Refilwe Matinketsa worked for Dis-Chem from March 2019 as a picker at its distribution centre. She had to have cancer surgery in 2022. After this she could no longer lift heavy items because she had been fitted with a stoma bag. She was given a temporary job as a checker but was told that this position was redundant and was dismissed in April this year.

The Casual Workers Advice Office (CWAO) assisted her to take an unfair dismissal case to the Commission for Conciliation, Mediation and Arbitration (CCMA) but lost the case last month. The commissioner found that Matinketsa’s dismissal was fair.

Commissioner Johan Stapelberg said Dis-Chem had accommodated her for a lengthy period and there were no alternative positions because the company was shrinking its workforce.

“The prognosis indicated that the inability to do her usual duties would be permanent and the respondent [Dis-Chem] had no alternative but to dismiss the applicant [Matinketsa],” he said.

In her evidence before the CCMA, Matinketsa said on her first day back, when she resumed her duties as a picker, she felt her stomach swelling and was in pain. She was allowed to go home.

A week later, she was called to a meeting in the boardroom and was given work as a checker, which she did until March 2024 when she was told that job was no longer available.

She claimed during the hearing that she was now fully fit for work, but conceded that there was no doctor’s note indicating this.

The HR manager Pule Moeketsi testified at the CCMA hearing that the checker position had become redundant. The company had accommodated Matinketsa in that position hoping her health would improve sufficiently for her to resume her normal duties.

He said eventually, the company had no choice but to start the process of dismissal due to incapacity.

He said her representative had asked if there was space for her as a cashier but this was not possible because the company was restructuring and positions were being reduced.

Dis-Chem says it was reasonable but CWAO disagrees

The CWAO questioned how Dis-Chem could claim it did not have any alternative light-duty or desk job available anywhere for Matinketsa.

“Ms Matinketsa returned to work at Dis-Chem in November 2023. She was expected to continue lifting boxes and repeatedly bend over and stretch – which she could not do because of the stoma bag,” a CWAO statement read.

“Ms Matinketsa offered to work in three other positions – as box maker, scanner or packer but Dis-Chem had also made all of these positions redundant. Dis-Chem did not even make a single attempt to offer Ms Matinketsa retraining in office work or offer her a single job in any of its stores, perhaps dusting the shelves or arranging lipsticks or other tiny Items.”

It said that all manual workers could be summarily dismissed if they were diagnosed with cancer, or suffered other injuries, even if they had long service and “corporate giants needed to be exposed and made to change their ways”.

“Simply terminating their injured and disabled workers is discriminatory and unconstitutional.”

The CWAO has called on Dis-Chem to immediately reinstate her. It said the company had 319 stores in South Africa, Namibia and Botswana, hundreds of in-store clinics and assets of more than R10 billion.

“Yet it refuses to find a permanent light-duty job for its female cancer survivor employee, even after years of loyal service from her,” the CWAO said in a statement.

But Brian Epstein, Dis-chem Operations Divisional Director, said CWAO’s statement was not entirely factually correct and said it had incorrectly portrayed Dis-Chem as a heartless organisation “which was not the case”.

“After Ms Mantinketsa reported ill in July 2022 she was admitted to hospital and underwent surgery. Her extended post-surgery recovery was accommodated by granting annual leave once her sick leave was depleted. Thereafter unpaid leave was initiated with no end date,” he said.

“In May 2023 Dis-Chem assisted Ms Mantinketsa with lodging a disability claim to help relieve her financial burden. In the interest of employee welfare, Dis-Chem employees enjoy many benefits such as sponsored medical insurance, in-house clinics manned by qualified nursing practitioners, daily meals, virtual doctor services, and many other welfare services.”

Epstein said when Mantinketsa reported for work in December 2023, “new roles and duties with standard operating procedures, and retraining was initiated”.

The intention, he said, was to reduce the physical effort in her duties. But when she did not cope with the duties given to her, her tasks were further reduced to include even lighter duties.

“Mantiketsa was unfortunately battling to cope with her reduced responsibilities and could not work a full shift and she was still not physically coping with her work duties even when she was moved to a light duty small item picking function. She could not physically manage. For a further four months Dis-Chem continued to try and accommodate Ms. Mantiketsa on full pay even though she was not productive.

“It is very sad that Ms. Mantiketsa has suffered badly from her illness, and we empathise with her. However after a period of nearly two years we had exhausted all options to assist her, and we had to unfortunately let her go. Subsequently the employee referred the matter to the CCMA who ruled all procedures were followed correctly.”

Dis-Chem said employees were covered for temporary and permanent disability and the insurance premiums were paid by Dis-Chem.

