not only the appellant but all victims and survivors.
On Friday, 22 October 2021, the Western Cape High Court is set to hear an appeal against a judgment from the Cape Town District Magistrates Court. This judgment takes the extraordinary step of granting a final protection order under the Protection from Harassment Act against a rape survivor in favour of her abusive former partner.
The judgment finds that there is a causal link between a survivor sharing in private conversations and on “safe space” groups that her former partner raped her, and him facing harassment over social media. Though she did not use his name publicly, screenshots of her private disclosures have been shared online without her consent. The Court takes this to mean that “no-one can be trusted with your ‘secrets’” and further finds it “strange” that the survivor did not lay a charge of rape with the police. Ultimately, the Court orders that she is prohibited from disclosing “to anyone in any manner” that her former partner raped her.
The survivor, who wishes not to be named at this time, is appealing the judgment with the assistance of the Women’s Legal Centre. She argues that these findings are wrong both in fact and in law. In particular, she contends that such an order is an unreasonable infringement on her rights and effectively prevents her from laying a charge with the police or seeking proper psychosocial support for the trauma she has faced. She also raises serious questions around using a law that is intended to protect survivors of gender-based violence against them. Read the Women's Legal Centre's statement on the matter here.
The Centre for Applied Legal Studies (CALS) is concerned about this abuse of court process and is applying to intervene in the matter as a friend of the court. We hope to assist the High Court by providing some context of the purpose of the Protection from Harassment Act; arguing that it is the government’s duty to encourage victims and survivors to come forward about gender-based violence; and emphasising the importance of “whisper networks” to allow victims and survivors to find a sense of community and support.
“The right to freedom of expression includes the right of women to speak openly about their experiences of gender-based violence,” says Sheena Swemmer from CALS. “The state and the courts have a duty to promote that right, instead of allowing a law designed to protect victims and survivors to be used to silence them.”
The matter is set to be heard in person at 10:00 on 22 October 2021 in the Western Cape High Court.
Civil society statement on Tendele and Mam'Fikile Ntshangase
- Asina Loyiko Working Group
The Asina Loyiko Working Group has written to the Minister of Mineral Resources and Energy and mining executives regarding Tendele mine and Mam'Fikile's death
The undersigned organisations, as concerned members of civil society, are aware of the court case brought by the Mfolozi Community Environmental Justice Organisation (MCEJO), Global Environmental Trust (GET), Mining Affected Communities United in Action (MACUA), the Southern Africa Human Rights Defenders Network (SAHRDN) and ActionAid South Africa in the Pretoria High Court against the decision of the Minister of Mineral Resources and Energy to grant Tendele Coal Mining (Pty) a mining right in Somkhele near Mtubatuba in KwaZulu Natal. We are aware that the court case is underway and that the matter will be heard in court soon.
We have seen the letter sent on 4 October 2021 by Tendele’s Chief Operating Officer on behalf of the Chief Executive Officer to Minister Gwede Mantashe and senior officials in the Department of Mineral Resources and Energy. A copy of the letter was disseminated widely by Tendele via WhatsApp to those in the Somkhele community and more broadly. A copy of the letter was also filed at court as part of the ongoing court case.
In the letter, Tendele pleads with the Minister and the Department for assistance “to safeguard the future of the mine”. In fact, the phrase “We plead for your assistance to safeguard the future of the Mine” is used twice in the letter. In doing so, Tendele appears to request an extra-judicial intervention by the Minister and the Department, regardless of court proceedings underway.
According to the letter, Tendele appears to accuse the applicants in the court case of trying to sabotage the mine’s operations. It alleges that “closing the mine has become a personal goal” for the applicants' attorney. The applicants, however, are exercising their constitutional rights to approach the court and challenge the authorisation of the mine under various legal provisions, as they are entitled to do. Their attorney is their legal representative and acts on the instructions of her clients.
An annexure to the letter also lists the names of office bearers (and in some instances personal details) of the Applicants, amici curiae (friends of the court admitted to intervene in the matter by the High Court), funders of these organisations, and other associated organisations, for reasons that are not disclosed in the letter - but can be inferred.
This matter has a history of intimidation and attacks on environmental rights defenders, including the assassination of Mam'Fikile Ntshangase on 22 October 2020. Mam'Fikile was a vocal critic of the operations and proposed expansions of the Tendele Coal Mine, and was killed at a time when she expressed unwillingness to sign an agreement with the mine to withdraw current court cases in relation to future mining operations. Mam'Fikile's assassination has been reported on globally. To date, no suspects have been arrested in connection with her murder.
With the anniversary of Mam Fikile’s murder approaching on 22 October 2021, we call on Tendele to respect the judicial process, and refrain from any action that will inflame tensions surrounding this matter and increase the risk of further violence.
Thami Nkosi on behalf of the Asina Loyiko Working Group
The Asina Loyiko working group members are the Centre for Applied Legal Studies, the Centre for Environmental Rights, the Benchmarks Foundation, Right to Know, and Southern Africa Resource Watch. See https://asinaloyiko.org.za for more.
Statement by African Civil Society Organisations on Binding Treaty
- Anesu Dera
CALS attorney Anesu Dera today addresses the chair of the United Nations Human Rights Council on the binding treaty on business and human rights
Mr Chairperson, I make the following submissions in relation to the third draft of the Legally Binding Instrument (LBI) on behalf of the Centre for Applied Legal Studies, Lawyers for Human Rights, the African Coalition for Corporate Accountability, the Centre for Human Rights, the South African Institute for Advanced Constitutional, Public, Human Rights and International Law (SAIFAC), and the Uganda Consortium on Corporate Accountability.
We commend the release of the third draft of the LBI and we strongly support the continuation of the existing process and refinement of the existing draft. A binding instrument is indispensable to ensuring accountability and remedies to victims of corporate abuses of fundamental rights. Furthermore, we support an instrument that reflects perspectives of all including the Global South and effectively addresses different experiences across the globe, and makes corporate compliance with human rights norms mandatory, not voluntary. The envisioned Treaty will level the playing field and avoid fragmented approaches to corporate responsibility that allow for abuse.
Although some improvements have been noted, there still remain key areas of languages and text in need of strengthening to ensure that the Treaty achieves its objectives: namely, to effectively address the common global challenges around the prevention of corporate abuses and violations, to address rising cases of corporate capture, and, importantly, to remove obstacles blocking access to remedies for victims of rights violations.
While there are some areas of the draft that require further enhancement and improvement, it is nevertheless important that the existing process continue until the finalization and adoption of the treaty. We reject the need for starting any new process or the need to fundamentally alter the text. We accordingly submit that if a different course is taken, it would have the inevitable effect of eliminating or weakening the progress that has been made so far. In our view, the current text should not be controversial to any state who agreed to the UNGPs – it is simply builds upon them in two areas: in relation to prevention, it renders human rights due diligence mandatory and, in relation to access to remedy, it tries to remove legal obstacles victims face. The Treaty would be part of the ‘smart mix’ of measures the late John Ruggie recognized were necessary to ensure corporate accountability.
Throughout the 7th session, African Civil Society and partners will submit a re-iteration of some of its comments on the second draft as well as novel comments both appraising the current draft and suggesting some areas of its improvement. We will make recommendations relating to various clauses of the third draft of the LBI, including but not limited to the preamble, definition, statement of purpose, scope, rights of victims, prevention and access to remedy.
I thank you
Anesu T. Dera Attorney (Centre for Applied Legal Studies)
Short course on law, policy and practice for mining-affected communities
- Lee-Anne Bruce
CALS is partnering with Lawyers for Human Rights and the Mandela Institute to host our first community capacitation short course online this week
The Environmental Justice programme at CALS is pleased to be presenting a short course entitled “Introduction to law, policy and practice for mining-affected communities” in partnership with Lawyers for Human Rights and the Mandela Institute at the Wits University School of Law. The course will be presented over Zoom from 2 – 8 November 2021 through online workshops, lectures and group activities. This course aims to be the first in a series of short courses that provides a formal academic programme based on the needs of communities affected by mining activities.
Mining-affected communities and their networks have achieved a growing formal recognition as stakeholders in mining through their advocacy and litigation efforts. However, the reality is that decisions about mining still do not reflect the rights and interests of those most affected by mining activities. A key challenge identified by communities is the vast disparity in their access to expertise and resources compared to mining companies, which prevents them from engaging equally in decision-making processes. Communities have therefore called for educational opportunities to develop the skills they need to engage the mining industry and for these qualifications to be recognised by higher education institutions.
We are pleased to offer just such a short course designed for and with mining-affected communities, recognising their prior knowledge, supporting their existing struggles and ensuring participants can convert the certificate to credits for further studies at university.
The focus of this first short course is on the core legal and policy frameworks that are especially pertinent to the environmental and socio-economic justice issues experienced by communities with a particular focus on the Mineral and Petroleum Resources Development Act (MPRDA); the environmental impact assessment regime under the National Environmental Management Act (NEMA); administrative justice under the Promotion of Administrative Justice Act (PAJA); and the Promotion of Access to Information Act (PAIA). This course is practice-oriented and encourages using and testing the processes and remedies the legislation has put in place.
