Right to Social Security. SAFER Refugee Training Course UCT September 2011

Transcription

1 Right to Social Security SAFER Refugee Training Course UCT September 2011

2 The Constitution The Constitution provides rights to everyone. Everyone refers to citizens and non citizens alike and includes children. There are also rights only accorded to citizens. All children are also accorded specific rights in section 28 of the Constitution. 2

3 The Constitution Section 27 (1) ( c) of the Constitution states that Everyone has the right to have access to social security, including, if they are unable to support themselves and their dependants, appropriate social assistance. There is a rider to this section, provided in section 27 (2) in that the State has to take reasonable legislative and other measures, within its available resources to achieve the progressive realisation of each of these rights. 3

4 The Constitution The concept of progressive realisation is dependant on budget constraints and time. The State must show that it has not prioritised other issues over the more pressing and urgent issues. 4

5 The Constitution Section 28 (1) (b) provides that every child is entitled to family care or parental care or to appropriate alternate care when removed from the family environment. In addition section 28 (1) (c) entitles every child to the right to social services. The right to social security and social service is linked to the right to the right to human dignity (Section 10) 5

6 Social Security and Social Services A Social Grant is the form of a financial award provided by government. It is usually a sum of money given to a person by an organisation (usually a government department). Its aim is to alleviate poverty and it is funded through monies from the national revenue. (Usually a small percentage of the Gross Domestic Product). 6

7 Social Security and Social Services The meaning of social services has not yet been interpreted through the courts though academics have offered their own definitions. Some have suggested that it is any work under the auspices of the Department of Social Development while others have viewed it as all types of social services usually provided by the state such as health care; water delivery; child care facilities; social security and education. 7

8 Domestic Legislation The Refugees Act 130 of 1998 provides that a refugee is entitled to the full legal protection, which includes the rights set out in the Bill of Rights, except those rights that apply only to citizens (section 27(b)). The Social Assistance Act 13 of 2004 ( hereinafter the SAA ) was enacted to give effect to the Constitutional right to social security whilst the Child Care Act 38 of 2005 provides for the child s right to social services. 8

9 Case Law 9 Several cases have dealt with the rights of refugees and foreigners. Larbi Odam v MEC for Education confirmed that nonnationals are a vulnerable group because they are in the minority and therefore do not have the political muscle to defend their rights. Minister of Home Affairs v Watchenuka Human dignity has no nationality. It is inherent in all people citizens and non citizens alike. Bishoga v Minister of Social Development (Foster Child Grant) Scalabrini Centre of Cape Town and Others v Minister of Social Development (Disability Grant) Khosa and others v Minister of Social Development and Others (Child Support Grant but only to permanent residents)

10 Types of Social Grants The Social Assistance Act makes provision for seven social grants. They are: Child Support Grant Care Dependency Grant Foster Child Grant Disability Grant Older Persons Grant War Veteran s Grant Grant in Aid 10

11 Rights Extended to Refugees The amendment of the Social Assistance Act of 2004 aim is to ensure that men from the age of 60 are entitled to the grant. (Previous discriminatory practice based on gender discrimination). Minister has over a period of time and through Regulations to the Social Assistance Act extended these grants to refugees. [Note only to refugees and not to asylum seekers.] Various court challenges led to the extension of these benefits which argued that the Constitution makes provision for the right of everyone to social security and such right is indelibly intertwined with the right to survive and sustain oneself, without which the right to human dignity is affected. 11

12 Rights Extended to Refugees The Disability Grant (only available to disabled adults) The Foster Child Grant (refugees may be foster parents) The Grant for Social Relief of Distress (temporary, three months) 12

13 Rights Extended to Refugees? Refugee parents who are struggling to look after their families cannot apply for the Child Support Grant or the Care Dependency Grant (if they have a disabled child). A refugee who becomes a foster parent by order of court is entitled to the Foster Care Grant but he must have an identity document in order to access it. Similarly a refugee is only entitled to the Disability Grant if she/he has an identity document. 13

14 The South African Social Security Agency (SASSA) On the 1 April 2006 the responsibility for the management, administration and payment of social assistance grants was transferred to the South African Social Security Agency. This agency therefore ensures that government monies are paid to the right person, at a location which is most convenient to that person.[1] [1] SASSA Brochure You and Your Grants 2007/

15 Means Test This is a way of measuring a person s income and assets to see whether they qualify for a grant. Combined income of a married couple. 15

16 Grant Application Process Make application for grant at the nearest SASSA office to where you live. If you are too old or sick to travel a family member or friend can apply on your behalf. Fill your application in the presence of a SASSA officer. When your application is complete you will be given a receipt which you must keep as proof of the application. You do not have to pay any money to apply. 16

17 Grant Application Process (Cont d) 17 If your application is not approved by the SASSA Office, you must be informed in writing as to why your application has been rejected You have the right to appeal to the Minister for Social Development in writing, explaining why you disagree with the decision. This appeal must be lodged within 90 days of notification of the outcome of your application.