“It is also important to state that Dis-Chem covered the three-month waiting period for the temporary disability claim for Ms Mantinketsa and paid out three months of disability salary at our cost, without Ms Mantinketsa having to wait three months before she was paid her temporary disability claim.”

The Labour Relations Act

Schedule 8 of the Labour Relations Act recognises incapacity of an employee as a reason for dismissal. The Act says in cases of permanent incapacity the employer must look into providing alternative work for the employee or adapting the employee’s duties or work circumstances to accommodate the employee’s disability.

The Act stipulates that in the process the employee must be allowed to state a case and to be assisted by a trade union representative or fellow employee.

“The degree of incapacity is relevant to the fairness of any dismissal,” the Act says.

According to the Act, anyone determining whether a dismissal arising from ill health or injury is unfair should consider whether or not the employee is capable of performing the work; and, if the employee is not capable:

• the extent to which the employee is able to perform the work;
• the extent to which the employee’s work circumstances might be adapted to accommodate disability, or, where this is not possible, the extent to which the employee’s duties might be adapted; and
• the availability of any suitable alternative work.

Tilana Alida Louw also sued Dr Stephen Paul Grobler but, following his sudden death in June 2022, entered into a confidential settlement agreement with the executor of his estate.

She then pursued her case against Netcare Universitas Hospital.

In a ruling this month, Bloemfontein High Court Judge Ilsa van Rhyn directed Netcare to pay her R300,000 for damages, past and future medical expenses, and to pay part of her costs on a punitive scale.

Louw was appointed as surgical theatre manager at the hospital in 2005. Her role was to oversee and manage operating theatres and theatre staff and monitor patient care.

At that time, she was warned by the then hospital manager, and others, that Grobler had an “aggressive type personality”.

She said she soon experienced first hand his temper tantrums.

In her claim, she said he had verbally abused her continually, hurling profanities, insults, using blasphemous language and obscenities at her in the presence of other operating theatre staff and even members of the public.

She said Netcare had failed to come to her assistance, in spite of her numerous requests and complaints.

Netcare had also failed to act against Grobler, even though it was common knowledge that he behaved this way.

Louw alleged that Netcare had failed in its legal duty to create a work environment free from verbal abuse and intimidation and to take reasonable care of her safety and protect her from psychological harm.

As a result she was humiliated, degraded and suffered shock, anguish, fear and anxiety. She experienced post-traumatic stress syndrome.

She wanted to be compensated for this. And she wanted Netcare to publish a written apology in a local newspaper.

Netcare defended the action. It denied that it had breached its duty to Louw and said it had taken action against Grobler.

After Louw and her witness, labour law expert Professor Halton Cheadle, testified, Netcare offered to pay her for damages and to apologise.

Louw accepted the financial offer, but she was not happy with the wording of the apology and the scale of costs tendered.

Judge van Rhyn said Louw had testified that her complaints and those of others had been largely ignored by management.

“She explained that several of the scrub nurses refused to work with Dr Grobler and she would step in and assist him during surgeries. Her sense of duty and pity for the patients, many of them being cancer patients who were in dire need of urgent and timeous surgeries, caused her to bear the brunt and endure the constant abuse.”

Louw had said she and other personnel were “not allowed” to lay complaints against Grobler because he was a “so-called money-spinner for Netcare”.

Cheadle, in his evidence, said given the number of grievances lodged against Grobler and given Netcare’s professed zero-tolerance approach to harassment, a reasonable employer would have warned Grobler about his behaviour after the first complaint and would have terminated his contract at the very least, after the third complaint.

Judge van Rhyn said Netcare’s offer of damages during the trial had been made after Louw had endured years of abuse at the hands of Grobler and eight years of litigation.

“I also agree with argument on behalf of the Plaintiff (Louw) that Netcare evidently allowed its employees to be abused by Dr Grobler for its own financial interests. Netcare was acquainted with Dr Grobler’s disgusting behaviour even prior to her (Louw’s) appointment as the unit manager,” she said.

This conduct was deserving of a punitive costs order, the judge said.

Louw had rejected the proposed apology because it contained the words “we apologise sincerely that you felt that Netcare did not sufficiently support you”.

The judge said she agreed with Louw’s perception that this did not, in its plain and ordinary meaning, convey a sincere regret and remorseful apology.

She said she had been informed during argument that Netcare had published the apology in the local newspaper.

However, she said, she would not make any order regarding the apology, because it would not be lawful in a case which was not based on defamation.

Read the judgment.

This article was first published by GroundUp.

In March, Nene’s urgent application was struck from the roll by Johannesburg High Court Judge Stuart Wilson after finding it was without merit.

At that time, the judge ordered her attorneys to make submissions as to why they should not pay the costs personally and on a punitive scale.

