“Giving Content To Our Rights”

Contents 1

Chairperson’s Foreword

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CEO’s Message

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Introduction 3.1 Historical overview 3.2 Purpose of Impact Litigation Unit 3.3 Delivery Mechanisms (Funding of Client Matters/HCU/Senior Litigator/ ILU/Co-op Agreement) 3.4 Procedure to obtain ILU Assistance 3.5 International interest in the work of the Impact Litigation Unit

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Messages of support 4.1 Lawyers for Human Rights 4.2 Legal Resources Centre 4.3 Centre for Child Law, University of Pretoria

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Making the Constitution a living document

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Case Studies on Giving Content to Our Constitution 6.1 Mooketsi Hawkers 6.2 Hassam v Jacobs 6.3 Masiya v DPP Pretoria and another 6.4 In re: Western Cape Provincial Minister of Health v Various Tuberculosis Patients 6.5 The Rail Commuters Action Group, COSATU & Others v Transnet Ltd & Others (Metrorail) 6.6 State v Jeanette Mokoena 6.7 TLP Nwamitwa Shilubana & Others v Sidwell Nwamitwa 6.8 Alpheus Blom & Others v Anglo American South Africa Ltd (Silicosis Test Case) 6.9 The Occupiers of Shorts Retreat v Daisy Dear Investments (Mkhondeni Eviction) 6.10 Bothma v Els 6.11 Port Elizabeth Municipality v Various Occupiers

Vision

A South Africa in which the rights enshrined in the Constitution are protected and defended to ensure peace and justice for all

Mission

To be a leading provider of professional legal services, ensuring effective access to justice for the poor and vulnerable, in an independent, efficient and caring manner

Values

Passion for justice Respect for human dignity (Ubuntu) and diversity Empowerment Integrity Accountability

Foreword by the Chairperson Judge Dunstan Mlambo The objective of Legal Aid South Africa is to render legal representation at state expense where substantial injustice would otherwise result, as contemplated in the Constitution of the Republic of South Africa (Act 108 of 1996). This in turn ensures access to justice, which is a fundamental cornerstone of our young democracy. Legal Aid South Africa is mandated with the critical role of preventing substantial injustice from occurring by representing the marginalised and vulnerable. This includes protecting rights enshrined in our Constitution such as children’s rights (in civil proceedings) and the right of all detained persons to have a legal practitioner assigned to them at state expense, if substantial injustice would otherwise result. Legal Aid South Africa also plays an important role in safeguarding other rights enshrined in our Constitution, such as protecting socio-economic and housing rights. The Impact Litigation Unit was established to assist in making the Constitution a living reality for the marginalised segments of our population. It provides the opportunity for Legal Aid South Africa to undertake and fund litigation or other legal work that can truly live up to the Unit’s name and have a profound “Impact” on a group or significant segment of a group. The impact of the work undertaken and funded by the Impact Litigation Unit has the potential to have a far greater reach than to one individual client. Rather, 2

the Impact Litigation Unit often litigates matters likely to establish legal precedent, or provide clarity to uncertain areas of the law. In addition, through class actions and strategic litigation, matters undertaken and funded by the Impact Litigation Unit can provide an efficient means of resolving a large number of disputes in a single matter. I acknowledge the commitment of our government to the rule of law, as well as its commitment to providing resources to make legal representation a reality in terms of our Constitution. This in my view is key to ensuring that society in general continues to have confidence in the laws of the land as their shield against injustice and to resolve their matters. I take pride in the work of Legal Aid South Africa in general and the Impact Litigation Unit in spite of limited budgetary resource constraints. The cases summarised in this booklet highlight the tangible impact Legal Aid South Africa is making, and will no doubt continue to make in the future. Yours in ensuring access to justice: Judge Dunstan Mlambo Chairperson: Legal Aid South Africa March 2011

Message From the CEO Vidhu Vedalankar Legal Aid South Africa is an independent statutory body established by the Legal Aid Act 22 of 1969 as amended. In terms of the Act the purpose of Legal Aid South Africa is to give legal aid to indigent persons within the budget allocated by the state. We also provide legal representation at state expense in terms of its constitutional obligation under section 35 of the Bill of Rights and in particular to have a legal practitioner assigned to an accused person at state expense if substantial injustice would otherwise result. In addition to our statutory aims, Legal Aid South Africa has identified its own vision, mission and values. Our vision is to contribute to a just South Africa in which the rights enshrined in our Constitution are promoted, respected, defended, protected and fulfilled to ensure justice for all. To realise our aims we strive to be a leading provider of quality legal services, ensuring effective access to justice to the poor and vulnerable in an independent and ethical manner. Legal Aid South Africa in fulfilling its mandate, primarily delivers legal services to clients through its own salaried lawyers

who are located at 64 Justice Centres and 64 satellite offices across the country. Legal Aid South Africa also delivers legal services to clients by contracting with private lawyers and through co-operation agreements with NGOs and University Law Clinics. Legal Aid South Africa has traditionally focused on providing criminal legal defence services, but more recently established civil units and a constitutional Impact Litigation Unit. It is in this latter category that Legal Aid South Africa has established an in-house unit, the Impact Ligation Unit, to take on class actions and precedent setting cases on behalf of vulnerable groups such as women, children and indigent persons/communities. Legal Aid South Africa introduced an impact services policy in January 2004. From time to time matters arise in which the opportunity exists for Legal Aid South Africa to undertake or fund litigation or other legal work which has the potential to positively affect the lives of a far larger number of indigent persons than the persons to whom legal services are rendered individually. Legal Aid South Africa has identified three (3) broad areas in which it can give content to its impact litigation policy: I. When the opportunity exists to establish a legal precedent, jurisprudence or clarify aspects of the law that will be followed in

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dealing with indigent persons,

Campaign in the Constitutional Court to make treatment available to those suffering from HIV/AIDS at a time when many were still questioning the link between HIV and AIDS. This booklet seeks to create an awareness of Legal Aid South Africa’s commitment to give content to the rights as enshrined in our Constitution, thereby making it a living document for all South Africans, especially the indigent and vulnerable.

