Category Archives: Constitution

The truth about rights in South Africa

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http://www.thoughtleader.co.za/lawyersforhumanrights/2013/05/24/the-truth-about-rights-in-south-africa/

The truth about rights in South Africa

Iqbal Suleman

Rights ranging from access to land to access to justice are entrenched in our Constitution. These rights are presumed to be available and readily accessible to everyone. The Constitution tells us that we all have equal rights but the reality shows us otherwise.

In a free market economy, nothing is really free. From access to housing, healthcare, education and justice. It all has a price. If you cannot afford it, you cannot access it.

What do you mean justice is inaccessible and market driven, you hear neo-liberals cry. There are human-rights NGOs, legal aid, university law clinics and pro bono attorneys. It remains unsure, though, how many people are able access these mainly urban-centred, rights-based organisations and what capacity these organisations have.

Statistics show us that at least 50% of the population lives in rural areas. So what about the millions unable to access legal services. Two horrors facing the poverty-stricken of our country are job losses and eviction. It is true that a farm worker dismissed in a rural area can refer an unfair dismissal to the CCMA without incurring legal costs but when he is fired, he doesn’t have the money for daily necessities, let alone money to travel to the arbitration process. It is arguable then that he cannot pursue his constitutional rights as a worker.

Legally, a person unable to pay rent cannot be evicted unless given alternative accommodation. The Prevention of Illegal Eviction Act makes it unlawful for a hard-nosed landlord to dump a tenant out on the streets. But how many people know about this right and how many can actually access a lawyer to challenge the eviction in court? Few, if any. So as the old adage goes, a few trees do not make a forest. Rights-based organisations are like a few trees that shine in the dark. They provide free legal services to the poor who cannot afford it. They play an important role in defending the rights of poor but because of limited resources and capacity not enough people are fairly represented. Neo-liberals would have us believe that the few trees make up the forest. They don’t. All of these rights exist within a free-market context. They are commodities. They have a market value. A price. This is the way it is. If you can’t cough up the bucks, then you are out of luck. The propertied and moneyed class can afford the best legal services. The poor cannot. What is on the surface, presented as a level field of justice, is in reality far from it.

A referral of an unfair dismissal can be issued by a worker without the help of an attorney. Workers are mostly under-represented in arbitration. On the other side, employers are always represented legally. According to the Tokiso 2012 Dispute Resolution Digest “employers win approximately 67% of CCMA arbitrations”. This clearly refutes popular perceptions that the Labour Relations Act and CCMA is pro-worker and anti-employer. These statistics are indicative of the uneven power relations between employer and employee. This prejudices the employee from the outset.

Even in the instances where the employer loses, he will delay the legal process and frustrate administrative justice. As a result, even in the rare 23% of cases where an employee swings arbitration in his favour, the employer will take the case on review, knowing the employee does not have the means to challenge it in the Labour Court. Instead of paying the worker what is due, the employer will spend ten times the amount in legal fees because he can. To ensure the worker doesn’t think about pursuing the matter, the employer threatens him with a costs order. In this way, a large percentage of awards which are issued in favour of workers are not enforced. This amounts to paper and procedural justice.

For the working class who are evicted and dismissed on a daily basis, justice in the real sense remains elusive unless we conceptualise justice in the neo-liberal tradition of procedural justice. The truth is that access to justice in a capitalist context is only accessible to the elite. In our country, 50% of the population earns 8% of the national income while the other 50% earns 92% of the national income. This is class apartheid. Most people cannot access legal services. Like the doors to the Palace of the Lost City Hotel are closed to the poor so, too, are the doors of justice.