After completing this course, participants will:
Be able to explain the basic elements of the main mining and environmental legislation and policy;
Gain an enhanced ability to read and critically examine law and policy with a view to making written comments and oral inputs during public participation processes;
Gain an enhanced ability to identify which laws and processes apply to particular problems they face in their community and confidence in using the available administrative justice and access to information processes;
Gain an enhanced ability to make convincing legal arguments in communication with mining companies, state entities and other relevant role-players;
Have engaged in a discussion on combining legal and non-legal tactics and strategies for advancing environmental justice struggles in communities.
While skills development is vital, the ultimate end is for South Africa’s mineral wealth to be used to benefit the vast majority and for communities to choose their own development path. This requires building collective capacity to match the vast power and resources of the mining industry. We hope that this short course and those that follow will contribute towards this goal.
Open letter to the Minister of Mineral Resources and Energy
- 350Africa.org
Civil society organisations write to the Minister to denounce his response to the Climate Justice Coalition march, threatening litigation instead of engaging
We as civil society organisations write this open letter to denounce Minister Mantashe and the DMRE’s increasingly unjust, undemocratic, and autocratic practices in defence of a heavily polluting, highly corrupt, and extremely harmful energy and mining agenda.
From the 22nd to the 27th of September, hundreds of people representing dozens of civil society organisations marched to DMRE offices, in every province across the country, under the banner #UprootTheDMRE. We set out a clear list of demands around transforming our archaic and harmful mining and energy sector to ensure a more socially, economically and environmentally just future.[1]
Instead of responding to the demands or engaging in public debate, Minister Mantashe chose to try and repress the secretary of the Climate Justice Coalition - the coalition that organised the march. His lawyers sent a letter, demanding the coalition’s secretary retract an article which lays out many of the reasons why the coalition marched.[2] Mantashe’s lawyers demanded that the secretary take down the article, issue a public apology, and refrain from publishing about Minister Mantashe (or his family members who were also implicated in corruption scandals).
The coalition secretary responded to Mantashe’s lawyers, refusing their demands, and debunking their spurious claims that the article is defamatory, untrue, and not in the public interest.[3] What could be more in the public interest, than fixing our unjust, dysfunctional, and harmful mining and energy regime; or civil society holding a minister and a government department to account? What is against the public interest is Mantashe's legal letter. It effectively threatens a strategic lawsuit against public participation (SLAPP), which is intended to censor, intimidate, and silence critics. Such actions are not reflective of a minister open to democratic discourse or respectful of civil society’s vital role in holding the state accountable.
We stand against this repressive tactic of trying to use the threat of legal suits to quash civil society voices and protect the powerful from scrutiny. It is an example of how the government and corporations are choosing time and time again to try to silence the voices of those who criticize them and hold them to account. Activists who resist harmful and polluting mining and energy projects in South Africa know too well that the price for doing so can often be their lives. Indeed, we remember Fikile Ntshangase, Bazooka Radebe and the many activists who have lost their lives for democratically standing up for a better future for their communities and for all.
Mantashe is not alone in his disregard for civil society and community voices. It is a culture prevalent throughout the department he runs. For example, the DMRE promised to respond within seven days of the nationwide protests during the week of September 22nd. Well over a month later we have heard nothing. This is their repeated pattern: ignoring civil society and community voices and giving no meaningful engagement despite years and years of repeated protest, demonstration and petition.
Mantashe’s media liaison also accused the coalition behind the march of being a “cabal trying to plunge the country into darkness”. Such a statement is a little ironic, given that he speaks on behalf of a department and minister deeply responsible for plunging us repeatedly into loadshedding. Such dismissiveness also reflects disdain for the mining affected communities, civil society and trade union organisations who organised the protests across the country as part of our vital democratic practice of demanding a better future from our government. If anyone operates like a cabal, it is arguably the DMRE who often works behind closed doors with corporations to push forward polluting projects over the resistance of and without the free, prior and informed consent of communities and civil society.
For example, just the week after the #UprootTheDMRE protests, the DMRE hosted a conference in Limpopo, which they only announced to the public the night before. Community and civil society representatives were not invited, whereas corporations and industry were. At that conference, Mantashe and the DMRE invited coal, oil and gas industries to invest in South Africa. In doing so, they once again ignored the voices of communities who are impacted by these polluting projects and who are demanding no more. They also ignored the reality of the climate crisis, which requires that we should not be investing in new fossil fuels, but instead rapidly transitioning to renewable energy.
Ironically, the DMRE had recently declared as “fake news”, a clearly satirical video which parodied the fact that the department was selling out our country to harmful, polluting and corrupt corporations despite the protest of civil society and communities.[4] Yet, the industry exclusive conference seemed to reflect exactly what the video was satirising - a department that prioritises corporate interests over the interest of people and the planet. Seeming not to understand how the right to freedom of speech includes political satire, Mantashe’s media liaison declared the satire a “criminal activity” and threatened the producers with the line that “you’ll ought to know what’s coming your way” [sic].[5]
Despite Minister Mantashe and the DMRE’s undemocratic and increasingly autocratic actions, we as civil society will not back down. We will not be intimidated. We will not be silenced. We will not forsake our vital, democratic responsibility to hold our government and the powerful accountable. Minister Mantashe and the DMRE are failing in their responsibilities to the people of South Africa and it is up to us to hold them to account. They are driving forward a heavily polluting, highly corrupt, and extremely harmful and dysfunctional energy and mining agenda. In the face of this deep injustice, we will continue to call for the DMRE to be transformed to ensure a more socially, economically and environmentally just future.
We reiterate and stand by our demands that:
The leadership and structure of the DMRE must be transformed to fulfil a mandate for an inclusive socially, economically, and ecologically just energy and mining future. Mantashe must step aside to allow new progressive leadership.
A rapid and just transition to a more socially owned, renewable energy powered economy, providing clean, safe, and affordable energy for all, with no worker and community left behind in the transition
No to new polluting, corrupt and expensive coal, oil, and gas projects. We demand One Million Climate Jobs instead. Reject the corrupt, costly and unnecessary powership program, and investigate officials within the department around irregular deals.
Communities must have the right to say no to mining projects, that includes free, prior informed consent, the upholding of social labour plans, and the right to sustainable alternative modes of development.
Minister Mantashe and the DMRE must stop blocking and inhibiting Eskom’s transition to renewables. We need a Green New Eskom driving a just transition to a more socially owned, renewable energy future.
Expert legal opinion on COVID-19 TRIPS Waiver published
- Lee-Anne Bruce
Prof Tshepo Madlingozi has signed an expert legal opinion which finds states have an obligation not to block the proposed COVID-19 TRIPS Waiver
CALS Director and associate professor of the Wits School of Law, Tshepo Madlingozi, is among the prominent academics, lawyers and judges who have signed an expert legal opinion produced by the International Commission of Jurists on the human rights obligations of states not to impede the proposed waiver of intellectual property rights in regard to COVID-19 vaccines and therapies.
The expert opinion was produced by Sanya Samtani and Timothy Fish Hodgson and finds that the states currently impeding the COVID-19 TRIPS Waiver are acting in violation of the rights of everyone to health, life, equality and science as contained in the International Convenants on Economic, Social and Cultural Rights (ICESCR) as well as Civil and Political Rights (ICCPR). Other signatories of the expert opinion include founding CALS Director Prof John Dugard SC; former CALS Directors Prof Jackie Dugard and Prof Bonita Meyersfeld; colleagues from the Wits School of Law Prof Franziska Sucker, Prof Lilian Chenwi, Prof Firoz Cachalia and Prof Marius Pieterse; and many others.
The full text of the expert opinion and a list of signatories can be found here. The expert opinion is still open for signature here. International Commission of Jurists welcomes sign on by experts on human rights, legal experts, intellectual property experts and other eminent jurists around the world. Below is an executive summary of the expert opinion.
Executive Summary
This opinion applies to the full range of diagnostics, medications, vaccines, therapeutics and other relevant health products required for the containment, prevention and mitigation of COVID-19. In short, it sets out States’ international human rights obligations to not impede the negotiations around the COVID-19 TRIPS Waiver, concluding that the many States currently impeding it at the World Trade Organization (WTO) are acting in violation of the rights of everyone to health, life, equality and science.