II. Either by class action or by litigation of a small number of matters calculated to bring about the settlement of a much larger group of disputes, the matters have a potential to resolve a large number of disputes or potential disputes, or III. By the strategic intervention and rendering of non-litigious legal services the potential exists to materially improve the lives of a group or a significant segment of a group.

In the future we hope to share the challenges and achievements of the Impact Litigation Unit in making the Constitution a living reality in the lives of ordinary South Africans through publications of this kind.

These legal services could be rendered by salaried legal practitioners employed by Legal Aid South Africa, the Impact Litigation Unit or legal practitioners in private practice or a co-operation partner of Legal Aid South Africa, a law clinic or any combination of the above.

Vidhu Vedalankar CHIEF EXECUTIVE OFFICER: Legal Aid South Africa

Not many people are aware that the Impact Litigation Unit funded, amongst others, the challenge brought by the Treatment Action

March 2011

To realise our aims we strive to be a leading provider of quality legal services, ensuring effective access to justice to the poor and vulnerable in an independent and ethical manner.

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IntrOduCtIOn 3.1 HISTORICAL OVERVIEw: The Formative Phase In 11 April, 2001 an evening soccer game between Orlando Pirates and Kaizer Chiefs was scheduled to take place at Ellis Park. As the game got underway, fans waiting to buy tickets at the south west corner of the stadium were told that tickets for that wing of the stadium were sold out. Precisely what happened next is still the subject matter of dispute. Survivors allege that the police or security guards used teargas to drive away the disappointed fans who had been unable to buy tickets. Police deny that they used teargas. What is clear is that the fans surged round the stadium to the north east corner where tickets were still available. A roar from inside the stadium indicated that a goal had been scored and in a frenzy of excitement the fans outside the stadium overran the officials at the entrance and entered the tunnel leading into the stadium. The design of this entrance acted as a funnel into which fans poured. In the resulting stampede 43 people were killed and many more injured. On the eventful day in 2001, narrow access roads flowing into the stadium, which is situated in run down Doornfontein in Johannesburg, were blocked

or partially blocked by parked cars and fans leaving the stadium after the game had been called off. A barbed wire cordon around the stadium further impeded access. The situation inside the stadium was exacerbated by inadequately trained security guards employed by security firms amongst whom there was neither adequate coordination, nor planning on dealing with a disaster of this magnitude. To add to the chaos, the control centre was unsighted vis-à-vis the tunnel. Emergency services struggled to gain access to the stadium and to evacuate the critically injured in the hours after the disaster. South Africans watched TV in horror as fans died on the playing field. The Golden Lions Rugby Union, Ellis Park Stadium, the SA Football Association, the Premier League, Orlando Pirates FC, Kaizer Chiefs FC, the security firms and the police all expressed sympathy with the bereaved, but denied legal liability. Ex gratia contributions were made towards funeral expenses, but all of these bodies briefed their legal teams to argue against any blame in a Commission of enquiry presided by Judge President Ngoepe. In a prelude to the creation of the Impact Services Unit, a decision was taken by Legal Aid South Africa to offer legal representation to the dependents of the deceased and the persons who had been injured. Ellis Park became the first impact litigation undertaken by Legal Aid SouthAfrica. Summonses were issued on behalf of 25 claimants and a settlement of R5.5 million (including costs of two counsel) was achieved. Although the Ellis Park litigation did not establish 5

The funding of the Ellis Park matter lead to a discussion about the establishment of a unit that could litigate class actions, precedent setting cases, rights abuse cases, thereby ensuring that the constitutional rights of all South Africans would be respected, protected and enforced. Since its inception the Impact Litigation Unit of Legal Aid South Africa has been involved in litigating and funding a significant number of impact cases.

number of disputes or potential disputes and obtain wider collective objectives. In addition, by the strategic intervention and rendering of non-litigious legal services, the potential exists to materially improve the lives of a group or significant segment of a group. In addition to impact legal services undertaken or funded by Legal Aid South Africa as a result of proposals submitted to it, the organisation may itself initiate the delivery of impact legal services.

3.2 Purpose of Impact Litigation Unit

3.3 Delivery Mechanisms

any new legal precedents, it sent a clear message to all in South Africa that the rights of the poor could no longer be trampled on with impunity. In Legal Aid South Africa, the poor had acquired a champion that could protect and defend their rights.

In the execution of its mandate, Legal Aid South Africa has diversified its areas of funding so that it can extend its assistance to as many indigent persons as possible. From time to time, matters arise in which the opportunity exists for Legal Aid South Africa to undertake or fund litigation or other legal work which has the potential to positively affect the lives of a far larger number of indigent persons than the person or persons to whom legal services are rendered directly. Impact legal services can be, but are not restricted to, matters in which the legal assistance to be rendered relates to litigation likely to establish legal precedent, which will be used for similar cases in the future. This can be achieved either by class action or by the litigation of a small number of matters calculated to resolve a large 6

