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.

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

TRANSPORTATION TO SCHOOL – March 1, 2019

Ninety-one students in the Eastern Cape will now receive help with getting to school – after LRC lawyers filed papers in the Grahamstown High Court that compelled the South African Department of Education to comply with its constitutional obligation to provide students with transportation to four schools in the Eastern Cape, where learners were walking long distances to school, often in dangerous conditions. This is the latest of several student transportation cases brought by the LRC.

Thousands of Eastern Cape students walk 10 kilometers (about 6 miles) or more round-trip every school day. Acting on behalf of the Khula Community Development Project and four schools, the LRC resorted to litigation after the Department of Education repeatedly failed to take action on applications for student transportation. The LRC sought a two-part order, providing urgent relief to the students at the four schools and seeking systemic relief as well.

The Department of Education acknowledged its Constitutional obligations to provide transportation to qualifying students and agreed to provide transportation to the 91 students. The Department argued that it is improving the systemic administration of student transportation by using a digital database, the South African Schools Administration Management System, to log and process applications. However, many schools have encountered difficulties when using the new system and have noted that training has not been provided. The LRC will continue, therefore, to pursue its claim for systemic relief.

Petros Majola, the Director of the Khula Community Development Project, stated: “Subsidized scholar transport will make a big difference in the lives of these children, who can enjoy their right to education without their parents spending scarce funds to pay for private transport.”

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.”

COURT VICTORY INVOLVING POLYGAMOUS CUSTOMARY MARRIAGES – October 23, 2018

Thokozani Maphumulo’s application in the Durban High court to have her marital home placed in her name was successful on 23 October 2018. The success follows her earlier representation by the LRC in the matter of Ramuhovhi and Others v President of the Republic of South Africa and Others [2017] ZACC 41, in which the Constitutional Court confirmed that Section 7(1) of the Recognition of Customary Marriages Act (RCMA) was unconstitutional and invalid. Section 7(1) of the RCMA regulates the proprietary consequences of “old” customary marriages and states that customary marriages entered into before the commencement of the Act continue to be governed by customary law.

Mrs. Maphumulo was the second wife in a customary marriage to Musawenkosi Maphumulo. She acquired property with her husband during their marriage and had lived with her husband since 1992 at that property. Her husband died on 28 October 2013. He had executed a will wherein he bequeathed his entire estate to his son from his first marriage. The property was subsequently transferred to his son on 11 December 2015. After the transfer, the son attempted to evict Mrs. Maphumulo from the property.

In its judgment, the Constitutional Court ordered that the following regime will apply to polygamous customary marriages concluded before the RCMA came into operation:

(a) Wives and husbands will have joint and equal ownership and other rights to, and joint and equal rights of management and control over, marital property, and these rights shall be exercised as follows:

(i) in respect of all house property, by the husband and the wife of the house concerned, jointly and in the best interests of the family unit constituted by the house concerned; and

(ii) in respect of all family property, by the husband and all the wives, jointly and in the best interests of the whole family constituted by the various houses.

The Constitutional Court made it clear that only members of that house are entitled to enjoy benefits that flow from the existence of the property, including rights of inheritance to the property. The Constitutional Court did not make a factual finding on this matter. Mrs. Maphumulo was required to bring a separate application to challenge the transfer and ownership of the property, which she did in the Durban High Court, represented by the Legal Resources Centre. She brought an application in the Durban High Court challenging the validity of her late husband’s will insofar as it bequeathed the property to his son. Finding in favor of Mrs. Maphumulo, the Court declared the will invalid and set it aside. The Court further declared that the subsequent transfer of the property to the son was unlawful and ordered the Registrar of Deeds to transfer the property into Mrs. Maphumulo’s name.

SADC TRIBUNAL CASE – February 5, 2018

Representing the Centre for Applied Legal Studies, Michael Bishop of the LRC’s Constitutional Litigation Unit argued before the Gauteng High Court in Pretoria that the South African Presidency cannot bind South Africa to international treaties without first consulting the public.

The Southern Africa Development Community (SADC) Tribunal was established in 2005 to resolve disputes involving southern African governments and their citizens. After the Tribunal ruled in 2009 that the government of Zimbabwe must restore the land of four commercial farmers, who had turned to the tribunal, and compensate them for losses incurred, Zimbabwe challenged the legitimacy of the tribunal. The tribunal’s protocol was revised in 2014, removing its power to hear disputes brought by citizens against governments and restricting its mandate to disputes between SADC member states.

The Law Society of South Africa (LSSA) is challenging the actions of South African President Jacob Zuma and his Ministers of Justice and International Relations and Cooperation in voting for, signing, and planning to ratify the SADC Summit Protocol of 2014. The LSSA is asking a full bench of three judges, headed by Judge President Dunstan Mlambo, to declare their actions unconstitutional because they infringe on the right of South African citizens to access justice under South Africa’s Bill of Rights.

