NGOs operating in the Older Persons’ Sector in the Eastern Cape experienced subsidy cuts and delays in the payment of grants. SANGOGO and the Eastern Cape NGO Coalition were forced to lobby together on behalf of their constituencies. An outcome was that all NPOs subsequently received their full subsidies due.

Xenophobia and Refugee Rights in KZN and Makana Municipality, Grahamstown Xenophobic attacks in KZN, Isipingo, Durban and townships:

A labour dispute in Isipingo at the end of March 2015, morphed into xenophobic violence against foreigners who were attacked and displaced from their homes. The violence spread to the Durban city centre and surrounding townships. A forum of civil society organizations, including the Black Sash, was started to respond to the crisis in a coordinated and coherent manner. The experiences of victims were documented, the level of support required was determined, and psycho-social support provided to the victims. The CSOs and local government collaboration responding to a humanitarian crisis came under the spotlight.

 In Grahamstown, indiscriminate xenophobic attacks were triggered by alleged rumours of refugees harvesting and selling body parts, linked to a number of unresolved murder cases. Faced with violent threats, many foreign nationals abandoned their shops and were escorted out of the townships. Boarding schools accommodating foreign national children were the next target. The Black Sash, the SA Human Rights Commission and Commission for Gender Equality, together with the municipality,SAPS, Masifunde, the Ministers’ Fraternal and the Wives of Foreign National Husbands initiated a series of investigations and meetings to resolve the conflict.

THE PROJECT

The ICESCR is an international agreement that protects economic, social and cultural rights, upon which South Africa’s Bill of Rights was modelled.  The ICESCR, together with the International Covenant on Civil and Political Rights (ICCPR) and the Universal Declaration on Human Rights, constitutes the International Bill of Rights. (See also: What is the ICESCR and what rights does it protect?)

16 years ago, Nelson Mandela signed this international United Nations agreement, which commits its signatories to working towards the rights to social security, food, housing, health, education, work and an adequate standard of living. But despite his signature, until 2015, South Africa remained one of the few countries in the world that had yet to ratify the ICESCR. This was particularly surprising, given that the ICESCR was used as the model for South Africa’s Bill of Rights. See: http://www.blacksash.org.za/files/icescrcomparisonchart.pdf

On 21 September 2010, the 160 countries that are parties to the Covenant began signing the newly adopted Optional Protocol to the ICESCR. This gives individuals and groups the opportunity to get justice for violations of their socio-economic rights at an international level. This Protocol provides an important platform to expose abuses that are often linked to poverty, discrimination and neglect. However, South Africa couldn’t sign this Protocol until it had ratified the ICESCR.

ACTION TAKEN:

Civil society organisations in South Africa – including Black Sash, National Welfare Social Service and Development Forum; Community Law Centre and People’s Health Movement South Africa and many others called on the government to protect all South African’s human rights by ratifying the Covenant urgently. Numerous letters were sent to parliament, the president and the speaker of the national assembly between June 2007 and December 2010, imploring them to ratify the ICESCR.

On 10 October 2012, Cabinet finally approved the ratification of the ICESCR. The Cabinet statement described how the ICESCR is a “key international treaty which seeks to encourage State Parties to address challenges of inequality, unemployment and poverty, which are critical to the strategic goals of governments.”

In November 2013, National Assembly’s approved the ratification and it was effected on January 12, 2015, finally coming into force on 12 April 2015.

However, it should be noted that the Campaign was disappointed that the government has decided to enter a declaration stating that it is unable to agree to immediately implement the right to free primary education for all, but has instead agreed only to the progressive realisation of this right ‘as provided for within the framework of its National Education Policy and available resources.’