Impact legal services can be rendered by: Salaried legal practitioners employed by Legal Aid South Africa’s Justice Centres and Impact Litigation Unit, or Legal practitioners in private practice, or A Co-operation partner of Legal Aid South Africa, or A law clinic, or Any combination of the above. Where the legal services are to be provided by legal practitioners who are not employed by Legal Aid South Africa, the proposal will either be required to set out a programme for the transfer of the required skills to appropriate Legal Aid South Africa employees or to justify the outsourcing of these legal services operationally. Where the principal contractor (e.g. attorney) who will manage and co-ordinate the activities of subcontractors (e.g. advocates,

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expert witnesses) is not employed by Legal Aid South Africa, the latter will provide legal aid either fully or partially, on condition that the main service provider enters into a written agreement with Legal Aid South Africa for professional services offered. Where the main service provider is a legal practitioner in private practice, the practitioner must be accredited according to accreditation rules prescribed by Legal Aid South Africa. Where the main service provider is an NGO, it shall comply, with the necessary changes, with all the requirements prescribed by Legal Aid South Africa for a Cooperation partner as set out in Legal Aid South Africa’s policy on Co-operation Agreements.

3.4 Procedure to obtain ILU Assistance Legal Aid South Africa gives preference to proposals responding to the organisation’s strategic priorities, which are published annually, but will also consider other proposals that motivate the need for specific services for the poor. Every proposal must include a merit report, as set out in paragraphs 7.3.2 and 11.3 of the 2009 Legal Aid Guide. A proposal for the rendering of impact legal services must be in writing and set out the following: The nature and extent of the proposed legal services, as

well as evidence that the services offered will benefit a substantial number of indigent people. Sufficient facts, expert opinion (where appropriate) and legal submissions to enable an assessment of whether the proposed litigation (litigious services) has a reasonable prospect of success, or whether the proposed legal services (non-litigious legal services) will enable a beneficial strategic intervention that will significantly affect the lives of a group or a sizeable portion of a group. A detailed budget setting out details of each of the stages of litigation and the total expenditure planned at each stage, including cash flows and when the said funds would likely be required. Clear deliverables, key performance indicators and time frames for each of the various stages of litigation, as well as the legal representative’s experience in the area of impact litigation. All proposals that meet these criteria are considered by the Constitutional Case Management Committee of Legal Aid South Africa. The Constitutional Case Management Committee (CCMC) consists of the Chief Operations Officer, the National Operations Executive (Chairperson), the Legal Development Executive, the Senior Impact Litigation Attorney (SILA) employed in the Legal Development Department and a nonexecutive member of the Board. The Regional Operations Executives within whose area a proposed impact legal service will be rendered will be a member of the CCMC when an impact legal services proposal 7

is considered, if it is envisaged that the proposed impact legal services will have a regional rather than a national impact. A proposer has the right of appeal to the CEO against the refusal of the CCMC to grant legal aid for the proposed impact matter. The (SILA) shall inform the proposer of this right and, if requested within 3 months of being informed of this right, the Chairperson of the CCMC shall give detailed reasons for the refusal. The grounds for appeal must be submitted in writing to the SILA, who shall then forward these to the CEO together with the application documents and his/her comments. The full impact services policy can be found on pages 101 to 105 of the 2009 Legal Aid Guide on the Legal Aid South Africa webpage: www.legal-aid.co.za

3.5 International Interest in the work of the Impact Litigation Unit We have found that the work of the Impact Litigation Unit (ILU) is being recognised internationally, so much so that the Canadian Bar Association placed an intern with the ILU in September 2010 as part of its Young Lawyers International Program (YLIP). The programme places Canadian interns overseas to work with human rights focused legal organisations. The YLIP is undertaken within the Government of Canada’s Youth Employment Strategy, with a contribution of the Canadian International Development Agency. The intern at Legal Aid South Africa, Matthew Grace, is a recently called lawyer from the city of Toronto, in Ontario, Canada. Matthew’s legal experience includes a range of human rights work including children’s rights, tenant’s rights and wrongful convictions. Matthew completed his articles with the Office of the Public Guardian and Trustee (OPGT), which is a branch of the Ministry of the Attorney General in Ontario. The OPGT is responsible for representing the legal interests of mentally incapable adults and safeguarding the public’s interest in charities. Matthew has developed a strong interest in the kind of precedent setting human rights work undertaken by the ILU. Matthew has this to say about his internship experience:

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“My time spent working with the ILU has been both personally and professionally rewarding. I am appreciative for being given the opportunity to work collaboratively with other members of the Legal Aid South Africa team, including Senior Impact Litigation Attorney Achmed Mayet, on a variety of impact matters. Much of the work I have done with the ILU concerns constitutional issues and safeguarding the rights of historically vulnerable populations (including women, children and the impoverished). My assignments have included national and international legal research, drafting a wide range of written materials, and participating in legal strategy meetings. I assisted with matters at all stages of development, from cases and law reform projects in the early development stages, through to matters appearing before the Constitutional Court of South Africa. Thank you to everyone at Legal Aid South Africa for making this a memorable and meaningful experience for me.” International Human Rights debate with the University of California The ILU hosted the University of California law faculty and students at Legal Aid South Africa’s head office in Braamfontein in July 2010. The students engaged with legal practicioners of the Unit in a debate covering a number of Constitutional Court judgments.

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MEssagEs OF suppOrt 4.1 Lawyers for Human Rights

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4.2 Legal Resources Centre

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4.3 Centre for Child Law, University of Pretoria

22 March, 2011 The importance of impact litigation in the field of child law Legal Aid South Africa reaches over 46000 children per year in its daily work. This is significant access to justice, and benefits each child that is reached. The Centre for Child Law is pleased to work with Legal Aid SA through providing support and advice on child law to its lawyers in the field.