But in his ruling, he has now put the blame for the hopeless application on Nene herself, saying as an admitted advocate and a senior corporate lawyer, she should have known better.

Read the judgment here

Nene was one of five key staff members placed on suspension in 2022 following a crackdown on corruption in the NLC.

On 5 March, she launched urgent High Court proceedings which came before Judge Wilson, claiming her dismissal was a foregone conclusion and should the hearing continue, she would be subjected to undue financial hardship and a dismissal on her record, meaning she would struggle to secure alternative employment.

She also claimed a number of violations to her constitutional rights.

She wanted her disciplinary hearing, set down for later in March, to be stayed.

But the NLC’s lawyers argued that the application was an ”abuse”, was not urgent, was meritless, poorly conceived, and its only real purpose was to delay the disciplinary hearing.

They argued that her lawyers had acted recklessly and should be punished with a personal, punitive cost order.

In his ruling on the cost issue on 22 April, Judge Wilson re-iterated that the urgent application was “so devoid of substance” that it warranted a punitive cost order.

“Urgent court is for truly urgent matters,” he said.

“Enrolling a matter on an urgent basis without so much as attempting to set out an urgent cause of action based on primary facts … is a waste of a court’s time.”

“The Deputy Judge President of this court has repeatedly warned that the abuse of the urgent roll is widespread and should be penalised. Ms Nene’s case is a good example of such abuse.”

He said the failure to set out “even the slenderest cause of action” raised questions about whether Nene was properly advised.

Her attorney, Amanda Vilakazi, had not even attended court.

When Nene appeared unwilling to allow her advocate to argue the case as he saw fit, he had withdrawn.

Judge Wilson said Vilakazi ought to have advised Nene of the “reality” that her case was bad.

The least Vilakazi should have done was to attend court.

It was for this reason that he ordered Vilakazi to file an affidavit setting out reasons why she should not personally pay the costs.

In her affidavit, Vilakazi said she had acted for Nene pro bono. She said Nene had drafted the papers herself. On the day of the hearing, she had been at a conference but was available on her phone and she had sent a candidate attorney to court.

Judge Wilson said while her conduct “fell short of the standard of conduct expected from a reasonable legal practitioner”, the NLC’s lawyers appeared to have some sympathy for the fact that she was acting pro bono and withdrew their request that she pay the costs personally.

“In my view, however, the fact that the litigation was undertaken pro bono does not in itself mitigate Ms Vilikazi’s conduct. Pro bono litigation generally demands more, not less, of legal practitioners.

“Litigants represented pro bono are generally less familiar with the legal process, less able to identify the facts relevant to their claim and more in need of sensitive counselling in order to develop and implement the options open to them.

“That said, Ms Nene is no ordinary pro bono litigant. She is an admitted advocate and a senior corporate lawyer. She drafted her own papers. She ought to have known that they failed to make out a case.

“She, more than most, ought to have known better.”

Judge Wilson said while the NLC lawyers were no longer seeking personal costs against the attorney, a punitive cost order was still necessary and Nene, who was an empowered litigant, ought to bear the consequences.

He ordered that Nene personally pay the costs of the urgent application on a punitive scale, including the NLC’s costs in engaging two advocates to argue the matter.

This article was first published by GroundUp.

Giving evidence before the Judicial Conduct Tribunal inquiry tasked with determining if Judge Mngqibisa-Thusi is guilty of gross misconduct, misconduct or incompetence, Judge Mlambo, who laid the complaint, said, “We should not be here”.

He said that had she told him she was having problems, he would have assisted her. Instead she had ignored his repeated inquiries regarding when she would hand down her reserved judgments.

“It seems to me that this process pains you,” tribunal chair, retired Constitutional Court Judge Chris Jafta commented to Mlambo.

“It does,” he responded, saying that he had not reported other tardy judges to the Judicial Services Commission (JSC).

“There is a judge who has been medically boarded. I didn’t file a complaint because when I went into his issues, I realised that the problems were insurmountable. It’s not robotic. I don’t report everyone [to the JSC]. I engage with people. That judge is now out, and litigants are safe from him.

“But Judge Mngqibisa-Thusi grossly misconducted herself by not taking responsibility and corrective action. It is high time that judges who don’t deliver judgments feel the pinch. It’s gone on for long enough,” he said.

At the start of Monday’s hearing, Judge Jafta ordered that in terms of the JSC Act, the hearing would automatically be held in camera unless the media, or members of the public, made an application for it to be open.

The hearing was therefore declared closed to the media and the public and the livestream of the proceedings on the RSA Judiciary YouTube channel was shut down.

But later, following representations from two television stations, the live feed resumed. But Judge Mngqibisa-Thusi’s evidence and that of her two witnesses, a psychologist and a spiritual expert, will be held behind closed doors on Tuesday.

