ALLOWING MEDICAL GRADUATES TO TAKE QUALIFYING EXAMS – July 3, 2019

The LRC represented 77 South African medical graduates, who had acquired their medical qualifications abroad and sought admission to practice in South Africa. To practice as a medical professional, graduates must pass a board examination given by the Health Professions Council of South Africa (HPCSA).


The HPCSA forced the LRC’s clients to wait months and in some cases years before they were permitted to write the board examination. When the LRC intervened, the HPCSA responded that it had imposed a limit of 120 graduates allowed to take the exams during one of its two scheduled examinations each year. The HPCSA did not explain whether the limit was due to capacity constraints of the venues selected for the examinations, but the LRC argued that the imposition of a limit on the number of exam taken was arbitrary and inconsistent with the Health Professions Act, especially given the lack of qualified medical professionals in South Africa’s public health sector.

After extensive communication, the LRC indicated that it would begin legal proceedings unless all graduates who satisfied the minimum requirements were permitted to write the examinations. On the eve of launching those legal proceedings, the HPCSA agreed that the medical graduates would be permitted to write the examinations at the next sitting, which is scheduled for October or November of 2019. Each medical graduate has received notification of the date on which he or she will be taking the board examination. The HPCSA also agreed to convene an additional sitting of the board examination to ensure that all compliant graduates would have the opportunity to take the examination.

CHALLENGING RENEWAL OF ATMOSPHERIC EMISSIONS LICENSE – June 12, 2019

The LRC filed an appeal challenging Gert Sibande District Municipality’s recent renewal of an atmospheric emissions license to a synfuels plant owned by Sasol in Secunda, South Africa. The renewal permits Sasol, an international chemicals and energy company, to continue with its coal liquidification activities at that plant even though the process, which has been banned by many countries including the United States, has been accepted internationally as highly polluting and inefficient.

Sasol Synfuels is the largest emitter of greenhouse gasses in South Africa. The plant in Secunda converts coal to liquid fuel and also powers the process by using coal to generate steam, emitting copious quantities of poisonous hydrogen sulfide gas, contributing to the poor air quality in the area. According to the American Association for the Advancement of Science, coal-to-fuel processes produce twice the amount of greenhouse gas emissions as oil-to-petrol processes.

Acting on behalf of the Vaal Environmental Justice Alliance, the LRC called for the license to be set aside and reconsidered in light of information related to the environmental safety and viability of this process. In 2004, Sasol gained direct access to a natural gas pipeline enabling it to import natural gas from Mozambique to Secunda. The LRC argues in its appeal that the municipality failed to consider Sasol’s ability to replace nearly all of its coal feedstock at the plant with this natural gas, thereby reducing greenhouse gas emissions by at least 12.7 million metric tons each year and avoiding damages caused by those emissions. This conversion would eliminate hydrogen sulfide emissions and other damaging air pollutants.

The municipality’s licensing authority was required to consider the effect that greenhouse gas emissions have on the environment and health conditions. As a guiding principle, the National Environmental Management Air Quality Act requires regulators to consider the Best Practical Environmental Option, providing the most benefit with the least harm at a cost acceptable to society. The appeal maintains that the licensing authority did not consider the Best Practical Environmental Option, as well as other relevant considerations, rendering the decision unlawful. If successful, the appeal could lead to a public examination of Sasol’s contribution to climate change and air pollution in South Africa.

Christopher Stone

Christopher Stone

Chris Stone is Professor of Practice of Public Integrity at Oxford University’s Blavatnik School of Government. He is an expert in institutional strategy and public-sector reform globally, with a special focus on systems of justice. From 2012 through 2017, Chris served as president of the Open Society Foundations, helping to strengthen civil society as a force for political pluralism in more than one hundred countries worldwide. Prior to joining OSF, he was the Guggenheim Professor of the Practice of Criminal Justice at the Harvard Kennedy School, where he led both the Program in Criminal Justice Policy and Management and the Hauser Center for Nonprofit Organizations. Chris began his legal career in 1982 as a public defender in Washington, D.C., and later helped found both the Neighborhood Defender Service of Harlem and the New York State Capital Defender Office. From 1994 through 2004, he served as president of the Vera Institute of Justice, an incubator of innovation for the justice sector, expanding the Institute’s work with government reformers in the United Kingdom, South Africa, Russia, Nigeria, India, China, Chile, and Brazil. He is the recipient of an honorary OBE for his contributions to criminal justice reform in the United Kingdom.

Ann Satchwill (FoLRC Executive Director)

Ann Satchwill is Executive Director of Friends of the Legal Resources Centre of South Africa, which has supported the LRC since its founding in 1979. Prior to joining the FoLRC in 1989, Ann was a legislative assistant for Rep. Edward Feighan (D-Ohio), supporting his work on the U.S. House of Representatives Committee on Foreign Affairs and the Commission on Security and Cooperation in Europe (the Helsinki Commission). Prior to that, she served as an assistant to Winston Lord, President of the Council on Foreign Relations in New York City. She attended Wellesley College and the Fletcher School of Law and Diplomacy at Tufts University.

LRC WELCOMES CONSTITUTIONAL COURT JUDGMENT AND ITS CALL FOR EXPEDITING LAND CLAIMS – March 20, 2019

In 1994, South Africa’s Parliament passed the Restitution of Land Rights Act, establishing a system allowing people and communities who had lost their land due to racially discriminatory laws to claim restitution of that land or equitable redress. Approximately 80,000 claims were lodged by the deadline of 31 December 1998 established by the Act, but by 2014 – sixteen years later – over 20,000 claims still had not been finalized.