However, important as this day to day work representing children is, it has limited influence on the way that the courts interpret the law, and rarely impacts more broadly than the ambit of the case itself. That is why impact litigation is so important. South Africa boasts one of the best childrenÕ s rights clauses in its Bill of Rights. However, this would have a limited effect if laws and practices are not measured against those provisions. This, in essence, is what strategic litigation can do. It can hold duty Ð bearers accountable for their responsibilities towards children, measuring the law and practice against the constitutional principles. Furthermore, it does so in a way that achieves gains for groups of children rather than just one individual.

In the early days of the Bill of Rights litigation in South African the arguments raised before the courts about childrenÕ s rights tended to be tangential. ChildrenÕ s best interests were in many cases invoked by adults who were fighting for recognition of their own rights, cases such as Fitzpatrick, du Toit, and Sonderup spring to mind. ChildrenÕ s right to shelter was famously argued in the case of Grootboom, though that line of reasoning met with little success. However, during the past few years the South African courts have developed an important footprint of child rights litigation in cases such as S v M, AD & Another v DW & Another, Director of Public Prosecutions, Transvaal v Minister of Justice and Centre for Child Law v Minister of Justice. This footprint can be developed and strengthened, to ensure that South Africa lives up to the legislative promises that it has made to children.

Dr Ann Skelton Director: Centre for Child law Ronaldah Lerato Karabo Ngidi LLB (UP) LLM (UP) Carina du Toit BA LLB (Stell) LLM (UP)

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MaKIng tHE COnstItutIOn a LIVIng dOCuMEnt 5

The Bill of Rights is a cornerstone of our democracy. It enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom. One of the central tenets of our Constitution is a commitment to substantive equality and to improving socioeconomic conditions for all. Both the Constitutional Court and other courts view the Constitution as a transformative document. The transformative role of the Constitution was acknowledged by the then Chief Justice in Soobramoney v Minister of Health, KwaZulu-Natal 1998 (1) SA 765 (CC) when he wrote that: “a commitment …therefore to transform our society lies at the heart of the new constitutional order.” The epilogue to the interim constitution describes the Constitution as: “A historic bridge reached between the past of a deeply divided society characterised by strife, conflict, untold suffering and injustice and a future founded on the recognition of human rights, democracy and peaceful coexistence and development opportunities for all South Africans, irrespective of race, class, belief or sex”. South Africa has to contend with unequal and insufficient access to housing, food, water, healthcare and electricity. The depressed job market together with fewer job opportunities contributes to increased socioeconomic disparities in wealth.

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A large proportion of the population suffers from systemic inequality and deep conditions of poverty, making the commitment to social justice and improvement in the quality of people’s lives ring hollow. It comes as no surprise that South Africa has the unenviable reputation of being the country with the highest disparities in income between the rich and the poor. This was graphically illustrated in the spontaneous eruption of protests by communities across the length and breadth of the country to highlight poor service delivery. Unfortunately these protests were accompanied by xenophobic violence directed at the humanity of those seeking refuge amongst us against human rights persecution in their own countries. Overnight refugees became “the other” – the outsider and the wanton acts of violence called into question our own humanity and commitment to the culture of Ubuntu. If we are to establish a truly equal society, then the provision of basic socio-economic rights to all becomes a necessary part of transformation. The notion of transformative constitutionalism has been embraced in the jurisprudence of our courts and can be seen in the celebrated judgment of Grootboom in which the concept of the gradual realisation of access to socioeconomic rights for all was developed.

However, the Grootboom judgment was of little comfort to the main applicant, Irene Grootboom, who died homeless some 10 years later because the City of Cape Town failed to promote, protect and defend the rights enshrined in the Constitution.

It follows therefore that the transformation is not the sole responsibility of the judiciary. Lawyers have a role to play in making their services available on a pro bono basis to those most in need of legal representation when their constitutional rights are violated. Legal Aid South Africa is committed to protecting the rights of the poor, including women, children, the aged and the landless and to contributing to a just society in which the rule of law is promoted and respected by all.

The transformative nature of the Constitution is being subtly undermined by the trend which has developed in government departments to ignore and disrespect court orders. The relevant government departments in KwaZulu-Natal and the Eastern Cape have a history of failing to ensure that social grants are paid timeously and not unlawfully terminated. The courts have struggled valiantly with this phenomenon through a host of interventions such as structural interdicts, judicial supervision over mandatory orders, contempt orders against errant officials and the awarding of constitutional damages against government officials to be paid out of their own pockets.

In pursuing this mandate Legal Aid South Africa has established the Impact Litigation Unit, which is tasked with acting on behalf of poor and indigent members of society in class actions and precedent setting cases that promote, protect and defend their constitutional rights.

In terms of the separation of powers doctrine the judiciary cannot legislate. Laws have to be promulgated by the legislature. The legislature is under a constitutional obligation to pass laws that will assist in the transformation of South Africa from an unjust society to a just and caring society.

With this book we celebrate our achievements in being part of ensuring the transformation of our society.

Bill of Rights Rights 7. (1) This Bill of Rights is a cornerstone of democracy in South Africa. It enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom. (2) The state must respect, protect, promote and fulfil the rights in the Bill of Rights. 13

CasE studIEs On gIVIng COntEnt tO Our COnstItutIOn

water, electricity and sanitation. Although a precedent setting judgment was not obtained, the outcome of the case was a victory for the hawkers, their families and their community.

6.1

Similarly placed communities can use this case as a model on how the state, poor communities and the private sector can work together to create opportunities for vulnerable communities, especially women, to acquire a source of income. It can also be used as a model on how to “formalise” informal trading, and as a result, give more security to the traders and give women the opportunity to spend time with their families at night knowing their goods are safe.

