LHR 2013 Annual Report

ANNUAL REPORT 2013
Contents
National Directors message
A letter from the Board
Annual planning meeting
11
Refugee and Migrant Rights Programme
16
Strategic Litigation Programme
31
Land and Housing Programme
38
Environmental Rights Programme
48
Note of thanks
54
Financials
56
Contact LHR
58
Lawyers for Human Rights

www.lhr.org.za
2013
All rights reserved.
Words and photographs: Lawyers for Human Rights

Copy editing and proofreading: Lawyers for Human Rights
Design: Design for development, www.d4d.co.za
Printer: Corpnet
LAWYERS FOR HUMAN RIGHTS ANNUAL REPORT 2013
National
Directors
message
For nearly 35 years,

Lawyers for Human
Rights has fought to
make rights real for those
living in South Africa. We
are fortunate to have a
dedicated and diverse
team of activist lawyers,
paralegals and support
staff that makes LHR an
effective human rights
watchdog.
In reflecting on 2013, it is clear that
South Africa still has a long road
ahead in changing inequities and
discrimination caused by decades
of apartheid. Issues of rampant
corruption in government and the
private sector, excessive use of force
by the police and the introduction of
retrogressive laws are new priorities
on the human rights agenda.
LHR has had the opportunity
to provide much-needed legal
assistance to poor and marginalised
groups affected by rights violations.
Our programmes on refugee and
migrant rights, environmental justice,
strategic litigation and land reform
and housing have made significant
contributions in these sectors.
REFUGEE AND
MIGRANT RIGHTS
The Refugee and Migrant Rights
Programme remains the largest
legal service provider to refugees
and asylum seekers in South Africa.
Several noteworthy successes in
court include the case challenging
the polices unlawful targeting
of foreign-owned businesses in
Limpopo during the controversial
SAPS Operation Hardstick.
Together with partners in the
Eastern Cape, we were also
successful in challenging the closure
of the Port Elizabeth Refugee
Reception Office in the Eastern
Cape High Court.
In partnership with the African

Centre for Migration and Society,
the report Policy Shifts in the South
African Asylum System: Evidence
and Implications was launched. It
addressed a major shift in South
Africas approach to asylum seekers
and refugees the most significant
since the asylum system was
established in the 1990s.
The right to nationality and the
prevention of statelessness has
become an important theme in
LHRs Refugee and Migrant Rights
Programme. In 2013, LHR published
the report Statelessness and
Nationality in South Africa that has
gone a long way in highlighting and
explaining this largely misunderstood
human rights concern.
STRATEGIC
LITIGATION
LHR uses strategic and
constitutional litigation as a means
of providing access to the basic
rights enshrined in the Constitution
and protecting hard-won
precedents.
LHR continues to represent the
Southern Africa Litigation Centre and
the Zimbabwe Exiles Forum in the
so-called Zimbabwe Torture Docket
case. The landmark case relates to
evidence of crimes against humanity
committed during a police raid on
MDC headquarters in Zimbabwe
in 2007. The case was brought to
determine South Africas obligation
under international and domestic law
to ensure that those alleged to have
committed crimes against humanity
are held accountable.
The Seriti Arms Procurement
Commission has begun its inquiry
into one of South Africas biggest
scandals of the post-apartheid
era involving massive corruption
in the procurement of arms. LHR
is representing expert witnesses
Andrew Feinstein, Paul Holden and
Hennie van Vuuren. Our efforts to
access vital documents related
to the so-called Arms Deal and

participation in the Commission
continue.
LAND REFORM
AND HOUSING
Land reform remains one of South
Africas biggest post-apartheid
challenges, LHRs Land and Housing
Programme assists dispossessed
communities with the finalisation
of their land claims. In 2013, the
Supreme Court of Appeal delivered
a landmark judgment in the
Baphiring land restitution case.
LHR represented the Baphiring
community who were forcibly
removed from their land in 1974
under the 1913 Natives Land Act.
The judgment is hoped to form a
template on how the government
deals with the post-settlement of
land restitution cases.
Unfortunately, our offices were
inundated with people who were
unlawfully evicted in the winter
months of 2013. For instance, in
Bronkhorspruit, over 200 families
were illegally evicted and their
homes demolished by the City of
Tshwane. LHR was successful in
compelling the City to rebuild the
homes and allowing families to
return.
ENVIRONMENTAL
JUSTICE
The extractive industry in South
Africa has placed tremendous
pressure on the environment and
poor communities who are often
disproportionately affected by
unsustainable mining operations.
LHRs Environmental Rights
Programme provides expert
legal advice to individuals and
communities seeking to protect
their constitutional right to an
environment that is not harmful to
their health.
In Limpopo, LHR is representing
the Mokopane community that has
been largely ignored by the platinum

mining giant Ivanplat Resources
during prospecting in the area
for what is argued to become the
largest platinum mine in the world.
A lack of meaningful consultation
with the community spurred legal
action and LHR is insisting that
affected parties be consulted
directly.
In the south of Gauteng, Acid Mine
Drainage in parts of Riverlea as a
result of collapsed gold mine

dumps from the 1950s being remined, has led LHR in collaboration
with the Centre for Environmental
Rights to intervene.
In Mpumalanga, LHR litigated on
behalf of the Silobela community to
compel the municipality to provide
temporary water services when
pollution, caused by reckless
mining, left thousands of people
without clean drinking water.
We extend our deep gratitude to our

donors and colleagues in private
practice who have given their time
generously.
We look forward to similar progress
in 2014 and the opportunity to
celebrate our 35-year anniversary.
Jacob van Garderen

National Director
After 34 years, LHR continues to be

a force in the promotion of human rights
6
A letter
from the
Board
LHRs Board, consisting of Professor

Ann Skelton, Arnold Tsunga,
Professor Benny Khoapa and
Seehaam Samaai, are proud to have
been a part of this leading human
rights organisation that continues
to promote awareness, protection
and enforcement of human rights
and the creation of a human rights
culture in South Africa.
This year we said goodbye to
Professor Khoapa who had been
a part of LHR since the new board
came into operation seven years
ago. A decision was taken to keep
the Board small to ensure greater
and increased efficiency, enable
decisions to be made faster and to
reduce costs.
In 2014, we will be welcoming
Nobuntu Mbelle whose skill and
knowledge of the human rights
sector will enhance LHRs work
even further.
We are proud to note that after
34 years, LHR continues to be a
regional and international force
in the promotion of human rights.
Its Refugee and Migrant Rights
Programme has become a source
of knowledge and leadership across
the continent and a beacon of hope
to many.
The Schubart Park, Marlboro, Pheko
and Itireleng cases of the Land and
Housing Programme reflect the
stark reality that in post-apartheid
South Africa, mass evictions and
forced removals remain part of our
landscape despite the constitutional
and legislative framework and
plethora of case laws relating to
evictions. The Programmes work
has not gone unnoticed. The cases
reflect tireless efforts in ensuring
evictions do not result in vulnerable
persons being rendered homeless or
vulnerable to other rights violations.
The lack of post-settlement support
to land claimants have raised
challenges in communities and
LHR provides immense legal and
technical support to land claim

communities that ensures greater
public participation, government
accountability, just administrative
action and post-settlement resource
allocation.
LHRs decision to focus on
environmental rights is well
placed in a country with growing
concerns around the ability of
all spheres of government to
ensure the fundamental principles
of environmental governance
are adhered to by industrial
and commercial entities. These
challenges can be seen within the
mining sector where unregulated
activities impact on the health,
water security and livelihood of
surrounding communities. The
Environmental Rights Programmes
work has become critical in ensuring
communities become central within
any development process affecting
their rights, including housing, land,
health food and water, culture and
other enabling rights.
We commend the Strategic Litigation
Programme for providing excellent
support to LHRs other programmes.
The Board supported LHRs decision
to litigate in its own name and
intervene as amicus curiae in the
Mail & Guardian versus Chipu matter.
The Arms Procurement Commission
has become LHRs David and Goliath
battle and continues to take up
significant time and resources. The
Board continues to support the
Programme in its efforts.
LHR hosted numerous workshops,
seminars, colloquiums and
conferences throughout the year
and these opportunities provided
exposure for our young lawyers to
other systems and strengthened
LHRs international relationships.
LHR has grown from strength
to strength on governance. Our
innovative human resources plan has
ensured that our younger lawyers
are mentored and retained.
LHRs work has not been without

challenges and an increased
workload and decreased funding
for its operations and activities
remain of concern to the Trustees.
Despite a tight budget, LHRs
prudent planning and management
has allowed it to once again
deliver excellently on its activities.
We maintained our record of
financial governance by receiving
another unqualified audit. This
is a commendable achievement
and clearly attributable to the
commitment of its all LHR staff
and, in particular, the regional
management team.
The Board will continue to provide
strategic direction, leadership and
good corporate governance support
to the national director to ensure
the objectives of LHR are attained.
However, our oversight role has
been made easier by the continued
committed and passionate
leadership of National Director
Jacob Van Garderen and his team.
The Board wishes to extend their
heartfelt appreciation to the
legal professionals and regional
administrative staff who are at the
forefront of the providing quality
legal services and their commitment
to serve LHR despite heavy case
loads and challenging working
environment.
The Board remains confident
that LHRs staff will continue to
give effect to its vision, mission
and objectives and make access
to justice a reality to the most
vulnerable and marginalised.
I must acknowledge, on behalf of
the Board, our appreciation for the
continued support and guidance of
our funders, donors, all our strategic
partners, LHR members and the
friends of LHR.
Continue the excellent work!
Seehaam Samaai
On behalf of the LHR Board
Annual
planning
meeting
UNHCR country representative Isabel Marques holds a session on refugee protection

in Mozambique.
LHR HELD ITS ANNUAL

PLANNING MEETING IN
MAPUTO, MOZAMBIQUE
IN OCTOBER.
The purpose was to take stock of
LHRs existing work, evaluate the
performance of its programmes and
make plans for 2014.
While there, LHR met with several
human rights organisations,
including Liga dos Direitos Humanos
about various human rights
challenges in Mozambique and
Southern Africa. LHR also met with
the Mozambican Association of
Mineworkers to discuss collaborative
efforts to provide legal services to
Mozambican miners in South Africa.
10
11
Being a candidate attorney at LHR

When I first started serving my articles at LHR, I
underestimated just how broad the field of public
interest law was. Going in I thought I would be working
within a narrow scope of the law but as time passed, the
more the areas I worked in began to branch out.
I was fortunate to work with a group of attorneys and
other legal professionals that were always willing to listen,
offer insight and guidance and, most importantly, shared
my passion for the enforcement of human rights in a nondiscriminatory way to those in need of assistance.
As a candidate attorney I worked on a range of issues,
including judicial reviews, land claims and labour and
criminal court practice.
During the two-year candidate attorney programme, I

also learned how to address issues through advocacy in
an effort to avoid litigation.
The space for growth within LHR is remarkable. After
completing my articles, I began working full-time in the
Statelessness Project that forms part of the Refugee
and Migrant Rights Programme. My time at LHR has only
served to strengthen my conviction for public interest
law.
I would recommend LHR to anyone with a legitimate
interest in human rights law and those looking to gain a
promising start to their career.
The word of an intern

My internship at LHR has proved invaluable after making
the decision to pursue a career in public interest law.
The ever-changing and dynamic nature of LHRs work
has helped me develop the ability to look at the law as
an array of opportunities and possibilities.
Its law clinics present a variety of legal and social issues
waiting to be solved. Working with a determined team
of attorneys, advocates and other interns from various
backgrounds enables the organisation to solve legal
issues innovatively and efficiently.
I was tasked with a fair amount of responsibility due to
the mentoring nature of the organisation. This has given
me the confidence to move forward in my career.
Consulting with clients at detention facilities, drafting
letters of demand, filing and serving court papers and
attending court is just some of the exposure I have been
lucky enough to receive.
Accompanying clients to Refugee Reception Offices in
Pretoria has also taught me to approach the refugee
system pragmatically. The scope of LHRs work has
forced me out of my comfort zone with the support and
encouragement of senior staff.
Continual training workshops at LHR helps interns gain
confidence in dealing with matters you may not have
come across before while developing the skills needed
in this exciting field.
One of the most powerful aspects of LHRs work are the
cases taken on. The majority of these cases not only
help those in need but also challenge existing laws with
the aim of creating precedents in South African law for
similar cases.
Lusungu Kanyama-Phiri was a candidate attorney with LHRs Refugee and Migrant Rights
Programme and Strategic Litigation Unit for two years.
12
The value of an internship at LHR cannot be overstated.

I have been able to develop and discover my strengths,
weaknesses and interests. I learned to confront and
overcome the fear of the unknown and I am more
prepared for my future. I learned more in my short time
at LHR than the four years spent at university.
Jessica Lawrence is an intern with the

Refugee and Migrant Rights Programme
in Johannesburg.
13
Refugee and
Migrant Rights
Programme
LHR remains vigilant to ensure

continued progressive expansion
of its rights-based approach
14
15
The protection of
refugees and asylum
seekers became a key
human rights concern
during South Africas first
decade of democracy.
Since 1994, approximately 200 000
people, mainly from conflict areas
such as the Great Lakes region,
Somalia, the Democratic Republic
of Congo and Zimbabwe have
applied for asylum in South Africa.
Despite relatively modest figures,
the government has struggled to
give effect to constitutional and
international obligations to provide
sanctuary and protection to refugees
and asylum seekers.
LHR advocates for and enforces the
rights of asylum seekers, refugees
and migrant workers in South Africa.

