Please take notice that the ADR Dialogue process in this matter is set down for 18-22 August 2014 at Kwamashu, Kwazulu-Natal and will be facilitated by ADR Network South Africa. This matter involves charges of alleged illegal gathering and public violence. With support of the Complainants, the Department of Labour, the CCMA, the Director of Public Prosecutions and others, the Court granted an order that the matter be diverted to ADR Dialogue (in the form of mediation) in order to attempt to resolve the matter including alleged underlying workplace issues . All interested parties are called upon to email firstname.lastname@example.org to receive relevant details on the process including an opportunity to be present at the process and make representations. All interested organizations shall be entitled to send two representatives.
Submissions by Sheena Jonker at Nomzamo Ministerial Inquiry into the Unlawful Evictions at Lwandle Informal Settlement
Commission of Enquiry into Forced Evictions at Lwandle Informal Settlement
SUBMISSIONS OF THE ACCESS TO JUSTICE ASSOCIATION OF SOUTHERN AFRICA
I am the founding head of the Access to Justice Association of Southern Africa and ADR Network SA. I am a former practising attorney, current academic lawyer, Alternative Dispute Resolution Practitioner and Human Rights Activist. The Access to Justice Association of Southern Africa is a registered Non Profit Organization which purposes to provide Dispute Resolution and Legal Resource to the poor, it being a fact that if you are poor in South Africa, your Access to Justice looks very different to that of the economically advantaged. Our work is filtered primarily through the lenses of Restorative Justice and Transformative Justice. In any given situation, we are not primarily looking for heads to roll, we are looking to accomplish healing and restoration. We do this by engaging victims and offenders alike in processes where truth and accountability are maximized as a basis for restoration, healing and ultimately behavioural change.
Our notice in this matter was gained via Loyiso Nkhola of Ses’khona people’s rights movement in early June, just after the June evictions. I am asked today to make submissions to this Enquiry on behalf of the Community as well as to supplement the submissions of Ses’khona.
As a backdrop I wish to state the following principles as a basis for the submissions I will make:
- The right to human dignity, a constitutionally enshrined right, is one which in our view is inviolable and not lawfully capable of limitation
- The right to life is a constitutionally enshrined right
- Personality Rights are further protected at common law and in terms of the Constitution and we all have the right to have the physical and psychlical aspects of our beings guarded and free of physical, psychological or patrimonial loss, harm or injury
- Ownership of goods is also a constitutionally enshrined and protected right. The unlawful dispossession of and destruction of goods may amount to theft and damage to property
At this juncture I wish to read a statement by our appointed attorney in this matter, Krish Jairam. It is emotive and holds disdain for perceived unjust administrative action, is a personal perspective, and at the risk of offence, I think it needs to be heard:
” It is a greatly significant achievement that our democracy is twenty years old. It is significant that we have basic human needs entrenched as human rights in our constitution – health, housing and education. Within those very provisions is an indivisible and immutable accord that whoever leads our people as a government, whether it is at local, provincial or national level, will do their utmost to meet those basic needs. That we recognise this here and now as a basis of this commission of inquiry will be significant. More so if we allow these rights to filter out the insignificant.
What is insignificant is debatable but what I have recognised and it amazes me that such circumstances exist, is that the insignificant has become significant. Toll roads have become more important than our right to housing. SANRAL and the The City of Cape Town are at odds with each other over toll roads. The City refuses to relocate and house the Lwandle Community in order to keep SANRAL’s tolls out. SANRAL abuses court processes and the police services to oust a community in the middle of winter.
The City’s politicking has become significant even if it is at the expense of a basic human need – housing. SANRAL’s profit margin equally so.
Therefore I say insignificant is significant; unimportant is important; irrelevance is relevant; immaterial is material.
Any which way we choose to put it. The powers that be have become unconscionable. This is unacceptable. Such conduct does not accord with our constitution and can only be described as immoral and seditious. The agenda of the constitution has been subverted for political gain and profiteering. That much is clear.”