Daily Maverick: City of Cape Town makes up law to justify eviction of the poor

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http://www.dailymaverick.co.za/opinionista/2013-05-06-city-of-cape-town-makes-up-law-to-justify-eviction-of-the-poor/#.UYcXFaLTx34

City of Cape Town makes up law to justify eviction of the poor

by Jared Sacks

The City of Cape Town has been caught red-handed using a fraudulent legal pretext to justify the eviction of shack dwellers who had occupied a vacant piece of City-owned land, by citing a non-existent law they claim is called the “Protection of the Possession of Property Act”. After speaking with legal experts in the field of property and evictions, I was told that not only was the eviction of the ‘Marikana’ shack dwellers in Cape Town’s Philippi East illegal according to the PIE Act, but city officials had also lied about the living conditions of the shack dwellers.

Most worryingly, the City has gone as far as fabricating an act of Parliament to present common law tradition as an authentic counterpoint to the PIE Act in order to justify the eviction.

The recent eviction of hundreds of shack dwellers who labelled themselves the Marikana Land Occupation in honor of their “brothers who died there – [because] we, too, are organising ourselves peacefully, and are willing to die for our struggle” – has reached mainstream media outlets with heart-wrenching images of a mother with her one-month-old infant being evicted from their home.

Since their ‘UnFreedom Day’ occupation, I’ve been following the events closely, visiting almost every day and, in my own peripheral role as an activist and supporter of the community, helping their movement access legal representation and organising drop-offs of food and clothing for the most vulnerable affected families.

After having seen many similar evictions for years and speaking to a range of legal minds on the subject, it has become clear that municipal governments all over the country take advantage of the inability of poor communities to represent themselves effectively in the media and access legal representation. They use this vulnerability to flout various constitutional safeguards when evicting shack dwellers and homeless South Africans. Municipalities then frequently go on to publicly assert the legality of their eviction by misrepresenting laws and lying about the facts on the ground.

On Friday 3 May, the City of Cape Town’s Media Manager, Kylie Hatton, issued the statement on the ‘Marikana’ evictions. The full statement is as follows:

On Wednesday 1 May 2013, the City’s Anti-Land Invasion Unit demolished 125 structures in Philippi and on Thursday 2 May 2013, took down a further 11 structures. On Friday, 3 May 2013, four structures were removed.

This was done in accordance with the Protection of the Possession of Property Act, which does not necessitate a court order. However, residents were verbally warned prior to the removal of the structures.

The City of Cape Town will continue to monitor and take action in terms of counter spoliation (as per the above mentioned Act) to protect its land from being illegally occupied.

It must please be noted that the City did not remove the homes people were staying in. The Anti-Land Invasion Unit removed illegal unoccupied structures and the materials that were being used to build them.

Yet, consulting with a number of renowned experts in the field of property and evictions yielded a number of concerns and contradictions with the statement.

Sheldon Magardie, an experienced laywer and Director of the Cape Town office of Legal Resources Centre, was blunt when I asked him about the Act which Kylie Hatton cites: “There is no such law called the Protection of the Possession of Property Act.” Advocate Stuart Wilson, who is the Director of the Socio-Economic Rights Institute and teaches Property Law as a Visiting Senior Fellow at Wits, concurred that in South Africa, no such act exists.

Not only is this law fabricated by the City or whomever has advised them, but there are actually two South African legal documents being ignored by the City, which explain exactly what the government should do when land has been occupied: the South African Constitution and the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE Act) of 1998. The Section 26(3) of the Constitution states that “No one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions.” The PIE Act legislates the procedure for a legal eviction of the court.

Stuart Wilson goes on to explain that what the City is attempting to do in its argument is assert “counter-spoliation…a common law tradition dating back to Roman times.” Common law says that legal authority is always required to force a possessor of property to part with that property (regardless of whether that person has the right to that property). Counter spoliation, an exception to this rule, “permits a person who is in the process of having property taken from them to immediately take that property back without a court order…[in other words] they never really had the property in the first place – at best they were in the process of trying to snatch it away from you. What the City seems to be saying – rather ham-fistedly – is that it was entitled to take its land back immediately, without a court order, because the ‘invaders’ were, at best, only in the process of depriving the City of possession of the land.”