Since 1996, LHR has been providing
legal assistance to refugees, asylum
seekers and migrants from its
offices in Johannesburg, Pretoria,
Durban and Musina.
LHRs litigation has focused on
unlawful arrest, detention and
deportation practices, refugee
status determination decisions,
prevention of statelessness and the
socioeconomic rights of refugees
and migrant workers.
Litigation is used to advance clients
rights and to develop African
jurisprudence in the field of refugee
and immigration law. LHRs legal
advocacy focuses on unlawful arrest,
detention and deportation practices,
facilitating access to asylum and the
socioeconomic rights of refugees
and migrants.
In addition to direct legal assistance,

LHR undertakes strategic litigation,
human rights monitoring, policy
development, training and advocacy
through research, publications and
participation in a number of national
and international refugee and migrant
advocacy networks.
LHR also carries out vigorous
detention monitoring throughout
South Africa at detention centres,
police stations, airports and prisons.
In 2011, LHR went a step further
by introducing the Statelessness
Project, a special initiative meant to
prevent and reduce statelessness
by offering direct legal services,
advocating for law reform,
conducting public awareness
campaigns and offering training to
lawyers and government officials in
the field.
Deputy Home Affairs Minister Fatima Chohan has release the number of
new arrivals registered by the Department in 2013.
NEW ARRIVALS
MUSINA
DURBAN
70%
CAPE TOWN
50%
19%
3%
9%
PERCENTAGE OF NEW ARRIVALS
7%
71% GAUTENG
29% OTHER PROVINCES
17%
1%
2013
16
2012
While operating within

an asylum and migration
system in which the
humanitarian space
is shrinking, LHR has
enjoyed a productive
and fruitful year.
REFUGEE
RECEPTION
OFFICE CLOSURES
The closure of Refugee Reception
Offices (RRO) has continued since
2011 in Johannesburg, Cape Town
and Port Elizabeth.
The 2013 asylum statistics report
an analysis of Home Affairs asylum
database as presented to Parliament
by Deputy Minister Fatima Chohan
demonstrated a gradual decline
in the number of registered asylum
seekers in 2013.
Due to the closure of RROs in
Johannesburg, Cape Town and Port
Elizabeth, the numbers of asylum
applicants at the Marabastad RRO in
Pretoria have increased dramatically,
leading to high levels of corruption.
The report concluded that there
were concurrent push factors in
countries of origin, fuelled by pull
factors in South Africa and that
this was responsible for the high
numbers of new arrivals.
2012 VERSUS 2013

PRETORIA
2013
IN
REVIEW
The statistics report showed that

70 010 new arrivals were registered
in 2013. This is around 9 000 more
applications compared to 2012.
Just under 50% of new asylum
seekers were from the SADC
region with Zimbabwe being the
largest contributor with 16 420

new applications, the DRC with
7 175, Mozambique and Lesotho
with approximately 3 500 each and
Malawi 2 493.
Asylum seekers from West and East
Africa constituted 32% of overall
applicants, the rest were received
from South and Central Eastern Asia.
Gauteng remained the hub with 71%
new arrivals registered and other
provinces receiving a combined
29%. This added significantly to
urban influx challenges faced by

Gauteng and competition for scarce
resources leading to other social
and economic challenges.
LHR is concerned by Home Affairs
decision to implement the first
safe country principle that would
mean those seeking asylum would
need to lodge an application in the
first safe country in which they find
themselves. If they do not, they risk
being sent back to that country by
the country in which they do apply
for asylum.
We will finalise the implementation of our policy

position to relocate Refugee Reception Centres
closer to the borderlines with the assistance of the
Public Works Department.
DEPUTY HOME AFFAIRS MINISTER FATIMA CHOHAN
Refugee Reception
Office closures raise
concerns
South Africas urban-based

refugee protection model,
founded on the principles of
freedom of movement and local
integration, has been lauded as
a progressive break from the
traditional camp-based approach.
However, Home Affairs insistence
on relocating all of South Africas
RROs to its borders continues
to be a concern, especially as
these decisions are largely made
without proper consultation.
RROs are the primary point of
contact between asylum seekers,
refugees and Home Affairs.
Since 2011, several RROs have
been closed Johannesburg,
Port Elizabeth and Cape Town

increasing challenges around
access, delays and corruption.
In 2012, Home Affairs
announced its intention to
relocate RROs with additional
plans to construct reception
facilities at Lebombo in
Mpumalanga, near the
Mozambican border. So
far, R28.8-million has been
earmarked for the establishment
at Lebombo while the project
as a whole is estimated at a
staggering R110-million.
LHR, together with other affected
civil society organisations,
have challenged this wasteful
expenditure that would be better
spent on more pressing issues
like resolving RRO staffing
shortages, long queues and
17
stamping out widespread corruption to which Home

Affairs has admitted in its 2011/12 annual report.
This intended relocation is not only a technical and
operational decision but one that impacts
the basic principles of the asylum system. The
closures constitute the implementation of policy
before the completion of policy formation.
The ensuing inability to lodge applications to renew
documents has left asylum seekers and refugees at
risk of becoming undocumented and subjected to
fines, detention and refoulement.
In June 2013, LHR representing the Somali
Association of South Africa and Project for Conflict
Resolution and Development was successful in
having the Eastern Cape High Court declare the
decision to close the Port Elizabeth RRO unlawful and
ordering it to be reopened an order Home Affairs
has ignored.
The Port Elizabeth RRO is the only place in the
Eastern Cape at which asylum seekers and refugees
can access their statutory rights under the Refugees
Act. Between May 2010 and March 2011, the RRO
processed over 22 500 asylum seeker and refugee
applications. At present, only three RROs remain
operational: Pretoria, Durban and Musina.
Most concerning was the complete absence of
consultation by Home Affairs in taking the decision
to close the office, something agreed to in the
judgment.
Home Affairs argued public consultation was
impossible because they could not identify who
to consult with. However, they added civil society
organisations did not have the inherent right to be
consulted with either.
This decision caused severe prejudice to asylum
seeker and refugee communities, considering that
in the case of Cape Town, the closest office is
over 700km away. Travelling to and from potential
border offices would be extremely costly and timeconsuming, resulting in people having to live near
RROs.
The impact of moving RROs depends entirely on
the details of the plan and as a result, many
questions remain:
Would all asylum management functions, such

as permit renewals of existing asylum seekers,
appeals and reviews be relocated to ports
of entry or only the functions relating to new
arrivals?
Where would these facilities be located, given
that significant numbers enter South Africa
through various land borders including Namibia,
Swaziland and Botswana and sea ports and
airports.
How will asylum seekers be treated who only
declare their intention to apply for asylum once
inside the country?
What adjudication processes are intended to be
completed and in what time frames?
OLD RECEPTION OFFICES

REMAINING RECEPTION OFFICES
How will Home Affairs manage the welfare

requirements of asylum seekers while waiting to
access and complete documentation processes?
Would asylum seekers be required to remain
in the vicinity of the RRO for the duration of
the adjudication process? If so, will they be
detained? Although stating it is not government
policy to establish refugee camps, there is a
very real likelihood that the relocation of RROs
to remote areas like Lebombo would create de
facto camps as seen in other countries with
similar policies.
By relocating RROs, Home Affairs will struggle with
staffing as experienced and senior staff and refugee
status determination officers may not wish to move
to remote border towns.
Amid these concerns, South Africas commitment to
refugee protection will continue to be questioned if
the border move leads to asylum seeker detention,
which may cause a humanitarian crisis due to a lack
of adequate shelter and welfare provision or extreme
hardship for existing asylum seekers and refugees in
keeping their documentation up-to-date.
Until these concerns have been adequately
addressed in an open and transparent manner,
the relocation of RROs should be resisted.
OLD RECEPTION OFFICES
REMAINING RECEPTION OFFICES
Johannesburg Refugee Reception Office

19 Planet Avenue
Crown Mines
Marabastad Reception Office

Cnr DF Malan Drive and Struben Street
Pretoria West
Marabastad Reception Office

Cnr DF Malan Drive and Struben Street
Pretoria West
Tshwane interim Refugee Reception Office

203 Soutter Street, Pretoria Showgrounds
Pretoria
Tshwane interim Refugee Reception Office

203 Soutter Street, Pretoria Showgrounds
Pretoria
Durban Reception Office

137 Moore Road
Durban
Durban Reception Office

137 Moore Road
Durban
Musina
8 Harold Grenfell Street
Musina
Cape Town Reception Office

Sturrock Building
18 Montreal Road
Airport Industria
Nyanga, Cape Town
Musina
8 Harold Grenfell Street
Musina
Port Elizabeth
KIC 5 Sidon Street North End
Port Elizabeth
18
ASYLUM REPORT
LHR in partnership with the African
Centre for Migration and Society
released the report Policy Shifts in
the South African Asylum System:
Evidence and Implications that was
motivated by evidence of changes
and statements concerning intended
shifts in policy within the asylum
system in 2013.
The report focused on five main
areas:
Group Exclusion: Restrictions

on groups (by nationality) seeking
to enter the country to apply
for asylum.
Access barriers: Ad hoc and
unlawful use of asylum transit
permits (Section 23 permits)
to limit access to asylum by
not issuing such permits at
border posts.
Limitation of basic rights: Home
Affairs intention to reconsider
the right to work and study for
asylum seekers.
Policy shifts in the South African asylum

system: Evidence and implications
The report was motivated by evidence of recent

restrictive changes in practice within the asylum
system in South Africa and statements concerning
intended shifts in policy. Since early 2011, these
shifts have occurred in five main areas:
GROUP EXCLUSION
The introduction of the so-called first safe country
requirement stipulates that an asylum seeker must
apply for asylum in the first safe country that they
have an opportunity to apply in. If they first apply
for asylum in a subsequent country, that country
can return them to the first country to adjudicate
their claim. Such agreements are ordinarily made
between specific countries and are not enshrined in
international law.
Home Affairs has expressed its intention of
introducing this requirement for accepting asylum
seekers but no policy has been presented for
consideration despite representing a significant
change in the present requirement of individual
assessment of all asylum claims.
The framework of such a principle is a long-term
process that is likely to create a more costly and
administratively complex system. Denial of entry
also pushes people to enter the country irregularly,
exposing them to the dangers of rape, assault,
trafficking, theft and death during passage.
Refugee Reception Offices:

Closures and relocation of
existing RROs.
Appeals: Increased backlogs due
to the restructuring and undercapacitation of the Refugee
Appeals Board (RAB).
with the South African Police Service to close

foreign-owned businesses in townships.
renewal of RAB judges means that a new backlog has

developed, increasing waiting times.
The reasons given for limiting asylum seekers rights

to work confuse the reasons why people apply for
asylum and basic rights once they have applied.
New RAB judges are inexperienced in refugee law.

In fact, while they are legally trained, they have only
received half a day of training by the UNHCR since
their appointment.
REFUGEE RECEPTION OFFICES

Taken together, these changes
represent a major shift in the
approach to asylum since the
system was established in the
mid-1990s.
ACCESS BARRIERS
Since 2011, there have been episodes in which the
Immigration Acts asylum transit permit (also known
as the Section 23 permit) was used to deny asylum
seekers access to asylum.
Since 2010, Home Affairs has closed several RROs

and announced its intention to relocate existing RROs
from major cities to international land borders.
South Africa has a non-encampment policy but there
are several indications that some form of de facto
detention is planned, even if such detention may not
be called a camp.
The Johannesburg, Port Elizabeth and Cape Town
RROs were closed in an unlawful manner due to a
lack of substantive consultation and Home Affairs has
ignored court orders to reopen RROs or to provide
equivalent services in these municipalities.
The report documented several other concerns in

policy and practice, including:
Changes in practice were not preceded by explicit
policy documents
A lack of clear statements of the intended
strategic aims of the changes in practice and no
logical connection between the problem and the
proposed solution
The recent practices either contravene the law or
clash with the spirit of the law
The non-issuance of the permit demonstrates a lack

of basic legal knowledge, coherence and oversight
among Home Affairs officials at various levels. There
is no effective remedy for an asylum seeker to
resist denial of entry or seek recourse for an unjust
decision.
The ensuing inability to lodge applications or renew

documents has left asylum seekers and refugees at
risk of becoming undocumented and at risk of
fine, detention and refoulement.
APPEALS
Evidence that the shifts in practice are already

showing counterproductive effects for both
asylum seekers and South Africans with the
likelihood of these increasing
Allowing state officials to exercise ad hoc authority

outside their mandated powers erodes the rule of law
and public confidence that governmental institutions
are accountable to those they serve.
Slow appeal completion rates due to low capacity

and the need to rehear many cases after the non-
Little, to no, substantive consultation with

stakeholders
LIMITATION OF BASIC RIGHTS

Following the Watchenuka judgment of the SCA,
asylum seekers have the right to work and study in
South Africa and the right to move freely within its
borders.
There have been indications from Home Affairs and
other stakeholders that they are considering limiting
these rights. No formal policy statement or legislative
draft has been released yet.
There have been ad hoc attempts to implement
limitations, though, in the absence of a formal policy.
One example of this is Home Affairs communication
THE RIGHT TO
SELF-EMPLOYMENT
FOR REFUGEE
TRADERS
LHR has been at the forefront of
challenging the unlawful targeting of
informal traders in Limpopo.
In 2012, LHR challenged the right of
refugees to self-employment after
hundreds of refugee spaza shops
were forcibly closed down by the
police in a crackdown on businesses
perceived to be operating illegally.
The application was brought against
the Limpopo government, the police
20
New procedures make it harder for asylum seekers

to manage their own appeals, disadvantaging those
without access to legal service providers.
and several other departments on

behalf of the traders, arguing that
refugees and asylum seekers living
in South Africa legally were entitled
to trade and operate business
to earn a living in circumstances
where they had no other means of
livelihood.
The application was dismissed in
September 2013. The closures and
confiscations led to the traders
losing their only source of income.
These are largely small tuckshops
and spaza shops operating in remote
areas in Limpopo. LHR sought leave
to appeal and in December 2013 was
granted leave to appeal. The appeal

will be heard in the SCA in 2014.
XENOPHOBIA
AND TIGHTENING
IMMIGRATION
LAWS
Xenophobic attacks have continued
to erode South Africas role as a
continental leader on issues of
refugee protection.
During the Public Interest Law
Gathering at Wits University, the
UNHCR estimated that 62 foreigners
were killed in South Africa within the
first six months of 2013.
21
It estimated that 130 incidents were