I wish to place on record the following:
- At this point we acknowledge that we may not have had access to all the facts. However, I understand that two lots of evictions were undertaken at Lwandle Informal Settlement. The first during our about February 2014, and the second in the first week of June this year. In the absence of being favoured with a full set of documents in the matter, despite request, and on the face of what has been provided to me by the department of Transport and the City of Cape Town, I understand that both sets of evictions took place on the strength of an interim order
- Even if there exists a final order, which I don’t think there is, I am also given to understand, after consultation with the community, that they were not, as should be the case with a Rule Nisi, appraised of or notified of their rights to make representations before the grant of any final order to evict. They being interested parties in this matter. In fact, they being the most significant parties in this matter.
- During my time here during the week commencing 9 June I had occasion to consult with various parties and members of the community. I make mention of some as follows:
a) Representatives of Ses’khona People’s Rights Movement. I was informed of loss of life relating to a 4 month pregnant woman kicked by police and who miscarried her baby later that day. I was informed of the suicide of a 21 year old man who returned from work to discover all his wordly possessions, and his home itself, destroyed. I have yet to consult with the aforegoing or members of the latter’s family and intend to do so this week. I was also informed of a nine month pregnant woman kicked by police, whom I did consult with and make mention of below
b) Community leader Xoliswa Masakala. Xoliswa relates that on the day her rights to speak, her right to ask questions were completely derogated and she was brutalized in the process. She was stripped naked and assaulted by police. Her version is supported by images that appeared on 3 June 2014 in the Daily Voice. These images accompany my submission marked “A” and which I will send through electronically. The originals are the only set I have. Xoliswa was arrested, incarcerated and charged with Public Violence. We will be assisting her in attempts to divert the matter to an ADR Restorative Justice Process, alternatively getting the charges withdrawn. I have already had an audience with the relevant prosecutor when the matter was postponed. I am also given to understand that over the two days of the evictions, the police opened fire, and their fire was not limited to rubber bullets. There exists evidence that live rounds were used. This resonates with South Africa’s painful traumatic past under Apartheid
c) Patience Ndlevu. She was almost 9 months pregnant on the day of evictions. She was at home with her three year old child at the time. I am told by her that when she realized what was happening, she attempted to retrieve identity documents and her child’s birth certificate. The police responded by kicking her in the hip. When I met her almost a week later, she could not walk, and I myself, currently injured and battling mobility, had to walk a distance to consult with her. I being the less injured at that particular moment. I found her lying down and unable to get up by herself. She describes the events as highly traumatic for herself, her baby daughter and her mother who was admitted to hospital with stress
d) Wandile Mpopo is a 28 year old Security Officer. His version is that he awoke to the commotion and went to assist community members in resisting what amounts to complete assault on and derogation of human dignity. In the process of attempts to retrieve his Uniform for work his documents including his Identity Document and Security Certificate and whatever else he could, he was arrested, brutalized by police and later charged with public violence. He was later released on bail of R 500 and has to report at Lwandle police station once a week. When I met him he was in a highly traumatized state with difficulty speaking and visibly trembling. This was some 10 days after the evictions and the day after his release on bail
e) Thabo Mohale, 38 years old and is unemployed with a wife and two children aged 13 years and 11 months respectively
When he heard the police loudspeaker announcement for everyone to leave, he attempted to ask questions like, where must each family go. Shortly thereafter there ensued shooting and the community replying, some with the throwing of stones in an attempt to resist what can only be described as the unlawful destruction of homes and all possessions. I attach an image of Thabo’s arrest and brutalization which appeared in The Voice of June 3, marked “B” and which appears to support his version. On the day I met him, he described having extreme difficulty in sleeping at night. This was some ten days after the evictions and a day after his release on bail of R 500 and his obligation to appear weekly at Lwandle Police Station.
f) Bongikosi Siphungu, 19 years old unemployed. On the day of evictions he had just left his house to go looking for a job. When he realised what was happening, he attempted to retrieve some of his possessions. His attempts to resist what was happening resulted in his arrest. He was later released on bail of R 500 and similar bail conditions to the others mentioned And after 9 days in jail where he says he was beaten. He lost all his wordly possessions including his Identity Documents.
