Category Archives: Jackie Dugard

Business Day: Free but superficial media overlooks important stories

http://www.businessday.co.za/articles/Content.aspx?id=122039

Press freedom: Free but superficial media overlooks important stories
Anxieties reached a fever pitch in the wake of the deplorable arrest of journalist Mzilikazi wa Afrika.

JACKIE DUGARD
Published: 2010/09/27 09:44:47 AM

IN RECENT weeks, South African media institutions have, understandably, been vociferously opposing the proposed Protection of Information Bill and media appeals tribunal, pointing to the stifling effect such changes are likely to have on access to information and on the fight against corruption.

Anxieties reached a fever pitch in the wake of the deplorable arrest of journalist Mzilikazi wa Afrika, following his exposure of an apparently irregular lease for new police headquarters in Pretoria.

Somewhat lost in the flurry has been an appreciation of the fact that every day poor people attempt to hold government accountable and every day they face the kind of treatment meted out to Wa Afrika.

The print media is partly to blame for this obscuring as, to date, it has not represented such local struggles as anything other than sporadic “service delivery” protests when, in fact, they are becoming so commonplace as to represent a fully fledged rebellion of the poor.

As local community after local community comes to the end of its tether with the government’s failure to deliver on post-apartheid promises and erupts into violent protest, we are facing a fundamental challenge to our vastly inegalitarian political economy that all of us should reflect on.

Yet, this has not yet become the major subject of mainstream media coverage, prompting columnist Steven Friedman to ask: “Why do the media not use their freedom to give us the information we need?”

Indeed, while the media is correct to be concerned about the proposed limitations on access to information, it is complicit in an already present, and self-imposed, crisis of censorship through not providing the whole picture. It is not so much that it doesn’t cover such stories, but rather that there is a paucity of in-depth exposure and examination.

What we need is an informed analysis of poor people’s struggles against unresponsive and remote local government, including systemic exposure of community attempts to hold municipalities accountable.

We need to know that poor communities are currently doing society’s dirty work by trying to entrench participatory democracy, but their battles are going largely unnoticed and have thus far not been very effective.

We should be paying attention because, if conditions continue to deteriorate, we could face an appalling intensification of violence.

Moreover, we can avert this if we connect the dots and combine our efforts to forge a meaningful democratic order.

If this were the case we might, for example, see solidarity between rich ratepayers associations and poor township communities seeking better living conditions.

We might also begin to understand that the only true security is through greater integration and equality.

Researchers at the University of Johannesburg have recently undertaken “rapid response research” into four continuing struggles, analysing local protests in Balfour, Diepsloot, Piet Retief and Thokoza.

The research identifies three common features across all four case studies.

First, there are high levels of poverty and unemployment in each case.

Second, there is inadequate service delivery in all localities including water, sanitation, electricity and housing, as well as allegations of corruption.

Third, in all instances, protests only occurred after multiple attempts to engage local government over relevant problems.

Clearly, what are often called service delivery protests are as much about unaccountable local government as delivery.

This is especially evident in the protests in Piet Retief, where the residents of Thandakukhanya township sent a memorandum to the office of the premier of Mpumalanga in which they asked for: a copy of the municipality’s supply chain policy, an investigation into all procurement above R10000, as well as list of who sits on the tender bid committee, who appointed contractors especially for road projects, and which officials have municipality credit cards.

Many of these requests had been previously communicated to local and provincial government officials.

With no response received, the residents staged a peaceful protest, marching to the Piet Retief town hall to deliver the memorandum to the municipal officials, and a copy was sent to the premier.

The premier undertook to respond to the community’s concerns in an open meeting.

However, he failed to attend the meeting as promised, instead sending the MECs for co-operative governance and traditional affairs, and for sports and recreation.

The premier’s no -show prompted a second march by residents, but this time property was destroyed and two people were shot dead, allegedly by a traffic police officer and a security guard.

Similarly, in Siyathemba township in Balfour, things turned nasty after the municipality failed to respond to a community memorandum that had called for “proper clean water”, street lights and storm- water drainage, as well as information on expenditure and recruitment processes.

The resultant protests prompted a police crackdown, including allegations of severe police brutality, and charges of public violence were brought against the community leaders who had attempted to hold their municipality to account.

In the same month that charges against Wa Afrika were “temporarily” dropped — presumably due to public pressure and extensive media exposure — Siyathemba community members appeared in court to face the charges of public violence, having already spent six months with the threat of conviction hanging over them.

The vast majority of these charges were dropped by the prosecutor as unsubstantiated, but only after last-minute intervention by the Legal Aid Board and the Socio-Economic Rights Institute of SA (Seri), as well as the continuing efforts of the University of Johannesburg researchers.

Yet, notwithstanding some local coverage of incidents such as those in Piet Retief and Balfour, our escalating crisis of local democracy has not featured as a major story in the national print media.

As Prof Friedman recently complained, the print media seems obsessed with the actions of a few political figures rather than with analysing the patterns that shape where SA is headed.

The mainstream media’s blind spot is fully understood by activists.