Judge Mlambo, under cross-examination by Judge Mngqibisa-Thusi’s legal representative, Judge Gcina Malindi, insisted that she was a senior judge who, because she often presided over criminal trials, rather than civil matters, had a lighter workload than even her junior colleagues.

He said that he was however not in a position to contradict what her experts had said about her “conditions”.

“I don’t dispute that she was afflicted. But my point as head of court, is if you have a situation that is stopping you from performing your duties, it’s your responsibility to give the powers that be an explanation so that you can be assisted.

“Judges are not children. They know what their responsibilities are.”

Judge Malindi suggested to Judge Mlambo that there should be proper processes in place when judges were experiencing problems. “As a judge who has practiced in many divisions, and as a leader, you would appreciate that certain matters which bring shame and embarrassment are not easy for certain people to discuss even with their leaders,” he suggested.

Mlambo responded, “I take issue with this shame issue. I have heard all sorts worse with other colleagues. But they wanted me to understand what they were going through. And I want to believe in those instances I have helped.”

He conceded that Judge Mngqibisa-Thusi had now delivered all of the reserved judgments but refused to concede that her performance had otherwise been exemplary.

“When she writes judgments, she writes good judgments. But she was often on my long outstanding judgment list in spite of having a lesser workload than those much junior to her.”

Judge Jafta questioned whether the tribunal was dealing with a matter of gross misconduct and impeachment.

“I am not aware of a matter where a judge has been impeached successfully for failing to deliver judgments. It has never happened. So we have to be cautious,” Judge Jafta said.

He noted that the Judicial Conduct Committee, which initially considered the complaint by Judge Mlambo, had only recorded that Judge Mngqibisa-Thusi was possibly guilty of misconduct or incompetence and the tribunal might be bound to only consider those charges.

Judge Mlambo said the legal teams would have to make submissions in that regard.

Judge Mlambo was the only witness for the JSC. The hearing is expected to conclude this week.

This article first appeared in GroundUp.

Acting Judge Ashton Schippers, writing for the court, said the provisions and a linked regulation violated a number of constitutional rights in that the “deemed abandonment” provisions meant asylum seekers were cut off from essential services. These included access to banking, education and healthcare.

They also exposed asylum seekers and their children to the constant risk of arrest, detention and deportation.

“All this, simply because a visa has not been renewed,” said Judge Schippers.

Read the judgment here

The matter came before the apex court in what became unopposed confirmation proceedings of a Western Cape high court ruling earlier this year that the relevant provisions in the Act were unconstitutional.

The application was launched by the Scalabrini Centre of Cape Town, supported by the Consortium for Refugees and Migrants South Africa (CoRMSA), admitted as an amicus curiae.

The minister and director-general of home affairs opposed the application in the high court, claiming the administration of visas placed a huge burden on the department’s officials because a substantial number of applicants were not genuine asylum seekers. The provisions in the Act, it was argued, were implemented to reduce the backlog of inactive cases and ensure that asylum seekers pursued their applications to completion.

However, in the constitutional court, they abandoned their defence, conceding that South Africa was obliged to receive refugees in accordance with international laws and the principle of non-refoulement (the practice of not forcing refugees or asylum seekers to return to a country in which they are liable to be subjected to persecution) was enshrined in the Act.

In spite of this concession, the court still needed to determine the matter.

Judge Schippers said refugees were an “especially vulnerable group” and their plight called for compassion.

He said the provisions in question disregarded the protection of asylum seekers from refoulement, because they could be expelled or returned to the countries from which they fled without a proper inquiry but simply because they had not renewed their visas.

“As stated in the applicant’s submissions in this court, in those countries they may face torture, imprisonment, sexual violation and other forms of persecution, even death. And this, without any consideration of the merits of their claim for asylum,” Judge Schippers said.

The provisions imposed a double penalty; they not only excluded determination of the merits, but prohibited any re-application for asylum, the judge said.

CoRMSA had presented evidence of 394 asylum seekers whose applications had been deemed abandoned and had been treated as illegal foreigners.

Children, he said, were particularly at risk “because of bureaucratic circumstances beyond their control”.

There had been evidence about one child who had not been able to attend school for the 2020 academic year, and another had not been able to register for matric.

“These subsections are irrational and arbitrary. They serve no legitimate government purpose.

“The merits of the claims for asylum are never considered,” Judge Schippers said.

“In any event, the respondents [the minister and the DG] wrongly assume that most asylum seekers have no valid claims to asylum. This assumption violates the core principle of refugee law that asylum seekers must be treated as presumptive refugees until the merits of their claim have been finally determined through a proper process.