Rights to Health, Life and Science. Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) guarantees the ‘right of everyone to the enjoyment of the highest attainable standard of physical and mental health’ (right to health) and obliges States Parties to take the steps necessary for ‘the prevention, treatment and control of epidemic, endemic, occupational and other diseases’ and the ‘creation of conditions which would assure to all medical service and medical attention in the event of sickness.’ Article 6 of the International Covenant on Civil and Political Rights (ICCPR) protects the right to life of every human being, requiring States to take measures to ensure health care essential to life without delay.2The COVID-19 pandemic, which threatens life and health, engages the obligations of the State Parties to ICESCR and/or ICCPR.3The rapid development of effective COVID-19 vaccines also engages the right to ‘enjoy the benefits of scientific progress and its applications’, ‘the right to science’ in Article 15 of the ICESCR. Moreover, ‘provid[ing] immunisation’ against ‘major infectious diseases’, such as COVID-194 is a minimum core obligation of ‘immediate effect’.5
Regulation of Businesses. The range of measures necessary to meet States’ minimum core obligations and realise the rights to life and health include effective regulatory measures to ensure that private actors, such as pharmaceutical companies, comply with their own responsibilities to respect human rights including the right to health.6The UN Committee on Economic, Social and Cultural Rights (CESCR) has stressed that companies should ‘refrain from invoking intellectual property rights in a manner that is inconsistent with the right of every person to access a safe and effective vaccine against COVID-19’.7CESCR has explained that ‘ultimately, intellectual property is a social product and has a social function and consequently, States parties have a duty to prevent unreasonably high costs for access to essential medicines […] from undermining the rights of large segments of the population to health’.8
Non-discrimination. Obligations in terms of all human rights must be performed without discrimination on any prohibited grounds. States Parties are required to take proactive steps to ensure substantive equality for marginalised groups and individuals,9and to prohibit discrimination on the basis of one or more grounds of discrimination.10The CESCR has reiterated in the context of the COVID-19 pandemic that States parties must prioritise the fulfilment of human rights obligations relating to marginalised groups and individuals as they are disproportionately affected.11
International Cooperation. State Parties to ICESCR have undertaken to realise the rights under it ‘through international assistance and co-operation, especially economic and technical’.12 At the very least, States must ‘facilitate access to essential health facilities, goods and services in other countries wherever possible and provide the necessary aid when required’,13 and seek to ‘influence […] third parties by way of legal or political means’ to ensure the full realisation of the right to health across the world,14 ‘including by using their voting rights as members of different international institutions and organisations’ and if necessary through the ‘development of further legal instruments’.15 There is a ‘special responsibility’16on high-income States to cooperate internationally by working with low and middle- income States to achieve the prevention, control and treatment of epidemic diseases such as COVID-19.
Human Rights Obligations of WTO Member States. Over 85% of the Member States to the WTO are also States Parties to ICESCR and ICCPR. Thus, States’ obligations to realise the rights to life and health in the face of a global pandemic without discrimination and through international cooperation must influence their conduct at the WTO. Membership of the WTO necessitates accession to, amongst others, the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS). CESCR has highlighted that ‘the current restrictions imposed by the intellectual property rules in the TRIPS Agreement make it very difficult to achieve the international cooperation needed for the massive scale up’17required to ensure universal access to diagnostics, medications, vaccines, therapeutics and other relevant health products to prevent, treat and control COVID-19.
The TRIPS Waiver and Human Rights. Over 100 of the member states to the WTO have publicly supported the proposal by India and South Africa that there should be a waiver of sections 1, 4, 5 and 7 of Parts II and III of the TRIPS Agreement, at the TRIPS Council.18 The TRIPS Waiver would ensure that companies and other holders of intellectual property in respect of the full range of diagnostics, medications, vaccines, therapeutics and other relevant health products required for the containment, prevention and mitigation of COVID-19 do not prevent the realisation of the rights to health, life, equality, and science for all. The Marrakesh Agreement Establishing the WTO (WTO Agreement)explicitly contemplates the possibility of such time-limited waivers.19Member States of the WTO have in fact previously employed a waiver to tackle a global disease: the Doha Declaration, adopted to respond to the HIV/AIDS epidemic in Southern Africa in 2001, also involved international consensus to waive a part of the TRIPS Agreement.20
Conclusion: States must desist from obstructing the COVID-19 TRIPS waiver. The proposed TRIPS waiver should be understood as an effort by the States proposing and supporting it to comply with their human rights obligations in terms of the rights to health, equality, science and life by initiating necessary coordination and solidarity in line with their obligations relating to international assistance and cooperation. Conversely, those States actively opposing or otherwise blocking or inhibiting international consensus at the WTO in respect of the waiver must be understood as contravening their obligations to respect and fulfil the same human rights.21Further, by failing to take measures to effectively regulate private actors in health operating on a multinational level where their operations compromise access to COVID-19 diagnostics, medications, vaccines, therapeutics and other relevant health products, States contravene their obligations to protect human rights.22
3 This position has been confirmed by the UN Human Rights Committee: UN HRC, Statement on derogations from the Covenant in connection with the COVID-19 pandemic, CCPR/C/128/2 (24 April 2020), available here: https://www.ohchr.org/Documents/HRBodies/CCPR/COVIDstatementEN.pdf.
4 See CESCR, General Comment No. 14: The Right to the Highest Attainable Standard of Health (Art. 12) (E/C. 12/2000/4), 11 August 2000, available here: https://undocs.org/E/C.12/2020/1 [44(b)].
5 The only justification available to States for not fulfilling their minimum core obligations is to demonstrate that ‘every effort has been made to use all resources that are at its disposition, in an effort to satisfy, as a matter of priority, those minimum obligations’ according to General Comment 3, (E/1991/23), 1990, available here: https://www.refworld.org/pdfid/4538838e10.pdf [10].
6 ibid [5] read with UN Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework, available here: https://www.ohchr.org/documents/publications/guidingprinciplesbusinesshr_en.pdf Principle 3: ‘3. In meeting their duty to protect, States should: (a) Enforce laws that are aimed at, or have the effect of, requiring business enterprises to respect human rights’.
7 UN CESCR Committee, Statement on universal affordable vaccination against coronavirus disease (COVID-19), international cooperation and intellectual property (21 April 2021) E/C.12/2021/1 available at: https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=E/C.12/20 21/1&Lang=en, [8]-[9].
9 CESCR, General comment No. 20: Non-discrimination in economic, social and cultural rights (art. 2, para. 2, of the International Covenant on Economic, Social and Cultural Rights), 2 July 2009, E/C.12/GC/20. [27]-[35]. See also, General Comment 14, available here: https://digitallibrary.un.org/record/659980?ln=en [18]-[19].
10 ibid [17], [27].
11 CESCR, Statement on the coronavirus disease (COVID-19) pandemic and economic, social and cultural rights, E/C.12/2020/1 [12], [14].
12 Art 2, ICESCR.
13 See CESCR General Comment 14 [39].
14 ibid
15 ibid.
16 ibid.
17 CESCR, Statement on universal affordable vaccination against coronavirus disease (COVID-19), international cooperation and intellectual property, E/C.12/2021/1, 23 April 2021, available here: https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=E%2fC.12%2f2021%2f1&Lang=en [11]. Para [13] reads: “All mechanisms, including voluntary licensing, technology pools, use of TRIPS flexibilities and waivers of certain intellectual property provisions or market exclusivities should be explored carefully and utilized” and “thus, the waiver of certain provisions of the TRIPS Agreement is an essential element of these complementary strategies. Besides, failing to approve the temporary waiver of TRIPS Agreement provisions for equitable and affordable access to medical technologies, including COVID-19 vaccines, will also stand in the way of global economic recovery, which is necessary in order to overcome the negative impact of the pandemic on the enjoyment of all economic, social and cultural rights. In that context, the Committee strongly recommends that States support the proposals of this temporary waiver, including by using their voting rights within WTO.”
18 Communication by India and South Africa, ‘Waiver from certain provisions of the TRIPS Agreement for the prevention, containment and treatment of Covid-19’, World Trade Organisation, IP/C/W/669 (2 October 2020), available: https://docs.wto.org/dol2fe/Pages/SS/directdoc.aspx?filename=q:/IP/C/W669R1.pdf&Open=True; Waiver from certain provisions of the TRIPS Agreement for the prevention, containment and treatment of covid-19 - Joint statement of co-sponsors, (18 May 2021) WTO, IP/C/W/677, available: https://docs.wto.org/dol2fe/Pages/SS/directdoc.aspx?filename=q:/IP/C/W677.pdf&Open=True.
21 Most member States opposing the waiver, including the UK, Norway, Switzerland and Germany are State Parties to both ICESCR and ICCPR.
22 CESCR General Comment 14 [50] reads: ‘Violations of the obligation to protect follow from the failure of a State to take all necessary measures to safeguard persons within their jurisdiction from infringements of the right to health by third parties’. Given the nature of multinational corporations their effective regulation requires collective state action in terms of the duty of international cooperation.
Civil society coalition rejects National Treasury scheme to terminate income support for adults
- #PayTheGrants Coalition
Organisations advocating for universal basic income register concern over Treasury's plan for grants in the run-up to the Medium-Term Budget Policy Statement
Civil society organisations campaigning for basic income are becoming increasingly alarmed by the fact that National Treasury seems determined to unilaterally, and secretively, push through a woefully misguided and unfeasible proposal for income support: the so-called family grant. We have become aware of this proposal circulating in government in recent weeks but had largely assumed that it would be rejected because of its exclusionary nature, its deeply patriarchal bias, and quite simply, because it is unimplementable for multiple reasons.