reported during this period with 73
people being seriously injured and
5 000 others displaced. In 2012,
238 incidents were reported with 120
deaths and 7 500 being displaced.
Among the incidents reported in
2013 was unrest in Diepsloot in
May following the arrest of a Somali
businessman for allegedly shooting
dead two men. In the same month,
foreign nationals were attacked
and their shops looted in Evaton,
Sebokeng and Orange Farm.
South Africas ability to position
itself as a continental leader has
also been made more difficult

as immigration policies become
increasingly stringent. This not
only leads to the sanctioning of
xenophobic intimidation and violence
but also exacerbates the countrys
skills shortage.
South Africas recent introduction
of stricter immigration laws will
effectively serve to close the
countrys borders to African
immigrants, many of whom add
valuable skills to the local economy.
May marked five years since the xenophobic attacks

that shocked the nation. But what has happened
since then? Are we better prepared to deal with
criminality of that scale than we were five years ago?
The simple answer is no.
South Africa in its 19 years of democracy had
never before seen the scale and intensity of the
2008 xenophobic violence and displacement. It was
because of this that the horror of the displacement
caused us to pay attention. After initial attacks in the
townships of Alexandra, Diepsloot and Tembisa during
the first five days of the attacks, security forces were
unable to prevent the spread of violence or halt the
mushrooming attacks, loss of life and property. In the
end, more than 60 people were killed in the violence.
After the South African Human Rights Commissions
investigation into the violence, a number of
recommendations were made to government
departments to develop mechanisms to reduce and
prevent the kind of violence and attitudes seen during
the 2008 attacks. Many of these recommendations
have still not been operationalised. For example,
a recommendation to the Justice Department to
develop hate crimes legislation and support measures
to institute it has been in the pipeline for many years
without resolution.
The police to an extent have made some progress
in working towards these recommendations.
22
April 10 in Sasolburg: Following an early warning

notification, SAPS were present during and after
a march organised by the ANC Youth League.
Crowds of up to 3 000 people were managed by
the police and order was successfully maintained.
Refugees were warned and had closed their shops
and removed their stock in anticipation of possible
looting and attacks.
With countries such as Zimbabwe,

the DRC and Cote dIvoire seeing
a surge of immigrants escaping
uncomfortable political and
economic situations, the move
by policymakers to tighten
regulations around immigration is
counterproductive.
These kinds of incidents have become normal and

rarely attract attention. As a result it appears as if the
situation is under control but nothing could be further
from the truth. Similar incidents are reported daily and
while segments of the police are working to protect
foreign nationals who may be targets of xenophobic
hatred, there are also officers who act unlawfully and
for their own financial gain as was noted in the recent
arrest of a woman who was impersonating an officer
in Johannesburg and allegedly soliciting money from
foreigners.
The visible policing unit has managed to quell threats

and incidents of violence. These efforts are mainly
focused in Gauteng and urban centres while the
Eastern Cape, Free State and Limpopo continue to be
areas in dire need of policing interventions. According
to the UNHCRs xenophobia hotline, an average of 238
incidents a month are reported to the police. SAPS
have displayed a success rate of 50% in preventing
death, injury and loss of property through early
intervention efforts.
In worst-case scenarios, scenes of a Mozambican taxi

driver being dragged behind a police bakkie show just
how fragile this protection may be.
The idea behind the Immigration

Amendment Act is that South
Africa should, as part of its policy
Five years on and no closer to solving

xenophobic hatred
to stem the inflow of immigrants,

seek to build ailing countries so that
those who would ordinarily have
considered moving to South Africa
are more likely to stay and build a
life within their own countries.
While this rationale is sound, closing
South Africas borders is not a
realistic solution.
In April alone, police were called in on numerous

occasions to intervene and offer protection in
xenophobic incidents. These are just a few of the
reported cases in and around Pretoria:
April 24 in Soshanguve: SAPS members
successfully assisted Somali shopkeepers in
resisting an attack and protected their stock;
April 20 in Ga-Rankuwa: SAPS were slow to
respond and despite repeated calls for assistance,
police only arrived after more than half their stock
was looted and one of the victims had been shot;
April 13 in Mamelodi East: A Somali man was shot
in a seemingly targeted attack on foreign-owned
shops;
April 1 in Delmas extension 3: Ten refugee shops
were looted. Despite calls for police assistance
and shots being fired, police were absent and
unable to provide protection;
SAPS cannot be the sole government department

to take responsibility for combating xenophobia.
The National Prosecuting Authority and Justice
Department have not publicised their statistics
on investigations and prosecutions arising from
A FOCUS ON THE
MENTAL HEALTH
OF REFUGEES
A joint project by LHR, the UNHCR
and Centre for the Study of Violence
and Reconciliation (CSVR) was
launched in 2013 to provide holistic
support to vulnerable refugees. This
is in recognition of the negative
impact violence, traumatic events
and difficult living conditions have on
the mental health of refugees.
Although only a marginal amount of
refugees suffer from mental health
problems, those who do faced
massive obstacles in accessing
health care as well as seeking and
retaining employment.
xenophobia-related crimes. This would be a strong

deterrent to any groups planning raids and attacks on
foreign nationals.
We are not seeing strong enough sanctions and
penalties for those perpetrating criminality against
foreigners. Neither the government, nor the ruling
party has taken the lead on tackling xenophobia.
Instead the ANC has tabled policy limiting the rights of
foreigners to work and Home Affairs is making plans
to move refugee processing to border regions away
from urban centres thereby creating the danger of
shanty towns developing along our borders while still
offering little to combat xenophobic attitudes within
our communities.
Where this leaves us is that groups like the Greater
Gauteng Business Forum and their ilk perceive their
strategies to evict foreigners from local communities
as being quite successful. This weak response to
policing and targeting of hate crimes allows criminality
to fester and offers little protection to the victims
of hate crimes. The go home or die here attitude
should have no place in this country. This was never
the intention of our Constitution and has the effect
of watering down our respect for human dignity and
democracy.
Kaajal Ramjathan-Keogh heads LHRs Refugee and
Migrant Rights Programme.
Throughout 2013, LHR assisted over 10 000 people

through its law clinics, work on statelessness,
detention monitoring and mental health project.
LAW CLINICS
MENTAL HEALTH
PROJECT
3 933
156
CLINIC
OUTREACH
LEGAL SERVICES
IN MUSINA
70
958
SOCIAL GRANTS
INTERVENTIONS
250
DETENTION
MONITORING
245
LITIGATION
4 300
POST-XENOPHOBIA
OUTREACH
105
23
REFUGEE AND
MIGRANTS RIGHTS
PROGRAMME
SUB-PROJECT
IMMIGRATION
DETENTION
MONITORING
One of LHRs busiest projects is
the Detention Monitoring Unit that
investigates the arrest, detention
and deportation of non-nationals
at police stations, international
airports, prisons and the Lindela
Repatriation Centre.
The Refugees Act is the only
applicable legislation when dealing
2013
IN
REVIEW
During 2013,
LHR assisted
236 detainees.
In one notable case, LHR assisted
the Cape Town-based law firm, Alan
Goldberg and Associates, in the
case of 75 Indonesian fishermen
that had been employed on seven
fishing ships in the Cape Town
harbour for roughly two months. The
vessels were abandoned and the
owners whereabouts were unclear.
Of them, 72 were in possession of
valid Indonesian passports but three
had lost their travel documents.
Stranded in the international area of
the harbour, they were assisted by
local civil society organisations.
24
LHR has been litigating for the release of those

held unlawfully in detention since 2006 with a high
success rate litigating approximately seven high
court applications each month.
with arrested asylum seekers and

refugees as it prohibits their arrest
and detention until they have had
an opportunity to lodge an asylum
application and a fair chance to have
it evaluated.
Where a foreign national is
encountered without any
documentation and expresses the
intention to apply for asylum, they
should not be dealt with in terms
It was suggested the ships be sold

at auction to recover the wages of
the fishermen who had not been
paid in over two years. On learning
of the mens presence, Home Affairs
boarded the vessels and forcibly
removed them. They compelled
them to board busses to Lindela for
deportation, without any attempt
to investigate their individual
circumstances.
On 3 December 2013, LHR wrote
to Home Affairs demanding that
the men not be deported pending
the outcome of proceedings for the
recovery of their wages, that they be
released and returned to the ships
and issued with the appropriate
temporary residence permits due to
circumstances beyond their control.
Legal proceedings are expected to
lead into 2014.
Throughout the year, 22 high court
applications were launched 16
LHR advocates for and enforces the

rights of asylum seekers, refugees
and migrant workers in South Africa
of the Immigration Act but as an

asylum seeker in terms of the
Refugees Act and afforded a
chance to apply for asylum.
Despite the clear interpretation
of the Act, LHR still sees asylum
seekers being arrested at South
Africas borders because of expired
permits, at RROs and detentions of
over 120 days.
of which were urgent applications

for the release of detainees from
Lindela.
In most instances,
litigation is a last resort
in LHRs detention
matters but several
cases did appear
before court.
Notable cases were detainees who
had spent more than 120 days in
detention, those whose detention
was increased by the magistrates
court without their prior knowledge
and/or participation, minors being
detained on the pretext that
they were thought to be adults,
the detention and deprivation of
access to the asylum process of
newly arrived asylum seekers and
economic migrant who bore valid
documents but was still detained for
nearly a month.
25
REFUGEE AND
MIGRANTS RIGHTS
PROGRAMME
SUB-PROJECT
STATELESSNESS
PROJECT
The Statelessness Project addresses
the increasing need for legal
assistance in accessing the right to
nationality in South Africa. The goal is
to prevent and reduce statelessness
and address barriers to citizenship
and birth registration through
advocacy, direct legal services and
strategic litigation.
Since 2011, LHR has assisted people
from various countries of origin
through its law clinics in Pretoria,
Johannesburg, Musina and Durban.
Extensive mapping has been done
to identify the main causes of
statelessness and the populations
most affected by it.
In 2013, LHR helped 235

clients through direct
legal services.
Advocacy remains one of LHRs core
functions. The report Statelessness
and Nationality in South Africa
based on research conducted by
LHR was released in 2013 during
a photographic exhibition that
featured portraits of LHRs clients.
It demonstrated the effect and
affect of statelessness on the lives
of individuals. Short captions and
quotes from clients personalised the
abstract nature of the issue, enabling
the public to identify with clients.
LHR launched several court cases
throughout 2013 to assist those
at risk of becoming stateless and
the governments inadequate
26
A stateless person is someone not recognised as a

citizen by any state, whether in law or in practice.
implementation of existing nationality

and immigration laws. These cases
address individual clients problems
as well as a wider problem within the
law to encourage the development of
legislation and policy. This litigation
also brings the existence of specific
barriers to nationality to Home
Affairs attention and provides the
opportunity for the court to interpret
and develop the law.
LHR has done a lot by way of
education and advocacy, reaching
out to communities through
birth registration workshops and
information sessions and introducing
local Home Affairs officials to
communities who may have difficulty
obtaining nationality and immigration
documentation. In collaboration with
other civil society organisations,
LHR has begun developing a survey
tool that can be used to collect data
on this poorly communicated but
growing human rights issue.
It is important to know how many
people in South Africa are affected
by statelessness but it is very
difficult to determine this because
people are often unaware that they
are stateless or what this means.
This initiative will require cooperation
with Home Affairs and will assist
LHRs efforts.
Populations of concern include
Zimbabwean-born migrants with
foreign parentage, orphans and
vulnerable children, stateless
migrants, children of migrants,
children of single fathers, victims
of ID fraud, communities in border
areas and unaccompanied foreign
minors.
The movement of persons within the

Southern Africa region is common,
whether for economic or political
reasons. The exclusionary and
restrictive citizenship laws of South
Africa and neighbouring countries
often result in automatic loss of
citizenship or the inability to access
birth registration. It is for this reason
that LHR has reached out to regional
bodies to raise issues, including
the importance of universal birth
registration. Regional cooperation
is imperative for preventing and
reducing statelessness. LHR
networks with other civil society
members across Africa to advocate
the need for a regional legal
instrument which promotes access
to the right to nationality.
LHR had the opportunity to address
the issue of the unlawful detention
of a stateless person at the Lindela
Repatriation Centre, representing
a client that had been detained
for seven months without remedy.
The detention of stateless persons
is unlawful as their deportation is
impossible. When detained, this
often exceeds 120 days.
In 2013, Zimbabwe adopted a
new Constitution allowing for
dual nationality by birth. LHR will
continue to monitor the practical
implementation of this change in law.
South Africas Constitution and the
rights it enshrines provide a fertile
ground for the development of law
and policies that address not only
the reality of statelessness in South
Africa but also the injustices of
the past regarding citizenship and
documentation.
ID blocking: A growing threat

to nationality
South Africas 1994 elections paved the way for all

citizens to enjoy the human rights flowing from equal
citizenship but rumours of the deficient pre-electoral
registration of the previously disadvantaged have
been wholly disregarded in the wake of apartheids
fall. The effects of rushed registration policies have
caught up with us and an urgent response is needed
to avoid a potential nationality crisis.
Home Affairs recent attempts to tidy up the
population register have left many South Africans,
not only unequal but stateless and without recourse.
Home Affairs has launched a campaign to eliminate
duplicate and fraudulently obtained identity numbers.
More than 500 000 potential duplicate or

multiple ID cases were initially identified and
the ID numbers were blocked.
A blocked ID equates to someone being deprived of
nationality and denied access to basic rights while
their status is investigated.
As for fraudulently obtained ID numbers, officials
routinely block ID numbers upon mere suspicion
of the person being a foreigner. Fraudsters and
innocents alike are being deprived of nationality
until they can prove their identities. Due to strict
documentary requirements, many are unable to
prove their heritage. The initiative, in principle a
praiseworthy effort, simultaneously poses a direct
threat to the right to nationality.
INADEQUATE CIVIL REGISTRATION PRE-1994

