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Tag Archive: Constitution

Forget Gareth Cliff, a constitutional law expert shares views on alcohol ban, curfew

Whatever your views on the alcohol ban and curfew, this is the opinion on the potential constitutionality or otherwise of the latest lockdown regulations. It is unfortunate that the irresponsible actions of a minority have deprived the majority of South Africans, who have maturely observed the rules and patiently waited for each small concession, of yet more of our freedom. But we are curious as to whatever happened to the original high court judgment declaring the lockdown regulations unconstitutional.

Reprinted from iol.com, by Sihle Mlambo – 2020-07-14

Alcohol traders remain closed after the government announced on Sunday night that the alcohol ban would be reinstated.     Oupa Mokoena African News Agency (ANA)

Alcohol traders remain closed after the government announced on Sunday night that the alcohol ban would be reinstated. Oupa Mokoena African News Agency (ANA)

Johannesburg – President Cyril Ramaphosa’s announcement of an immediate ban on the sale and distribution of alcohol sent social media into a tailspin on Sunday night, with outraged citizens bemoaning that they had not been given notice to stock up ahead of the ban.

In enforcing the ban, Ramaphosa scolded South Africans who have been hosting parties, contravening lockdown regulations and contributing to the spread of the coronavirus which has now killed over 4 100 people and infected over 280 000 people since March.

On Tuesday controversial media personality Gareth Cliff added his voice to the mix, describing government’s decision to ban the sale of alcohol and instituting a curfew between 9pm and 4am as “bullsh**”.

“He goes on TV this president, willy-nilly and makes rules. He sits with his national coronavirus command council and they go ‘ah I think we need to ban alcohol’ and they decide among themselves and that’s it.

“Then he says there is a curfew and you can’t visit your family. Bullsh**. You do not get to decide for free people in a free country whether they can see their mother or father, brother or sister or their children, you don’t get to do that.

“And any government that tries to do that, even if they say it’s for health reasons, it’s a tyrannical state that is trying to control your behaviour,” said Cliff.

We asked constitutional law expert Professor Pierre De Vos to comment on Cliff’s rant, and he declined, describing him as irrelevant and his rant as ridiculous.

Writing on his blog, Constitutionally Speaking, De Vos shared his views on the rationality of the contentious decisions taken by the Ramaphosa administration on Sunday.

He was sharing his opinion based on how he felt the courts would rule on the matters if the ban on the sale of alcohol or the curfew faced a legal challenge.

ALCOHOL

On the alcohol ban, De Vos said based on the rising Covid-19 cases and the increasing number of people being admitted to hospital, it was likely a rational decision in the eyes of the court.

He argued, however, that the decision to stop the sale of alcohol during level 5 of the lockdown – when cases were low – could be invalid and also contributed to the backlash the government was now facing from the public.

“Arguably, the ban on the sale of liquor during level 5 lockdown when confirmed cases were low and hospitals were close to empty, was not necessary to deal with the destructive effects of Covid-19 and may have been invalid.

“The level 5 ban may also have been a strategic mistake as it may have contributed to the public hardening of attitudes towards the lockdown, thus turning a public health emergency into a matter of law and order in the eyes of the public. But given the general deference shown by our courts to lockdown regulations, it is not clear that the courts would have invalidated the ban,” said De Vos.

De Vos said it would be difficult to argue against the alcohol ban.

“It would be difficult to argue that the ban on the sale of liquor is not necessary to deal with the destructive effects of Covid-19.

“The ban is clearly authorised by the Disaster Management Act and as long as it is rationally related to the purpose of the declaration of the disaster, it will be valid. I would be surprised if a court found that there was no rational connection between the ban and the aim of freeing up hospital beds better to deal with the medical consequences of Covid-19,” he said.

CURFEW 

De Vos said due to the dire situation in which the country found itself, it would be difficult to argue against the need for a curfew as it curtailed those who hosted parties from doing so.

“I will assume the purpose of the curfew is to stop socialisation of people at night (as such socialisation will allow the virus to spread faster), and additionally to make it easier for the police to enforce the other lockdown regulations.