Provision of access to social security and social assistance for those unable to provide for themselves and their families is a Constitutional obligation on the state. Study after study undertaken in the wake of the Covid-19 pandemic, as well as beforehand, has demonstrated the urgent, profound and almost universal need in South Africa for income support, a country of vast inequalities.
But Treasury seems determined to go ahead with this reckless and probably unconstitutional plan in the run-up to the Medium Term Budget Policy Statement (MTBPS). Currently, the overwhelming call by civil society, and supported by the governing party, is that government should extend and improve the Social Relief of Distress (SRD) grant from April 2022, as a basis to introduce a Basic Income Guarantee for the 18-59 age group. Yet to prevent this, Treasury is now proposing to terminate the SRD grant being received by over nine million people and replace it with a ‘family grant’; supposedly modelled on the Brazilian Bolsa Familia, which will only be given to the ‘head’ of a family household. Millions will be excluded, as information suggests that this grant would only be extended to one million households. This will be disastrous and must be decisively rejected.
Is the Brazilian Bolsa Familia experience one to emulate?
Research by Stephen Kidd of Development Pathways shows that, despite the significant role played by this program, it has taken many years, and extensive administrative systems to roll out the grant. While despite these systems, there is an exclusion rate in the Brazilian Bolsa Familia of 44-51% of the poor. In other words, 44-51% of intended beneficiaries are excluded because of difficulty of implementing the targeting of poor households[1].
There is also extensive corruption associated with registration of households.
The proposal is anti-poor and fundamentally flawed
Treasury’s proposal that a grant should be targeted only at household heads, not household members, is anti-poor, as it will radically reduce the number of beneficiaries, at a time when hunger, poverty and unemployment has been worsening.
Further, if implemented, it will have a devastating effect on women and children, and will cause multiple administrative inefficiencies, and room for corruption.
These many flaws include:
- The family grant proposal lessens the poverty reducing impact of households pooling a number of individual grants (a common feature of the SRD grant), as they would now only receive one. - It will deepen dependency of household members on the ‘head of the household’, and worsen gender power imbalances, and Gender-Based Violence (GBV). Even if the grant is awarded to a female head, this deepens tension in the household as individual adults no longer receive the grant. -The proposal does not directly account for household conditions or number of dependents – and will be skewed against women-headed households carrying heavier burdens. It is impossible to determine the number of dependents a household head is responsible for, so the grant is a horribly blunt instrument (unlike the grant to adult individuals). -Because of a range of historical reasons, tied in part to our apartheid past, migrant labour system etc., there is not a single, clear definition of a ‘household’ or ‘family’ in South Africa. In many respects households are fluid and porous in nature. - The family grant would be administratively impossible to implement effectively, confronting challenges of informal dwellings, proof of residence, with no usable database or household registry required for roll-out of such a scheme. Plans to roll out such a registry would take many years - time that we don’t have given the critical nature of the current situation. Our understanding is that the research done for Treasury by SALDRU on the family grant concluded it was not feasible. - Because the proposal will remove the SRD grants of so many people currently receiving it, it is a regression on the constitutional obligation to progressively realise the right to social security for all, and therefore is prima facie unconstitutional.
Meanwhile, the positive economic and social impact of the SRD grant has already been clearly proven, with the research showing this already shared in National Treasury and other social partners.
Government must reject this problematic proposal, and ensure open transparent engagement
Together with our allies, we will:
Formally communicate our total opposition to Treasury’s proposal to the Presidency, and relevant departments
Call on fraternal organisations and concerned individuals to join us in rejecting this plan
We will consult with organisations about the option of mobilising mass protest, if this proposal is taken forward
Seek legal advice on the constitutionality of this proposal, given that it reverses existing grants, and excludes large sections of those needing income support
Call on parties, including the ANC to clarify their position on this, in the run up to the November 1 elections
Intensify our campaign for extension and improvement of the SRD grant and introduction of a Basic Income Guarantee
We demand an end to secretive, closed door policy discussions, driven by technocrats, and selected researchers. There must be opening up of public discussion on policy options, transparency on research being produced for government, and establishment of mechanisms for input by society on pathways to a UBIG.
[1]Kidd, S., and Athias, D. 2020. “Hit and Miss: An Assessment of Targeting Effectiveness in Social Protection,” Development Pathways.
Issued by:
Black Sash Trust
Centre for Applied Legal Studies
Institute for Economic Justice
#PayTheGrants
Studies in Poverty and Inequality Institute
Amandla.mobi
Life without water in Ga-Sekhukhune leads to protest
- Omhle Ntshingila
Five communities in Limpopo who have been fighting for years for an adequate water supply are set to protest at the Union Buildings to petition the President
In 2015, the communities of Elandskraal,Morarela,Mbuzini,Regae(Tsantsabela) and Dichoewung in Ga-Sekhukhune Ephraim Mogale Municipality approached the Centre for Legal Applied Studies (CALS) to represent them in matter against their Municipality. The matter is in concern with the water shortage the community has been experiencing since 2003.
Thefive villages located intheGa-Sekhukhunearea of Limpopohave been experiencing a constantinterruption in water supply. Prior to this, whenthe villages were under theLocalMunicipality of Ephraim Mogale, the communitieshada continuouswater supply. However, when the water rights were handed over to the SekhukhuneDistrictMunicipalityin 2003, the communitiesbegan to experience disruption in their daily water supply.On behalf of the communities,CALSapproached the High Courtfor an order directing theMunicipalityto provide them withasufficient water supply.On21 July 2015,the CourtdirectedtheMunicipality to provide the five villages with water bi-weekly, which would be stored in Jojo tanks surrounding the communities.TheMunicipalitywas also ordered to devise and implement a long-term sustainable plan for the supply of water to the communities, including monthly reportsupdating the Court on the situation.
To date,theMunicipality has failed tocomply with the court order. Thecommunities havebeen left without an adequate sanitation system, placing them in a more vulnerable position,especiallyin the midst oftheCOVID-19 pandemic. Thecommunities have been forcedto collect waterfrom riversnearby, which are shared with wild animals and present a danger to community members.This process has burdened the communities’ livelihoods and deteriorated the quality of life in Ga-Sekhukhune.No-one in South Africa should have to be bear the consequences of an irresponsible, negligent and corrupt system.
The lack of access to water and sanitation infringes on the communities’ basic humanrights. The silence of the current administration to the struggles of these communitiesthroughout Limpopo has been appalling and calls for urgent attention.The five communities have exhausted all avenuesin a bid toholdtheMunicipalityaccountable.It is for this reasonthatthe communities of Ga-Sekhukhune have decided totake actionby exercising their right to protest, to petition President CyrilRamaphosato hold governmentofficialsresponsible for these injustices.
The protest is set to take place at the Union Buildings on Thursday, 18 November 2021, from 10:00.
SACTJ Calls for Reform of National Preventive Mechanism
- South African Transitional Justice Coalition
The South African Transitional Justice Coalition calls for changes to the National Preventive Mechanism in South Africa
Torture and other forms of cruel, inhuman, degrading treatment and punishment were routinely and widely practised during the Apartheid era in South Africa. These human rights abuses are still rife in the country and need to be combated in a variety of ways.
South Africa is obliged to take steps to eradicate torture and these other types of violations, in accordance with our Constitution (especially Section 12 of the Bill of Rights) as well as the country's international obligations. In 2019, South Africa ratified the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT) which requires the establishment of a National Preventive Mechanism (NPM) to monitor all sites of confinement, detention, or incarceration, that deprive people of their liberty in all forms.
The South African Human Rights Commission is at the helm of this oversight work. A draft discussion paper on 'The Role of Civil Society in The Work of The National Preventive Mechanism (NPM)' was circulated by the SAHRC for public input. In response to the discussion paper, the South African Coalition for Transitional Justice (SACTJ) notes several concerns and limitations regarding the creation and functioning of the NPM, and the involvement of civil society in its work. The SACTJ calls for changes to the architecture and working methodology of the NPM in South Africa. These calls are outlined in a Memorandum prepared by Professor Jeremy Sarkin on behalf of the SACTJ.
Some of the specific issues raised include the need for the NPM to be more democratic, the need for more resources for the NPM, and the need for legislative reform to ensure that the process is more democratic, open, transparent, and fit to deal with the matters under its umbrella. The SACTJ also recommends that the NPM process be more inclusive of various stakeholders, including institutions currently playing a role in monitoring and dealing with places affected by the acts of torture and other abuses. It is essential that the NPM draw on existing expertise of organisations, institutions, and civil society actors with experience and knowledge on monitoring places of detention. The SACTJ also raises flags on issues of non-disclosure and liability of people working for the NPM. The Memorandum addresses these issues and makes recommendations to ensure that the NPM is effectively equipped to fulfil its mandate as a mechanism to prevent torture and to combat the culture of impunity for such abuses in places of detention and confinement in South Africa.
The Memorandum has been delivered to the coordinating process of the NPM to raise these concerns regarding the creation of the NPM and its modus operandi. While the SACTJ has received acknowledgement of the Memorandum, we have not heard confirmation that it has been shared with the NPM partners or will be discussed.