“The evidence shows that the non-renewal of visas – often the consequence of long queues, the financial burden of getting to reception offices and having to take time off work – has not caused the backlog of asylum applications, nor imposed a significant burden on the department,” Judge Schippers said.

The apex court confirmed the high court’s declaration of unconstitutionality, backdated to 1 January 2020, the date on which the relevant provisions came into operation.

This article first appeared in GroundUp.

In a letter to Chief Justice Raymond Zondo, Achmat said while he was not a litigant in the challenge to sections of the Electoral Amendment Act, which was enacted in April this year, it could not be denied that the matter was of immense public importance.

The 2024 election will be the first time independent candidates will be allowed to run for office. 

The court heard arguments in the matter at the end of August. The application was brought by the Independent Candidates Association and Build One SA which argued that the Act was unconstitutional because it unfairly restricted the participation of independent candidates in the elections and their representation in the National Assembly, compared to political party candidates.

The applicants claimed the playing field was not equal and independent candidates would require more votes to obtain a seat.

The application was opposed by Parliament and Minister of Home Affairs Aaron Motsoaledi.

Independent Electoral Commission (IEC) chair Mosotho Moepya recently told a Home Affairs parliamentary hearing that the fact that the court judgment was outstanding was creating anxiety.

He said the IEC could only finalise plans for the elections once the judgment had been handed down. It had been hoped that this would happen before the end of September.

In his letter to the Chief Justice dated 23 November, Achmat requested an estimated timeframe within which the judgment – or even an order without reasons – could be expected.

“I am currently collecting the roughly 13,000 signatures required by the impugned statute to obtain nomination in the Western Cape region.

“I am also, to the best of my knowledge, the only independent candidate nationwide to have made public their candidature. I understand that other prospective candidates are awaiting the court’s ruling before deciding whether or not to declare themselves.”

Achmat said the court had directed on 11 August 2023 that the matter would be heard on 29 August and this was taken as an indication that the ruling could be expected “with similar alacrity and that the country would have certainty about the contours of this crucial election”.

“I appreciate that the court is faced with an immensely difficult task which is not to be rushed,” he said, noting though that it had been almost three months since the argument was heard.

“With the dates for nomination and election drawing every closer, the lack of certainty exacerbates what is already a venture into uncharted waters. Aside from the impact that this decision has on me and my campaign, and on would-be candidates whose time to gather the necessary signatures is ticking by, I fear a further delay may begin to jeopardise the election process itself.”

Achmat asked that the court provide the public with an estimated date by which the judgment can be expected or that an order without reasons be issued in the interim.

He also suggested that the “most pressing” issue of the signatures required for nomination by independent candidates could also be dealt with separately by the court “if only to allow independent candidates some certainty in respect of the nomination process”.

The Office of the Chief Justice has not yet responded to a request for comment by GroundUp.

Mbekezeli Benjamin from Judges Matter told GroundUp: “While a judgment of this gravity understandably takes time to deliver, the circumstances of the 2024 election do require the Constitutional Court to act with some urgency.”

“Ahead of the 2021 elections under Covid the Court handed down an order with reasons later. There’s no reason why a similar approach can’t be taken. It would strike a fair balance between giving the judges time to deliver a reasoned judgement, while giving both the Independent Electoral Commission and independent candidates time to prepare,” said Benjamin.

In the past, the Constitutional Court has ruled quickly on electoral questions. For example it heard a case in which the IEC was the first respondent on 19 March 1999. It handed down its judgment on 1 April 1999. It heard another case against the IEC on 4 March 2009 and ruled on 12 March 2009.

This article was first published by GroundUp.

The call has been endorsed by dozens of organisations and individuals across the continent, including the Anglican Archbishop of Southern Africa Thabo Makgoba, South African Jews for a Free Palestine and veteran South African activist Zackie Achmat.

As of Monday, the Palestinian Health Ministry reported that 2,750 civilians, including women and children, have died since the outbreak of the Hamas/Israel conflict a week ago. A further 9,700 civilians were reported injured.

Israel has reported over 1,400 deaths, most of them civilians killed by Hamas militants who entered Israel on 7 October.

In a letter to the relevant Presidents and Foreign Affairs ministers, SALC – an organisation that promotes human rights – said atrocities such as the killing and targeting of innocent civilians in Gaza had to be stopped, investigated and prosecuted “no matter on which side of this conflict they occurred”.

“Against this backdrop, we were appalled by statements by (Israeli) Minister of Defence Yoav Gallant who said ‘I have ordered a complete siege on the Gaza Strip. There will be no electricity, no food, no fuel: everything is closed. We are fighting human animals and we are acting accordingly,’” the Centre said. “Such dehumanising language has often preceded the crime of genocide in the past and has served as a catalyst for further atrocities.”