“The former is an important and pressing purpose while the latter is not. This must be weighed up against the impact that the imposition of the curfew will have on members of the public. Clearly, a curfew radically curtails an individual’s freedom of movement and would only be justified in extreme cases.

“The state would have to show that other measures that are less invasive of citizen’s rights are not available to achieve the purpose. I am not sure they will be able to do so, but, once again, given the deferential attitude of most courts towards the government imposed lockdown restrictions, I am not as confident as I would normally be that a challenge to the curfew would be successful,” he said.

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Human Rights in a time of pandemic

How might COVID19 impact or even restrict our human rights?

This weekend was Human Rights Day, and we observe and reflect on human rights throughout the month of March. But March 2020 is like no other in recent history. As a nation and as a global community we face a threat that, like human rights, is non-discriminatory. It matters not if you are black, white, coloured, Indian, or any other race. It matters not if you are male or female, young or old, rich or poor, educated to PhD level or failed your Matric certificate. COVID19 is the great leveller; it also has the potential to undermine our human rights in a way unequalled since apartheid.

Human rights and COVID-19

We recently wrote about a High Court case that found in favour of a small community of farms and farm workers whose constitutional and human right to health and well-being was contravened by the activities of a nearby mushroom farmer. In that case the production of compost created noxious fumes that made life intolerable for neighbours. COVID19, by contrast, can’t be smelled, touched, or even seen, except under a microscope. Yet it presents a far greater risk to health and well-being than any odour.

The greater good

In the coming months, tough decisions will have to be made. In the field of public health, policymakers and health care workers alike often have to disregard an individual’s needs to safeguard the health of many – this is the concept of “the greater good”. When there are not enough resources to go around, they must be used in the way that will help the most people, and those with the highest chance of survival/recovery. This is happening right now in Italy. Tragically, it sometimes means that a person who might have recovered is denied treatment, in favour of someone whose survival likelihood is much greater.

If COVID19 spreads in South Africa the way it has in Europe, our weak public health system will come under intense pressure, and lives that could be saved, in a less resource-constrained society, will be lost. We have only 7000 critical and high-care beds in the whole of the country. We also have a large population living in high-density, unsanitary conditions, where social distancing, self-isolation, and even handwashing are next to impossible. Compounding these challenges, there are an estimated two million people in South Africa living with HIV and not on treatment, and therefore immunocompromised. Diabetics are also at increased risk of severe disease, and our rate of diabetes is high.

Add to that the burden of tuberculosis we suffer. Both current and past TB patients have weakened respiratory systems, rendering them ultra-vulnerable to COVID19. They are unlikely to be among the 80% of patients who experience only mild symptoms and make a full recovery. Therefore, President Cyril Ramaphosa has acted swiftly and sharply, while our case load is still small, to contain the spread of the virus. As we wrote recently, a State of Emergency has not been ruled out.

Are some rights more equal than others?

Our rights function in a not dissimilar way to triage of patients. Sometimes we have to prioritise certain rights over others, in the best interests of society as a whole. Individuals have to be prepared and willing to forego some rights. This does not sit well with South Africans. We are independent, rebellious peoples. We are defiant. In a small way, you can witness this every day in the number of cars that fail to stop at robots as they turn red. In general, three cars will carry on crossing an intersection after the light has turned. An examination of our road traffic accident and death rates shows a high proportion of speeding and DUI offences. We don’t like to be told what to do, or to do what we’re told.

And that defiance is what overthrew the unjust, inhumane apartheid regime. It is what brought diverse immigrants to our shores throughout history, whether fleeing religious persecution, defying social and economic constraints, or just seeking greater personal freedom. South Africans are a paradoxical mix of people who belong to strong communities but value their individual rights and freedoms very highly. Now those attitudes are about to be put to the test. 