However, as Wilson, Magardie and others have explained, counter-spoliation does not apply to the eviction of people from their homes – whether or not those people are deemed ‘squatters’ or even ‘illegal land grabbers’ as per the 2004 case Rudolf v City of Cape Town (see this link for a great summary of the findings. In particular, read the first point under The Decision on the Main Application).

Rather, during such circumstances, Wilson says that “it will always be necessary to follow the procedure set out in the PIE Act”. The PIE Act therefore applies in all cases of people occupying land or structures of any kind, even if the City deems such homes to be ‘partially built’ or ‘unfinished’.

Yet, the City is claiming that these shacks were not ‘homes’ but ’empty structures’ that were not occupied. This is a blatant lie. The City’s official guidelines for the Anti-Land Invasion Unit (ALI) defines a ‘home’ quite clearly: “A structure is not a ‘home’ until it has been inhabited by a person or persons who reside in the structure with their belongings and intend to continue doing so”. It then goes on to say that “where the act of taking unlawful occupation has been completed, counter-spoliation will not be permitted”.

With regards to all but a small minority, the shacks were occupied with beds, furniture, clothes, food, and yes, with people living and sleeping in them. If this were not the case, then why would the Law Enforcement have removed people and their belongings by force from the homes? Nearly every home required the physical removal of people and their property by Law Enforcement before its destruction by the Anti-Land Invasion Unit. This form of counter-spoliation explicitly requires a court order – otherwise it is illegal.

As an eyewitness having seen the shacks being occupied and lived in for many days before the evictions (as early as 25 April), as well as watching these evictions on 28 April and 1 May, I know this to be true. More importantly, though, there are more than enough photographs and video footage by a range of people (residents, journalists and even city officials) which prove that families and their belongings were removed from their homes.

These homes were clearly occupied and therefore the evictions were clearly illegal. The City needs to explain (1) why it is conducting illegal evictions, (2) why it is lying about the evictions by claiming the homes are unoccupied and (3) why it is fabricating laws to justify these evictions.

Further, representatives need to explain why they confiscated residents’ property and are refusing to return this property to residents. According to the ALI’s own guidelines, material/property may not be removed and if it is removed, it should be, when claimed, immediately returned to the rightful owner.

Finally, and most worryingly, the City of Cape Town should justify why it has allocated R8 million from the housing budget towards founding ALI in 2008, and continues to spend housing money on a unit not tasked to build, but to destroy peoples’ homes. This huge sum of money could be more effectively used towards making a dent in the huge housing backlog.

In such an unequal and segregated city at this, it is criminal that our government is reinforcing Apartheid legacies and the continued dispossession of land from its inhabitants. Meanwhile, they are spending millions to illegally evict poor and landless people, who are merely attempting to provide a decent life for their families when they build on vacant and unused public land.

Daily Maverick: Marikana: Avoidable, unconstitutional… and entirely predictable

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http://dailymaverick.co.za/opinionista/2012-08-23-marikana-avoidable-unconstitutional-and-entirely-predictable

Marikana: Avoidable, unconstitutional… and entirely predictable

by Pierre de Vos, The Daily Maverick

The Marikana massacre has been called an ‘avoidable’ tragedy. But given the total misunderstanding of Constitutional obligations by senior politicians and police leaders, it seems nothing short of inevitable. Looking at the way police obligations have been understood in the country over the past four years, it’s hardly surprising that we’ve come to this kind of brutality.

Many South Africans are either confused or uninformed about the Constitutional and legal duties placed on the South African Police Service to protect, rather than kill, the citizens of South Africa. Many members of the “law and order” crowd, including a large number of (white) South Africans who usually demonstrate a fierce hatred of the ANC and the government it leads, have emerged as staunch defenders of the actions of the police during the Marikana massacre and, by implication, is demonstrating support for Police Minister Nathi Mthethwa, whose resignation has been called for by opposition parties.