Birth registration has been compulsory for all races in
urban areas but voluntary for Africans in rural areas
since 1923. Africans were largely excluded from the
population register pre-1994. Of those entered into
the system, many were recorded incorrectly. It was
only in 1986 that legislation made provision for all
groups to be included. As a result there is very little
documentary proof of births and identity preceding
democracy.
In the run-up to elections, there was a scramble to
put people on the register to allow them to vote.
The resulting chaos meant a significant number of
wholly undocumented people had to be registered,
dompas numbers had to be translated into regular
ID numbers and a great number of people from

the TBVC-states had to be incorporated into the
population register.
Those who had dompas numbers were
automatically allocated new ID numbers without their
knowledge. In a 2012 progress report by the Home
Affairs director general, it was explained that people
whose reference book numbers were changed into
ID numbers often were not informed and applied
for and received other ID numbers resulting in them
holding two ID numbers. This is what is referred
to as multiple ID numbers. A duplicate ID refers to
the situation when one ID number was given to two
different persons.
Applicants falling into this ad hoc regularisation
process often reported that ID numbers were issued
without needing proof of birth. Because these births
were not adequately registered, they face potentially
insurmountable challenges if asked to prove their
nationality.
Home Affairs recently announced that all duplicate
ID numbers would be cancelled by December 2013
if the holders did not come forward and prove their
right to South African citizenship. Given our countrys
history and poverty, it is unreasonable and racially
discriminatory to announce the cancellations and
expect all affected persons to be informed and to be
able to provide extensive documentary proof of their
birth pre-1994.
SUSPECTED FRAUDULENT IDS

The practice of blocking ID numbers in suspected
fraud cases has risen. The situation has deteriorated
to such an extent that officials have begun arbitrarily
seizing ID documents of unsuspecting citizens upon
mere suspicion of being a foreigner. Citizens find
themselves stripped of nationality without due
process as they apply for passports or new ID books
using the same ID number they had been using for
the last 20 years. They are often not supplied with
written reasons for the blocking of their ID and are
oblivious to available remedies. The only direction
they are provided with is a long list of supporting
documents that are often impossible to obtain. It is
virtually impossible to get Home Affairs to answer
a request for reasons or to finalise an investigation
quickly, putting the affected persons life on hold
indefinitely.
27
PRESENT CONCERNS
PROPOSED ACTION
In July 2013 the Home Affairs minister announced

the roll out of new smart ID cards. It is likely the
necessary conversion process will result in many
more IDs being blocked as all South Africans
statuses are reviewed. At the time of the report,
Home Affairs was in possession of more than
400 000 uncollected ID booklets.
In terms of Section 20 of the Constitution, no

citizen may be deprived of citizenship. Home Affairs
effectively deprives applicants of nationality through
ID blocking. This results in the affected person being
unable to travel, study, work, marry or even register
the births of their children.
THE PROBLEM OF BLOCKED IDS

Many people will remember the 2009 incident in
KwaZulu-Natal when a distraught man committed
suicide after a long wrestle with Home Affairs to
register his birth and obtain an ID. A Home Affairs
official tore up his application because he did not
meet the requirements to satisfy the burden of
proof. Home Affairs demanded that his parents
be present for the application. His parents had
long since died without having registered his birth.
Ultimately, he was unable to prove his nationality.
For him and many others, it seems death is

more bearable than a life without identity.
People with blocked IDs experience the same
kind of difficulty in proving their identity once
the ID has been blocked. Anyone can become a
victim of Identity blocking. If your ID number is
being used fraudulently, it can be blocked without
your knowledge. While addressing ID fraud is
necessary, it is equally important to protect innocent
peoples access to nationality and the right to just
administrative action.
Current requirements to unblock an ID or resolve
a duplicate ID includes an originally issued birth
certificate (a recently issued certificate will not be
accepted), a clinic card or maternity certificate,
copies of both parents IDs and a witness 10 years
the applicants senior or older. The requirements can
not always be met because many applicants were
born at home and in rural areas that do not possess
maternity certificates or clinic cards as a means of
verification. In these cases it becomes impossible
to prove their nationality. In most cases they have
no claim to nationality in any other country and are
rendered stateless.
28
Given the gravity of the negative effects, it is

imperative for the government to respond urgently.
It is difficult to estimate how many people in South
Africa could potentially be stateless because of
ID blocking. In order to decrease the numbers of
affected people, the government may look to both
domestic and international law for assistance.
Both the Promotion of Administrative Justice Act
(PAJA) and the two United Nations Conventions
on Statelessness contain helpful provisions in this
respect.
PAJA compels Home Affairs to provide affected
persons with written reasons for administrative
decisions and to inform them of the remedies that
are available to them. If officials follow this basic
procedure already provided for by PAJA it will
significantly decrease the number of people left in
limbo and confusion. It will also force the relevant
Home Affairs official to conduct proper research and
investigations preventing the arbitrary deprivation of
nationality.
If preventative steps are not taken,

many South Africans risk statelessness.
The right to nationality is inextricably linked to the
rights to human dignity, equality and freedom. In
a democracy founded upon these values, we need
to ensure that all our rights are protected and to
remember that the right to nationality is a key that
unlocks our access to all other rights.
Liesl Muller is an attorney with LHRs Statelessness
Project
Human rights education and advocacy

form an integral part of LHRs work
29
Strategic
Litigation
Programme
Strategic and public

interest litigation has
become an important
part of LHRs work within
its various programmes.
However, public interest litigation
must be seen in the larger context
of a multi-pronged approach to
human rights protection and access
to justice.
While the courts remain ready to
offer protection to those whose
rights have been violated, it is
important not to lose ground in the
precedents already established. In
particular, constitutional litigation
that attempts to claw back on
progressive precedents set by
the courts.
Organisations like LHR needs to
be vigilant to ensure continued
progressive expansion of the rightsbased approach to government while
looking for new means of ensuring
individual accountability in human
rights protection.
2013
IN
REVIEW
ARMS
PROCUREMENT
COMMISSION
In February 2013, LHR was
approached by Arms Deal experts
Andrew Feinstein, Paul Holden and
Hennie van Vuuren who had been
subpoenaed to testify before the
30
Arms Procurement Commission

of Inquiry chaired by Judge Willie
Seriti of the Supreme Court of
Appeal. The Commission had been
tasked by President Jacob Zuma to
investigate allegations of corruption
surrounding the Strategic Defence
Procurement Package (SDPP), also
known as the Arms Deal, dating
from the mid-1990s.
Feinstein, Holden and van Vuuren
have written extensively on the
Arms Deal and its subsequent
fall out. In January 2013, at the
Commissions request, Feinstein
and Holden submitted written
representations including thousands
of pages of documentary evidence
upon which they had relied in writing
their books. They had hoped this
evidence would be used to guide the
Commissions investigations.
The three men were subpoenaed
to testify before the Commission
in March 2013 but delays led
to hearings only beginning in
September. By this time, the
sequence of witnesses had changed
so that only state witnesses would
appear in Phase I of the hearings
that looked into the rationale of
the deal while Phase II would look
at allegations of corruption. LHRs
clients were scheduled to appear in
Phase II but were invited to crossexamine Phase I witnesses.
LHR led the team in these

cross-examinations.
A pre-hearing meeting was held
in August 2013 when interested
parties were allowed to express
any difficulties with procedures
surrounding the hearings. LHR made
submissions that our clients would
need access to documents in a
timely manner to effectively cross-
examine witnesses. This included

access to witness statements and
accompanying documents upon
which the witnesses relied.
It became clear there

would be a number of
procedural difficulties
arising from the
Commissions rules.
Soon after hearings began in

September, it became clear there
would be a number of procedural
difficulties arising from the
Commissions rules. Interested
parties were only allowed access
to witness summaries that were
usually less than a page long
of often hundred of pages of
supporting documents and only on
the day of the witnesss testimony.
The rule requiring interested parties
to cross-examine immediately
after a witness had testified made
it impossible to properly prepare.
Requests for adjournments to study
the documents were met with open
hostility from the chairperson. Of
increasing concern were rulings
that did not allow our clients to rely
on documents of which they were
not the authors in order to crossexamine witnesses. This included
the Debevoise-Plimpton Report and
Affordability Report both of which
had been in the public domain for
years.
The year ended with our team being
frustrated by the Commissions lack
of access to documents, rulings
limiting cross-examination and
opposition to our clients continued
participation in Phase I.
31
The Arms Deal:

A timeline
This timeline tracks the period between the purchase of arms during the Strategic Defence Procurement
Packages and the events that ultimately resulted in the establishment of the Arms Procurement Commission.
The timeline is taken from Paul Holdens book The Arms Deal in Your Pocket.
OCTOBER 1995
The South African Air Force (SAAF) reviews its defence needs
and decides it only needs to replace one tier of jets: the
Cheetah trainers. Its review and request is completed and
formalised.
OCTOBER 1995
Jacob Zuma receives first payments from Schabir Shaik, which
Shaik later claimed formed part of a pattern of loans to Zuma.
MAY-AUGUST 1996
French company Thomson-CSF (later renamed Thint Holdings)
sets up local branches in South Africa by incorporating
Thomson-CFS Holdings (Southern Africa) and Thomson (Pty).
Thomson and Shaiks Nkobi Holdings enter into dealings that
will make Nkobi the joint partner in all of Thomsons ventures
in the country.
MARCH 1997
The SANDF, after receiving bids from 23 suppliers for the
provision of a fighter/trainer jet, chooses four bidders to
enter the next stage of evaluation. They are a joint Brazilian/
Italian consortium offering the AMX-T aircraft; Daimler-Benz
Aerospace offering the AT2000; Aero Vodochody, offering the
L159; and the Aeromacchi/Yakovlev YAK/AEM-130. Neither of
BAes [British Aerospace] submissions, the Hawk and the Jas
Gripen, make the shortlist as they are considered to be far too
expensive and not suitable for the SAAF.
JUNE 1997
Cabinet approves defence review, which finds that the defence
force does need to make extensive purchases to maintain its
capability. Parliament approves the review two months later.
OCTOBER 1997
President Thabo Mbeki opens tenders for the purchase of
arms at an initial estimated cost of R12-billion.
OCTOBER 1997
Apparently acting on the instructions of defence minister
Joe Modise, the SAAF decides to revert back from its twotier fighter training proposal to a three-tier training system.
This meant the Hawk and Gripen could now be resubmitted
as realistic options for the SAAF to purchase, according to
Polityweb founder James Myburgh.
LATE OCTOBER 1997
Further requests are sent out for information from arms
companies to supply advanced light fighter aircraft: BAe now
makes the short-list with the Gripen but the SAAF still favours
other jets because of cost and operational ability.
MARCH 1998
ANC MP Tony Yengeni visits DaimlerChrysler Aerospace in
Brazil. He later gets a new Mercedes-Benz M-series 4x4 for
half the price via a DaimlerChrysler Aerospace official.
MARCH 1998
BAe allegedly commits to a donation of R4.5-million to the
MK Military Veterans Association Joe Modise was the life
president of the Association. He intervenes just weeks later to
ensure that BAes Hawk remains a contender in the evaluation
process for the lead-in fighter trainers.
APRIL 1998
Modise advises the team evaluating the fighter trainers to
adopt a visionary approach to their task. He asks the team
to draw up two evaluations, one of which does not take cost
into account. Even so, the BAe offering is still second to
Aeromacchis MB339FD, said to be the SAAFs first choice.
NOVEMBER 1998
Cabinet approves the Arms Deal which carries a price tag of
R30-billion. That day, Zuma, Shaik and arms dealer ThomsonCSF meet, according to information that emerged later in
the Shaik trial, and Shaiks Nkobi Holdings gets a share in
subcontractor African Defence Systems (ADS).
NOVEMBER 1998
The auditor-general identifies the Arms Deal as being highrisk from an auditing point of view, and he requests to be
allowed to investigate it.
MARCH 1999
Speaking in Parliament, Modise claims that the Arms Deal will
only cost South Africa R500-million a year for 15 years.
MAY 1999
Yengeni belatedly enters into a deal to pay for his car
seven months after he received it. This is apparently to
quash rumours that he had received it as a gift from an arms
supplier.
JUNE 1999
Mbeki is elected president of South Africa and Jacob Zuma his
deputy.
SEPTEMBER 1999
Patricia de Lille presents Parliament with a dossier that
contains allegations of extensive corruption in the Arms Deal
negotiations. She calls for a full judicial investigation.
SEPTEMBER 1999
Auditor-general Shauket Fakie gets authorisation from
defence minister Mosiuoa Lekota to investigate the arms deal
with carte blanche; just days later this is overturned by the
SANDF.
NOVEMBER 1999
De Lille hands her dossier to Judge Willem Heath of the
Special Investigating Unit, which has the legal power to cancel
any government deal it finds to be corrupt. This move prompts
future investigations into the Arms Deal that culminated in the
establishment of the Arms Procurement Commission.
SEPTEMBER 2011
President Jacob Zuma appoints a three-member commission
into the Arms Deal. The commossion is to be led by Judge
Willie Seriti.
AUGUST 2013
The Seriti Commission finally gets underway but is beset
by numerous delays during the proceedings. It adjourns in
November 2013 until the new year.
33
ZIMBABWE
TORTURE DOCKET
LHR is representing the Southern
Africa Litigation Centre (SALC) and
Zimbabwe Exiles Forum (ZEF) in
challenging a decision by the South
African Police Service and the
National Prosecuting Authority not
to investigate a docket of alleged
crimes against humanity committed
against opposition members in
Harare by Zimbabwe government
officials.
Crimes against humanity are listed
as international crimes and may
be prosecuted in South Africa
under the implementation of the
Rome Statute of the International
Criminal Court Act 22 of 2005. SALC
had prepared a docket of witness
statements and medical evidence
to demonstrate a systematic attack
against Movement for Democratic
Change members, particularly in
the Harvest House raid of March
2007, had resulted in crimes against
humanity. After a lengthy period,
both SAPS and the NPA refused to
investigate the docket, stating it
would require too many resources,
that the evidence had been tainted
by SALCs collection of it and it
would be impossible to investigate
the scene of the crime in Zimbabwe
without the cooperation of the
Zimbabwe government.
In the North Gauteng High Court,
the state argued it did not have
jurisdiction to investigate the
allegations because it had not been
proven that the perpetrators were
in South Africa and that our law did
not allow for anticipated presence
as grounds to secure the jurisdiction
of a South African court. The Court
disgreed and found the state had
jurisdiction to investigate the
allegations even if it did not yet have
jurisdiction to prosecute due to the
absence of a perpetrator in South
34
Africa. The same argument was