“Such statements further show intent to commit war crimes, such as starving civilians. The numerous reports of bomb and rocket attacks on buildings and infrastructure in Gaza, one of the most deeply populated areas in the world, show little regard for core principles of international humanitarian law, such as the one of not attacking civilians.”

The Centre said while it welcomed the call by African states for a cessation of hostilities, this was not enough: “proceedings to hold war criminals accountable must start now”.

It said the African members must use Article 14 of the Rome Statute to enable the ICC Prosecutor to expedite and prioritise these proceedings.

Article 14 empowers a state to refer to the Prosecutor a situation in which crimes within the jurisdiction of the Court appear to have been committed, requesting the Prosecutor to decide whether which people should be charged.

“We further urge all 33 African ICC members to use the precedent and momentum that was created by the Ukraine situation, where State support and State referrals by more than 39 ICC State Parties resulted in expedited proceedings and two arrest warrants within 13 months from the time the Prosecutor announced its decision to proceed with opening an investigation,” the Centre said.

“There is no space for double-standards in international criminal justice. As signatories to the Rome Statute, you committed yourself to the idea of fighting impunity and holding perpetrators of international crimes accountable. Only if the principles of the Rome Statute are applied equally will the ICC’s accountability system have a chance to make a meaningful contribution to the fight against impunity.

“A lasting peace in the region can only be achieved through accountability and justice.”

The Centre’s Executive Director Anneke Meerkotter said the letter had been posted on social media, tagging both the President and the Foreign Affairs ministry in each country.

“They all have social media posts and this way it’s easier to reach them than through email. This also allows citizens of those countries to repost and push their governments,” she said.

Read the SALC letter.

This article was first published by Ground Up.

Their births are never registered or are registered very late; their parents cannot access child support and other grants; they are excluded from or discriminated against at school; they struggle to access health care and immunisation programmes. Without an identity number they are “invisible” to the state.

These are the submissions of the Children’s Institute at the University of Cape Town, represented by the Centre for Child Law, admitted as an amicus curiae in a case to be argued this week in the Pretoria High Court.

In the matter, Lawyers For Human Rights (LHR) is representing more than 100 people who have fallen victim to an “arbitrary” ID blocking practice by Home Affairs (DHA).

In December 2020, the Minister of Home Affairs revealed in Parliament that DHA was dealing with more than 800,000 blocked ID cases, involving alleged duplicates and what it claims are “fraudulent” IDs.

In September 2023, DHA admitted in its answering affidavit that ‘these cases have become more and more as the years went by”, and that in May 2023, the Minister had agreed to remove blocks from 1.4-million people’s IDs. However, approximately 700,000 IDs remained blocked at end of July 2023.

LHR said in the past five years it had assisted more than 500 people with blocked IDs, the majority of them poor, black South Africans. None were aware of their blocked IDs until they attempted to access a service and discovered the issue “quite literally by surprise”.

None received prior notice of DHA’s intention to block their IDs,or investigate their status, nor were written reasons for the decision provided.

In the application, which is being opposed by the Minister and the department, LHR asks for an order declaring ID blocking unlawful and unconstitutional, an order that all IDs be unblocked, and and order that the department follows “just administrative action”.

The harmful impact of this on children is addressed in an affidavit by senior researcher Paula Proudlock at the Children’s Institute, using case studies of children (and their parents) which the institute is currently assisting.

She said a study by UNICEF estimated that in 2017 two million eligible children had been excluded from accessing social grants in South Africa. The absence of a birth certificate or an ID card for the caregiver was the primary reason for this.

“Our own analysis of survey data revealed that children without birth certificates are more likely to be excluded from other government services, including social grants, health care, immunisation and education.”

Proudlock said the institute represented three classes of children: those who had no birth certificates, because their parent’s ID was blocked; those who had birth certificates but could not apply for ID cards when they turned 16, because their parent’s ID was blocked; and those between the ages of 16 and 18 who had IDs but whose IDs were blocked when their parent’s ID was blocked.

The majority fell into the first category; without a birth certificate the children had no access to their right to a name and nationality.

“Ultimately, they suffer significantly when they have no say or choice in the matter. It is a violation of their rights to participate in decisions that affect their rights and to have their best interests considered.”

Proudlock said the majority were poor, black and African, and were “invisible to the DHA”.

‘Like someone who does not exist’

In a supporting affidavit, NZ (name withheld to protect the identity of her children) said she is a South African citizen who gave birth to triplets in July 2019 at a Durban hospital. They were born premature. When she went to DHA offices in Umgeni Road to register their births, she was advised that her ID was a “duplicate” – that she was sharing it with another person. The official told her that she was “like someone who does not exist”.

She was advised to fill in another application for an ID and submit her fingerprints and photos and told she would receive a call when the investigation was completed, but it could take at least six months.