RESOURCES

Legacy article: Why South  Africa should ratify the ICESCR now? -http://www.blacksash.org.za/files/whyratifyicescr.pdf

Text of the ICESCR -http://www2.ohchr.org/english/law/pdf/cescr.pdf

Letters sent to Government during the course of the campaign(condensed behind one header link):Read letter sent to Speaker of National Assembly on 6 September 2010

http://www.blacksash.org.za/files/govtletter.pdf

http://www.blacksash.org.za/files/icescr_govletter.pdf

http://www.blacksash.org.za/files/icescr_parlyletter.pdf

Link to list of organisations s listed on website now> ORGANISATIONS THAT HAVE PLEDGED THEIR SUPPORT FOR OUR CAMPAIGN:

Foster Care Crisis

The Black Sash engaged around the looming crisis in foster care since the passing of the Children’s Act of 2005. The requirements of the Act have led to the foster care system, social workers and courts being critically overburdened.

Aim of this campaign





Background

The Black Sash has been engaging around the crisis in foster care to ensure that relatives caring for orphans can access an adequate social grant and supportive services. The crisis emerged in the early 2000s when it became apparent that government’s choice to use the foster care system for reaching the high numbers of orphans was not effective or sustainable. In 2011 the High Court ordered the Department of Social Development to design and implement a comprehensive legal solution to the crisis. The Black Sash is part of a working group of NGOs led by the Children’s Institute and Centre for Child Law, that have been campaigning for reforms and putting forward options for a solution that would be in children’s best interests.

During 2013, the Black Sash advanced its call for a non-court-based foster care system. We made submissions at a two-day civil society consultation on the Children’s Act and Social Assistance Act reform in relation to extended family care and social grants, and to the Financial and Fiscal Commission. We motivated for an efficient system that facilitates the placement of children in safe homes, including with their grandparents and siblings, and enables these carers to access financial support. We argue that, following placement, the Department of Social Development should assess the home and provide psycho-social support, and a link to services such as the Department of Health’s primary health care support for orphans and vulnerable households. It will be important that a formal legal relationship is recognised between grandparents/siblings and the orphan/s at Magistrate Court level. This requires that the Children Act be amended to allow for guardianship applications to be made in the Children’s Courts so that this process is made more easily accessible and inexpensive to caregivers.

Foster Care Crisis Resources


Going to Court

Our Johannesburg Regional Office was approached by Mrs Manana for advice after she went through the process of a foster care application with a social worker to support her care of her three orphaned grandchildren. Various meetings were arranged with the Child Welfare office where that application was administered and she was advised that the courts may not approve her application. Nonetheless, it was agreed, after consultation with our partners mentioned above, that the matter be referred to the relevant court.

As expected, the court ruled against her application. Our regional office had solicited legal services from LASA on behalf of Mrs Manana and the intention of appealing against the court ruling was to gain clarity on the position of grandmothers through the courts. Mrs Manana was represented by Mr Patric Setlhodi at the Krugersdorp Children’s Court, and later by Mr Michael Motaung at the South Gauteng High Court. We were particularly anxious to see the effect of the appeal following the earlier ruling on the Stimele case that dealt particularly with aunts and uncles who, by common law, do not have a legal duty to maintain their orphaned nieces and nephews and who were granted permission to access the foster care grant.

While Mrs Manana and other grandmothers do have a common law duty to maintain their grandchildren, the issue was how they would manage to do this without income support in the context of widespread poverty.

Mrs Manana’s Legal Victory

On 12 April 2013, Mrs Manana’s battle to qualify as a foster parent ended with victory in the South Gauteng High Court. The ruling meant that in Gauteng, grandparents, aunts, uncles and older siblings who take care of orphaned relatives would now qualify for R800 per child per month rather than the much lower childcare grant of R290. This South Gauteng judgement binds all magistrates in Gauteng and will be of persuasive value to magistrates in other provinces.

After the court victory, Mrs Manana submitted the relevant documents and we were delighted to learn later that she had been paid out, as per the order of court, and is now receiving the grant monthly without fail. We then worked with the Children’s Institute and the Children’s Law Centre, to explain the court outcome to the media, and we continue to work on the ground with organisations that experience the foster care crisis on a daily basis.