attempted in the SCA in November
2013. The SCA agreed the state had
jurisdiction to investigate and that
a rational link between South Africa
and the perpetrator and/or victim
Young asylum seekers

score vourt victory
Pretoria News
30 April 2013
Lawyers for Human Rights has
scored a first-round victory
for the rights of eight children
seeking asylum in South Africa
but who have been separated
from their parents for various
reasons.
The children aged from six

to 16 may now for the first
time enter South Africas
education system.
The North Gauteng High Court
ordered the education minister
and Gauteng MEC for education
on Monday to provisionally allow
the registration and admission
of the eight children in public
schools this year.
The court also ordered the
education minister to review
within six months the admission
policy for public schools to
comply with the constitution, by
making provision for child asylum
seekers and refugees.
The court will at a later stage be
asked to review the governments
policy regarding all children
who are dependants of asylum
seekers but who have been
separated from their parents
and are now in the care of family
members or other carers.
The children arrived in
the country without any
was necessary to use resources for

an investigation. It found that such
a link did exist between South Africa
and Zimbabwe due to the close ties
between the two countries and its
people.
A six-year-olds mother was killed by Rwandan rebels

and she fled to South Africa to be reunited with an
aunt.
The separated children are not the biological children

of their primary caregivers but in some cases they are
related to them.
A 14-year-old came to South Africa with her father

but disappeared during xenophobic attacks and she
was left in the care of an uncle.
The government, however, does not recognise them

as dependants of their carers.
documentation, which means

they do not have access to
services such as education and
medical treatment.
A seven-year-old fled to South Africa with her mother

but was abandoned here and now lives with an aunt.
LHR will ask the court to declare

that all the children be assisted
by Home Affairs to obtain
documents in terms of the
Refugees Act.
These documents would make
life much easier for them in this
country.
They have no legal documentation which provides for

their status in South Africa and are thus refused entry
to public schools.
Advocate Ann Skelton, director of the Centre for

Child Law, who argued the case on behalf of the eight
children, said the application arose out of the need of
these children for access to asylum seeker permits to
be admitted to the education system.
It was submitted that this violated their basic rights,

as enshrined in the constitution.
The separated children have their own legitimate

asylum claims but cannot get these processed as
they are minors with no legal guardians.
Home Affairs indicated it would at a later stage

oppose some of the relief asked for but it has not yet
filed any opposing papers.
The Department of Education indicated it would abide

by any ruling the court gave.
They would declare that these

separated children were
dependants of their primary
caregivers.
As things stand now, schools are
fined if they enrol these children,
who have no documentation.
The court will be asked to
interdict the government from
issuing fines or punishments
against schools that register
these undocumented children
who are dependants of asylum
seekers and refugees.
In the case brought to the courts
attention on Monday, the eight
children hail from the Democratic
Republic of the Congo (DRC).
In six of the cases, the

children were orphaned when
their parents were killed in
the DRC.
They fled from that country and
were in many cases reunited with
relatives here.
35
REFUGEE
RECEPTION
OFFICE
DISCLOSURES
LHR is representing the Somali
Association of South Africa
and the Project for Conflict and
Reconcilation in challenging the
closure of the Port Elizabeth RRO in
the Eastern Cape.
The closure was successfully
challenged in the Eastern Cape
High Court where the court found
inadequate consultation had taken
place with the Standing Committee
for Refugee Affairs. The court found
this was a required element of
the Director-Generals decision to
close the office and it had not been
complied with.
This judgment was taken on appeal
but leave to appeal was dismissed
by both the High Court and the SCA.
Home Affairs then informed LHR
that it had taken a new decision to
close the office after consultation
with the Standing Committee. This
decision was also challenged and
the High Court found it had not
complied with the requirements of
public consultation. Home Affairs
has taken the matter on appeal.
The Port Elizabeth RRO

is open for adjudications
but is not accepting new
applications.
This case comes in the wake of two
other closures in Johannesburg
and Cape Town. Both closures have
been found unlawful, although the
Cape Town closure was only found
to be unlawful due to the misleading
36
nature of the public consultation

process conducted by Home Affairs
with local stakeholders. A new
consultation process was conducted
in December 2013 at which LHR
presented submissions regarding
the prejudicial effects the closure
would have on asylum seekers
and refugees based in Cape Town.
A final decision by the DirectorGeneral is expected in January
2014.
KENNETH
NYAKUNHUWA
LHR assisted a Zimbabwean special
dispensation permit holder who was
dismissed from his job as a chef
at a restaurant in the Department
of International Relations and
Cooperation in Pretoria. He had
been working in the building since
2009 but was removed from
employment because the buildings
security coordinator stated that
foreign nationals were not allowed
to work in the building. He was
not given a hearing or properly
dismissed.
The matter was brought to the
Labour Court unopposed. The court
handed down judgment in May 2013
that the dismissal was automatically
unfair due to discrimination based
on his nationality. LHR continues
to negotiate with the employer to
enforce the judgment.
MAIL & GUARDIAN

VERSUS CHIPU
LHR applied to the Constitutional
Court to be admitted as amicus
curiae in the matter of Mail &
Guardian v Chipu NO and others in
which the newspaper challenged the
decision of the chairperson of the

RAB to deny access to its journalists
to attend the refugee appeal hearing
of Radovan Krejcir, a Czech national
accused of serious crimes in South
Africa and claimed refugee status
based on political persecution in his
country of origin.
Land
and Housing
Programme
The RAB based its decision on

section 21(5) of the Refugees
Act 130 of 1998 that requires
confidentiality in all applications for
asylum.
LHR sought to present arguments
on the need for absolute
confidentiality in refugee claims
in order to allow RAB members
to make assessments on the
credibility of an applicant and
to ensure applicants feel free to
divulge their entire claims without
fear of reprisals against them or
their families. To advance these
arguments, LHR attempted to
introduce evidence not presented
in the High Court regarding the poor
quality of asylum adjudication by
first instance officials as well as the
difficulties in accessing the asylum
system.
LHR was refused the

opportunity to introduce
new evidence or be
admitted as amicus.
It found that the evidence tendered
did not comply with the rules of
court regarding the introduction of
new evidence at the appeal stage.
The Constitutional Court read in a
discretion given to the chairperson
of the RAB to admit journalists
upon application. This is an interim
measure pending the outcome of
changes to the legislation.
37
The Land and Housing

Programme has become
increasingly involved
in litigation concerning
urban housing issues,
land restitution and
communal land disputes.
Since 2005, LHR has brought a
number of cases leading to several
landmark decisions shaping the way
South Africas courts deal with issues
around land.
This area of LHRs work deals
primarily with the implementation
of sections 25 and 26 of the
Constitution. The slow realisation
of restitution and land tenure
reform coupled with the failure by
both public and private bodies to
follow clear legislative frameworks
regulating evictions have precipitated
many of these cases.
LHRs land work focuses on four
broad areas of concern: Land
restitution and tenure reform, urban
housing and evictions, communal
land rights and womens land rights.
The sensitive issue of access and
availability of land and its effective
administration plays a dominant role
within these areas.
2013
IN
REVIEW
LHR has focused its efforts on

post-judgment implementation,
the pegging of gains made in
relation to evictions and the
progression of restitution and
communal land rights claims.
38
Court ordered engagement

processes and follow-up reporting
emanating from a series of
Constitutional Court judgments took
up a large part of our time in 2013.
A number of court applications in
reaction to unlawful evictions were
also brought as part of an ongoing
strategy to ensure compliance by
both private and public parties
and to cement the gains made in
previous Constitutional Court cases.
LHR has taken on several rural
eviction cases with an eye to
developing jurisprudence and
challenging aspects that do
not comply with constitutional
provisions.
URBAN HOUSING
AND EVICTION
Within the area of urban housing
and evictions, urban growth
around Gauteng continues to place
pressure on occupiers on the
urban peripheries and on housing
availability especially within the
lower income bracket. The large
number of people affected by
the lack of adequate housing and
suitable alternative accommodation
has not declined and governments
responsibility to ensure low cost
housing has not been met.
To date, governments efforts have
mostly been to evict those living in
informal settlements not adhering
to outdated and inadequate housing
policies, rather than implementing
planning to cater for the various
housing needs and demands that
exist. Private developers are also
responsible parties in the eviction of
large communities, usually to make
way for middle-income housing
developments. It is clear changes to
urban planning and housing policies
are needed and will form the focus
of the next phase of the LHRs
litigation strategy.
The aim of interventions to date has

been to ensure both governmental
and private persons follow due
process when effecting evictions
and to compel local government to
properly manage and administer the
limited rental housing under their
control.
One example of LHRs

successful attempts was
the highly publicised
Schubart Park evictions
in Tshwane.
Schubart Park was a complex
of high-rise apartment buildings
managed by the City of Tshwane
to provide low cost rental housing.
The trouble began when tenants
stopped paying rent after the
buildings started falling into
disrepair. In September 2011, a
protest broke out after the City
cut off the water supply and
evacuated the buildings. An urgent
application to be allowed to return
was dismissed. All this resulted in
approximately 4 000 people being
rendered homeless. Tshwane gave
accommodation to 170 families.
After several court appearances,
the Constitutional Court found the
evictions unlawful and declared
that residents had a right to return.
The parties began meeting in
October 2012 under the guidance
of Reverend Frank Chikane. A
registration process to identify
former residents has been opened
and the parties are close to reaching
agreement on a plan for alternative
accommodation pending the
residents return.
Post-judgment support and
assistance to communities in
opposing unlawful evictions as
seen in Schubart Park, Marlboro,
Pheko and Itireleng is vital as
it ensures compliance with court

orders, the advancement of the rule
of law and cementing gains made
through jurisprudence.
It is for this reason

that LHR has continued
to assist communities
in opposing unlawful
evictions.
Over the winter months of 2013,

the City of Tshwane effected a
number of unlawful evictions in
various informal settlements around
Pretoria. Although the communities
differed, the Citys method of
eviction was consistent.
Service providers appointed by
the City carried out three mass
evictions that affected roughly 600
families. Notices citing apartheid
era legislation and legal principles
The state of eviction: Prejudice and

the right to housing
South Africa has a long and tumultuous

history of evictions and forced removals.
The devastating impact of evictions on communities
and the socioeconomic development of affected
families is well recognised. From this, a fairly
strong constitutional and statutory framework was
developed to regulate evictions in both urban and
rural environments.
Section 26 of the Constitution stipulates that
everyone has the right to adequate housing and that
the state must take reasonable legislative and other
measures within its available resources to achieve
the progressive realisation of this right. Further, it
provides that no person may be evicted from their
home or have their home demolished without a
court order. The Prevention of Illegal Eviction (PIE)
and Extension of Security of Tenure Act (ESTA)
operationalise these provisions and adapt the
constitutional prerogatives to the urban and rural
context, respectively.
It is clear the state has an obligation to take

steps towards the provision of adequate
housing and to follow judicial procedures
allowing the consideration of all relevant
circumstances before eviction.
The framework in which the issue of evictions must
be dealt with and the tension created between the
rights and interests of private property owners, the
state and occupiers are something the courts have
struggled with for years.
were issued to families, attempting

to create the impression that the
homes were not occupied and were
in the process of being erected.
Urgent applications to instruct
the City to rebuild the demolished
houses and allow the residents to
return to the land were brought
before the North Gauteng High
Court. LHR was successful in
all three cases and the evicted
occupiers were allowed to return.
The Constitutional Court has handed down a

number of landmark judgments dealing with
evictions and the law particularly PIE evictions
is now clear. The trend of illegal evictions by
both state and private property owners has
continued and the judgments of South Africas
courts rarely follow the impact of Constitutional
Court precedents when dealing with these unlawful
actions or granting eviction orders.
Three difficulties have arisen in giving full effect
to the Constitution, PIE and ESTA that continue
to undermine the security of tenure and the
progressive realisation of the right to housing.
The first problem is the failure of our courts to deal
with evictions within the constitutional framework.
Lower courts tend to ignore clear provisions that
prohibit evictions without a court order.
Seemingly at the basis of this is the subordination
of the right to housing and the right to property. This
disregards the constitutional imperative to balance
these rights with some limitations being placed on
private property owners to avoid too large a burden
on the occupier.
This failure to balance competing interests results
in particularly egregious violations of the right to
housing in the rural context where legislation is
intended not merely as a procedural mechanism
to effect and regulate evictions but also, as
the name suggests, a legislative mechanism of
extending tenure security. When dealing with ESTA
evictions, courts often appear to forget that rural
occupiers enjoy constitutional protections that
address historical inequalities. It is seldom that an
39
application for the eviction of an ESTA occupier

regardless of the circumstances or occupational
history is refused by a court and the common law
conception of ownership remains firmly entrenched.
Within the context of PIE, the granting of eviction
orders, particularly against large communities, is
more complicated.
The tension between the rights and duties of

the state, private owner and occupiers must
be balanced when determining whether an
eviction would be just and equitable.
This balancing often means the owners property
rights may need to be limited while alternative
accommodation for the affected community is
procured. In effect, this would result in a private
landowner having to wait a certain period of time
while the occupiers are accommodated elsewhere.
While such limitations should be justified for a
limited period of time, the duties of the state to
mitigate its impact on a land owner remains a grey
area and has been left open by Constitutional
Court judgments dealing with PIE evictions. This
uncertainty may explain why courts continue to fail
to adequately balance housing rights and afford
protection to owners property rights over the rights
of occupiers.
The old property law paradigm, then, remains one
of the greatest obstacles to achieving security of
tenure and curbing the tide of unlawful evictions. It
is disappointing that courts have been so active in
undermining it despite a number of precedents by
the Constitutional Court that lower courts are bound
to follow.
A second problem is the criminalisation of poverty
that has clouded the narrative of both state and
private individuals. Even the language used to
describe occupiers paints them as criminals with
terms such as land invaders being frequently used
by litigants and judges alike.
In almost every court application or affidavit in
justification of an unlawful eviction encountered
40
whether it relates to ESTA occupiers who are