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MOOKETSI HAwKERS

Freedom of trade, occupation and profession Section 22: Every citizen has the right to choose their trade or occupation or profession freely In 2002 Jachpad Boerdery (Pty) (Ltd) and those farmers whose farms border on the R81 National Road at Mooketsi (Limpopo Province) succeeded in their application to have 50 rural women, who were eking out a living with informal trading along the R51, declared unlawful hawkers. The women had been selling fruit and vegetables alongside the R81 since 1975. The rule nisi was not confirmed to allow the parties to negotiate a settlement agreement for the benefit of all the stakeholders. In terms of the deed of settlement, the rural women established a section 21 company which leased the land from the National Roads Agency and constructed 35 lockable stalls. The stalls were leased out to members of the section 21 company who managed the trading in the area. In addition the lessors were provided with access to

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The settlement agreement was a win–win situation for the National Roads Agency and the rural women involved. 6.2 Hassam v Jacobs No and Others Constitutional Court 2009 (5) SA 572 (CC) Equality Section 8 (1): Everyone is equal before the law and has the right to equal protection and benefit of the law The practice of polygynous marriages in the Muslim community of the Western Cape is quite prevalent, and the failure of the State to recognise Muslim

marriages has led to hardship for women in such marriages on the death of the husband. The applicant, Fatima Gabie Hassam, was married to Mr. Ebrahim Hassam (the deceased) in accordance with Muslim rites. The deceased married a second wife, Mrs Mariam Hassam, also according to Muslim rites, without the applicant’s knowledge or consent. The deceased died in August 2001, and on his death certificate it indicated that he was “never married”. The first respondent, the executor of the deceased’s estate, refused to regard the applicant as a spouse for the purposes of the Act.

is not capable of being understood to include more than one partner to a marriage. The omission of the words “or spouses” in the Intestate Succession Act is inconsistent with the Constitution, and consequently, after each use of the word “spouse” in the Act the words “or spouses” must now be read into the Act.

The Constitutional Court held that it was unconstitutional to exclude widows in polygynous Muslim marriages from the protection afforded under Section 1 of the Intestate Succession Act 81 of 1987, as they were being excluded on the prohibited grounds of religion, gender and marital status. Discrimination on each of the listed grounds in Section 9 (3) of the Constitution is presumed to be unfair unless justified. The Court held that the exclusion of such widows from the protection of the Act limits their rights under Section 9 of the Constitution, and this limitation of their equality rights is unjustifiable in the given circumstances.

Excerpt from case

In addition, the Constitutional Court held that the word “spouse” in the Intestate Succession Act

The Constitutional Court held that: [38] “The purpose of the Act would clearly be frustrated rather than furthered if widows to polygynous Muslim marriages were excluded from the benefits of the Act simply because their marriages were contracted by virtue of Muslim rites. The constitutional goal of achieving substantive equality will not be fulfilled by that exclusion. These women, as was the case with the applicant, often do not have any power over the decisions by their husbands whether to marry a second or a third wife.

“The grounds of discrimination can thus be understood to be overlapping on the grounds of religion, in the sense that the particular religion concerned was in the past not one deemed to be worthy of respect; marital status, because polygynous Muslim marriages are not afforded the protection other marriages receive; and gender, in the sense that it is only the wives in polygynous Muslim marriage that are affected by the Act’s exclusion.” [34] 15

6.3 Masiya v DPP, Pretoria and Another 2007 (5) SA 30 Arrested, detained and accused persons Section 35 (3): Every person has a right to a fair trial, which includes the right – (l) not to be convicted for an act or omission that was not an offence under either national or international law at the time it was committed or omitted

was not an offence at the time it was committed (Section 35(3) (l) of the Constitution). Accordingly, the expanded definition of rape was applicable only to conduct that took place after the date of judgment. The rape conviction was set aside and was replaced with a conviction of indecent assault.

One of the main considerations for taking on the appeal of Masiya was to establish the precedent that no one may be convicted of an offence that did not exist at the time it was committed. The accused was charged with the rape of a 9-year-old girl but the evidence showed that he had indecently assaulted the girl without her consent. At trial, the facts accepted by the magistrate established that the accused had anally penetrated the complainant.

6.4 In re: western Cape Provincial Minister of Health v Various Tuberculosis Patients (Case 13741/2007)

The State applied that the accused be convicted of indecent assault, a competent verdict on a charge of rape (Section 261 of the Criminal Procedure Act S1 of 1977). The defence contended that if the accused were to be found guilty he should be convicted of indecent assault. The Magistrate in the Regional Court convicted the accused on an extended definition of rape and committed him to the High Court for sentencing. The High Court confirmed the extended definition of rape and referred the matter to the Constitutional Court for confirmation.

Section 12 (1): Everyone has the right to freedom and security of the person, which includes the right: (i) not to be deprived of freedom arbitrarily or without just cause

Indecent assault has historically been viewed as a lesser crime and all matters of anal penetration (male or female) were viewed as less serious than vaginal rape. The Court noted that this had resulted in far more lenient sentences for anal rape, even though it is a common law crime with a possible maximum sentence of life imprisonment. The Court held further that restricting the definition of rape to vaginal rape was anachronistic, offensive, and that the constitutional and international imperatives of due protection of all children and the equal upholding of the dignity and respect of all persons were negated by this narrow definition. The Constitutional Court held that if the definition of rape were to be extended retrospectively, it would offend the principal of legality. Fairness to the accused required that the expanded definition of rape, including anal rape, only be applied to cases arising after the judgment had been handed down. The Court held that it would be unfair for the accused to be convicted for an act or omission that

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Freedom and Security of the Person