In the subsequent months, the bank ATM swallowed the SASSA card (she was receiving a child support grant for her elder daughter), and, with the discharge from hospital of the triplets imminent, a friend raised concerns with a doctor about how she was going to cope financially.

The doctor organised colleagues to donate money, clothes and nappies.

But her situation remained dire. She was evicted from her home in January 2020. In February, a dietician at the hospital took up her cause with the DHA. But there was little progress and, at one point, a social worker advised her to give up the babies for adoption.

In November, the institute managed to arrange child support grants for the children from SASSA and, finally, the triplets’ births were registered when they were two years old.

“It is unlikely her case would have been resolved if she had not gone to the media and if the hospital dietician had not been advocating on her behalf by emailing DHA and reporting the matter to the public protector,” Proudlock said.

Blocked for over a decade by Home Affairs error

Citing another example, Proudlock said a 12-year-old girl, living with her paternal grandmother in the Eastern Cape, still had no birth certificate because the ID of her mother, who Is a South African citizen, had been blocked for over a decade for being a duplicate.

The “duplication” was caused by a DHA error when two young people, both with the same name, applied for the IDs at similar times in 2002.

“We have been able to ascertain that the East London DHA office issued IDs to both, but swapped their dates of birth by mistake. One applied for a correction and was issued with a new ID with her correct date of birth. At this stage, a ‘shared ID profile’ appears to have been created. And DHA now only has one FN (name withheld) on their system,” she said.

Proudlock said the child had been sent to the Eastern Cape because, without a birth certificate, her mother could not enrol her at a school in Cape Town.

It was easier to get admission to rural schools without a birth certificate.

“She has thus grown up separated from her mother, father and younger siblings”.

No proper recourse

Regarding children who have birth certificates, but cannot get an ID because their parent’s ID is blocked, Proudlock said many of these children could not write matric, receive their matric results or register for tertiary education.

They cannot open bank accounts, register their cellphone or apply for NSFAS funding.

“Their chances of becoming employable are significantly reduced. And some become depressed and suicidal, with no hope,” she said.

Children who have IDs which get blocked at the same time as those of their parents suffer the same consequences. In addition, they cannot apply for learner’s licences or driver’s licences, apply for social grants for themselves, or register any babies born to them.

“The cycle of harm is perpetuated … many mothers we have assisted only became aware that their ID was blocked when they attempted to give notice of the child’s birth. They received no prior notice.

“They are given unclear oral explanations and no written reasons. There are no prescribed forms to lodge an inquiry or start an investigation,” Proudlock said.

“In most cases, our clients were victims of identity fraud or DHA clerical errors and yet were summarily stripped of their citizenship and identity without notice or explanation and are then required to bear the onerous burden of re-proving their birth, identity and citizenship. If they were orphaned or abandoned when they were a child, which many of the mothers we are assisting were, then it is impossible to produce the proof DHA demands.”

Supporting the relief sought by LHR, the institute said it also wanted statistics on the number of children adversely affected by ID blocking, as the numbers DHA has provided are for blocked adults and do not account for the thousands of children whose lives are also on hold.

The hearing has been set down for 20 and 21 September.

Referring to a previous ruling in an application brought by Intercape in September 2022, in which he made adverse findings against the minister and the MEC, and had ordered they come up with an action plan, Judge Smith said he had been “naive” in believing they had listened.

“Perhaps my message was not understood … Well, I am determined to make sure that I am not misunderstood again,” he said.

Read the judgment here

In September last year, Judge Smith granted an order directing the minister and the MEC, in consultation with SAPS and the Eastern Cape Regulatory Entity, to develop a comprehensive plan to ensure the safety and security of long-distance bus drivers and passengers in the Eastern Cape.

He also ordered them to indicate time periods within which steps would be taken and present it on oath to the court.

Judge Smith said the order was compelled by unrefuted evidence of a protracted and sustained campaign of violence against Intercape by rogue taxi associations.

The minister had filed an application for leave to appeal and refused to participate in the development of the action plan. That application was refused.

In the meantime, Intercape had launched an application in terms of the Superior Courts Act, implementing the application pending any leave to appeal.

The action plan was subsequently developed and filed by the MEC without the minister’s involvement, but apparently endorsed later by the minister, Judge Smith said.

Inadequate plan

Intercape said the plan was manifestly inadequate. During December 2022, Intercape and its attorneys met with representatives of the MEC and minister as well as SAPS officials to discuss the contended deficiencies of the plan.

At that meeting the provincial department presented an updated version. Intercape said this was little more than a single amendment.

Plagued by ongoing attacks on its buses and being of the view that there were no reasonable prospects of further engagements bearing any fruit, Intercape approached the court in June this year for the interim order.