The SACTJ calls for the Memorandum to serve at the upcoming meeting of the NPM partners on 7 December 2021. A functioning NPM is fundamental to the work of monitoring places of detention and confinement and for the prevention of the scourge of torture that occurs in in these places. Therefore, it is crucial that the NPM operates properly and effectively to ensure the safety and protection of persons deprived of their liberty. The SACTJ wishes to play a constructive role and stands ready to engage on these issues and the work of the NPM.
The full Memorandum written by Professor Jeremy Sarkin is available for those who wish to obtain it.
Centre for the Study of Violence and Reconciliation
Human Rights Media Centre
Khulumani Support Group
Institute for Healing of Memories
Foundation for Human Rights
Institute for Justice and Reconciliation
Jeremy Sarkin
Thozama Njobe
Salim Essop
Jemma Blacklaw
Helen Scanlon
Con Court to hear argument on pensions and right to social security
- Lee-Anne Bruce
CALS is appearing before the Constitutional Court in a matter that raises important questions about the right to social security and access to courts
[UPDATE: A recording of the hearing can be found on the Constitutional Court's YouTube channel here.]
On 30 November, the Constitutional Court is set to hear an appeal which raises important questions around pension fund membership and the role of the Pension Funds Adjudicator. CALS is intervening in the matter as a friend of the court to represent the public interest and promote the right to social security and access to courts.
In December 2011, Ms Dineo Mongwaketse was appointed as a municipal official for a fixed five year term. She applied for membership of the Municipal Employees Pension Fund and contributions of almost 30% of her salary were made to the Fund monthly on her behalf by the Municipality. When she received a benefit statement in October 2014, however, it reflected only her own contributions. Upon investigating, Ms Mongwaketse was informed that she did not qualify to be a member of the Fund and would not be credited with the contributions made on her behalf.
Ms Mongwaketse was unable to resolve the problem and eventually resorted to stopping her contributions to the Fund and submitting a complaint to the Pension Funds Adjudicator. The Adjudicator upheld her complaint and ordered that her contributions be repaid in full. The Municipal Employees Pension Fund subsequently took the matter on review to the High Court on the basis that the Adjudicator did not have the jurisdiction to determine the complaint. The High Court dismissed the review application and the decision was taken on appeal to the Supreme Court of Appeal (SCA). Ms Mongwaketse was unable to appear before the SCA and a member of the Bar was appointed to act as amicus curiae to make arguments opposing the appeal. Justice Wallis dismissed the appeal.
The matter is now being appealed to the Constitutional Court and once again Ms Mongwaketse will not be able to appear. The main questions for the Court to consider are who has standing to lay a complaint with the Pension Funds Adjudicator and whether the Adjudicator is able to consider complaints from the general public or only from pension fund members. The Centre for Applied Legal Studies (CALS) therefore sought to intervene as a friend of the court to support the SCA’s findings and promote the rights to social security in the context of pension funds.
“Pension funds are recognised as one of the pillars of the South African social security framework, and offer an opportunity for individuals to secure a dignified life without state support,” says Ariella Scher, head of the Business and Human Rights programme at CALS.
“Having a mechanism in place to ensure pension funds are properly administered is critical to promote the right to social security, and particularly to protect the rights of vulnerable pension fund members against the powerful pension funds which administer their money. It is also important for the right of access to courts: everyone has the right to have any dispute decided in a fair public hearing before a court or another independent forum such as the Pension Funds Administrator, which serves as a further layer for the protection of pension fund members.”
CALS is represented by Sandile Khumalo SC, Kameel Magan and Luyanda Mbatha.
The matter is set to be heard online at 10:00 on 30 November 2021 at the Constitutional Court.
Read the latest issue of our quarterly newsletter, find out about our work and reflections from the last year
Just over a month ago, the social justice sector came together for our regular Public Interest Law Gathering. This year’s gathering offered an opportunity to reflect on the COVID-19 pandemic and its impact on our work, with panel discussions on everything from social grants to informal livelihoods, vaccine mandates and collapsing state institutions. A full set of presentations and recordings is available on thePILG website.
In delivering her keynote address, Dr Sithembile Mbete reminded us – well over 500 days into the National State of Disaster – that there is unlikely to be “life after COVID-19” and that we will rather have to continue to adapt and respond to lifewiththe disease. Dr Mbete urged us to recognise that we are living and working in a time of great loss, grief and trauma in a country where loss, grief and trauma remain a daily reality for many people – including our client communities.
We are now coming to the end of another difficult year, reflecting on the challenges we have faced and the progress we have made. Recently, this has included supporting communities to protest and responding to their requests for recognised short courses. It has meant joining litigation holding both the public and private sector accountable for their actions. It has seen our teams conducting workshops in mining-affected communities and engaging in advocacy at the United Nations. We remain hopeful that every seed we plant will contribute to a more just society in the future.
Click the image below to read more about these and other recent highlights. Thank you as always for sharing in these with us and for all your support during this challenging year. We wish you a very happy and healthy end to 2021.
Op-ed: Same, same but different: reflections on binding treaty negotiations
- Anesu Dera
An attorney in the Business and Human Rights programme at CALS reflects on the treaty negotiation process at the United Nations in Geneva this year
A few months ago, I had the pleasure of attending (deep breath) the 7th session of the open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights. I was part of a delegation of non-governmental organisations there to discuss the 3rd draft of the proposed treaty on business and human rights at the United Nations in Geneva.
This working group was established by the Human Rights Council to formulate a treaty to regulate businesses and their impact on human rights, so you can imagine what a surreal moment it was for me (a young African) to be there. It was time for me to be the change I want to see in the world and stand up for humanity, but, of course, if history has taught me anything, it is that nothing is ever the way you imagine it. Although most of us can agree that there is a regulatory gap that allows corporations to escape liability for human rights violations, how exactly to fix this is going to take a lot of time and patience.
The session was held from the 25th to the 29th of October 2021 and, during these five days, I had the privilege of presenting the views of African civil society organisations on the treaty. I also experienced first-hand how the negotiations of the text of a treaty take place, and it has left me wondering how we have so many treaties in the world.
The same disagreements that featured in previous sessions and discussions on the treaty appeared. These include the use of and distinction between terms like “responsibilities” and “obligations” in relation to business activity. Whilst the duties of states are framed as “obligations”, previous drafts have framed the duties of corporations as “responsibilities”. This difference in language is a point of contestation as the former has a stronger connotation than the latter, yet the treaty is meant to regulate business activity. The argument is that corporations must have human rights obligations grounded in the provisions of the treaty as the term “responsibility” seems more like a social expectation that is merely recommendatory as opposed to mandatory.
Countries like China, Mexico, Brazil, Chile and Panama seem to support the weaker term, which is concerning because China and Brazil are part of the BRICS coalition whose focus is to reform and improve the global economic situation which human rights are arguably an integral part of. Further, the mere fact that this issue is still being debated is a great cause for concern because therein lies the whole point of the treaty: to create a strong regulatory system for the interactions between human rights and business activity. Whilst states like Palestine and Cameroon seem to understand this as they lobbied and emphasised the primacy of human rights, it is going to be a while before the final version of the treaty is drafted.
The lack of consensus also flowed to other provisions of the treaty, from the earliest provisions defining key terms, right through to the access to remedy provisions. Suggestions made by countries like Brazil such as introducing the doctrine of exhaustion under the access to remedies provision and the narrowing of the definitions of terms like "victim" and "human rights abuse" arguably impact the effectiveness of the treaty as they ultimately restrict the application of the treaty. The doctrine of exhaustion would hinder access to justice, especially in the African context where courts are already struggling.
A notable difference, however, is that the United States of America (home to some of the world’s biggest corporations responsible for human rights violations and abuse) was finally in attendance at negotiations. Unfortunately, its presence sought to unravel seven years of work that has been done as it proposed “alternative ways” to regulate the relationship between business and human rights. Such an attitude, after years of silence, undermines the work and achievements of the working group, states, civil society, and all the individuals who have contributed to the drafting of the treaty thus far. It may have far-reaching implications on the attitudes of others given its global position and influence.
Although the presence of the U.S. at the session is a welcome development in some ways, I had rather hoped to see more of a united front from the Global South and an amplified voice from the African continent especially, as these countries are largely the ones affected by business activities given the extractive nature of their economies. This was, however, not the case: not only did the African states not have a unified voice, but very few were even present to begin with.
Instead, Egypt seemed to downplay the power of corporations, choosing words like “potential’ instead of “capacity” when referring to the ability of corporations to foster sustainable development while other African countries such as Cameroon called for states to acknowledge the “growing economic might of transnational corporations” and their impact on human rights. Out of 54 African countries, only 12 were present and this is rather disappointing because their input is a necessity. However, their absence may be justifiable given that the session was held in one of the most expensive cities in the world and most African states do not have the resources required to be present at such sessions. One could even argue that it is exclusionary and ironic that the session was held in Switzerland and not in a state in the Global South, which would be more representative of the victims of human rights violations and abuse.