The Cape Town Justice Centre of Legal Aid South Africa represented three adults who were diagnosed with active XDR tuberculosis. The litigation started in the form of an ex-parte application brought by the Minister of Health of the Cape Province to issue a rule nisi compelling clients to be admitted to the Brooklyn Chest Hospital and for other associated relief. The interim relief was granted on 13 December, 2007. The clients decided to oppose the application as it in fact amounted to arrest and detention at the hospital without their consent. This violated their constitutional right to liberty. In their opposing affidavits, the clients sought to set aside their arrest and detention and filed a counter application against the Minister

of Social Development to have their disability grants reinstated. The disability grants, which had been arbitrarily withdrawn by the Department of Social Welfare, were reinstated. Even though the clients were unsuccessful in their main application regarding their arrest and detention, our intervention on their behalf highlighted the plight of patients diagnosed with XDR-TB and the medical treatment they received. We engaged the services of a number of experts, and as a result of their recommendations, improvements were made to the conditions at the facility. The court case received extensive coverage and this resulted in a marked improvement in the conditions at the hospital. Legal Aid South Africa engaged the services of experts including a dietician, and as a result of the recommendations made in their reports, the diet was also markedly improved for the patients. In addition, the wards were repainted, and the quality of medical treatment and medical equipment improved considerably. This was confirmed by an independent eyewitness, Adila Hassim, the head of litigation and legal services from the Aids Law Project. She visited the Brooklyn Chest Hospital on 6 August, 2008 and was pleasantly surprised by the improvement in the facilities and care of the patients. She attributed this to the extensive media coverage generated by the hearing of this matter in the court.

6.5 The Rail Commuters Action Group, COSATU & Others v Transnet Ltd & Others (Metrorail) Freedom and Security of the Person Section 12 (1): Everyone has the right to freedom and security of the person, which includes the right: - (c) to be free from all forms of violence from either public or private violence. This matter was considered worthy of funding as it established the precedent that where you execute a public function, such as public transport, then you are responsible for both the safety and security of commuters. In November 2004, the Constitutional Court held that Metrorail was responsible for the safety and security of passengers on commuter trains. Based on the judgment and principles laid down by the Constitutional Court, the Plaintiffs issued summons against Metrorail in the Cape High Court. The summons of the Plaintiffs consisted of two parts: Part A, in which the plaintiffs sought a structural mandamus regarding the implementation and monitoring of better and safer services for commuters of Metrorail, while Part B consisted of the individual claims of the various plaintiffs for damages suffered as a result of the defendant’s unlawful conduct. In its defence, the South African Rail Commuters Corporation (SARCC) argued that since it had been allocated an insufficient budget, it could not upgrade existing security measures and therefore could not be held negligent for failing to secure the safety of passengers Although this matter never went on trial, the parties came to a settlement agreement that encompassed all aspects of the case, including a structural interdict as well as compensation for the individual plaintiffs. Part A was funded by Legal Aid South Africa. Metrorail presented an integrated operational security plan, which was prepared by security experts. The attorneys and the Rail Commuters Action Group entered into lengthy 17

negotiations with Metrorail. The settlement agreement which was made an order of court made provision for the following: 1. Closed circuit televisions (CCTV) should be put in place at all stations and on trains to monitor access into and out of the stations; 2. An advisory committee be created to monitor the progress of the security plan and to oversee the implementation of the security plan; and that 3. All unresolved negligence claims be dealt with under an established insurance policy scheme. 6.6

STATE V JEANETTE MOKOENA (Appeal)

Children Section 28 (1): Every child has the right: - (g) not to be detained except as a measure of last resort, in which case, in addition to the rights a child enjoys under sections 12 and 35, the child may be detained only for the shortest appropriate period of time… Jeanette Mokoena (16 years old), was convicted in the Koffiefontein Magistrate’s Court of the theft of four bars of chocolate valued at R31,00. She allegedly stole these from Multi Serve in Koffiefontein on 5 June, 2008. She was arrested shortly thereafter at another local store where the chocolates were found under her shirt. On 9 June, 2008 she appeared in the Magistrate’s Court at Koffiefontein. She pleaded guilty and was sentenced to a fine of R300,00 or 80 days imprisonment. The effective sentence was R150,00 or 40 days imprisonment. She was undefended though her father was present. The sentence was wholly inappropriate given her youth and financial circumstances. Payment of the fine was deferred to 13 June, 2008. On 1 July, 2008 when the fine was still not paid by her father, a warrant was issued for her arrest. She appeared in court again on 16 July, 2008 when the alternative sentence of imprisonment was put into operation.

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Legal Aid South Africa felt it important to intervene in this matter as the Magistrate failed to use his discretion in sentencing the accused when he had the option of referring her to a diversionary programme, in terms of which she could have avoided imprisonment and a criminal record. The manner in which this case was handled highlights the usefulness of having the Child Justice Act 75 of 2008 in addition to the Constitution, both of which seek to protect children in conflict with the law from serving imprisonment, as well as ensuring that all such children receive the same treatment. In terms of the judgment, the conviction was upheld but the sentence was wholly suspended.

Bill of Rights Children 28. (1) Every child has the right – (g) not to be detained except as in which case, in addition to the rights a child enjoys under sections 12 and 35, the child may be detained only for the shortest period of time, and has the right to be – (i) kept separately from persons over the age of 18 years; and (ii) treated in a manner, and kept in conditions, that take account of the child’s age.