The bus company sought, and was granted an interim order, enjoining the MEC and the minister to come up with a revised plan, and directing SAPS to maintain a visible police presence in hotspot areas and provide police escorts on certain routes.

The matter came before Judge Smith for a confirmation of the interim order, which was opposed by the respondents.

In his ruling handed down this week, Judge Smith said the action plan was “woefully inadequate”, demonstrated by the ongoing attacks on buses.

He said between January and May this year, Intercape had lodged at least 30 criminal complaints, including stoning of buses, preventing drivers from loading or offloading passengers, intimidation of drivers and passengers, buses being shot at, and a passenger struck by a bullet.

“All incidents were marked by brazenness and impunity on the part of perpetrators who were apparently emboldened by the lack of visible policing.

“These events also serve to confirm my view that a vague action plan, which lacks specificity, will send an unfortunate message to perpetrators of the unlawful acts that the authorities do not intend to use their extensive statutory powers to quell the violence. Paradoxically, for this reason, it might be better to have no action plan at all.”

Judge Smith said: “It was manifest that by directing the MEC and the minister to present a plan the court required of it to present a scheme that at the very least demonstrated an appreciation of the nature and exigency of the circumstances and set out implementable measures and key interventions.

“The action plan filed by the MEC is manifestly bereft of any such specificity and is instead replete with deliberately vague and ambiguous phrases,” he said.

He said the order he was now granting was more unequivocal. It required the MEC and the minister to specify in measurable terms, inter alia the date and the frequency of measures implemented; the functionaries, governmental agencies or departments that will be responsible for their implementations; the planned interventions in the no-go zones; the exercise of statutory powers and the appointment of a task team to oversee and monitor the implementation of the action plan.

The judge said the insinuation that Intercape was seeking preferential treatment primarily to protect its commercial interests had been a constant refrain.

“This unfounded assertion is both wrong and unfortunate. And it has regrettably been used by SAPS as an excuse for not performing their constitutional duties.

“These proceedings have, from the start, focussed on the safety and security of long-distance bus drivers and passengers.

“It boggles the mind why it is so difficult for a law enforcement agency to appreciate that when armed assailants take pot shots at moving buses, deleterious consequences inevitably ensue, and sooner than later will result in serious injuries, or heaven forbid, loss of life,” said the judge.

This article was first published by GroundUp.

The order, taken by consent and granted by Cape Town High Court Judge Derek Wille on Friday afternoon, placed legal certainty on an agreement signed earlier this month.

The ruling also puts paid to SANTACO’s application for an interdict to stop the impoundment of minibus taxis, which is what led to the violent strike.

The agreement states that it will only subsist for as long as there is no further taxi-related violence.

The order notes that the agreement was reached between the City, the Western Cape province and SANTACO on 10 August to “ensure the immediate return of mini-bus services” and the process to resolve the remaining grievances raised by taxi operators which gave rise to the strike.

It states that from 11 to 25 August, officials will exercise discretion granted to them under the legislation so that only the offences of operating without a licence, without a professional driving permit or driver’s licence, or driving an unroadworthy vehicle would result in impoundment.

During this 14 day period, the Minibus Taxi Task Team will begin to review the balance of the standard operating licence conditions applicable to minibus taxis in order to reach agreement on the offences that remain in contention.

Within those 14 days, the City will provide a list setting out the proposed differentiations between so called serious and minor offences contained in the National Land Transport Act and the National Transport Act for the purposes of creating a protocol guide for traffic officers when exercising discretion on impoundments.

The City also agreed to make representations to the NPA, which may be necessary to ensure the release of any impounded minibus taxis in respect of which SANTACO has engaged the City.

“This should be considered as a show of good faith in the interests of getting these vehicles released swiftly as possible,” the agreement states.

It also provides for a process of quick escalation should the team be faced with challenges and that SANTACO will give at least 36 hours notice of any intended strike.

In a statement, Mayor Geordin Hill-Lewis welcomed the court’s dismissal of the interdict application and the granting of the order.

“This will put an end to misinformation about the exact terms agreed to and lessen the potential for conflict between taxi operators and officers on the road.

“This confirms our view that there is a firm legal basis for the impoundments in the interests of commuter safety.”

He said the task team would meet on Tuesday 22 August.

“I trust SANTACO will be represented at this very important meeting. It is in the interest of thousands of commuters that we keep on collaborating on matters of mutual concern,” he said.

SANTACO Western Cape Deputy Chair Nceba Enge said the association felt vindicated in its view that taxis can only be impounded on the three grounds agreed upon.

“We remain hopeful that the stakeholders can now put this issue behind us all and focus on the task ahead for the task team.”

This article was first published by GroundUp.