In 2014, Parliament enacted the Restitution of Land Rights Amendment Act, which re-opened the restitution process, allowing new land claims to be lodged until 30 June 2019. However, the Land Access Movement of South Africa (LAMOSA) challenged the procedures used to pass the Amendment Act, arguing that public involvement had not been facilitated and that Section 6 of the Act regarding the priority of claims was incurably vague.

On 28 July 2016, the Constitutional Court held that re-opening land claims, which the Amendment Act sought to do, was of paramount importance, but the Court declared the Amendment Act to be invalid because the public participation process had been unreasonable. The Court prohibited the Commission on Restitution of Land Rights from processing any new claims in order to ensure that old claims were not superseded. And the Court ordered Parliament to facilitate the enactment of a new Amendment Act within 24 months to deal with the issue of re-opening land claims. The Court noted that the Commission could proceed with new claims if all old claims were finalized before Parliament enacted a new Amendment Act.

The South African Parliament failed to enact a new Amendment Act within the 24 month period. Two days after the expiration of the 24 month period, Parliament applied to the Constitutional Court for an extension until 29 March 2019. The Court granted an interim extension, pending the outcome of the application.

Representing four of the original applicants, the LRC opposed the application, arguing that the Court’s order in 2016 was final and the matter should now be determined by the Court. They argued, as well, that the older land claims should be prioritized over the newer claims.

In its judgment on 19 March 2019, the Constitutional Court noted that Parliament was aware that it would not be able to meet the 24 month deadline but did not approach the Court for an extension until after the deadline had expired. The Court noted, too, that Parliament took no action for nearly one year during the 24 month timeframe. The Court concluded that the prospect of enacting a new Amendment Act by the proposed timeframe of 29 March 2019 was unlikely. Therefore, the Court dismissed the application by Parliament.

The Court upheld the counter application filed by the LRC on behalf of the respondents, ruling that, subject to the Parliament legislating otherwise, the Commission on Restitution of Land Rights is prohibited from processing in any way any claims lodged between 1 July 2014 and 28 July 2016 until it has settled or referred to the Land Claims Court all claims lodged on or before 31 December 1998, or the Land Claims Court, upon application by any interested party, grants permission to the Commission to begin processing new claims.

The Court also ruled that the Chief Land Claims Commissioner must file a report to the Judge President of the Land Claims Court every six months, reporting progress with finalizing the old land claims, including the nature of constraints faced by the Commission, until all old land claims have been processed.

The LRC welcomed this important judgment, noting the crucial link between land, dignity, and the realization of rights guaranteed by South Africa’s democratic Constitution.

The full judgment can be found on the Southern African Legal Information Institute (SAFLII) website at https://t.co/8jQddxqRoH

HIGH COURT ACTION PREVENTS UNLAWFUL EVICTIONS – February 28, 2019

On 28 February 2019, the Mthatha High Court granted a final interdict against former Headwoman Nosizwe Maxhwele, four members of her traditional council, and a contractor from destroying the properties of six residents of Bhongweni Location, Phase 1 of the Zimbane Administrative Area in Mthatha, who had been unlawfully evicted. The Court also ordered them to restore possession of the properties to the residents and to refrain from threatening the residents or preventing them from accessing their properties. The Legal Resources Centre represented the six applicants.

Ms. Maxhwele had begun forcefully evicting people from the land in order to sell the property to developers. The land forms part of Erf 912, which belongs to the King Sabata-Dalindyebo Local Municipality and is the subject of a land claim in terms of the Restitution of Land Rights Act.

In March 2018, the headwoman and her council informed the applicants that they must vacate their properties, because the plots belonged to the chiefdom and had been sold. The applicants were told that their properties would be destroyed so that a contractor could begin construction on those and other properties to build rental apartments for students. The contractor destroyed a fence around one of the properties and erected a wall. In July 2018, he destroyed the house of one of the applicants, built a wall around the property of another applicant, and barricaded the property to prevent the applicants from entering their properties.

The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE) prevents the arbitrary evictions of any persons from their property by requiring a court order, but the headwoman and her council had not obtained a court order. In terms of the Restitution of Land Rights Act, no person may sell, exchange, donate, or develop land that is the subject of a land claim without the written consent of the Chief Land Claims Commissioner. The applicants hold informal rights to the land under the Interim Protection of Informal Land Rights Act (No. 31 of 1996), which seeks to protect informal land rights holders in the former homelands.

The application was opposed by Ms. Maxhwele, the council members, and the contractor. Judge Plasket found the respondents’ denial of the allegations against them “woefully inadequate” and ordered them to pay the cost of the application. Informal land rights holders have suffered abuse at the hands of traditional leaders in South Africa. The applicants had been effectively dispossessed of their rights to their land without compensation by people who themselves had no legal authority over that land.

The first applicant noted that traditional leaders target households headed by women or widows. She added, “We hope the case will show other traditional leaders, developers, and contractors that they cannot simply evict people from Bhongweni without consequences. There are so many of these unlawful evictions happening in Bhongweni. People are losing their homes because of the greed of others who make money from building flats on the land from which they tried to evict us.”