In support of their contention that the killing of 34 miners by members of the SAPS was justified, they argue that the miners were taking part in an illegal strike and an illegal gathering, that the police were scared because some police officers had been killed in the run-up to the massacre and some miners were brandishing traditional weapons, and that one of the miners had shot at the police and that the police were therefore merely defending themselves.

Entirely absent from these kinds of wrongheaded arguments is an understanding of the Constitutional and legal framework within which the police are required to operate in a Constitutional state like our own.

Section 199(5) of the Constitution states that the Police “must act, and must teach and require their members to act, in accordance with the Constitution and the law”. The Constitution protects the right to life of everyone – including every criminal suspect and every miner who took part in the events at Marikana last Thursday. The strikers did not forfeit their right to life because two police officers were killed by unidentified individuals in the week leading up to the massacre. Nor did they forfeit their right to life because they were involved in an unlawful strike and/or protest march or because one of the striking miners allegedly shot at the police.

This principle is underscored by section 13 of the Police Services Act, which states that members of the SAPS must act subject to the Constitution and with due regard to the fundamental rights of every person. The section continues to state that where a police officer is authorised to use force (for example, to defend him- or herself or to help apprehend a dangerous criminal suspect), he or she may use only the minimum force which is reasonable in the circumstances.

The police are not authorised to take the law into their own hands and to punish a group of miners by killing 34 of them because some of the miners might previously have been involved in the killing of a police officer. That would be nothing more than mob justice and would constitute cold-blooded murder. The fact that some of the police officers might have been scared because two of their fellow officers were killed earlier in the week would not, by itself, constitute a legal justification for the killing either. To hold otherwise would be to excuse every scared but trigger-happy police officer who goes on a shooting spree.

Neither would it normally be found to be reasonable to shoot and kill 34 protesters with automatic rifles because one of them had a gun or had shot at the police. It would also normally not be possible to claim that the police used minimum force when it killed 34 protestors with semi-automatic rifles. In the absence of other compelling evidence which demonstrates that the miners posed a grave threat to the lives of police officers, the shooting could not be considered either justifiable or legal. Evidence that such a grave threat existed might yet emerge, but so far no one has provided it, so arguments exonerating the police are not based on factual or legal considerations.

Those who are so quick to exonerate the police either do not value the lives of those who died, are defending the government and the minister of police for politically expedient reasons, or are animated by an irrational fear of everything that the miners represent.

Questions might well be asked about why so many police officers, as well as members of the public, seem to believe that the police have a right to shoot and kill anyone who threatens them or gets involved in illegal activities. Where is this idea coming from that our police do not have to respect the lives of fellow citizens when the citizens have allegedly broken the law?

The answer to this question is not blowing in the wind, but a Google search does yield some direction.

In 2008, then-deputy minister of safety and security, Susan Shabangu (who yesterday made the contradictory claim that she had negotiated with the parties involved in the dispute behind the scenes but that she had never heard of one of the unions involved in it) told an anti-crime rally in Pretoria that police shouldn’t hesitate to kill “criminals”. She did not mean that the police should not hesitate to shoot to kill those who have been convicted of a crime by our courts, but rather that the police should not hesitate to shoot and kill individuals who our Constitution presume to be innocent but whom the police officer might believe had committed a crime.

“You must kill the bastards if they threaten you or the community,” she said. “You must not worry about the regulations. That is my responsibility. Your responsibility is to serve and protect. I want to assure the police station commissioners, policemen and women that they have permission to kill these criminals. I want no warning shots. You have one shot and it must be a kill shot. If you miss, the criminals will go for the kill. They don’t miss. We can’t take this chance.”

This is the same Shabangu who yesterday warned South Africans to “exercise restraint when it comes to rushing to judgments”, pending the outcome of the judicial inquiry which will be appointed to investigate the massacre.