fosterscaremanana
Mrs Manana with Thandiwe Zulu, Black Sash Regional Manager

After a City Press interview with Mrs Manana, Thandiwe Zulu, Black Sash Regional Manager said, ‘Witnessing the interview with Ms Manana at her home was heartwarming and humbling. She was very hopeful in terms of the future of her orphaned grandchildren. She is planning to take them back to the school where they had been up until this year when she could not cope with the fees. She had registered them at a local school which hardly has clean toilets and the twins often complained about this. I was also privileged to see their reports. The overall average performance for the twins is between 80-100%. It is clearly vitally important to invest in our children as early as possible as that is likely to give us the best results in future. Nurturing and supporting them now is bound to give us, as a country, the best result as they grow to be adults. Credit for the outcome of this case must go to former Black Sash paralegal, Thifulufheli Sinthumule, as this was his case and he did a lot of groundwork on it. Credit should also be given to LASA as they were the representing attorneys on this case as early as the Children’s Court.’

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THE PROJECT:

Black Sash, the Children’s Resources Centre, COSATU (Western Cape), The National Consumer Forum and five individual bread consumers launched a class action in November 2010 seeking unprecedented damages against Pioneer Foods, Tiger Consumer Brands and Premier Foods after they were found guilty of bread price fixing by the Competition Tribunal in 2007.

ACTION TAKEN:

The court refused to grant us (the litigants) a class certification order to represent consumers in the Western Cape. In May 2011, we appealed against the decision but were turned down.

We subsequently filed a petition with the Supreme Court of Appeal in 2012, which granted us leave to appeal the decision denying us a class certification order. Meanwhile, we embarked on a process of litigant meetings to inform ourselves better, and we popularised the issues of the case in various fora nationally, while conducting a research process into the issue of class certificates. The latter culminated in a publication in Obiter Journal.

The appeal hearings took place at the Supreme Court of Appeal in Bloemfontein in November 2012. At the heart of the arguments in court was an application for a certificate to represent a class of all bread consumers in the Western Cape and for guidelines on procedures to conduct the trial. Our lawyers argued that, as a matter of precedent-setting principle, the court should set a benchmark for class certification just high enough so as not to exclude ordinary people from meeting the requirements.

On 29 November 2012, in a landmark ruling, the panel of five judges overturned the Western Cape High Court decision not to provide a class certificate to litigants, and gave clear guidelines as to the requirements for class action. This ruling has contributed significantly to shaping the legal landscape in South Africa where the legislative framework for class action of this magnitude had not previously existed.

Our original application was founded on the Section 27 right to food, which still remains the moral basis for our case. However, the court stated that class action is not confined to the Bill of Rights but extends to all constitutional rights, and as such Section 34, which enshrines the right of access to court, would be the fundamental legal principle at stake. The court decided that in the Bread Price Fixing Case, the class of people that we represent would be unable to afford legal fees as individuals and as such, their right to court would be best served by a class action.

RESOURCES:

Legal documents 

Case notes

Our submissions

Media

We recognise that health care is a fundamental right protected by Section 27 of our Constitution and as such, we believe that everyone has a right to healthcare regardless of whether they are able to pay for it or not.

The planned NHI is the introduction of a universal healthcare system where every person in South Africa – regardless of their financial, employment or health status -is covered by a national healthcare insurance (NHI).

The ANC passed a resolution at Polokwane in 2007 to provide universal and compulsory healthcare for all South Africans. Details of how much the scheme will cost and how it will be funded are still unclear but on 1 April 2012, the Minister of Health announced the 10+ NHI pilot districts selected for the phased piloting of the project. The NHI will be implemented over a period of 14 years and should be fully operational by 2026.

Action Taken

Our partnership with the Health Economics Unit (HEU) in the School of Public Health and Family Medicine at the University of Cape Town and the health-e news agency strengthened our advocacy focus in the area of the right to health care.

In 2010-2011, we undertook substantial consultations with civil society groups to establish their experiences of the national health system, particularly primary health care, and to identify priorities for health care system reform and community preferences for financing models. Over the period we conducted nine three-day consultative workshops with 483 representatives of civil society organisations in all nine provinces, and published reports of each engagement as well as a synthesis report.

We were asked to present this work to the National Health Insurance International Conference held on 8 December 2011. Arising from this, we were approached by a number of stakeholders interested in our consultancy methods and the potential of community monitoring (as developed in our CMAP), in the context of health system reform.

Resources