Umhlaba: The Land

One of my favourite topics is the issue of land in South Africa. A recent judgment by the Supreme Court of Appeal reinforced the criticism by land activists that government’s decisions seem to favour land owners.

The Right to Property enshrined under section 25 of our Constitution is certainly one of the most contested rights in South Africa. It provides for the right to property and precludes the state from depriving a private owner of his/her property without compensation. Put differently, the Constitution requires that when a claim for land is made (usually by a previously oppressed individual), the land owner must be compensated by the State. When determining compensation, the court must apply a “just and equitable” test, taking into account the factors listed in s 25 (3) (a) – (e) of the Constitution, and intervene and make a decision where there is no agreement regarding the amount of the compensation.

It is further provides that, “the amount of compensation and the time and manner of payment must be just and equitable, reflecting an equitable balance between the public interest and the interests of those affected, having regard to all relevant circumstances”. Interpretation of this law should entail a consideration of: a) The current use of the property; b) The history of the acquisition and use of the property; c) The market value of the property; d) The extent of direct state investment and subsidy in the acquisition and beneficial capital improvement of the property; and e) The purpose of the expropriation.

In a recent land claim judgment, the Supreme Court of Appeal, in the case of Uys N.O and Another v Msiza and Others (1222/2016) [2017] ZASCA 130 (29 September 2017), awarded the amount of R1,8 million as, “just and equitable for the acquisition of the property”. The SCA overturned an earlier judgment in the Land Claims Court which found that the value of the compensation to be paid to the land owners was R1,5 million, which was R300 000 less than amount valuated by the State’s expert. Instead, the SCA found that the valuation by the State expert took into account some of the factors listed in the Constitution and could not find any justification for deducting R300 000.

Mr Msiza and his family resided on the farm as labour tenants since about 1936. On 5 November 1996, Mr Msiza’s father successfully lodged a claim for an area of land situated on the farm, to be awarded to him on the grounds that he had been a labour tenant in terms of Land Reform (Labour Tenant) Act of 1996. A Trust became the owner of the farm on 9 May 2000. The Trust had acquired the property for a price of only R400 000 for the entire farm (352.5033ha) while being aware that the Msiza family occupied the land. The low cost of the land was probably influenced by the fact that Mr Msiza was residing on the farm and had lodged a claim against the entire farm.

The Msiza family was eventually awarded only 45.8522ha of the entire land, which was 306.6511ha less than the land initially claimed by the family. There had been no change on the actual use of the land and no significant investment made by the Trust on the land, including the land awarded to the Msiza family, since it was purchased by the Trust. The Trust wanted R4,36 million as compensation for the 45.8522ha of land awarded to the Msiza family, which was rejected by the Land Claims Court.

However, I question whether the R1,8 million valued by the State as compensation is just and equitable compensation and in the public interest, given the fact that; firstly, the Trust had purchased the entire piece of land for a sum much less than the market value at the time; secondly, the Trust purchased the land well aware of land claim; thirdly, there had been no change to the use of the land and no significant investment on the land; and fourthly, the Msiza family were only awarded 45.8522ha of the land, 306.6511ha less than the land initially claimed by the family.

Section 25 of our Constitution was not intended to fund the commercial aspirations of private landowners. The section exists to ensure that public money is distributed fairly, considering the Constitution’s commitment to rectifying the racially discriminatory distribution of land, which occurred over three centuries in our appalling history.

I therefore ask: is it in the public’s interest to compensate and benefit private individuals who acquire property, well aware of a land claim from a person or community, as was the case in the Msiza land claim?

Lungelo Baleni – ­2017 Bertha Justice Fellows

The Annual Bertha Convening is supported by the Bertha Foundation. We would like to thank them for their support of the next generation of young human rights lawyers. Read more about the Bertha Foundation and Bertha Justice Fellows here: http://berthafoundation.org/

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Building trade union effectiveness through human rights and the law

The relationship between non-governmental organisations (NGOs) and trade unions is very important in that their joint impact on social and political issues can be very powerful when they work in sync. In the same light, when their joint agenda fails, it can be a setback for both parties.

Both NGOs and trade unions provide important assistance to the communities which they serve. They have more things in common than not, and the most important way they can contribute to democracy is through the improvement of civil society and ensuring that the dignity of those they serve is restored.