In the words of an Anti-Privatisation Forum member: “We have the freedom to speak, but nobody listens.”

Nevertheless, despite their reservations about the media’s sincerity, activists understand that media freedom is in fact everyone’s freedom and have been vocal in their condemnation of the proposed changes.

It is all the more tragic that the media does not defend this broader freedom by providing coherent analysis about the underlying challenges to our democracy. Without such information, as media expert Jane Duncan has warned, we remain dangerously blind to our most serious problems.

SACSIS: Constitutional Water Rights Judgment Gets It Wrong

Constitutional Water Rights Judgment Gets It Wrong

Date posted: 21 October 2009
View this article online here: http://www.sacsis.org.za/site/article/373.1

On 08 October 2009, the Constitutional Court handed down its first water rights judgment. The case – Mazibuko & Others v City of Johannesburg & Others – was brought by five impoverished residents in Phiri, Soweto, on behalf of themselves, all similarly-situated residents and everyone in the public interest. The applicants challenged the City’s free basic water policy for being insufficient to meet the basic needs of large, poor, multi-dwelling households. They also challenged the lawfulness of prepayment water meters, which had been installed against their will and result in automatic cut-off of the water supply following the exhaustion of the free basic water supply unless additional water credit is purchased.

Unfortunately, instead of taking the opportunity to develop the jurisprudence on the nature of the state’s obligations in relation to the right of access to sufficient water, the judgment dismissed the applicants’ argument that the free basic water supply of 6 kilolitres per household per month was insufficient to meet their basic needs including waterborne sanitation. It also rejected their claim that the installation of prepayment water meters in Phiri occurred without legal authorization and requisite consultation, was coercive (the installation was premised on the threat of water disconnection or the provision of a yard tap) and discriminatory (although the worst debtors are government institutions and businesses, prepayment water meters are only installed in poor, black, suburbs), and deprives them of procedural protections found in conventional credit supply systems (reasonable notice of impending disconnection and opportunity to make representation prior to disconnection).

The High Court judgment of Moroa Tsoka was grounded in a sensitive consideration of the circumstances of the residents of Phiri, and the impact of the free basic water policy and prepayment water meters on their right of access to water. Such a contextual analysis is conspicuously absent from the Constitutional Court decision, which appears to uncritically accept the City’s case and its legal interpretations. Specifically, there are six broad problems with the judgment.

First – despite noting that the City’s obligation to progressively realize the right of access to sufficient water within available resources is always context dependent – having failed to consider the specific circumstances of the applicants, the Court also failed to grapple with the question of what would constitute water sufficiency in such circumstances. In this regard it ignored the extensive expert and international law evidence that supported a finding (accepted by both the High Court and Supreme Court of Appeal) that between 40 and 50 litres per person per day is the minimum amount of water required to lead a healthy and dignified existence.

Furthermore, the Court declined to interrogate the City’s obligations in the context of its ample resources. Rather, the Court deferred uncritically to the City’s free basic water policy, praising it for having ‘been under constant review’, but not subjecting such revision to any test to determine whether such revisions met the required standard of reasonableness in the prevailing circumstances. Similarly, in relation to the national regulations requiring municipalities to provide at least 6 kilolitres per household per month, the Court found that it will be reasonable for municipalities to ‘strive first to achieve the prescribed minimum standards’, before being required to go beyond that minimum standard.

Worryingly, the emphasis on the obligation only to ‘strive’ to achieve even this directly legislated amount, suggests that the Court would not necessarily adjudicate in favour of a household without any water services, especially if the household was located in a cash-strapped municipality. This approach also misunderstands the obligation to progressively realize the right of access to water. The progressive realization standard recognizes that people in urban areas will usually have more advanced water connections than those in rural and peri-urban areas, and that there are good healthcare and dignity-related reasons to ensure that they have sufficient access, as determined by reference to their circumstances. Such access should, however, not be at the expense of water services to rural areas and informal settlements. Rather it should be seen holistically as a means of ensuring optimal health and development to all residents, determined by their needs and the state’s means. Limiting the water supply to impoverished township households with waterborne sanitation is a regressive measure, which is not only unreasonable but impermissible where there are available resources to remedy the situation.

Second, the Court wholly accepted the City’s assertions that there was extensive consultation prior to the decision to install prepayment water meters in Phiri. Yet, on the record and at the hearing, the applicants stressed that there was not a shred of evidence that there was any consultation prior to the decision being taken. Rather, the decision to install prepayment meters was taken unilaterally by the City and Johannesburg Water in 2001. Thereafter the City embarked on a public relations exercise to ‘sell’ a fait accompli to the residents of Phiri. This was accompanied by the threat to disconnect their water supply or to install yard taps should they not accept prepayment water meters.

Third, in stark contrast to both lower courts, the Constitutional Court found prepayment water meters to be lawful. In a highly deferential analysis, the Court found the City’s interpretation to be ‘textually permissible’, ruling that prepayment meters are provided for in the by-laws and do not discontinue the water supply (which would trigger procedural protections unavailable in prepayment meters) but rather constitute a temporary suspension. Had the Court pursued a purposive or even a formal legal analysis, it is likely that, like the previous courts, it would have come to the conclusion that there is no basis in law for prepayment meters (apart from as a punitive measure for contravening the conditions of service of a yard tap) and that they effect an unlawful discontinuation of the water supply.