Protecting the ultimate human right – the right to life

In order to protect our collective right to health and well-being, and ultimately the right to life, the President has restricted our right to public assembly, and to a lesser extent (so far) our right to free movement. In Gauteng all parks and nature reserves have been closed, leading to much grumbling among the dog-walking middle classes. But these people fail to consider the parks in vulnerable communities that are much more densely occupied. Church-goers are up in arms at the prospect of their weekly worship being prohibited. But their members will soon be taking up residence in local hospitals if these restrictions are defied. It feels like living in a nanny state when we can’t go out for a meal in the evening and have a glass of wine. But alcohol abuse leads to disinhibition (completely leaving aside gender-based violence for the moment). The likelihood that social distancing will be maintained in a crowded shebeen is nil. 

Time for collective action

We as South Africans must pull together and comply, comply, comply. It may go against the grain, but we are going to be asked to step out of our comfort zones many times over in the next few months. Doing what we are told without complaint is just one example. We have to learn new ways of doing things – from working, to educating our children, to entertaining. We have to keep more physical distance between us, while at the same time reaching out to family, friends and neighbours more than ever. In fact, “social distancing” has been replaced in the parlance by “physical distancing, social solidarity”. Thank goodness technology makes this easy. We need to be kinder, gentler, and more aware of each other, from keeping a safe distance in the check-out queue to offering the car guard hand sanitiser with his tip. We need to behave as a community, and not as a collection of individuals.

Never before has the phrase “we are all in this together” been more apt. No one is a victim, and no one is to blame. We are all going to suffer economically, and the poor will suffer disproportionately. Those of us who suffer less must help where we can.

No one is an exception

MOST IMPORTANTLY, we must not think the restrictions do not apply to us. If we do not all heed the President’s measures voluntarily, the government will have no choice but to declare a State of Emergency. The details are discussed here, but, in short, in a State of Emergency your human rights are trumped by the public emergency. You could be told to stay indoors except to purchase food and medicine and face prosecution if you do not abide by the rule. In France, recreational cycling is prohibited. Cycle trips of only two kilometres are permitted to go to the shops. Cyclists are being traced via Strava and fined large sums for failing to adhere to the restrictions. Experts agree that it is important to keep exercising, both for immune system support and mental health; but where the public health is so threatened, as it is in France right now, the individual’s right to well-being comes second.

Our resilience as a society is being tested in unprecedented ways. Our rights are being challenged. We may not like that, but at SD Law we firmly believe that as South Africans we have the capacity to get through this, to look after each other, and to come out stronger and more unified than ever before. 

Update: 24 March

As expected, the President last night announced a national lockdown for three weeks. Fortunately, he has given us a few days to prepare – so get your toilet rolls in! Seriously, we urge all South Africans to abide by these unprecedented restrictions. Our epidemic curve is still young, but the number of infections is increasing exponentially day by day. Countries that have taken early, decisive action, like Taiwan and South Korea, have not been as badly hit as those that have delayed and dithered, like the UK and US. The UK last night also announced a total lockdown, as citizens were not complying sufficiently with recommended movement restrictions. Our health system – including the private sector – will not cope with infection on the scale of Italy, France, Spain or Germany. Let’s all do our part to #flattenthecurve.

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Why #ImStaying

South Africans in their droves are standing up for what’s great about our country

No one can deny that the last few months have been a tough time to be a South African…violence against women that seems unstoppable, xenophobic attacks, a weak rand, and a government that appears unable to address these and other issues with any authority. Add to that the tragic loss of national icon, Johnny Clegg, and there hasn’t been a lot of good news to shout about.

#WhyImStaying

But we South Africans are a resilient bunch. Determined to rise above the negativity, a small group of individuals committed to showcasing the good in our country set up the Facebook group #ImStaying. The description on the page says, “This group is dedicated to the South African women and men of all races and all religions, who remain loyal to South Africa. This group is to honour all those who still believe that we as a nation can turn things around. To all those who choose to stay and work together to save this beautiful country we call home!” This group has been gaining momentum and now boasts nearly 500 000 members, with more joining by the day. People share their stories of kindness, compassion and commitment using the hashtag #I’mStaying.

We’re staying

At SD Law, we’re staying. We have dedicated our lives and careers to seeking justice for South Africans. Every day we come face to face with the best and worst of society; and we firmly believe that the good in this beautiful land far outweighs the bad. Here’s why #ImStaying.