Having said all this, it would be unfair to dismiss the progress that the 7th session represents. Whilst the event may not be how I imagined it would be, the fact that a third draft on a business and human rights treaty exists to discuss, and that countries showed up during a pandemic to discuss it, is a commendable step in the right direction.
Anesu Dera is an attorney in the Business & Human Rights programme at the Centre for Applied Legal Studies, Wits University
Op-ed: Appeal shows misuse of courts to enforce culture of silence
- Sheena Swemmer
Head of the Gender Justice programme at CALS explains how legislation and courts intended to protect victims and survivors are used to silence them
On 22 October 2021 the Centre for Applied Legal Studies (CALS) hopes to intervene as a friend of the court in an appeal case brought by Women's Legal Centre on behalf of a rape survivor. The appeal deals with a judgment from the Cape Town Magistrate's Court which prohibits the survivor from 'disclosing to anyone in any manner that the Respondent had allegedly raped' her.
The appeal emerges from an incident in 2019 where the survivor disclosed her rape in a 'safe space group' which was then subsequently leaked by a third party to social media. The survivor maintained throughout the Magistrate's Court hearing that she did not reveal the identity of her rapist on these online platforms and instead this was the action of a third party, without her consent.
The misuse of laws to silence survivors of gender-based violence has become more prevalent since the emergence of the global #MeToo movement. South Africa saw its very own feminist hashtag movements in 2018/2019 with the hashtags #TotalShutdown and the #AmINext?. These feminist movements pressurised the South African government to publish the National Gender-Based Violence and Femicide Strategic Plan, which saw its inception in 2020.
Spike in misuse of laws
Similarly to many other countries such as the United States, France, Russia and the Netherlands, South Africa has seen a spike in the misuse of laws around defamation claims by perpetrators of gender-based violence. For example, Sandra Muller, one of the leaders of the French #MeToo (#balancetonporc) movement, recently successfully appealed a defamation case launched against her by a man that had sexually harassed her. The appeal court overturned the previous court's decision and stated that Muller acted in 'good faith' and in the 'public interest' by disclosing the perpetrator's identity.
Recently, in Booysen v Major's case, the Cape Town High Court dismissed an urgent application by a man who sought an interdict against a survivor for disclosing on social media that he raped her. In Justice Baartman's judgment, she acknowledges that 'it would be preposterous to give the alleged abuser editorial rights over the victim's narrative'.
The appeal that will be heard in the Cape Town High Court only differs in the choice of legal procedure (a protection order rather than a defamation claim), yet the modus operandi of attempting to silence a victim of gender-based violence arguably remains the same.
The question that emerges from the above case and the various hashtag movements around gender-based violence and disclosure in South Africa, is why victims and survivors of gender-based violence choose various 'unofficial' platforms as spaces to disclose their experiences and the perpetrator's name rather than approaching the police.
Unfortunately, the South African criminal justice system largely does not serve the interests of survivors of gender-based violence. This can be seen from a South African Medical Research Council study in 2017, which found that of the rape cases reported to police each year, only 8,6% result in a successful prosecution.
Distrust in criminal justice system
Due to factors including the low conviction rate, avoiding the trauma associated with reporting to the police, and the perceived stigma associated with being a victim of gender-based violence, many individuals choose not to report cases. The figures around opting not to report gender-based violence are staggering. A 2010 study by GenderLinks found that only 1 in 25 women who were raped in Gauteng reported the offence to the police.
With the unlikeliness that a case of gender-based violence will result in a successful conviction it is unsurprising that many individuals simply do not trust the criminal justice system and choose not to take a 'formal' route to finding justice. Instead, many women decide to disclose their experiences in places such as 'whisper networks', which offer safe spaces for disclosure (online and offline).
The movement of some to publicly disclose their experience and the identity of the perpetrator can be partly seen as an act of seeking justice, based on the fact that we have a failing criminal justice system. It also highlights the prevalence of gender-based violence in our society, which occurs largely unabated and with impunity.
Courts dealing with matters related to disclosure around this form of violence should consider these cases within the context around gender-based violence and the inadequacies of the criminal justice system in South Africa, when coming to a decision that may punish the individual survivor for disclosing. If our formal systems do not assist victims of gender-based violence, then prohibiting the use of informal systems of disclosure becomes in and of itself, an act of silencing victims and making justice even more remote.
Sheena Swemmer is head of Gender Justice at the Centre for Applied Legal Studies at Wits University
Op-ed: Obstetric violence – A war waged in the shadows
- Sheena Swemmer
Head of the Gender Justice programme, Sheena Swemmer, explains the importance of acknowledging a particular form of institutional gender-based violence
Obstetric violence is violence that occurs against pregnant or birthing individuals and includes physical, emotional, psychological, and even sexual violence committed by healthcare practitioners, such as doctors, nurses and midwives.
During this year’s iteration of the “16 Days of Activism for No Violence Against Women and Children” campaign, it is important to acknowledge that gender-based violence permeates private and public spaces. In order to have a country that is safe for women and children, both forms of violence must be acknowledged and adequately addressed.
Police Minister Bheki Cele recently announced a 7.1% increase in the number of rape cases reported in South Africa within a three-month period. Disturbingly, child homicide rates had also increased, by 31.7%. President Cyril Ramaphosa decried the rise in criminal offences related to women and children and stated that we “are in the grip of a relentless war being waged on the bodies of women and children that, despite our best efforts, shows no sign of abating”.
What is missing from the crime statistics, the coverage of stories related to gender-based violence during this period, and the president’s description of the “war” waged on women’s bodies, is the acknowledgement of the public and institutionalised forms of violence that occur in our hospitals against some of the most vulnerable individuals in our country, which is violence against women or birthing people, known as “obstetric violence”.
Obstetric violence is violence that occurs against pregnant or birthing individuals and includes physical, emotional, psychological, and even sexual violence committed by healthcare practitioners, such as doctors, nurses and midwives. Obstetric violence is prevalent and pervasive in South Africa, despite its lack of recognition by our legal system and government.
The Medical Research Council, for example, completed a study in 1997 around obstetric violence in Cape Town. Some of their findings included that birthing women were neglected, and suffered verbal or even physical abuse at the hands of nurses when they “failed to comply with instructions”. The authors said nurses would slap women and tell them to “clean up their mess” after they had just given birth.
The abuse and violence perpetrated by healthcare practitioners continues unabated in 2021. In the past year, the Centre for Applied Legal Studies and Women Affected by Mining Communities United in Action have presented various workshops on obstetric violence to communities across South Africa. Women bravely recounted stories of the violence they have endured during the birthing process which has included: nurses using their fingernails to tear open mothers’ vaginas, women being refused pain medication despite numerous requests, being sent to purchase their own medical supplies while in active labour, having procedures performed on them such as sterilisations without their consent, having their personal medical information (such as HIV status) discussed openly within the ward, as well as being admonished by healthcare practitioners for having a child when HIV positive.
With the above examples of the violence women endure daily in our healthcare facilities, it is not dramatic to employ the president’s words to describe the current status quo as that of a war being waged against birthing women in South Africa by our healthcare practitioners.
But what should be done?
First, we need proper acknowledgement that this is a form of gender-based violence that is pervasive within our hospitals. Obstetric violence is already acknowledged as a form of gender-based violence internationally, with the UN Special Rapporteur on violence against women, its causes and consequencespenning a report in 2019which explicitly acknowledged that “mistreatment and violence against women during reproductive health care and facility-based child birth is a serious violation of women’s human rights”.
Furthermore, this type of disrespectful and abusive treatment includes “outright physical abuse, profound humiliation and verbal abuse, coercive and unconsented medical procedures (including sterilisation), lack of confidentiality, failure to get fully informed consent, refusal to give pain medication, gross violations of privacy, refusal of admission to healthcare facilities, neglecting women during childbirth”.
Yet, although there is international recognition of obstetric violence as a form of gender-based violence and thus a form of gender discrimination, South African law is so far silent on the existence of obstetric violence.
South Africa requires proper legislation and policy to be put in place which acknowledges that the egregious acts associated with obstetric violence target a vulnerable group in our society and are discriminatory. Once this is acknowledged, the law can then reflect obstetric violence as an act of gender-based violence rather than what we currently have, which is that obstetric violence is seen as medical malpractice.
The issue with medical malpractice is that it fails to deal adequately with very serious violations of women’s rights that occur during acts of obstetric violence. Medical malpractice cannot, at this point in time, properly respond to some of the consequences of obstetric violence that victims have expressed feeling.
For example, some women have explained feeling that they are no longer women; some are filled with shame and have not told their partners or family members that they cannot have more children; some women’s partners have left them after they could not give birth to further children or after their genitals had been so badly damaged that they can no longer have pleasurable sex or any sex at all; other women explain how demeaning it was to be told by nurses that they are too old to be giving birth, while younger women explain the indignity of having medical personnel lecture them about being too young to be pregnant.
Monetary compensation around violations that cause psychological and emotional trauma as well as gross indignity is insufficient and signifies that these violations are seen as trivial by our legal system. Laws thus need to be able to reflect that harm is understood in such a way as to extend beyond the mere recognition of physical harm and include the devastating personal, psychological, emotional, social and spiritual damage that the violations have caused.