6.7

SHILUBANA

When Hosi Fofoza, the chief of the Valoyi traditional community died in 1968, his eldest daughter Shilubana, the applicant, in accordance with the principles of the rule of primogeniture that governed succession to chieftainship, was not considered for the position. Instead, the chief’s younger brother, Richard, succeeded him. During Richard’s reign and with his participation, the royal family unanimously resolved to confer chieftainship on Shilubana. Shilubana did not want Hosi Richard replaced and as a result the royal council agreed that Hosi Richard could continue in his position for an unspecified period of time. On 17 July 1997, Hosi Richard acknowledged that Ms Shilubana was the heir to the Valoyi chieftainship in the presence of the chief magistrate and 26 witnesses. The Valoyi Tribal Authority sent a letter to the Commission for Traditional Leaders of the Northern Province in (Limpopo) informing them that the royal family had selected Shilubana as Hosi on 8 August, 1997 and the royal council confirmed that Hosi Richard would transfer his powers to Shilubana. On the same day a duly constituted meeting of the Valoyi tribe under Hosi Richard resolved that in accordance with the usages and customs of the tribe Ms Shilubana would be appointed Hosi.

However, on the death of Hosi Richard, his son, Nwamitwa, instituted court proceedings in the Pretoria High Court, seeking a declarator that he, and not Ms Shilubana, was heir to the chieftainship of the Valoyi and thus entitled to succeed Hosi Richard. The High Court and thereafter the Supreme Court of Appeal found in Nwamitwa’s favour. Ms Shilubana appealed to the Constitutional Court for leave to appeal against the decision of the Supreme Court of Appeal. The case was postponed on a number of occasions because Nwamitwa objected to the state acting on behalf of Shilubana when he had to pay for his own legal representation. The Constitutional Court raised the question of the parity of arms that was so clearly skewed in favour of Shilubana and advised Nwamitwa to apply for legal aid. The Impact Litigation unit, despite its commitment to promoting gender equality and the rights of poor and marginalised communities, awarded legal aid on the basis that Nwamitwa would not have a fair hearing if he was not afforded quality legal representation of his choice to match that of the legal team of Shilubana. In its judgment, the Court upheld the appeal and found that even if the appointment of a female chief was in accordance with the customs and traditions of the tribe, tribal authorities have the authority to vary customs in accordance with constitutional means and values.

Excerpt from case Though in the past it was not permissible for the Valoyi’s that a female chief be heir, in terms of democracy and the new South African Constitution it is now permissible that a female child be heir, being equal to a male child.

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6.8 Alpheus Blom & Others v Anglo American South Africa Ltd (Silicosis Test Case) Environment Section 24: everyone has the right: - (a) to an environment that is not harmful to their health or well-being Over the past century, the gold mining industry employed up to half a million miners at any one time. A series of major studies on black South African gold miners have found an astronomical rate of silicosis of about 25% in former long-service gold miners. Experts estimate the number of silicosis victims to be in the tens of thousands. This test case litigation is against Anglo American South Africa Ltd., the former Anglo parent company which is now a subsidiary of London-based Anglo American Corporation PLC. The plaintiffs are former miners who were employed in the Free State from the 1970s to 1988. Their homes are in the Free State, the Eastern Cape and Lesotho. The plaintiffs contracted either silicosis or silicotuberculosis. The claim against Anglo South Africa essentially alleges that this former parent company is liable because it negligently advised the mining companies in relation to dust protection. The litigation has two objectives. Firstly, to establish the legal principles on which the industry should compensate silicosis victims. Secondly, to establish an effective TB/silicosis medical monitoring scheme for former miners.

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The litigation is now in the middle of the discovery process, with Anglo having disclosed hundreds of thousands of pages of documents. The trial is expected to take place in the latter part of 2012. The Silicosis case presents the opportunity either by class action or by the litigation of a small number of matters to bring about the settlement for a much larger group of similarly affected persons. The Impact Litigation Unit has provided considerable funding and support for the litigation of this important matter to Legal Resources Centre, which is supported by Richard Meeran of Leigh Day, a firm that acted in the litigation for asbestosis victims in the Cape PLC matter.

Rule 23(b)(1)(B) of the American Civil Code defines class action as - … provides that “[a]n action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition: (1) the prosecution of separate actions by or against individual members of the class would create a risk of … (B) adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests.”

6.9 The Occupiers of Shorts Retreat v Daisy Dear Investments (245/2008) [2009] ZASCA 80 (3 July 2009) (Mkhondeni Eviction) The appeal was against an order of the Pietermaritzburg High Court (Jappie J) in terms of which the appellants were ordered to demolish their homes and vacate erven 101, 102, 104 and 112 located at Shorts Retreat, Pietermaritzburg. The appellants, most of whom are unemployed, poor and homeless, settled on the erven in question and erected informal dwellings. Over time, the group expanded into a community of approximately 2000 people. The only services being received by the appellants from the local authority were a communal water tap and a mobile clinic. The appellants have been in occupation of the aforementioned properties for more than five years. The Respondent landowners were aware of the appellants’ occupation, but did not take any legal action to evict the appellants until the Msunduzi Municipality (“the municipality”) demanded they be evicted in April 2006. The order issued by the lower court was challenged on the basis that the requirements of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE) were not met. The purpose of enacting PIE was to give effect to the rights

contained in section 26 of the Constitution. Section 26(3) provides that “No one may be evicted from their home, or have their house demolished, without an order of the court made after considering all the relevant circumstances…” PIE applies to both private and public authorities. Before a court grants an eviction order, it must be satisfied that the order will be just and equitable to the applicant and the unlawful occupier. In making such a determination, in cases such as this, where eviction proceedings are instituted after six months from the date of occupation, the court must consider whether land has or can be reasonably made available by the municipality/state for the relocation of the occupier. When the eviction concerns large groups of people, the court must also take into account the rights and needs of the elderly, children, disabled persons and households headed by women. Information concerning these matters was not placed before the court below and consequently was not taken into account in determining whether the eviction was just and equitable. Additionally, the court below did not adequately explore the issues related to alternative land to which the appellants could be relocated. The court below accepted a report filed by the municipality which stated that: (i) the appellants could not be accommodated in any of the municipality’s existing housing projects; (ii) no land could be identified for the appellants’ relocation; and (iii) before the municipality could provide houses or land as part of its housing programme, it has to follow a long process which can take up to five years.