In 2009, South Africa’s new top cop, Bheki Cele, pleaded for the law to be changed to allow police to “shoot to kill” so-called criminals (again, suspects who must be presumed innocent until proven guilty) without worrying about “what happens after that”. Speaking to a newspaper, Commissioner Cele said the police needed to match the firepower of criminals and use “deadly force”. Cele complained that criminals were armed with the best high-calibre firearms “to deal with whoever is standing in their way, so… they are ready to shoot”. On the other hand, police responding to an attack have to “arrest their minds, thinking is this right or is it wrong? Police must think about what is in front of them and do the job, or else they get killed.”

He received backing for these starling assertions from none other than Nathi Mthethwa, the country’s police minister. “We are tired of waving nice documents like the Constitution and the human rights charter in criminals’ faces,” Mthethwa said. “We are going to meet these thugs head on, and if it means we kill when we shoot, then so be it.”

It is the same Mthethwa who yesterday claimed that the loss of life at Marikana was tragic and regrettable, but that now was not the time for “cheap politicking”. He added that the incident should teach us “as a nation, as a whole, to work doubly hard to prevent the repeat of such events.” As if the nation as a whole had made or condoned inflammatory statements about the need for the police to “shoot the bastards”. As if the nation as whole had insisted that we should ignore the Constitution. As if the nation as a whole gave the order to shoot at protestors with automatic rifles. As if those who stoked the fires of violence and those who actually killed the 34 protestors had absolutely no part to play in this tragedy.

I might be wrong, but given the bloodthirsty and irresponsible statements made by some politicians and members of the police leadership over the past four years about the need for the police to shoot and kill people who have never been convicted of any crime and must – in terms of our Constitution – be presumed to be innocent, the massacre at Marikana appears not “avoidable and tragic”, not something we as a nation “must work doubly hard” to prevent from happening again, but rather entirely inevitable and predictable.

Sexwale doesn’t grasp constitution – NGOs

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http://www.polity.org.za/article/sexwale-doesnt-grasp-constitution-ngos-2010-12-03

Sexwale doesn’t grasp constitution – NGOs

SAPA

Human Settlements Minister Tokyo Sexwale misunderstood the Constitution and the reasons that poor people crowded into shack settlements and inner city buildings, rights organisations said on Friday.

“Poor people will continue to move to urban centres in search of jobs, whether or not courts defend their rights,” the organisations said in a statement.

“It would be better if the government acknowledged this reality and saw this as an opportunity for economic development and growth, which would be part of its development of an appropriate urban housing framework.”

The organisations are the Socio-Economic Rights Institute of South Africa, Section 27, the Legal Resources Centre, Lawyers for Human Rights, the Community Law Centre, and the Centre for Applied Legal Studies.

They said Sexwale had this year repeatedly referred to the “worrying trend” of the “legalisation of illegality” entrenched by recent court rulings.

He had asserted that the rise in the number of informal settlements in the country was largely as a result of “powerful court rulings in favour of illegal settlers”.

“What the minister apparently fails to recognise is that for millions of poor citizens (and noncitizens), informal settlements and inner city buildings are the only forms of accommodation available in the city or close to it,” the organisations said.

These forms of housing had two advantages which state housing developments often failed to provide – closer location to jobs, and affordability.

“The proliferation of these forms of informal housing has little to do with court judgments,” they said.

“[It has] everything to do with the failures of the state at all levels to provide affordable public rental housing for poor people in cities, and to upgrade informal settlements in situ, close to jobs and socio-economic infrastructure.”

Demolishing shacks in informal settlements and confiscating building materials was “not the answer”.

Nor was evicting poor tenants who had no alternative but to live in allegedly hijacked inner city buildings.

The reality was that most social housing projects catered mainly for households earning between R3 500 and R7 500 a month.

Yet the vast majority of households in South Africa – about 86% – earned R3 200 or less a month.

They said Sexwale’s comments on court judgments included an implicit attack on the independence of the judiciary and its mandate to enforce all constitutional rights and the obligations they imposed on the state.

“The minister’s statements highlight the fact that he does not understand the Constitution or value the constitutionally mandated role of civil society and the courts in advancing rights and equality.”