Our Constitution

South Africa has the most progressive constitution in the world, and one of the youngest. The current constitution, officially the Constitution of the Republic of South Africa, 1996, is actually our fifth, and was drawn up by Parliament in 1994. It was enacted by President Nelson Mandela on 18 December 1996 and came into effect on 4 February 1997, replacing the Interim Constitution of 1993. Since 1996, the Constitution has been amended by seventeen amendment acts.

It is founded on the principle of human rights, enshrined in Chapter 2 – the Bill of Rights. The Bill of Rights is a human rights charter that protects the civil, political and socio-economic rights of all people in South Africa. You may know what they are, but many people do not, so it’s worth reiterating exactly what our human rights are.

Basic human rights

  • The right to equality:
    No one has the right to discriminate against you based on your race, gender, sex, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language or birth among others.
  • Human dignity:
    Everyone has the right to have their dignity respected.
  • Life:
    Everyone has a right to life and nobody, not even the state, has the right to take a life.
  • Freedom and security:
    No one can be put in prison without good reason, be detained without trial, be tortured or punished in a cruel, inhuman or degrading way.
  • Arrested, detained and accused persons:
    Any arrested person has a right to a lawyer. Prisoners must be kept in proper living conditions.
  • Personal privacy:
    No one, not even the government, has the right to search your house or property or seize your possessions without following the correct legal channels.
  • Freedom of expression:
    Everyone has the freedom to say, write or print what they want, so long as exercising this right does not violate anyone else’s right or break the law in any way.
  • Freedom of association:
    Everyone has the right to associate with a trade union, a political party, or any other club or association.
  • Political rights:
    Every citizen has the right to form a political party and to participate in the activities of a political party. Every citizen has the right to free, fair and regular elections and every adult citizen has the right ­to vote in elections for any political party, and to do so in secret.
  • Education:
    Everyone has the right ­to a basic education and to further education.
  • Healthcare, food, water and social services:
    Everyone has the right to access healthcare services, including reproductive healthcare; sufficient food and water; and social security.
  • Slavery, servitude and forced labour:
    Everyone has the right to choose who to work for and the kind of work they do, and must be paid for their work.
  • Citizenship:
    No-one’s South African citizenship can ever be taken away.
  • Housing:
    Everyone has the right to adequate housing. The government cannot evict you from your home if you own it.
  • Children:
    All children have the right to parental care, shelter, and food. Children may not be neglected or abused or forced to work.

Source: South African Human Rights Commission

It’s not difficult to understand the basis for and importance of these fundamental human rights. Every single one of them was abused under the apartheid regime. But not every country with a turbulent past has been able to take such a decisive stand against human rights abuse. Our Constitution is admired the world over.

Respect for LGBTQI rights

There are only 28 countries that allow same-sex marriage, out of a total of 195 countries in the world recognised by the UN. South Africa was the fifth country to legalise same-sex marriage, in 2006. Furthermore, this legislation was a direct result of a constitutional challenge to the earlier marriage laws on the basis of human rights – the right to equality includes the right to marry.

South Africa offers asylum to people from other countries who are persecuted for their sexual orientation. Unfortunately, cultural norms have not kept pace with legislation, and members of the LGBTQI community do experience discrimination and abuse, both verbal and physical. At SD Law we condemn this and continue to fight for equality and freedom of expression, including sexuality and sexual preference. The protection of the law may not put an end to deep-seated prejudice, but it does mean there are penalties for harassment and intimidation that do not exist in many neighbouring countries, where persecution of same-sex relationships is carried out by the state.

A vibrant civil society

Perhaps it is because of our history of oppression and injustice, but civil society in South Africa is one of the most active in the world. We are proud of organisations like the Treatment Action Campaign, Section 27, the Legal Resources Centre, the Black Sash, Sonke Gender Justice, SWEAT, Open Society Foundation for South Africa, Right2Know, and many others – too many to name – that play a vital role in our democracy. These organisations function as overseers of democratic institutions; they monitor human rights and give citizens, especially vulnerable and marginalised populations, the tools to defend their rights. Some of SA’s finest activists have found their voice through – or indeed founded – these important institutions.