80-years-old and have lived on the land for 50 years
or communities that have recently occupied land
it is alleged or implied that the occupier is engaged
in criminal activities.
Many of the allegations can be seen as

inappropriate stereotyping that many courts
appear to entertain as justification for
unlawful evictions.
This approach fails to deal with the fact that most
people occupying land informally simply have no
alternative.
Compared to those who suffer from a lack of
medical care, adequate resources to attend school,
housing and those who suffer from the lack of
housing seem to receive very little public sympathy.
This relates to the third problem regarding
the failure of the state to conceptualise its
constitutional duty to realise the right to housing.
Despite legislative and policy frameworks,
many state actors appear to believe the states
obligations are limited to providing housing within
the narrow confines of RDP houses. Consequently,
the state appears to regard those who fall outside
of it as acting illegally and does not recognise its
positive and negative duties.
The constitutional obligation exists within

various contexts and different policies and
approaches to the provision of housing
within these different circumstances must be
implemented.
These problems demonstrate the overarching
problem of attitude towards the poor and homeless.
Although there is a strong legal framework,
it remains superficial and ineffective until all
the actors internalise the values on which the
Constitution and legislation rests.
Nathaniah Jacobs is an attorney in the
Land and Housing Programme
LAND
RESTITUTION
AND POSTSETTLEMENT
SUPPORT
Shortly after 1994, the government
identified a target of 25-million
hectares of land for transfer. This
was apparently done in conjunction
with the World Bank and represented
30% of the countrys agricultural
land. At the time, land prices were
typically between R2 000 and R4 000
per hectare. Averages would suggest
the estimated total cost would have
been around R75-billion. Inflation
adjusted, that would be about R165billion today.
Around five to six million hectares
of land have been transferred to
land claimants and land reform
beneficiaries but most of this was
state land and not really part of
the 25-million hectares originally
envisaged.
While LHR has made progress on
some pending land claims, many
communities experience serious
problems after their claims are
settled. The complaints are invariably
the same: the claim is settled, a legal
entity is established and only a few
LHRs restitution cases deal with bringing about

greater accountability and regulation of postsettlement resources while highlighting problems
regarding equality, post-settlement support,
structural problems and ineffective departmental
supervision and policy guidelines.
people benefit from the settlement.

Similar complaints regarding the
commission are also raised.
In a landmark judgment in 2013,
the SCA upheld the appeal of the
Baphiring community of the North
West. The community was forcibly
removed from their land during
apartheid under the 1913 Natives
Land Act. The community a thriving
farming community until they were
relocated was resettled in 1971.
The forced resettlement destroyed
the communitys agricultural
activities, as the compensation
land was not suited for their type
of farming. In 1998 the community
launched proceedings in the Land
Claims Court for the return of their
land.
After a number of court hearings
spanning 2001 to 2010, the Land
From court order to action:

A case study in Baphiring
The Baphiring restitution case has been described

as one of the first to set a precedent for how
communities should be settled in the future on land
restored to them through the restitution process.
At the heart of the case is the issue around

the feasibility of restoration.
In 2013, the SCA upheld the North West communitys
appeal and referred the claim back to the Land
Claims Court. The SCA ruling laid down a range of
issues to be considered, including the impacts on
food production and employment, the drafting and
Claims Court rejected their claim

and held that the community should
receive alternative redress. The
SCA overturned this decision and
referred the claim back to the Land
Claims Court to deal with the claim
in accordance with the guidelines
laid down by the SCA.
This case vindicates the
communitys assertions that the
return of the land can be done
successfully if properly planned and
funded. The judgment is hoped to
form a template for the settlement
of most rural land claims and will do
much to avoid the regular failure of
rural land restitution projects.
The case now heads back to the
Land Claims Court and the state is
compiling reports dealing with the
issues set out in the SCA order.
consideration of a comprehensive resettlement plan,

the costs of the purchase of the land and the costs
of a properly planned resettlement.
A Business Day article in 2013 highlighted that
government had spent R69-billion on land reform
since 1994 with only 8% of the targeted land being
redistributed. Governments original plan was to
redistribute 30% of the land by 2014. This move
has since been abandoned. This flies in the face of
President Jacob Zumas promise during his State
of the Nation Address to focus efforts on postsettlement support. The SCA judges acknowledged
that nearly all restoration cases failed due to a
lack of support and planning once land had been
returned.
41
The judges sent a strong message to the state

that the country was sitting on a time bomb
because of settlement failures and that the
court would step in if the state did not start to
deliver.
The justices further remarked about the appalling
manner in which the state had dealt with the
Baphiring case.
The Baphiring community, who bought some 7 500
hectares of land near Koster in the North West
between 1908 and 1913, were forcibly removed from
their land during apartheid under the 1913 Native
Land Act.
The community a thriving farming community until
they were relocated was resettled in 1971. The
Communities in limbo and losing land:

An analysis
While government makes a fuss over the centenary

commemoration of the Natives Land Act of 1913,
many South Africans undoubtedly wish government
would use the same enthusiasm in dealing with land
reform.
The miserable failure of governments land reform
programmes has left many people with insecure or
no tenure rights, negatively affecting their quality
of life. Many factors contribute to this but one of
the biggest factors is the lack of implementation of
policies.
Although the state has the power to expropriate land
for redistribution purposes it is not doing so. One
reason for this lack of redistribution is due to claim
processes not being finalised, making it impossible
for the state to identify available land. Where
land has been allocated to beneficiaries under
programmes like the Proactive Land Acquisition
Strategy, very few if any success stories are
known.
The restitution process has its own challenges.
It is obvious the decision during the Congress of
Traditional Leaders of South Africa to make it a
judicial rather than administrative process led
to a complicated and costly process. There is no
indication that the state is committed to sustainable
development and livelihoods, intending, rather, to
simply redistribute land and be done with it.
42
forced resettlement destroyed the communitys

agricultural activities as the compensation land
was not suited for their type of farming.
The community launched proceedings in the Land
Claims Court for the return of their land in 1998.
After a number of court hearings spanning 2001 to
2010, the Land Claims Court rejected their claim
for the return of their land and held the community
should receive other redress for their loss. The Land
Claims Court relied heavily on the perceived costs of
returning the land and the communitys inability to
take over commercial farms.
The Baphiring judgment is hoped to form a template
for the settlement of most rural land claims and
would do much to avoid the regular failure of rural
land restitution projects.
Although some land claims have been settled

and land transferred, communities are unable
to return to their land due to a complete lack
of post-settlement support.
Officials from the commission referred to the fact
that of 400 claims settled in the North West, not a
single claimant, most of whom were communities,
had returned to their land.
We hear a lot of political statements to move away
from the willing buyer, willing seller principle
but this is not reflected in practice. The state has
made no attempt to argue that just and equitable
compensation, instead of market value, must be
paid to land owners for their property. In one case,
the history of the acquisition of a farm and current
use did not justify that market value be paid, the
state dished out R140-million regardless. In another
case, the state is opposing claimants challenge
to market-based levels of compensation in the
Constitutional Court.
Even worse is the situation facing labour tenants.
This group of farm occupiers previously held secure
land rights and were given even stronger rights
in the Land Reform (Labour Tenant) Act. They are
now a vulnerable group who face eviction on a daily
basis. In terms of the Act they could submit claims
to the land before March 2001 but a substantial
number of those who qualified for claims failed to
do so. For those who did submit claims, after 12
years there is still no sign that the Land Reform
Department has begun processing claims.
Farm workers, except long-term occupiers, do not

have tenure rights but rather procedural rights in the
face of evictions. In terms of Section 4 of the Act,
the government can provide subsidies for both on
and off site housing developments to occupiers, but
again, there is a dramatic lack of implementation of
this area.
Evictions, especially when development

commences or a change of land use takes
place, are commonplace.
In many areas dumping grounds for previous farm
workers is practiced. Unfortunately for claimants,
farm dwellers and occupiers, the courts have not
made it easier. The courts have allowed the process
to become overly burdened by technical provisions
RURAL LAND
RIGHTS
In 2013, the North Gauteng High
Court heard the matter of the
Kanana Village that dealt with a
large community that had been
relocated onto a portion of rural
land. Neighbouring farm owners
obtained an interdict against the
land owner, preventing him from
giving permission to the community
to live on the land but a large
number of people were already
living on the land at this point. When
the land owner died, neighbouring
farm owners bought the land with
the specific purpose of evicting the
community. The eviction application
was brought in terms of legislation
designed to deal with urban
occupation. A counter-application
to compel the local authority to
proceed with its expropriation efforts
was also brought.
Unfortunately, the high court found
that PIE was applicable and granted
an order for the eviction of almost
2 000 households. The SCA and
Constitutional Court refused to hear
the appeal. The local authority has
in the meantime begun expropriation
proceedings and the community
has to remain on the land they were
relocated to.
and has allowed lawyers to hold the process to

ransom.
For the majority of rural occupiers, namely those
living on communal land, things do not look better.
The Communal Land Rights Act was ordered to be
redrafted after it was declared unconstitutional.
Two years later and there has been no sign of this
new draft of the Act. The governments difficulty lies
in how they plan to appease tribal chiefs and draft
an Act that wont be challenged on constitutional
grounds.
In the meantime, millions of people are stuck in limbo.
Louise du Plessis heads the Land and Housing

Programme
LAND AND HOUSING

PROGRAMME
SUB-PROJECT
INTERVENTIONS
IN UPINGTON
LHR is involved in a
number of labour and
environmental issues
affecting farm workers
and water quality in and
around Upington in the
Northern Cape.
Access to water
Access to drinkable water in
Upington is tied closely to the
Orange River as the major source of
water for the area. On the majority
of farms, residents access drinking
water directly from the rivers and
canals that run seasonally from the
river through farms for irrigation or
run-off drains containing excess

irrigation water.
In the majority of cases, farm
dwellers drink untreated water
that fails to meet required water
standards. This has a devastating
impact on their health and violates
their right of access to quality
drinking water.
This raises a number of questions
concerning the obligations of the
farm owner, local and provincial
municipalities, water boards and
national government.
While the right to water has
been litigated as far up as the
Constitutional Court in the Mazibuko
matter, this right has yet to be
considered by South Africas various
other courts. Nor has it adequately
answered the question around
overlapping responsibilities.
Labour issues on farms

Deplorable conditions on many
farms extend to labour issues,
a lack of access to electricity
and sanitation, crumbling
accommodation and the intimidation
of farm dwellers.
43
Farmworkers toil rewarded

with degrading wages
Stories of the daily degradation and

exploitation of farm workers have burst open
since the beginning of the farm worker strike
in De Doorns in the Western Cape.
The violation of farm workers rights is nothing new
but the regrettable violence is a sign of growing
frustration and an unwillingness to go unheard any
longer. Although farm workers rights are enshrined
in the Bill of Rights and a plethora of legislation and
industry codes of conduct severe problems exist on
farms around the country. Farm workers and their
families and former farm workers are confronted
daily with substandard conditions in general.
Despite contributing to the billions of rand brought
into the economy, farm workers earn among the
lowest wages in South Africa and have insecure
land tenure rights, rendering them and their families
vulnerable to a constant risk of evictions.
Most concerning is the fact that exploitative
labour practices and human rights abuses which
occur to varying degrees on farms across the
country are perpetrated by farm owners and
managers notwithstanding comprehensive
government regulation. Yet the relevant government
departments, especially the departments of labour
and agriculture, have failed to enforce compliance
and to protect farm workers and other farm
dwellers.
These violations have been carefully documented
by human rights organisations, such as the South
African Human Rights Commission and more
recently Human Rights Watch.
UNIONISATION AND WAGES

Taking from a 2011 HRW report, farm workers
remain among the most poorly organised workers
in the country with a mere 3% of workers in
the Western Cape being represented by unions
compared to the 30% of those with formal
employment in South Africa as a whole.
Andreas Motlhanke from LHRs Upington

office assists farm dwellers in getting
access to quality drinking water
44
Farmers regularly hamper workers access to

representation, resulting in them being unable to
negotiate better working and living conditions and
wages. Farmers often deny union representatives
access to their farms and threaten union organisers.
As of 2011, the Western Cape had only 107

labour inspectors responsible for visiting over
6 000 farms in the province.
Whether a farmers children complete high school
or go on to complete a tertiary quality is a matter
of choice but for farm workers, it is very rare for
their children to finish high school, let alone attend
university. When a workers child reaches its teens,
they are often forced to work on the farm to pay
for their stay. If they do not work, compensation is
deducted from their parents wages. This is not to
say that all farms and farmers in the Western Cape
should be lumped together.
There are a small number of cases in which
farmers fully comply and even go beyond the legal
requirements for workers.
ILLEGAL EVICTIONS AND SUBSTANDARD