Fourth, in relation to the City’s indigency policy, the Court did not engage with the problem of the chronic under-representation of the most vulnerable and needy on the City’s indigent register, which the City proposes will be the basis for future free basic water allocation. Here the Court disregarded its own reasoning in Grootboom: ‘it may not be sufficient to meet the test of reasonableness to show that the measures are capable of achieving a statistical advance in the realization of the right’.

Fifth, by failing to consider the dire circumstances and the practical impact of prepayment water meters on living conditions, and instead accepting the City’s pronouncements on how preferable prepayment meters are, the Court missed a vital opportunity to develop its equality jurisprudence. As appreciated by the High Court, the rollout of prepayment meters exclusively in poor black residential areas, despite the evidence that the worst debtors are government institutions and businesses, amounts to unconstitutional and unfair discrimination on the basis of both race and class.

Finally, the Court ignored the solid logic of the High Court, when it found that if – as the City suggests – the residents of Phiri are satisfied with prepayment water meters, there can be no problem with an order in which they are offered the choice of a conventional meter. If everyone is happy with a prepayment meter, no-one will choose a conventional meter. If the Court truly believed the City’s assertions of satisfaction, what better way to promote equality and participatory democracy than to offer the residents of Phiri the choice of a conventional meter, such as is offered in all the richer suburbs.

Business Day: Why Cape legal twist looks like a demolition of justice for poor

http://www.businessday.co.za/articles/Content.aspx?id=74686

Why Cape legal twist looks like a demolition of justice for poor
JACKIE DUGARD and KATE TISSINGTON
Published: 2009/07/02 07:11:59 AM

IN MAY, backyard shack-dwellers with no access to formal housing took their case against the City of Cape Town to the Western Cape High Court. They were represented by the law firm, Smith Tabata Buchanan Boyes, which took on the case at a substantially reduced rate at the request of the South African Council of Churches (SACC).

The backyarders belong to Abahlali baseMjondolo, a national shack-dwellers’ movement with its base in Durban. They had occupied an empty piece of land in Macassar Village, on which they erected shacks, in mid-May. However, the City of Cape Town’s Anti-Land Invasion Unit, together with the police, demolished their structures and confiscated their materials.

Abahlali won the first phase of its battle when it secured an urgent interdict against the city , preventing the demolition of any shack or structure at Macassar Village without an order of court. It also compelled the city to return to the occupiers all building materials that were illegally confiscated. However, the city defied the interdict and continued demolishing shacks and confiscating building materials.

Then, on June 18, the city wrote to Smith Tabata Buchanan Boyes, terminating all the city’s contracts for legal work with the firm. The letter from the director of legal services notes: “It has come to our attention that whilst acting on behalf of the City of Cape Town … you also acted for a third party against the city. The city is therefore terminating its mandate with your firm.”

It is widely understood, including by lawyers at Smith Tabata Buchanan Boyes, as well as by the Rev Siyabulela Gidi of the SACC, that the Abahlali intervention was the reason for the termination. While city administrations are clearly entitled to contract with whichever legal firm they choose, if it is true that the city terminated the contract because the law firm took on the Abahlali matter, this raises concerns about the future of pro-poor litigation at private law firms.

Currently, most law firms provide some degree of legal representation to people and organisations that cannot afford normal legal fees. Indeed, it is envisioned in the Legal Services Charter that in order to advance access to justice for the poor, private attorneys should all contribute to making justice more accessible to low-income and marginalised groups.

Many law firms that provide such legal representation to poor people and associated organisations do so against the state. This is because, in most instances, the obligations to provide access to housing, water, healthcare, etc, lie with the state. At the same time, such law firms often also represent state institutions.

In some instances there could be obvious direct conflicts of interest. For example, a law firm representing a municipality in an eviction application clearly cannot also represent the people under threat of eviction. However, there is no conflict of interest merely because a law firm represents a city in other general matters, while also representing a third party against the city in a specific, and completely unrelated, matter. If this were the case it would mean no law firm that does work for the state can ever take on socioeconomic rights-related work on behalf of poor people and grassroots organisations.

According to Smith Tabata Buchanan Boyes lawyer Vusi Matikinca, at a workshop for the city’s panel of legal firms chaired by the city’s director of legal services in May last year, a question was raised about whether law firms could take specific cases against the city while acting for the city. The director said this was not a problem. Yet the firm is now branded as “unethical” by the city, when in fact it should be praised for taking on a pro-poor case at a reduced rate.

If the City of Cape Town’s termination relates to the Abahlali matter, this is a very worrying precedent. If reproduced across other law firms and in other municipalities, it would be a devastating blow to pro-poor litigation and would substantially undermine the government’s objective of securing access to justice for all.

– Dugard is a senior researcher and Tissington a researcher at the Centre for Applied Legal Studies at Wits University.