With that being said, it is important to note the circumstances under which NGOs and trade unions can co-operate, the various obstacles they may acquire and the conflicts of interests that may arise.

Trade unions have a long history and so do NGOs. It may seem that, due to globalisation, NGOs may have gained a wider scope and reach than trade unions and the impact of trade unions remains domestically focussed, despite the globalisation of the market space.

Trade unions have identified with the struggle of human rights since apartheid. We can see the rich history of activism through the growth of worker rights, but also as workers are now being recognised as part of society. In fighting for workers, trade unions have liberated those who were dependent on them.

In the early 2000s, trade unions became a key component of democracy as agents of social change but that role has since evolved, with the spotlight falling largely on NGOs. Trade unions have not been completely silent, and we see their stern presence in the courts and in key judgments that have shaped the labour market and labour law.

One thing we can be certain of is that trade unions will not be phased out any time soon. Despite the greater political influence, they still play a key role in the workplace and the market.

The status quo of trade unions after the Marikana massacre changed and led to the breakaway of members to form their own unions, such the Association of Mineworkers and Construction Union (AMCU). The aftermath of Marikana showed how workers had lost faith in trade unions because leaders focussed on the pursuit of political gains instead of the wellbeing of their representative workers. Through this distress of workers, we have seen a breakthrough in NGO interventions through having trade unions held accountable as representative bodies of workers and employers implementing effective suitable work standards.

In South Africa, it is not easy for an employee who is not part of a union to seek help outside the scope of options made available by legislation, that being the Commission for Conciliation, Mediation and Arbitration (CCMA) and trade union structure. This means that it not easy for NGOs to assist workers to assert their rights unless all avenues have been exhausted. That means that the employee may be helpless to assert their rights, to a certain extent. This is where the cooperation of NGOs and trade unions is needed.

NGOs and trade unions should have worker rights at the heart of their work and cooperation between the two is the only way we can advance the landscape of worker’s rights. If they fail, they will fail to unshackle the restraints of migrant and casual labour and will not be able to overcome the violations of human rights that continue to occur; such as unfair dismissals and non-payment of benefits, worker exploitation.

 

Bathandwa Xhallie – 2017 Bertha Justice Fellow

The Annual Bertha Convening is supported by the Bertha Foundation. We would like to thank them for their support of the next generation of young human rights lawyers. Read more about the Bertha Foundation and Bertha Justice Fellows here: http://berthafoundation.org/

The Right to Education post-2015

The fundamental right to education must include quality education – and standardised measures of outcomes must be introduced to ensure equality, quality and accountability. The future development agenda should be committed to its enforceability. These were some of the conclusions following two days of thought-provoking presentations and discussions during a conference held last month.

The conference, “The Justiciability of the Right to Education in the post-2015 Development Agenda”, and was held on the 25 & 26 May 2015 in India, by the Legal Resources Centre (LRC), in collaboration with the Centre for Law and Policy Research (CLPR). See the CLPR to download the presentations.

The UN Special Rapporteur on the Right to Education, Dr Kishore Singh, opened proceedings by highlighting the fact that this right is justiciable in many countries, with India leading the way. In relation to the development agenda, Singh highlighted the fact that, for various reasons, the Millennium Development Goals (MDGs) have not been achieved as envisaged. Two of the principal reasons for this are a lack of financing and a lack of monitoring – issues that would need to be addressed in the post-2015 Sustainable Development Goals (SDGs).

Kishore Singh addressing conference
UN Special Rapporteur on the Right to Education, Dr Kishore Singh

Overview of presentations

Swati Sharma of Centurion University discussed the role of public-private partnership and corporate social responsibility in respect of education. She emphasised that, while state investment in education was a priority, the burden should be shared with the private sector, arguing that skills development was a key factor in achieving quality education and that businesses can play a key role in skills development and ensuring the right to education generally.

Professor Sandra Fredman of Oxford University gave a very informative overview of the right to education. She explored the relationship between development goals and human rights. She highlighted the fact that, as the MDGs focussed on enrolment, there was no measure of the quality of education. She noted that the SDGs are more ambitious and focus on “equitable quality education” and “lifelong learning for all”.