LIVING CONDITIONS
Farm workers mostly live in houses provided by
farm owners on commencement of duty. Their
homes are attached to their continued employment
on the farm and they are evicted when their
employment is terminated, regardless of the cause.
Termination is often a result of old age, incapacity
as a result of injuries sustained at work and unfair
dismissals, to name a few.
Although the law, via the Extension of Security of
Tenure Act of 1997, prescribes parameters within
which evictions can take place, most farmers ignore
these and evict workers and their families without
following due process. In the process, furniture
and other paraphernalia are irreversibly damaged,
childrens schooling is affected, the sick and elderly
who might be affected are exposed to even more
hard conditions that come with being homeless.
Accommodation is often uninhabitable with one
farm worker describing to HRW having lived with
his family in a former pig stall without electricity or
water for over 10 years.
A 2005 study concluded that more than

930 000 people were evicted from farms
between 1994 and 2004.
Cases of farmers resorting to illegal measures to
evict workers have also been widely reported. These
include cutting off electricity and water supply while
security guards on the farm harass families using
45
dogs in the middle of the night. It has also been

seen that farmers will attempt to force workers off
the farm by telling new workers to move into the
formers home, despite the family still in residence.
HEALTH ISSUES
Work on farms is physically exhausting
and can be dangerous, especially when the
necessary health and safety precautions are
not taken.
For instance, workers are often exposed to
pesticides during the course of their work without
having adequate safety equipment.
While farm owners and their families may have
access to health care, including clinics and hospitals
freely, the same cannot be said about workers and
their families, who need permission for a day off to
visit a far off clinic. Getting transport is difficult and
costly. The workers life is threatened by factors
including being unable to reach a medical facility,
not having sufficient or healthy food to boost their
immune system and being refused access to clean
and running water and electricity when there are
labour or other residential disputes with the farm
owner.
LHR receives regular complaints from workers
who are not allowed to take legally acquired sick
days despite having a doctors letter in direct
contravention of our labour laws. With this perpetual
Living conditions
on farms
Hundreds of indigent
people living on
municipal land in
Upington without access
to basic services face a
number of difficulties.
46
cycle exploitation and indignity, the events at De

Doorns and even Marikana seem to have rekindled
and restored a welcome hope among farm workers
that their collective mobilisation and sacrifice
will eventually pay off. The time is now to regain
their dignity and be meaningfully acknowledged
as participants rather than objects that are only
relevant in imparting their labour. Wages that
seek to perpetuate the degrading situation of the
farm workers and their families should be treated
for what it is, an affront to their human dignity
and be despised by the civilised society that we
are expected to be. One can only hope that the
unfolding events in De Doorns signals the end of an
era of impunity when workers and their descendants
are treated as feudal objects of violations by some
farmers.
Hopefully farmers will start to recognise

the perils of employing an unrepresented
workforce, when enraged, can be difficult to
engage with.
Unlike their old and still prevailing norm where they
consider labour unions and lawyers as enemies and
a bad influence on workers, farmers must recognise
that these role-players involvement can facilitate
informed and constructive engagements in search
of sustainable solutions to the labour disputes.
Written by Lesirela Letsebe with the assistance
of Cindy Joy Williams and Nanki Ngqabuko
The local municipality has bought a

number of areas from farmers that
were already occupied by employees
and other inhabitants. This was a
laudable initiative to ensure lawful
occupation but not all of the areas
have been serviced.
While the municipality provides some
potable water through the use of
JoJo tanks, this appears to be on
an ad hoc basis and insufficient in
Environmental
Rights
Programme
quantity, leaving communities without

water for several days at a time.
Through engagements with the Water
Affairs Department, Water Board and
local municipal representatives, LHR
has established lasting relationships
with these players who are now
receptive to calls for assistance.
LHR is working towards a more
permanent solution.
47
Since establishing the

Environmental Rights
Programme in 2009,
LHR has increasingly
worked with communities
affected by developments
infringing their
environmental and other
human rights.
Unprecedented pressure on the
environment, natural resources and
its impact on vulnerable communities
have become of great concern.
Vulnerable and indigent communities
are disproportionately affected and
gravely hampered by ill-planned
developments, misappropriated land,
corruption, bad governance and
prevailing insecurities of affected

communities.
LHR works with communities
affected by soil and air
contamination, pollution of ground
and surface water and impacts
on communal land, smallholder
agriculture, food security and health.
LHRs rights-based approach
to environmental governance
emphasises the enhancement of
community redress and focuses on
empowering communities. At the
centre of this work is the notion that
changes in environmental decisionmaking can only be facilitated
through the promotion of citizens
as key actors in change processes.
By engaging affected communities
in both rural and urban areas, LHR
supports integrating mechanisms
Does the promotion of Access to

Information Act facilitate or frustrate
access to information?
Participation of the public and civil society

in environmental governance and their right
to access information that will help them to
assess the impact of various activities on the
environment is vital.
Access to information enables people to more fully
exercise and protect all of their rights. Accordingly,
access to information forms an integral part of
environmental protection and governance. The right
of access to information is enshrined in section
32 of the Constitution. The Promotion of Access
to Information Act of 2000 (PAIA) was enacted to
give effect to the constitutional right of access to
information.
The objective of PAIA is to foster a culture of
transparency and accountability in public and
private bodies by giving effect to the right of
access to information and move away from the
system of government before April 1994 which
was characterised by the culture of secrecy and
unresponsiveness which often led to an abuse of
power and human rights violations.
48
and structures that facilitate public

involvement and upholds the right to
public participation and consultation.
Public participation implies the
publics contribution will influence
the decision. The institutional
inflexibility of environmental
decision-making prevents
communities from having a real
impact on developments that may
affect them. This can be attributed
to the unequal power dynamic
and negotiation ability between
industrial developments and rural
communities as well as the failure
by developers and the state to
provide information on proposed
developments. Citizen input on
proposed industrial developments is
often ignored and scripted into predefined progressions of proposed
developments.
Contrary to its good spirited and ambitious objective

of promoting access to information, PAIA in practice
frustrates access to information and has made the
process cumbersome, non-expeditious, expensive
and impossible for some. The effect of this is dire,
particularly on poor and marginalised communities.
Some communities exposed to contaminated water
have been denied access to information relating to
the nature and details of the pollution, which has a
bearing on their right to sufficient and clean water
and other environmental rights. Other communities
have been denied access to information forming
part of mining right applications to which they have
a right to comment and/or object. This results not
only in the violation of procedural rights but also in
the violation of dignity, equality, environmental and
other socioeconomic rights.
Against this backdrop, LHR is engaged in a number
of requests, internal appeals and high court
applications in terms of PAIA. These processes
can be drawn out and burdensome on human and
financial resources.
The problem with PAIA is two-pronged defects
in the design in the drafting of the Act and its
implementation by public and private bodies.
An example of the defect is the absence of a
mechanism for expedited access to information.
Instead, it can take over four months to access

information without litigation and several months
or years with litigation. Some of the defects in the
design and the implementation of PAIA include:
Information officers have 30 days to make a
decision and notify the requester of the decision.
In environmental governance, 30 days can be a
very long period to wait for information that can
be used in stopping irreversible damage to the
environment and a threat human health and
well-being;
If the request for access to information is
refused or deemed refused, section 75 entitles
a requestor 60 days to lodge an internal appeal
to a relevant authority. The relevant authority
has 30 days to make a decision in respect of the
internal appeal. The internal appeal mechanism,
therefore, takes up to 90 days in addition to a
period of 30 days which has been lost during the
initial PAIA request;
PAIA makes no provision for punitive measures
for the failure to provide requested information.
PAIA requests are simply ignored by municipal
managers and directors-general and internal
appeals not addressed earnestly by mayors
and ministers, necessitating costly high court
applications;
When costly and protracted litigation has been
initiated, information is often provided without
serious opposition based on the fact that the
right to information was lawful in the first place
and the public body concerned had no lawful
basis to refuse to grant such requested record.
From this, it appears the defect in the design has a
direct bearing on the implementation of PAIA. Those
tasked with giving effect to the constitutional right
of access to information, fail to timeously if at
all discharge this obligation. Information officers
and relevant authorities contravene PAIA with no
impunity. Not only do they fail to discharge their
constitutional obligations but also infringe peoples
constitutional rights. This makes a mockery of the
right of access to information. Didcott J stated that
The Constitution does not envisage and it will surely
not brook an undue delay in the fulfilment of any
promise made by it about a fundamental right.
Absent punitive measures against wrongful denial

of access to information will arguably be worth
less than the paper they are written on. Further,
the generous time period granted to information
officers and relevant authorities to react to requests
for access to information and their corresponding
internal appeals, undermine the very purpose of
facilitating and promoting access to information.
South Africa can learn from Nigerias Freedom of
Information Act that facilitates expedited access to
information and carries a penalty against wrongful
denial of access to information. Section 4 provides
that, Where information is applied for under this
Act the public institution to which the application is
made shall, subject to sections 6, 7 and 8 of this Act,
within seven days after the application is received
make the information available to the applicant or
provide written reasons where the public institution
considers the application for access to information
should be denied.
Section 7(5) states that where a case of

wrongful denial of access is established,
the defaulting officer or institution commits
an offence and is liable on conviction to a
heavy fine.
There are many other mechanisms that can be used
to promote and facilitate access to information
in South Africa. These include the adjudication
of cases before a quasi-legal dispute resolution
tribunal such as the South African Human
Rights Commission that is mandated by PAIA
to promote the right to access information and
monitor compliance with the legislation. Another
recommendation is to bring into effect and enforce
the provisions relating to the publication of manuals
by public bodies and private bodies and to enforce
provisions relating to voluntary disclosure and
automatic availability of certain records in order to
make information available without a person having
to request access in terms of PAIA.
In this lies the potential of a constitutional challenge
but in the meantime, LHR will continue its requests
and litigation for access to information.
Osmond Mngomezulu is an attorney with the
Environmental Rights Programme
49
The Environmental Rights

Programmes work is informed by
section 24 of the Constitution, which
states everyone has the right to
a healthy environment that does
not harm their health or well-being
and that the environment must be
protected for current and future
generations.
One of the interesting features of
Section 24 of the Constitution is
the way it interacts with a range of
other rights including the right of
access to sufficient food and water,
access to health care services, the
right to culture, rights to land and
property, as well as enabling rights
such as access to information and
administrative justice.
The interaction between some of
these rights is reflected in LHRs
work in the mining sector, its impacts
on South Africas water quality
and consequent impact on water
service delivery. Coupled with severe
backlogs in municipal basic services
many South Africans do not have
access to quality drinking water.
The areas worst affected by the
lack of water services are poor,
black households in townships and
informal settlements. Mining, in
particular, forms a significant threat
to water security and livelihoods.
Women and children

with the domestic duties
of food production
and water supply are
particularly vulnerable.
The right to water
LHRs work on water

pollution addresses the right
of everyone, regardless of
the availability of finances,
to access sufficient water.
Most importantly, everyone
has the right to access water
that is free from contamination
and industry pollution. It is the
duty of the state to ensure local
communities have access to
adequate water services and
to minimise the risk of harm
to human health and safety.
Citizens have the right to be
consulted about the level and
quality of their services and to
be informed about the standards
of municipal services they are
entitled to.
The focus on the right to water
is well placed in a country with
growing concerns around the
ability of local municipalities to
provide basic water services.
Communities all over South
Africa are reacting to the lack of
services and have embarked on
protest actions, many of which
have resulted in violence and the
loss of life and property.
Conflict over the provisions of
services involves low-income
communities that are dependent
on the state for numerous
services and citizens expressing
dissatisfaction over the failure
by the state to respond to their
needs.
Often, municipalities with already
stressed capacities are at the
centre of these conflicts. South
Africas three-tiered approach
to environmental governance
and fragmentation of decisionmaking offices between local,
provincial and national spheres
50
of government is a significant
contributing factor to the
frustrations experienced by
communities.
LHR has initiated court action in
Carolina and Upington to define
the roles of various spheres
of government. The outcomes
of these cases will hopefully
be significant in deciding the
following questions:

Who bears responsibility

of providing clean water
services when mines pollute
water supply?
Who is responsible for
providing water services to
rural and farm dwellers?
LHR also focuses on enhancing

community redress by
empowering communities to
make their concerns heard,
to access information and to
access processes including
legal processes that make it
possible for them to demand
improved water services and to
access the minimum provision of
socioeconomic rights.
In 2012, mounting frustrations
over polluted drinking water
led to service delivery protests
in Carolina in Mpumalanga.
LHR assisted angry resident to
access the court and obtain an
order directing the municipality
to provide basic delivery of
temporary water services, to
engage with the community
about the water crisis and to
provide updated water quality
information.
Despite this, the municipality has
consistently refused to provide
the community with full and
accurate information about the
standards of the water services
that are provided. Residents,
who lost confidence in municipal water, resorted

to collecting drinking water from boreholes at the
local mosques. The situation took an extraordinary
twist in 2013 when it was revealed that the
borehole water was polluted by sewage. Through
consultations with the muncipality, LHR managed
to resolve the issue, preventing another Carolina
water crisis.
Similarly, LHR responds to the needs of
communities in Upington, Riverlea, Mokopane
and Hammanskraal by providing a rights-based
approch that includes improved consultation
with communities, access to information and
transparency around decision-making and
implementation.
In Upington, farm workers drink water directly
from irrigation canals while farmers and the local
municipality disagree over who is responsible for
water services to rural dwellers on farms.
In Riverlea, a gold mine is polluting a nearby
river and wetland, threatening not only the local
ecosystem but also the future water security of
greater Johannesburg. In Mokopane, a platinum
One of the most complex

and least understood
areas of environmental
rights is how
development impacts
the health and wellbeing of neighbouring
communities.
The link between pollution and
disease has been well established
but there have been few studies
connecting particular developments
to the ailments of complainants.
One of the reasons for this is that
developers conceal information that
may expose their impacts. Another
reason is the expense of conducting
longitude studies that can be
used as evidence. It may also be
because many years pass between
the exposure and symptoms of the
particular disease.
mine has been granted the right to mine on

traditional farm land which may have serious
implication on water security in the area.
In all of these cases, LHR, on behalf of the
affected communities has opposed developments
that negatively impact water service delivery.
The Hammanskraal case is different in that the
municipality is investing in a much sought after
upgrade of a waste water treatment plan. However,
the contactor of the municipality in the process
has been violating almost every environmental
requirement available. LHR has opposed the
development on the basis that it poses a threat
to the health and well-being of the neighbouring
community.
LHR provides an alternative to violent protests by
empowering angry residents by raising awareness
of their environmental rights and equipping
communities to reclaim their rightful place as
agents of development and to defend their
environmental rights.
Emma Algotsson heads the Environmental Rights
Programme at LHR
LHR assists numerous communities

in accessing information about
planned developments, suspected
pollution and its possible health
impacts. Without such information,
communities may, without their
knowledge, be exposed to air, water
and soil pollution and may only find
out when it is too late.
LHR further provides

communities with the
opportunity to object
to developments that
compromise on their
health and well-being.
LHRs legal assistance to affected
communities is not limited to
environmental concerns and
includes advice to communities
on how to extend their social and
economic benefits from development
through job creation, ownership
transformation and the advancement

of social and economic welfare. LHR
assists communities in accessing
processes where their needs are
being assessed and evaluated
such as social and labour plans.
Often these plans fail to address
the socioeconomic needs of local
communities and perform no
more than window-dressing for
developers. Equally, broad-based
black economic development
empowers a few but does not
contribute to rural development and
is in need of political reform.
Development on communal or
traditional land seldom takes place
without having an impact on the
ownership and control over land.
Those with the greatest interest in
how decisions on communal land are
taken are owners of ploughing fields
whose livelihoods are threatened.
However, in accordance practice,
only chiefs and traditional leaders
51
are included in negotiations over

land. LHR, on behalf of affected
communities has made submissions
that consultations be held with the
broad class of representatives of the
people affected by developments.
heritage and participatory processes.