Policy must focus on promoting healthcare in South Africa which is aligned with human rights principles and especially principles that safeguard against the commission of gender-based violence and discrimination. There must be a movement away from the strict paternalism inherent in the healthcare system, to an open and communicative system that reflects a dedication to the principle of the inherent value of the individual patient.
Ultimately, with legislative and policy changes we can begin to reconstruct our healthcare system into one which reflects the values of the Constitution and is dedicated to the provision of care for birthing women.
Op-ed: Universal social security is now a matter of urgency
- Abongile Nkamisa and Ariella Scher
Our Business & Human Rights team explains why government needs to implement a policy for either an income support grant or a basic income grant urgently
The Centre for Applied Legal Studies (CALS) has sent aletterto the government on behalf of The Black Sash Trust, addressing the government’s continued failure to provide comprehensive social security.
This comes In the wake offindingsby the UN Committee on Economic, Social and Cultural Rights (CESCR) that South Africa is making “insufficient progress” in protecting the right of access to social assistance for the country’s poorest and most vulnerable adults, aged between 18 and 59.
Since the advent of the Constitution with its section 27 right to social security, our democratic government has consistently failed to adopt any policy to formalise the recognition and protection of social assistance for this vulnerable cohort.
Our letter describes the extensive policy debates on comprehensive social assistance since the advent of democracy, including the 2002 Report of the Committee of Inquiry into a Comprehensive System of Social Security for South Africa, chaired by Professor Vivienne Taylor, which was mandated by Cabinet to investigate and make recommendations towards an integrated set of policies related to social security.
That report –Transformation of the Present – Protection of the Future– defined “comprehensive social protection” as: “[T]he basic means for all people living in the country to effectively participate and advance in social and economic life, and in turn to contribute to social and economic development.”
Our letter argues that this definition, considered alongside the numerous policy discussions that have emanated from the report and the worsening socio-economic situation over the past two decades, has necessitated the introduction of social assistance for vulnerable people aged 18 to 59, in the form of either an income support grant or a Basic Income Grant (BIG).
Even before the onset of the Covid pandemic and the resultant economic downturn, the CESCR had in 2018mandatedSouth Africa to:
“(b) Raise the levels of non-contributory social assistance benefits to a level that ensures an adequate standard of living for recipients and their families; [and]
(c) Ensure that those between the ages of 18 and 59 with little or no income have access to social assistance,”
for implementation by 31 October 2023.
In early 2020 and in response to the worsening socio-economic situation arising from the pandemic and the various national lockdowns, the state introduced the Social Relief of Distress (SRD) grant of R350. The Covid SRD grant was subsequently extended, most recently from August 2021 until the end of March 2022. This is the first social grant in South Africa’s democratic history which caters to people who do not qualify for any other form of social assistance, being predominantly unemployed individuals between the ages of 18 and 59.
While initiated as a temporary measure, we consider the current iteration of the Covid SRD grant to be a recognition by the state that the beneficiaries of that grant require permanent social assistance urgently to ensure a minimum level of dignified existence.
The anticipated expiry of the Covid-19 SRD grant in March 2022 portends a socio-economic crisis that must be urgently addressed through the introduction of permanent comprehensive social security.
Despite these constitutional, national and international legal obligations, our letter demonstrates that the government has not taken the steps required of it to progressively realise the right to social assistance within its available resources. In fact, no policy currently exists for the formalisation, budgeting and roll-out of either an income support grant or a BIG.
Case in point: the Department of Social Development (DSD) gazetted itsGreen Paper on Comprehensive Social Security and Retirementon 18 August 2021 for public comment, which proposed the introduction of a BIG. However, the government withdrew the Green Paper on 31 August 2021 to “provide better clarity on some of the matters entailed in the paper”, and has not since taken steps to replace that draft policy.
We therefore sit without any clarity on the measures which government intends to take to comply with its legal obligations to ensure a dignified life for all, while the clock ticks ever closer to our March 2022 deadline.
Should government allow the Covid-19 SRD grant to expire without replacing it with an income support grant or BIG, this would constitute a violation of the legal principle of non-retrogression in the delivery of socio-economic rights, as Professor Sandra Liebenberg has so clearlyexplained.
Women disproportionately disadvantaged
The government’s failure here disproportionately disadvantages women. Historically, women’s access to the formal workforce is curtailed, while they continue to work to provide unremunerated care and household labour, which is excluded from the formal labour market but actually forms the backbone of our social structure.
And this all occurs despite the demands for a BIG by civil society having been put to government in different forums for many years, and a worsening economic outlook which has made such calls even louder and more urgent. The government’s continued delay in formalising and adopting a policy for comprehensive social security has, in the era of Covid-19, left us with no option but to articulate our demands in a national, legal manner.
Government therefore needs to do the following:
Urgently adopt a policy on comprehensive social security which establishes an income support grant for the unemployed, alternatively a BIG, and provides for the roll-out of that grant;
Confirms that the state does not intend to proceed with a family/household grant and/or a “job seekers” grant in place of an income support grant, alternatively a BIG to be provided to individuals; and
Confirms that government will not allow the current Covid-19 SRD grant to expire without providing for its immediate replacement with permanent social assistance for 18 to 59-year-olds in the form of an income support grant, alternatively a BIG.
Abongile Nkamisa and Ariella Scher are based in the Business and Human Rights programme at the Centre for Applied Legal Studies, Wits University
Letter on refusal to extend Zimbabwean Exemption Permit
- Lawyers for Human Rights
Civil society organisations write to Minister of Home Affairs about the decision to no longer issue extensions to Zimbabwean Exemption Permit holders
Dear Minister Motsoaledi
RE: DECISION TO NO LONGER ISSUE EXTENSIONS TOZIMBABWEAN EXEMPTION PERMIT (ZEP) HOLDERS
1. We refer to the above, the Ministry of the Presidency’s statement on the Cabinet Meeting of 24 November 2021 made on 25 November 2021, and Immigration Directive 10 of 2021 dated 29 November 2021. A copy of the statement and directive is attached as “A” and “B”.
2. We write on behalf of Zimbabwean Exemption Permit (ZEP) holders currently residing in South Africa whose lives will be thrown into disarray as a result of cabinet’s decision to no longer issue extensions to Zimbabwean ZEP holders almost with immediate effect.
3. The organisations listed below write to you to firstly appeal to you to rescind this decision and directive on purely humanitarian grounds. Zimbabwe remains a country in turmoil and continues to experience serious economic and political challenges and violence. Further, given that this special dispensation covers a time span of over a decade, many Zimbabweans have built their families, lives, and homes in South Africa. Estimates indicate that up to half a million children will be affected by this decision resulting in severe trauma through uprooting their lives in South Africa and exposing them to trauma and suffering in Zimbabwe, undermining the best interests of the child principle enshrined in South Africa’s Constitution.
4. In amplification of the above, thousands of Zimbabwean ZEP holders have positively contributed to South Africa’s economy, communities, and society more broadly. The cabinet’s decision to no longer issue extensions to ZEP holders will not only impact the individual permit holder but South Africa as a whole, at all levels of society, will also experience a great loss should these permit holders be forced to return to Zimbabwe.
5. We further note that the ZEP was implemented by the Department of Home Affairs (DHA) with the aim of creating a record of Zimbabweans who had, until then, been living in South Africa undocumented, granting them amnesty, and regularizing undocumented Zimbabwean nationals living in South Africa. The implementation of the ZEP further alleviated the burden placed on the asylum system.
6. We are concerned that the above decision is counter to the DHA’s initiatives and will likely create a category of undocumented persons in South Africa undermining any work that the Department of Home Affairs has undertaken in the past to regularize undocumented Zimbabwean nationals living in South Africa.
7. Additionally, those ZEP holders who changed over from the asylum system to the immigration system are now at risk of refoulment. We are deeply concerned that the cabinet’s decision will directly result in people facing persecution, harm, and loss of life.
Immigration Directive 10 of 2021 and Ministry of the Presidency: Statement on the Cabinet Meeting of 24 November 2021
8. In terms of the Immigration Directive 10 of 2021, holders of the ZEP “should apply for mainstream visas that they qualify for and ensure that their applications comply with the provisions and requirements of the Immigration Act and Immigration Regulations…” and that “[a]ll applicants with a ZEP must be allowed to travel freely in and out of South Africa until 31 December 2022.”
9. Additionally, applicants are required to submit their passports together with their visa applications. As this process is likely to be lengthy, applicants will be without their passports for long periods of time resulting in them not being able to “travel freely in and out of South Africa until 31 December 2022.” As you may know, many ZEP holders are employed in South Africa and will not be able to return to Zimbabwe to lodge a visa application without compromising their employment given the challenges. Additionally, many children of ZEP holders are enrolled in either primary, secondary, or tertiary school for 2022 and will also need to return to Zimbabwe to apply for a visa in terms of the Immigration Act compromising their education for reasons mentioned above.