Professor Salomao Ximenes of the Sao Paulo Federal University informed participants of the education litigation which has taken place in Brazil. In particular, a recent case concerned the lack of pre-school places available in Sao Paulo. In 2012, the court ordered that a public hearing be convened to deal with the matter, and ordered that 150,000 pre-school places be made available, and that the municipality had six weeks in order to present a plan to the court setting out how this would be done.

Sarah Sephton, Cameron McConnachie and Jason Brickhill of the Legal Resources Centre provided details of the cases litigated in South Africa, and the remedies and enforcement mechanisms available through the courts. The strategy used has been to start with smaller cases, addressing issues such as furniture, then move onto larger and more complex cases. They have not yet tackled the issue of the quality of education, an area of litigation the LRC are hoping to embark on.

Jason Brickhill spoke about enforcement measures, such as the recent appointment of a “claims administrator” to oversee the correct payment of R82 million of teachers’ salaries. He ended on a positive note emphasising that the successes of the litigation so far.

Jayna Kothari, Aparna Ravi and Varsha Iyengar from CLPR began the second day of the conference by presenting on education litigation in India. The most important legislation passed in respect of education in India has been the Right to Education Act 2009, which provides for free and compulsory education for 6 – 14 year olds. Controversially, the Act contained a clause which stated that private schools must admit 25% of children from disadvantaged areas, for a fixed amount of compensation to be paid by the state. This has produced unintended consequences. Private schools challenged this through the courts, resulting in funded and un-funded minority schools being exempt. This has opened a floodgate of schools which claim they should be exempt as they are a “minority” school.

Kothari gave a presentation on remedies in India, explaining the challenges that have been met in designing remedies for education cases. Carefully worded remedies are necessary. However, the court has refused to grant orders and, instead, put in place a High Powered Committee to deliberate a plan for the right to education, to meet every month. On the one hand, this process creates a participatory process whereby stakeholders are able to be engaged with the enforcement of the RTE Act, and to design policy in relation to it. However, on the other hand, it has been very difficult to suggest accountability or monitoring measures to the government.

Cameron McConnachie with other conference speakers
Cameron McConnachie with staff of the CLPR

Niranjan Aradhya of the Centre for the Child and the Law in India gave an in-depth analysis of the rights and limitations as set down in the Right to Education Act 2009, explaining that, despite the Act, inequalities in the education system in India remain glaring. He made suggestions for the post-2015 development agenda; that 15% of GDP of states is spent on education, as well as checks on privatisation, commercialisation, corporatisation of education, and a re-emphasis on education as a social good.

Ramya Jawahar and Gowthaman Ranganathan of the Alternative Law Forum (ALF) spoke of the various methods employed by ALF to enforce socio-economic rights. They use an inter-disciplinary approach combining research and the law to achieve the greatest effect. They also highlighted the wider issue of the government’s tightening of funds in the non-profit sector, referring to recent cases whereby the accounts of Greenpeace, the Ford Foundation and Amnesty International had been frozen.

Avni Rastogi of Transparent Cities Network and the Community Service and Outreach team gave a detailed explanation of the mapping and data collection methods which can be used to collect accurate data to present to the court. The methods provide imaginative and reliable solutions which could support education litigation.

Conclusion

The conference concluded with a discussion of three principal themes which had emerged: i) the role of litigation, ii) the issue of equitable and quality education, and iii) education in relation to other issues. In relation to litigation, a principal concern is that litigation needs to change on the ground and engage with communities. In respect of quality education, a principal issue is that of monitoring and measuring outcomes. As an input method to achieve better outcomes, a suggestion was further teacher-training and improving the quality of teachers. Governments need to be held accountable if they are not attaining the goals set out in the post-2015 development agenda. Governments must invest more in education and regulate the private sector.

Dr Kishore Singh closed the conference with confirmation that he will ensure the issues discussed at the conference will be incorporated to discussions surrounding the post-2015 development agenda. It is clear that principal concerns are the measurability of quality education and accountability of governments. In terms of litigation, the countries represented at the conference have developed jurisprudence whereby the right to education is enforceable through the courts, and it is hoped that many more jurisdictions will follow suit.

Please see the CLPR website to download the presentations.

– By Shona Gazidis

Cameron McConnachie and Kishore Singh
Cameron McConnachie and UN Special Rapporteur on the Right to Education, Dr Kishore Singh

Realising the Right to Education in Uganda

Workshop report: Realising the Right to Education in Uganda

LRC and ISER create a space for learning and collaboration in Uganda

The Legal Resources Centre (LRC), in collaboration with the Initiative for Social and Economic Rights (ISER), hosted a two day workshop on 18-19 March 2015 in Kampala, which focussed on using strategic litigation to realise the right to education in Uganda.