g) Moseli Masakala, 41 year old husband to Xoliswa. In the midst of what was happening, he says he asked to speak to police. In the process he was brutalized by police and arrested. His version is supported by newspaper images marked marked “C” from the same publication. He also says he asked to see the court order and was shown an interim order. When I consulted with him some ten days after his release on bail on the same conditions as others, he relayed that he still had pain in his arm
h) Bongani Magaqana, 27, security officer studying a CS Diploma at Unisa. During the evictions he lost everything, including his study material and ID. His arrest also resulted in his failure to appear at a CCMA enquiry for his previous unfair dismissal which has prejudiced his claim. He was released on bail along with the others and on similar conditions. He describes on the day of evictions asking questions of the police including to have site of the court order. He says that a Captain Erasmus said “My bro you are asking a lot of shit” Thereafter he was brutalized and arrested and told by a Captain Potgieter that Africans are “kak people”. He also says that he exorted the community to not throw stones as the police applied Rules 1,2 and 3 of riot protocol. He says his questions of the police resulted in his arrest and brutalization. He lost absolutely everything he owned
i) Yandise Sogayise, 30, unemployed. He has a similar story of asking questions, attempting to retrieve possessions, arrest and later release on bail. He tells me he got lice and severe rash in prison. On the day I met him, his hand was still injured from the beatings he says he was subjected to
These are just some that I had occasion to consult with. I wanted to introduce them to you vicariously and tell you some of their stories. I am trying to assist you in connecting with the real and the authentic.
I was also taken out to a Sanral owned property where some of the dismantled building material is being stored. I noted that the property is unsecured and that looters freely make off with material
On the first day that I met with community representatives at Lwandle Community centre where the people were being housed, it was bitterly cold and raining. It was hard to find any part that was sufficiently warm for a short meeting and where the rain was not coming in.
I happened upon a sign of an initiative that the Community Centre runs. It’s called “don’t’ shoot the wounded”. It’s ironic and tragic that this is what happened when the Community was evicted, on all levels and both literally and figuratively
The evictions of early June and January this year, amount to a shooting of the wounded, further injury to the already injured. Further impoverishment of the already impoverished. It’s not okay. This enquiry can investigate and unpack the administrative action that allowed or facilitated this. It can take as long as necessary. But issues around the violation of life, dignity and humanity must be addressed immediately and cannot be held in abeyance until the Enquiry is through.
To this end we have and will continue to insist that this community is restored at the very least to the position it was in before this unjust and unlawful action took place. On a draft order it is unlawful to evict. On a final order, even, it is unlawful to evict without adequate alternative provision of shelter and arrangements for preservation of life and possession. No matter how you look at it, this action was unlawful
We as South Africans cannot continue to partake in action that plunges us into further darkness. Peace is not the absence of conflict alone. It is also the presence of justice. We insist on justice. We insist on making right. The fact that families and young children are exposed to this level of inhumanity and brutality cannot be accepted. How can we allow young children to be exposed to and subject to the terror of grown men in full riot gear coming to dismantle and destroy their homes. Violent administrative action keeps us in a downward spiralling cycle of injury and harm on every level. All South Africans must stand together and say no
It is of grave concern that there exists a National Housing Emergency program and yet neither the City or Sanral sought to utlize this program as a mechanism to make alternative provision prior to evictions
We have put on record with the City, the Ministry and other Administrative Structures the essential requirements of the community. I attach such correspondence marked “ATJ 1, 2 and 3”
The HDA has been responsive to a certain degree, for which we, Ses’khona and the community are grateful. However we request an urgent Restorative Justice ADR Dialogue specifically to get to full agreement on addressing immediate pressing issues amongst others:
- Loss of life
- Injury to persons
- Destruction of all possessions
- Derogation of human dignity
- Provision of land and housing
This must all take place with proper consultation. We cannot find solutions if significant voices consistently get shut down and if we exclude the voice of the poor from the solutioning process.
Such a process is about immediate restorative and reparatory measures and it will in no way compromise this enquiry.
I may wish to supplement my submission with further written submissions as I consult with the community and gain further insight
I also make mention of that it appears that Ses’khona is being victimized and demonized on many levels. It appears those corageous enough to stand for the poor are discredited and their work for the poor devalued. This carries with it various risks not least of which that the voice of the poor and their narrative is exposed to muting, brutalization and perhaps even shutting down. It also carries with it the risk of threat of injury or loss of the lives of members and representatives of Ses’khona. It may amount to incitement to violence. I attach a bundle of press releases and responses by ourselves, Marked annexure “ATJ PR”
We are and will be assisting them with legal resource to remedy this where necessary.