10. Further, although applicants who are aware of the option to apply for a waiver through VFS Global offices in South Africa will likely do so, we are concerned about the burden this will place on VFS Global and the Department of Home Affairs. Many of Lawyers for Human Rights’ clients who have applied for visas through VFS Global in South Africa have waited for the outcome of their applications from the Department of Home Affairs for longer than 12 months and in some cases, 2 years. This exceeds the grace period for ZEP holders.
11. Immigration Directive 10 of 2021 further states that “[a]ll companies, employers, learning institutes and banks are too kindly note that applicants who are in possession of a ZEP expiring on 31 December 2021 must be allowed to continue with their services, provided that they submit proof of application for a main stream visa in terms of the Immigration Act and Immigration Regulations. Proof of application must be a VFS receipt.”
12. We submit with concern that a VFS receipt is not a form of valid documentation. Through our organisations’ experiences, migrants are regularly denied services, including healthcare and education, and are arrested due to their irregular documentation status. This includes those who have received appointment slips for 2022 to apply for asylum at a respective Refugee Reception Office and those with VFS Global receipts for pending visa applications or appeals.
13. The Ministry of the Presidency’s statement on the Cabinet Meeting of 24 November 2021 is also silent on this. Clause 6.3 of the Statement holds that “[f]ollowing its deliberations, Cabinet decided to no longer issue extensions [sic] to the Zimbabwean special dispensations. However, it decided on a 12 months grace period at the expiry of the current ZEP.”
14. Clause 6.4 states that “[d]uring this period, the holders of this permit should apply for other permits appropriate to their particular status or situation. At the expiry of this 12-month period, those who are not successful will have to leave South Africa or be deported.”
15. The above statement makes no provision for the legal status of people who will wake up on the 1 January 2022 and have expired permits in their hands. The implication of this is already being felt. Children are being denied the opportunity to register for grade 1 and grade 8, employers are refusing to renew contracts of employment for those working as domestic workers because their permits will be expired, and banks are denying services or closing and/or freezing accounts of individuals affected.
16. Cabinet’s statement and the Department of Home Affairs’ subsequent Immigration Directive, both of which contain sparse and unclear information, has sparked panic and uncertainty for many Zimbabweans living in South Africa.
17. Section 195 of the Constitution underscores the basic values and principles governing public administration. The section provides “Public administration must be governed by the democratic values and principles enshrined in the Constitution, including the following principles:… Public administration must be accountable. Transparency must be fostered by providing the public with timely, accessible and accurate information…”
18. Cabinet in the issuance of this directive fails to provide written reasons as required by section 33 of the Constitution which provides that “Everyone has the right to administrative action that is lawful, reasonable and procedurally fair. Everyone whose rights have been adversely affected by administrative action has the right to be given written reasons”
19. The Promotion of Administrative Justice Act of 2002 (PAJA) gives credence to Section 33 of the Constitution. Section 3(2)(b) in particular provides that, in order to ensure procedural fairness, all persons whose rights are materially and adversely affected by administrative action are entitled to;
adequate notice of the nature and purpose of the proposed administrative action;
a reasonable opportunity to make representations (the audi alteram partem principle);
a clear statement of the administrative action;
adequate notice of any right of review or internal appeal, where applicable; and
adequate notice of the right to request reasons in terms of section 5 of PAJA
20. Whilst the ZEPs were enacted through section 31(2)(b) of the Immigration Act also referred to as the “ministerial discretion”. This discretion is not absolute. The Minister is still accountable under both the Constitution and PAJA.
21. In the absence of the Presidency and/or the Department of Home Affairs rescinding its decision, subsequent statement, and immigration directive, we further seek clarity on the following –
What is the immigration status of ZEP holders whose permits expire on 31 December 2021;
Will the grace period be extended to those who submitted applications before 31 December 2022 but have not yet received the outcome of their applications before the end of the grace period;
Will former asylum seekers be permitted to submit an application for asylum again;
What steps has or will the Department of Home Affairs take to disseminate this information to affected persons; and
What steps has or will the Department of Home Affairs take to disseminate this information to Government service providers, banks, employers, police officials, and other service providers.
22. We kindly request your written response by no later than close of business on 17 December 2021. Should you have any queries regarding the above, you may contact sharone@lhr.org.za.
Yours faithfully,
LAWYERS FOR HUMAN RIGHTS
ZIMBABWE SOLIDARITY NETWORK
CONSORTIUM FOR REFUGEES AND MIGRANTS IN SOUTH AFRICA
AFRICAN DIASPORA WORKERS NETWORK
JESUIT REFUGEE SERVICES
UNITED FRONT
CENTRE FOR SOCIOLOGICAL RESEARCH AND PRACTICE
ZIMBABWE EXILES FORUM
CENTRE FOR APPLIED LEGAL STUDIES
Open letter against state capture and corruption
- Lee-Anne Bruce
The Civil Society Working Group on State Capture publishes an open letter on state capture and corruption this Freedom Day
State capture and corruption has had a clear impact on the people of this country. The consequences of the looting have been dire and have undoubtedly contributed to deepening inequality, poverty and unemployment and extends beyond a financial loss. The capacity of the state has been severely eroded; and Human rights, such as health care, social security, the public transport system and basic education, to name only a few, have been compromised by the actions of corrupt individuals and powerful corporations.
The struggle against corruption and the rebuilding of our institutions, cannot only be left to law enforcement agencies and the justice system. The people of South Africa should also play their part in holding those in power to account.
We therefore continue to mobilise around the work of the Zondo Commission and issues of state capture and corruption because the reality is that, South Africa’s struggle for social justice and human rights will not be realised if those who loot with impunity in the public and private sector remain unaccountable.
To the political elites who write ruminating columns and use the loud hailers of social media to fuel the fires of hate, violence and division for political machinations we say: no single political organisation can claim ownership of “speaking for the people”. That voice belongs to each and every one of us – the people of South Africa. To the powerful corporations, that have enabled state capture and corruption, we call on you to come clean and to stop placing profits above people and human rights – you have enabled injustice for too long.
To the media – and the media owners – now is the time to be more critical and considered in your reporting, not less. Clearly separate fact from fiction, avoid stepping onto the stage of sceptical distraction and help ensure the continued restoration of the publics’ faith in a free and fair press.
To all those hardworking civil servants in government who relentlessly work for our people and help carry the nation through this terrible pandemic, we thank you. To the brave whistle-blowers that continue to come forward, often at great personal cost, we also say thank you. We stand with you and will be forever grateful for your courage and sacrifice.
To the Zondo Commission we say: keep up the hard work! While standing in full support of your work includes remaining critical, it cannot be stressed enough that the work you are doing, peeling back the layers of secrecy and exposing the extent of the rot in our systems of governance, is vital for the future of this country. This work is contributing to the growing knowledge of what needs to change in order for the country to move forward and for our democracy to be strengthened.
The purpose of the commission is to understand how state capture was allowed to happen. It is a question that still needs to be answered by powerful corporations and the political elite of this country. There are many people that remain in key positions of power who have been implicated in serious corruption and malfeasance.
The commission and the courts are just two bodies responsible for articulating and shepherding the constitutional aspirations of our democracy. Parliament, law enforcement and the many other institutions that make up our body politic also have a constitutional duty in holding those in power to account. To this end we call on all our institutions to publicly denounce disinformation and fabricated crises – and to purse their constitutional mandates with renewed vigour and integrity.
The patterns of behaviour, that enabled State Capture in the first place, still continue. Amongst these we do not exclude the power hungry elite in the public and private sector that meet over tea to plot the future trajectory of the country and divide up the spoils. This needs to stop. Such practices have no place in the democracy we have worked for or were promised.
Why is this important?
We have elected leaders and bestowed on them the responsibility to govern, to enable us to achieve a better life for all – not themselves. We, as people of South Africa, have a right to know in whose interests’ decisions – supposedly in "our” name – were and continue to be made.
The culture of secrecy and impunity must come to an end if our democracy is to thrive. Transparency and accountability are non-negotiable, as too are the requirements for transformative actions to address the injustices that remain embedded in our social, economic and political systems. Our constitution is revolutionary in its design, but the values and vision that it prescribes can only materialise if embraced by the state through which it is enacted.
As people of this country, we all support the value and vision in the Constitution which protects the rights of the people in our country, it is the bedrock of our democracy and foundation of the rule of law.
We, the undersigned, support/endorse this open letter to raise our voices in solidarity against state capture and impunity, and to say now is the time for us to be heard.
The realities of the current moment cannot be met with silence and complacency. #ThePeopleSay #Wake-Up SA!
Civil Society endorsements:
Alternative Information and Development Centre (AIDC) Centre for Applied Legal Studies (CALS) Council for the Advancement of the South African Constitution (CASAC) Corruption Watch (CW) Dullah Omar Institute (DOI) Equal Education (EE) Freedom Under Law (FUL) Legal Resources Centre (LRC) My Vote Counts (MVC) Open Secrets Organisation for Undoing Tax Abuse (OUTA) Public Affairs Research Institute (PARI) Section27 (S27) Southern African Faith Communities’ Environment Institute (SAFCEI) Right2Know (R2K)
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