A real challenge and concern for
communities where economic
development is taking place is how
their heritage and issues of grave
relocation will be addressed.
LHRs work on grave relocation

reflects the dynamic and intangible
relationship that exists between
environmental rights, cultural
Although permission is required

and a duty placed on the developer
to consult with affected families,
many graves are often relocated or
Mokopane: The sensitive issue

of grave relocations
In the heart of the Waterberg mountains lies

the mining town Mokopane, a multi-cultural
community that holds vast historical wealth,
heritage and natural resources.
Since the discovery of one of the largest platinum
belts in the country, mining companies have drawn
increased attention to Mokopane with grand designs
of mining the resources underneath the community.
With the recently approved Platreef (Ltd) Pty mining
operations, 154 graves were identified and proposed
for grave relocation. A real challenge and concern
for the community living in Mokopane was of how
their heritage and issues of grave relocation would
be addressed should the proposed mining operation
commence.
GRAVE RELOCATIONS AND LOSS OF HERITAGE

Section 36 of the National Resources Act 25 of 1999
places a duty on a mining company who wishes to
destroy, damage, remove, alter or exhume any grave
or burial ground to obtain a permit from the South
African Heritage Resources Agency (SAHRA) or
provincial heritage resources authority. Satisfactory
arrangements must be made for the exhumation of
graves in accordance with SAHRA.
Grave relocations not only signal a geographical
displacement of the deceased but include a
potential disturbance to cultural identification with
the communities ancestors, spiritual connection and
historical heritage that the community is alive to.
In the Oudekraal judgment, the Supreme Court of
Appeal found that the administrators failure to
consider the right of freedom of religion and culture
52
demolished without due process.

LHRs legal assistance to affected
communities plays a fundamental
role in preserving the rights of
affected families. Through LHRs
assistance and written submissions
on various social and environmental
impact assessment reports, affected
communities are in a position to
exclude grave relocation from
environmental authorisations.
Women and children with the domestic

duties of food production and water
supply are particularly vulnerable
and more broadly, the communitys right to have a

heritage and environmental area of high significance
preserved to be egregious.
Mary, an elderly woman from the Ma-Gongoa village
has been affected by proposed grave relocations
by Platreef. She said, My family has graves both
inside the cordoned off bulk sampling site as well as
outside. My father and my grandmother are buried
there.
When asked about the importance of their heritage
regarding grave relocations, Mary answered, My
family has been buried (here) a long time ago, I dont
know since when. Our tradition abhors exhumation.
When we bury someone, we dont exhume him/her.
We let them rest in peace. I was born here, the place
where my father is buried.
The community shares similar sentiments with some
emphasising the need to actively visit the graves
for ceremonial rites and thus the importance of
proper consultation and consent of the family for the
relocation of a grave.
LHRs consultations and engagement with members
of the community have played a fundamental role
in aiding them with understanding their rights and
interests. By understanding the legal process, the
community could address their concerns by making
more informed and structured decisions.
Through LHRs assistance and submission of
comments on various reports, positive outcomes
have been tangible in respect of the Department of
Mineral Resources granting Platreefs mining rights
application on condition that it excludes the area
covered by the graveyards or any graves found in
the same vicinity. LHR continues to engage and work
with the community in assisting them in achieving
their constitutional rights.
53
Financials
A note of thanks
We at Lawyers for Human Rights could not do any of
the work that we are doing if not for the generosity of
our funders, both from South Africa and abroad, whose
contributions are hereby gratefully acknowledged.
Atlantic Philanthropies, Claude Leon Foundation,
European Union, Fastenopfer, Foundation for Human
Rights, Ford Foundation, Legal Aid South Africa, National
Lottery Board, Open Society Foundation, Sigrid Rausing
Trust, United Nations High Commissioner for Refugees,

HIVOS and OXFAM.
We are also extremely grateful for the incredible
contribution made by LHRs social justice partners
organisations as well as the dedicated group of
advocates and attorneys who have assisted us.
ADVOCATES
ORGANISATIONS
Janice Bleazard
Jason Brickhill
Steven Budlender
Usha Dayanand
Anna-Marie de Vos SC
Myron Dewrance
Max du Plessis
Isabel Goodman
Kate Hofmeyr
Rudolph Jansen
Anton Katz SC
Paul Kennedy SC
Nicole Lewis
Andre Louw SC
Gilbert Marcus SC
Harriet Mutenga
Amelia Rawhani
Ann Skelton
Lindelani Sigogo
Sumayya Tilly
Vivien Vergano
African Centre for Migration and Society

Centre for Child Law
Centre for Environmental Rights
Centre for the Study of Violence and Reconciliation
Consortium for Refugees and Migrants in South Africa
IDASA
International Detention Coalition
Legal Resources Centre
Mdecins Sans Frontires
United Nations High Commissioner for Refugees
Women on Farms
Zimbabwe Exiles Forum
Zimbabwe Lawyers for Human Rights
ATTORNEYS
Chris Watters Attorneys (Johannesburg)
Simon Delaney Attorneys (Johannesburg)
Webbers Attorneys (Bloemfontein)
Tani Cloete (Pretoria)
Louis van der Merwe
54
LHR PATRONS
AND TRUSTEES
TRUSTEES
Seehaam Samaai, Arnold Tsunga, Ann Skelton
and Professor Benny Khoapa
PATRONS
Justice Navanethem Pillay and Advocate Solly Sithole SC
55
STATEMENT OF FINANCIAL POSITION

Assets
Non-current sssets

Other financial assets
2013
2012
Received for the year ended 31 December 2013

36 294,00
36 294,00
Current assets

Trade and other receivables

Cash and cash equivalents
503 510,00
4 921 722,00
370 678,00
1 361 287,00
Total Assets
5 461 526,00
1 768 259,00
Equity and Liabilities

Equity

Accumulated surplus
3 518 913,00
1 035 254,00
Liabilities
Current liabilities

Trade and other payables
1 942 613,00
733 005,00
Total Equity and Liabilities
5 461 526,00
1 768 259,00
16 893 157,00
1 652 173,00
(16 140 891,00)
12 481 656,00
2 191 967,00
(15 203 905,00)
2 404 439,00
79 220,00
2 483 659,00
2 483 659,00
(530 282,00)
91 056,00
(439 226,00)
(439 226,00)
Balance at 1 January 2012

Deficit for the year
Other comprehensive income
Total comprehensive deficit for the year
1 474 480,00
(439 226,00)
(439 226,00)
1 471 480,00
(439 226,00)
(439 226,00)
Balance at 1 January 2013

Deficit for the year
Total comprehensive deficit for the year
Balance at 31 December 2013
1 035 254,00
2 483 659,00
2 483 659,00
3 518 913,00
1 035 254,00
2 483 659,00
2 483 659,00
3 518 913,00
3 482 215,00
79 220,00
3 560 435,00
(368 995,00)
91 056,00
(277 939,00)
3 560 435,00
1 361 287,00
4 921 722,00
(7 139,00)
1 646 365,00
1 361 287,00
Operating surplus (deficit)

Investment revenue
Surpuls (deficit) for the year
Total comprehensive income (loss) for the year
Atlantic Philanthropies
Claude Leon Foundation
European Union
Fastenopfer
Horizont3000
Multy Agency Grants Initiaive
National Lottery Board
Legal Aid South Africa
Open Society Foundation
Sigrid Rausing Trust
UN High Commissioner for Refugees
1 900 00
300 00
2 161 741
524 661
42 656
150 000
1 049 500
223 668
400 000
1 761 526
4 172 244
Other income
STATEMENT OF COMPREHENSIVE INCOME

Revenue
Other income
Operating expenses
PROJECT FUNDS AND DONATIONS
Interest received
Litigation income
Vehicle replacement fund
Office rental
Other income
79 220
1 114 250
152 965
29 300
7 715
STATEMENT OF CHANGES IN EQUITY
STATEMENT OF CASH FLOW

Cash flows from operating activities
Cash generated from (used in) operations
Interest income
Net cash from operating activities
Cash flow from financing activities
Finance lease payments
Total cash movement for the year
Cash at the beginning of the year
Total cash at the end of the year
56
57
LHR has continued to assist communities

in opposing unlawful evictions
Contact LHR
Pretoria Office and Law Clinic
Tel: 012 320 2943
Fax: 012 320 2949/7681
Kutlwanong Democracy Centre
357 Visagie Street
Pretoria
Cape Town Office and Law Clinic

Tel: 021 424 8561
Fax: 021 424 7135
Cape Town Law Clinic
4th Floor, Poyntons Building
24 Burg Street
Cape Town
Johannesburg Office and Law Clinic

Tel: 011 339 1960
Fax: 011 339 2665
4th Floor, Heerengracht Building
87 De Korte Street
Braamfontein, Johannesburg
Musina Office
Tel: 015 534 2203
Fax: 015 534 3437
No 18 Watson Street
Musina
Durban Office and Law Clinic

Tel: 031 301 0531
Fax: 031 301 0538
Room S104, Diakonia Centre
20 Diakonia Avenue
Durban
Upington Office
Tel: 054 331 2200
Fax: 054 331 2220
Office 110 River City Centre
Corner Hill and Scott Street
Upington
58
59
@LHR_SA
Lawyers For Human Rights

www.lhr.org.za
LHR will continue to use the law as a positive

tool for change and to deepen the
democratisation of South African society.
60

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ANNUAL REPORT 2013

National Directors message

A letter from the Board

Annual planning meeting

Refugee and Migrant Rights Programme

Strategic Litigation Programme

Land and Housing Programme

Environmental Rights Programme

Lawyers for Human Rights

Words and photographs: Lawyers for Human Rights

LAWYERS FOR HUMAN RIGHTS ANNUAL REPORT 2013

For nearly 35 years,

In partnership with the African

to the so-called Arms Deal and

LAWYERS FOR HUMAN RIGHTS ANNUAL REPORT 2013

been largely ignored by the platinum

result of collapsed gold mine

We extend our deep gratitude to our

Jacob van Garderen

After 34 years, LHR continues to be

LAWYERS FOR HUMAN RIGHTS ANNUAL REPORT 2013

LAWYERS FOR HUMAN RIGHTS ANNUAL REPORT 2013

LHRs Board, consisting of Professor

LAWYERS FOR HUMAN RIGHTS ANNUAL REPORT 2013

technical support to land claim

LHRs work has not been without

LAWYERS FOR HUMAN RIGHTS ANNUAL REPORT 2013

UNHCR country representative Isabel Marques holds a session on refugee protection

LHR HELD ITS ANNUAL

LAWYERS FOR HUMAN RIGHTS ANNUAL REPORT 2013

LAWYERS FOR HUMAN RIGHTS ANNUAL REPORT 2013

Being a candidate attorney at LHR

During the two-year candidate attorney programme, I

The word of an intern

LAWYERS FOR HUMAN RIGHTS ANNUAL REPORT 2013

The value of an internship at LHR cannot be overstated.

Jessica Lawrence is an intern with the

LAWYERS FOR HUMAN RIGHTS ANNUAL REPORT 2013

LHR remains vigilant to ensure

LAWYERS FOR HUMAN RIGHTS ANNUAL REPORT 2013

LAWYERS FOR HUMAN RIGHTS ANNUAL REPORT 2013

and migrant workers in South Africa.

In addition to direct legal assistance,

PERCENTAGE OF NEW ARRIVALS

LAWYERS FOR HUMAN RIGHTS ANNUAL REPORT 2013

While operating within

2012 VERSUS 2013

The statistics report showed that

largest contributor with 16 420

urban influx challenges faced by

We will finalise the implementation of our policy

DEPUTY HOME AFFAIRS MINISTER FATIMA CHOHAN

South Africas urban-based

Port Elizabeth and Cape Town

LAWYERS FOR HUMAN RIGHTS ANNUAL REPORT 2013

stamping out widespread corruption to which Home

Would all asylum management functions, such

OLD RECEPTION OFFICES

How will Home Affairs manage the welfare

OLD RECEPTION OFFICES

REMAINING RECEPTION OFFICES

Johannesburg Refugee Reception Office

Marabastad Reception Office

Marabastad Reception Office