The LRC is representing the Centre for Applied Legal Studies from the University of the Witwatersrand’s School of Law as a friend of the court, arguing that the Presidency cannot bind South Africa to international treaties without first consulting the public. The LRC argues that President Zuma has effectively removed the rights of South Africans to access the tribunal if they want to appeal cases that have been decided in South Africa’s highest courts.

Nine member countries have already ratified the protocol. If South Africa ratifies the protocol as well, a majority vote will have been reached, affecting the right of 230 million people throughout southern Africa to bring cases before the tribunal.

PUBLIC GATHERINGS LANDMARK RULING BY WESTERN CAPE HIGH COURT – January 24, 2018

The LRC, representing the Social Justice Coalition (SJC), has won an important case in the Western Cape High Court, which declared Section 12 (1) (a) of the Regulation of Gatherings Act unconstitutional, decriminalizing gatherings where no notice has been given to the relevant government authority. The High Court also withdrew the criminal convictions of the LRC’s clients.

In September 2013, the SJC had organized a protest outside the Mayor’s office in Cape Town, but it neglected to give notice to the municipality. Section 12 (1) (a) prohibits any group from convening a gathering of fifteen people or more without giving notice. The penalty for contravention is one year imprisonment, a fine, or both. After SJC activists were convicted in Magistrate’s Court and released, the SJC decided to challenge the constitutionality of the Act. The South African Police Service (SAPS) challenged the appeal, but the South African government agreed to abide by the High Court’s decision.

The Western High Court accepted SAPS arguments that the notice requirement was simple and straight forward and would allow adequate deployment of police to protests. However, the Court found that the criminal sanction, which could result in imprisonment and impact the future study and employment of protesters, was disproportionate, having a chilling effect upon the right to freedom of assembly. The Court noted the central importance of this right to democracy and of giving “voice to the voiceless” in society. The Court noted that the SJC had engaged in protest only after a long and unresolved dispute with the city of Cape Town over the access to sanitation services of working class communities. The Court noted other less restrictive penalties, such as an administrative fine, that the government could impose instead.

The High Court found that the Act is disproportionate and therefore unconstitutional. The Court set aside the convictions of SJC’s activists and upheld the appeal. The decision must now be confirmed by South Africa’s Constitutional Court.

WILDEBEESTKUIL LAND CLAIMS COURT CASE – January 1, 2018

The LRC made an application for contempt of court on behalf of the LRC’s client, the Wildebeestkuil Land Claim Committee, against the chief and headman, who have been selling their land in spite of a court order preventing them from doing that.

In 1925, approximately 95 families, who lived on the Wildebeestkuil farm, bought the land and began managing it as a collective. In 1950, the apartheid South African government gave a portion of their land to the South African Defence Force (SADF). The government forced the families who lived there to leave behind their church, schools, houses, and fields and to move to another part of the farm where others already lived. That portion became overcrowded with families and cattle died because they lacked sufficient land for grazing. The SADF began allowing other people to build informal settlements on their portion of the land.

In 1998, the Wildebeestkuil Land Claim Committee successfully lodged a claim with the Land Claims Court for the old portion of their land. In 2001, the Regional Land Claims Commission informed the informal settlers on that land that they could not build more housing. However, the chief and headman, who had been appointed during the apartheid years to administer the land, allocated land to outsiders, sold portions of the land, allowed mining to take place, and gave permission for powerlines to be erected. The community wrote to the Commission in 2003 in protest, but nothing was done. In 2009, the Commission invited the claimants to a meeting in Pretoria, but no action was taken. In 2010, the Commission informed the community that they must opt for compensation, but the community pressed instead for the return of their land.

By 2014, the Wildebeestkuil Land Claim Committee asked the LRC for help. By 2015, the chief and headman had agreed to stop allocating land and a surveyor’s report had been conducted, estimating that the size of the settlement land under dispute involved about 200 acres and the grazing land involved about 2,100 acres. The Committee agreed to receive compensation for the land used for informal settlements, but they wanted the grazing land returned to them even though the land had been overgrazed and eroded.

The chief and headman continued, however, to sell land to outside people. In September of 2016, the LRC took the chief and headman to court, which resulted in a successful interdict against their actions. The LRC also asked the courts to review the Regional Land Claims Commission’s earlier decision not to restore the land to the community. Again, the chief and headman continued to ignore the court ruling. In January 2018, the LRC made an application for contempt of court against the chief and headman.

Sadly, this case is not an isolated one. Although 8.2 million acres have been successfully claimed by communities since the end of apartheid, only 4.7 million of those acres have been transferred successfully to the beneficiaries. Many communities with successful claims are waiting for their land, vulnerable in the meantime to traditional leaders and illegal occupiers.