A beautiful country

Lastly, who can deny that South Africa is one of the most beautiful countries on earth! From the Drakensburg to the Wild Coast to the Garden Route to Kruger National Park to the Karoo to Table Mountain, and everything in between, we think South Africa has it all. #ImStaying

Contact us today

SD Law is a firm of Cape Town and Johannesburg attorneys with a deep commitment to constitutional law. If you have experienced discrimination, either at work or in your community, or you feel your rights have been infringed in any way, contact Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za for a confidential discussion. We will protect your human rights.

 

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Red Ants continue to disregard due process of law

Illegal evictions and fatalities are calling cards of Red Ants

At Cape Town eviction lawyers Simon Dippenaar & Associates (SDLAW), we were angered and saddened to learn of recent illegal actions by the Gauteng security company Red Ants. The Red Ants firm specialises in “urban management support services for human settlements”, and was established to counter the influence of large, multinationals who dominate the South African economy. Its mission is “to protect, train, empower, serve and provide food security to our communities”. A noble mission indeed, yet more often than not the Red Ants are the cause of homelessness in those communities rather than providing security, food or otherwise.

Evictions should be lawful and respectful. Rend Ants act illegally.

As eviction attorneys we uphold the rights of property owners under the law, but we also fight for tenants whose rights are threatened or disregarded. We defend the Constitution, and base our law practice on the citizens’ rights bestowed therein. Eviction law has been carefully crafted to protect the poor and the vulnerable, after decades of exploitation and unfair practices under apartheid. Everyone has the right to adequate housing. Therefore the recent actions of the Red Ants in Gauteng are disappointing and disturbing.

Shacks destroyed in Alexandra Township

Earlier this month, more than 80 shacks, allegedly built illegally and too close to the Jukskei River, were destroyed by the Red Ants in Alexandra, Johannesburg, rendering 100s homeless. However, the Red Ants are not solely to blame. Johannesburg Mayor Herman Mashaba has said that the demolition was unlawful and should not have been authorised by city officials. The eviction order was in fact obtained in 2016 (before Mashaba was elected), but the eviction not carried out until now. Mashaba vows to “get to the bottom of it” and rebuild the demolished structures timeously.

Marshall St, Johannesburg

Last October, the Red Ants were also involved in a mass eviction in the Joburg CBD. In this case, residents were not forewarned of the eviction and many of their personal possessions were destroyed, in a callous and brutal removal that took place while many occupants were at work. We can only imagine the horror of returning home to find your belongings damaged or destroyed and your home uninhabitable. Occupants of the Marshall St building were mostly domestic workers, taxi drivers and informal traders, vulnerable individuals with limited means either to replace their possessions or to take action against the city. In this case, according to Tshepo Skosana, the sheriff who carried out the eviction order did not act in accordance with due process of law and “was negligent in fulfilling his duty to inform the residents of their pending eviction, which made the process illegal”. The Red Ants were the purveyors of brutality, but not the cause of it.

Death in the Vaal

It’s bad enough losing one’s home, but eviction should not result in loss of life. Sadly, this is precisely what happened in April when an eviction in the Vaal area of Gauteng, again facilitated by the Red Ants, led to clashes with community members. Two died, one from the Red Ants and one from the community, and six were injured. Yet again, the Red Ants and the Sheriff were acting on a court order to remove occupants from illegally erected shacks. The casualties happened when a fight broke out between the residents and the Red Ants.

Duties of the Sheriff

As Eviction Lawyers in South Africa, we do not condone the construction of unlawful dwellings. Residents should act within the law in choosing a site and erecting a structure. However, the current housing situation in South Africa does not always make that possible. Although there is a comprehensive social housing strategy that includes RDP homes, Community Residential Units (CRUs) and Upgrading of Informal Settlements (UISP), waiting lists are long and government has fallen behind in meeting its housing commitments to the poor and vulnerable in our society. It is no wonder communities sometimes take matters into their own hands. Section 26 of the Constitution guarantees the right to adequate housing, so they are only claiming their constitutional rights.