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The court disagreed with the allegation that if the municipality continued to make land available, people would invade publicly or privately owned land with the intention of fast tracking their housing needs. Rather, the evidence established that the appellants’ occupation occurred because the appellants were homeless and had nowhere else to go. The court below made an error in not considering the municipality a necessary party. The municipality’s position in evicting proceedings under PIE is different than a third party in ordinary litigation. The municipality should not have the option to choose not to be involved as it has a constitutional obligation that it is required to discharge in favour of people facing eviction. Additionally, section 4 of the PIE obliges the court to be innovative, and where necessary depart from the conventional approach. The appeal was upheld and the order of the court a quo was set aside. The municipality was joined in the proceedings. The municipality was directed to file a report concerning: (i) what steps it has taken and what steps it intends or is able to take in order to provide alternative land and/or emergency accommodation for the appellants in the event of their being evicted and when such alternative land or accommodation can be provided; (ii) what the effects would be if the eviction would take place without alternative land or emergency accommodation being made available; and (iii) what steps can be taken to alleviate the effects of the current occupation if the occupiers are not immediately evicted and pending alternative land or accommodation being 22

made available. The matter was postponed sine die for consideration, including if appropriate, the possibility of mediation to seek a resolution of the matter and such other interim or final order as it may be considered appropriate. 6.10 BOTHMA V ELS 2010 (2) SA 622 Access to courts Section 34: Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum; balanced against the right of the accused under section 35(3): Every accused person has the right to a fair trial… It was decided to fund this matter as it raised important issues regarding trauma and shame associated with childhood sexual abuse and whether a prosecution on a charge of rape which occurred some 39 years ago would violate the accused’s right to a fair trial. The plaintiff, Mrs. Bothma, accused the defendant, Mr. Els, of having raped her repeatedly thirty-nine years previously, when she was between the ages of thirteen and sixteen years. Mrs. Bothma stated that the only person she told about the rapes was her first husband, whose negative reaction increased her feelings of shame

and caused her not to report the crimes. It was only when she was undergoing counseling that she realised that the rapes were not her fault and that she could take action against Mr. Els. The High Court granted a permanent stay of the prosecution as it was of the opinion that the accused would not have a fair trial due to loss of memory and loss of evidence. The court held that the accused would not be prejudiced as he was shielded by the right to be presumed innocent until proven guilty. The court relied on the balancing test set out in Sanderson v Attorney-General, Eastern Cape 1998 (2) SA 38 (CC) (1998 (1) SACR 227, including the length of delay, the reason the plaintiff assigned to justify the delay, and the prejudice to the accused. The Constitutional Court found that the nature of the offence in question must also be considered in the balancing test, especially during analysis of the other factors. On appeal, the Constitutional Court ruled that the loss of evidence does not lead to a prejudicial trial, especially where, as in this case, the loss of evidence was not the fault of the plaintiff and would affect both sides. Secondly the court balanced the right of the plaintiff to have her case heard in open court and the right of the accused to a fair trial. In addition to setting aside the stay of prosecution, the Court ordered that Mr. Els pay Mrs. Bothma’s costs.

6.11 Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC) The right to have access to adequate housing Section 26 (3): 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 This matter was taken on to obtain clarity on the role and responsibility of a municipality in eviction proceedings that take place within its jurisdiction. In response to a petition signed by 1600 people in the neighbourhood, the municipality sought an eviction order against occupiers on undeveloped land. The High Court granted the eviction order without taking into consideration all the relevant circumstances of the occupiers as required in terms of section 26 (3) of the Constitution and section 6 of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE). The SCA held that the occupiers were merely requesting that land be identified on which they could erect their shacks and where they would have some measure of security of tenure. The SCA held that the High Court should not have granted the order sought without assurance that the occupiers would have some measure of security of tenure at the Walmer property. The SCA upheld the appeal and set aside the eviction order.

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The municipality applied for leave to appeal to the Constitutional Court, arguing that the municipality was not constitutionally obliged to find alternative accommodation or land when seeking an eviction order. Sachs J, writing for a unanimous Court, held that section 26(3) of the Constitution provides 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. Section 6 of the PIE provides for circumstances in which a municipality may apply to evict unlawful occupiers. A court may order eviction if it is just and equitable to do so. The Court held that although the municipality was not under a constitutional duty in all cases to provide alternative accommodation or land, its failure to take all reasonable steps to do so would be an important consideration in deciding what is just and equitable. The Court held that, in this instance, it was not just and equitable for the eviction order to be granted. Application for leave to appeal was refused and the municipality was ordered to pay the costs of the respondents.

Excerpt from case “Thus it would not be enough for the municipality merely to show that it has in place a programme that is designed to house the maximum number of homeless people over the shortest period of time in the most cost-effective way. The existence of such a programme would go a long way towards establishing a context that would ensure that a proposed eviction would be just and equitable. It falls short, however, from being determinative of whether and under what conditions an actual eviction order should be made in a particular case.” [29]

Impact Litigation Unit: Achmed Mayet, Patrick Hundermark, Fatima Laher, Xolisiwe Nzimande, Matthew Grace. 24

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