A range of local organisations attended the event; including the Legal Brains Trust, the Ugandan Human Rights Commission, Centre for Public Interest Litigation, as well as Women for Uganda and Girls’ Education Movement. Over 40 participants attended over the two days.

ISER, an independent human rights organisation responsible for promoting the effective understanding, monitoring, implementation and realisation of economic and social rights in Uganda, has recently embarked on litigation in respect of education, and welcomed the opportunity to receive advice and guidance from the LRC.

The workshop was officially opened by Justice Lydia Mugambe, a Ugandan High Court Judge, who encouraged advocates to “think outside the box” and employ innovative methods when litigating socio-economic rights cases. She explained that the time is right to launch socio-economic litigation, and that courts are ready to hear these cases.

Salima Namusobya, executive director of ISER, gave a presentation on the current education system in Uganda, and outlined the major concerns. She described the fact that there is declining investment in public education, while there is an increase in investment in private education. Many classrooms in public schools have no furniture or sanitation, and children are forced to share textbooks and other equipment. Children of different ages and in different classes are forced to sit in the same cramped classrooms. At the same time, there has been an increase in the number of low-fee private schools with the support of the state. The concern is that these schools are unregulated and enable the state to relinquish their obligation to provide a good quality education in state schools.

Ms Namusobya explained that ISER launched a case in respect of the right to education last year, in an attempt to prevent the state cutting school capitulation grants from Shs 7,000 to Shs 4,000 per pupil per annum. The registrar who initially heard the case denied the order, with the State arguing that it would stop the reading of the budget taking place, and thus financially affecting the whole country. Therefore, the case is still before the court. The case did, however, highlight the issue, and the Minister of Education confirmed in parliament that the grant would be maintained this year and, perhaps, even increased next year.

Sarah Sephton, an attorney with the LRC, presented on the education system in South Africa and the successful litigation which has been undertaken there. It became clear that many of the problems in Ugandan public schools were very similar to those addressed in the LRC’s cases. Sephton explained that cases had dealt with “mud schools,” whereby the state had been ordered to rebuild schools made of mud and makeshift material. Other successful cases had seen the state ordered to provide furniture in schools, provide school infrastructure and to appoint and pay teachers.

Sephton explained that the cases had not been straightforward and that, although eventually successful, the LRC had to repeatedly return to court when the state defied court orders, and that there are on-going problems with implementation. However, she explained that litigation had now become a successful and important tool in forcing the government to fulfil its obligation to provide each child with a decent education. The LRC also distributed “Ready to Learn…. a legal resource for realising the right to education,” a publication which sets out each of these cases in detail and provides examples of court documents.

The workshop was also an opportunity to consider the role of litigation in relation to other advocacy methods. Shona Gazidis of the LRC prompted a discussion regarding other strategies, such as providing public information, social mobilisation and establishing community advice centres, and how litigation can be used in conjunction with these strategies to produce the best results.

Although the workshop was an opportunity to discuss issues in an African context, the right to education is a global issue and therefore the workshop also considered the Millennium Development Goals, as well as the proposed post-2015 Sustainable Development Goals, with a particular focus on the role of education in the global development agenda. Litigating the right to education not only improves conditions for children in the respective countries, but contributes to the achievement of the wider global development goals.

Finally, a discussion was led by Isaac Kimaze of the Legal Brains Trust with regard to what possible cases could be litigated in Uganda. It is anticipated that this discussion will continue, with the guidance and advice of the LRC.

The workshop was an opportunity to increase collaboration between African organisations, thus strengthening the African human rights network and contributing more generally to the global human rights agenda. It is hoped that the success of the workshop will result in successful litigation in respect of education and other socio economic rights in Uganda, and lead to improving the lives of the most vulnerable and disadvantaged members of society.

– Shona Gazidis

Disclaimer: The opinions expressed by the Realising Rights bloggers and those providing comments are theirs alone, and do not reflect the opinions of the Legal Resources Centre. The Legal Resources Centre is not responsible for the accuracy of any of the information supplied by the bloggers.