That an anti-land invasion unit exists is tragic in the context of an historically brutalized and dispossessed people that have few options but to urbanize to seek work in the City, where they are then left with inadequate provision and support. It’s inhumane. We are looking into the Constitutionality of this unit and will act accordingly where necessary
This really is a matter of life and death, and I trust that our call to embark on immediate solutioning will be heeded.
As the late Justice Pius Langa used to say on matters of the derogation of Human Dignity, that we need to be courageous enough to point out to the Emperor that he is not wearing any clothes.
Let us all take courage and address what needs to be addressed. We have learned from Marikana, that holding human need and restoration of Dignity in abeyance whilst we run enquiries, serves no one.
In the words of Martin Luther King Jr, an injustice to one is and injustice to all humans everywhere. And so I part with the fact that an injury to one South African amongst us, is an injury to all South Africans everywhere.
Let us not delay in righting the wrongs
SHEENA ST CLAIR JONKER
For: The Access to Justice Association of Southern Africa (NPO 135-398)
Email: email@example.com Mobile: 0614915314 or send a text to 0843773340
“I generally operate in a space where my faith is way bigger than what I can see or even explain. But today we got to enjoy the fruits of our tenacity in court: illegal gathering and public violence matter diverted to mediation against significant odds Gratitude to the amazing work of power ACCESS TO JUSTICE legal ADR team Krish Jairam Attorneys, Advocate Tango and Brandon Abdinor. All the hard work has not been in vain. Respect also to Mazibuye for bringing such issues to the fore. Let us go forth and replicate this stuff everywhere”
-Sheena St. Clair Jonker
I blog in peace.
As you know, we often intervene in matters before court and advocate for diversion or referral to Restorative Justice ADR Dialogue or mediation. In criminal matters this involves making representations to the Senior Public Prosecutor, and if unsuccessful, then the Director of Public Prosecutions, and if unsuccessful, then the National Director of Public Prosecutions.
One such matter, S v Sangweni and others involves 43 workers, and 3 leaders of a civil rights organization arrested and charged with illegal gathering and public violence. The organization, Mazibuye, is an organization that tirelessly and fearlessly advocates for the poor and addresses human rights violations head on. In this particular matter, the group had entered into negotiations on various unfair labour practices and other violations including pay as little as R 27 a day and the dispossession of Identity Documentation. Agreement was reached and when it was reneged on a few days later, the leaders lead the workers in a gathering and march. There are many dynamics at play including the fact that the Illegal Gatherings Act does not favour groups that gather and march in this way, even where it is an outworking of desperation and ongoing and unaddressed human rights violations. The Access to Justice Association of Southern Africa is intent on raising the constitutionality of this in the appropriate forum.
Yesterday the court in this matter ordered a diversion to mediation. This after seven months of representations and indications by the SPP that the content of the charges was ultra vires the NPA protocol on diversion. But working tirelessly and tenaciously, and completely pro bono, Access to Justice legal and dispute resolution team made up of Krish Jairam, Advocate Khaya Tango and Brandon Abdinor rallied up support of the Department of Labour, the Complainant Company and demonstrated to the DPP that such diversion is not only supported in our law, but accords with wisdom and reason. This is a victory for the potential to address the cause and interrupt a culture of simply reacting and suppressing those that have authentic concerns simply by pulling the Illegal Gathering card. This is also a victory for diversion to mediation which we intend to replicate all over the country as there are several such matters that we have been consulted in.
We are currently setting up substructures of the Access to Justice Association of Southern Africa in each province. As some of you know this is an NGO platform purposed to mobilize and resource lawyers and Dispute Resolution Practitioners to get in the way of injustice and specifically to provide Access to Justice for the poor. If you wish to be part of one of these substructures, please email firstname.lastname@example.org
Our ADR Program now includes content on Court Annexed Mediation Rules (the project due to pilot across SA on 1 August) as well as advocacy in ADR and mediation diversion such as described above. We provide replicable written and oral representation protocol pioneered and developed in the course of our own practice in this.
To join training, please send an email to email@example.com
Upcoming dates are
Jozi 7-11 July
Bloem 21-26 July
Durban 4-8 August
Cape Town 25-29 August
Distance Learning over 12 months (can be fast tracked over 3 months)
As always, Peace