But landowners also have a right to the proper use of their land, so they may seek an eviction order when homes are built illegally. However, the court has an obligation to consider all circumstances before granting the order. According to Skosana, if occupants will be made homeless, there must be provision of alternative accommodation for an eviction to be lawful. The court must also consider the number of women and children and old people affected by the eviction and this will influence the amount of time granted before the order can be served. Turning people out of their homes with no warning breaches these conditions and more. 

The Sheriff’s role is serve court documents. This includes orders of eviction. The Sheriff has a duty to inform the occupants of the situation, in terms they will understand, and this includes their right to be represented in court. The Sheriff is also obliged to treat everyone with dignity and respect, and ensure that belongings are properly looked after during an eviction. The use of violence and threats in effecting an eviction is an abuse of the Sheriff’s authority.

In all these cases the Sheriff acted together with the Red Ants to intimidate residents and damage or destroy their possessions. Neither party can claim that they implemented a legal process.

Protection under the law

Residential tenants are protected through the Prevention of Illegal Eviction Act (PIE) and the Consumer Protection Act (CPA). A stringent eviction process is meant to safeguard human dignity, property, and ultimately life! As a specialist eviction attorney we are diligent about observing lawful eviction procedure. We condemn the abuse of power recently demonstrated by the Sheriffs and Red Ants involved in these evictions.

Landlord or tenant – let us help you

Eviction lawyers are now in Johannesburg, Pretoria and Durban, as well as Cape Town. So wherever your property is located, we can help you with an eviction matter, whether you are landlord or tenant. If you have been the victim of an illegal eviction, call us today.

Contact Eviction Lawyers South Africa on 086 099 5146 or email sdippenaar@sdlaw.co.za

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Eviction Law – Changes

Eviction Law Changes - Eviction Lawyers South Africa

How Constitutional law is transforming eviction law

Eviction | The Constitution is the backbone of society and South Africa is fortunate to have “the most admirable Constitution in the history of the world,” according to Harvard law scholar Cass Sunstein. Our Constitution is unique in that it includes “positive rights” which require the State to enact policies that minimise inequality, free South Africans from discrimination and redress historical inequalities. Any legislation that contradicts the Constitution is deemed invalid.

The lie of the land

In terms of eviction law, these Constitutional principles are being applied by the Courts in an attempt to strike a balance between the rights of landowners and the rights of the landless.

Section 26(3) of the Constitution states that “no one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions.” Section 26(1) of the Constitution further provides for everyone’s right “to access to adequate housing” and sets out the State’s obligation to ensure this right is upheld (Section 26(1).

Clearly it is residential evictions, regulated by The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE), and the rights of landowners that are most affected by the implementation of these Constitutional principles. Read more about PIE here.

So, although section 26(3) of the Constitution has not amended our common law, it does mandate legislation that impacts the common law rights of landowners. In addition, the Courts tend to place a greater burden on the applicant-owner where the State is the applicant.

Burden of proof

A landowner must prove ownership by producing title deeds for the property and must show that the defendant is occupying his property to ensure eviction. This is known as rei vindicatio. The onus then falls to the defendant to prove he has a valid right to occupation.

Majority of disputes about day-to-day tenancy

While changes to legislation have indeed contributed to greater social justice, there have been some negative side effects, such as the reluctance of landowners to provide housing for their labourers, uncontrolled squatting and an influx of rural residents into urban areas, with the associated health and safety hazards of overcrowding. But it is day-to-day tenancy issues and the maintenance of property values that comprise the vast majority of disputes, rather than the extreme cases of large-scale land invasions and the plight of the homeless.

Navigating your way through an eviction

Eviction law has developed significantly over the last few years and some procedures have changed because of the Consumer Protection Act. Recent cases also indicate that the same procedures must be followed in both the Magistrate’s Court and the High Court. Navigating your way through an eviction and making sure you follow the correct process can be daunting. So, whether you’re a tenant or a landlord, don’t try to go it alone.

We can help

At Cape Town Eviction Attorneys, SD Law & Associates, we are specialists in property law. Let us help you with the eviction process or other property matter. Contact Cape Town Lawyer Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za.

 

Further reading

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