18 Housing Issues by M. Smith UCT SAFER TRAINING SEPTEMBER 2011

19 The Constitution

20 26 Housing The Constitution Chapter 2: Bill of Rights 1. Everyone has the right to have access to adequate housing.

21 26 Housing The Constitution Chapter 2: Bill of Rights 2. The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right

22 26 Housing The Constitution Chapter 2: Bill of Rights 3. No one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions

23 Extension of Security of Tenure Act 62/2007

24 ESTA Who is covered by ESTA? ESTA covers people who live in rural areas, on farms and on undeveloped land. It also protects people living on land that is encircled by a township or land within a township that is marked for agricultural purposes. The Act specifically gives women occupiers the same rights as men occupiers.

25 ESTA Who is not covered by ESTA? people who live in a proclaimed or recognised township land invaders labour tenants people using the land for mining or industrial purposes, for businesses or commercial farming people who earn more than R5 000 per month gross (before tax deductions)

26 Fundamental Rights of Occupiers, Owners, Persons in charge 5. Subject to limitations which are reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, an occupier, an owner and a person in charge shall have the right to (a) human dignity; (b) freedom and security of the person; (c) privacy; (d) freedom of religion, belief and opinion and of expression; (e) freedom of association; and (f) freedom of movement, with due regard to the objects of the Constitution and this Act.

27 Rights of occupier 6. (1) Subject to the provisions of this Act, an occupier shall have the right to reside on and use the land on which he or she resided and which he or she used on or after 4 February 1997, and to have access to such services as had been agreed upon with the owner or person in charge, whether expressly or tacitly. (2) Without prejudice to the generality of the provisions of section 5 and subsection (1), and balanced with the rights of the owner or person in charge, an occupier shall have the right (a) to security of tenure; (b) to receive bona fide visitors at reasonable times and for reasonable periods: (c) to receive postal or other communication; (d) to family life in accordance with the culture of that family: (e) not to be denied or deprived of access to water; and (f) not to be denied or deprived of access to educational or health services

28 Duties of occupier 6(3) An occupier may not (a) intentionally and unlawfully harm any other person occupying the land; (b) intentionally and unlawfully cause material damage to the property of the owner or person in charge; (c) engage in conduct which threatens or intimidates others who lawfully occupy the land or other land in the vicinity; or (d) enable or assist unauthorised persons to establish new dwellings on the land in question. (4) Any person shall have the right to visit and maintain his or her family graves on land which belongs to another person, subject to any reasonable condition imposed by the owner or person in charge of such land in order to safeguard life or property or to prevent the undue disruption of work on the land.

29 Rights of owner 7. (1) The owner or person in charge of land may have a trespassing animal usually or actually in the care of an occupier impounded and removed to a pound in accordance with the provisions of any applicable law, if the owner or person in charge has given the occupier at least 72 hours notice to remove the animal from the place where it is trespassing and the occupier has failed to do so: Provided that the owner or person in charge may take reasonable steps to prevent the animal from causing damage during those 72 hours.

30 Rights of owner set reasonable conditions regarding visits to occupiers' homes and family graves terminate an occupier's right to stay on the land, if this is just and fair apply for an eviction order make an urgent application for eviction in certain circumstances

31 Duties of owner respect the fundamental rights of occupiers acknowledge the rights that this Act gives to occupiers follow the provisions of the Act when they consider ending the rights of occupiers to stay on the land

32 Duties of owner (2) An owner or person in charge may not prejudice an occupier if one of the reasons for the prejudice is the past, present or anticipated exercise of any legal right. (3) If it is proved in any proceedings in terms of subsection (2), that the effect of the conduct complained of is to prejudice an occupier as set out in that subsection, it shall be presumed, unless the contrary is proved, that such prejudice was caused for one of the reasons referred to in subsection (2).

33 Termination The following actions are all forms of evictions: where the contract of employment is terminated and the person agrees to leave taking away somebody's right to live on land taking away somebody's right to use land taking away somebody's access to water ad electricity, if they are staying on the land threatening occupiers so that they leave stopping them from coming back onto land if they left but planned to come back, for example, they went away for a family visit

34 Lawful Eviction (2) A court may make an order for the eviction of an occupier if (a) the occupier s right of residence has been terminated in terms of section 8; (b) the occupier has not vacated the land within the period of notice given by the owner or person in charge; (c) the conditions for an order for eviction in terms of section 10 or 11 have been complied with; Probation Report (d) the owner or person in charge has, after the termination of the right of residence, given (i) the occupier; (ii) the municipality in whose area of jurisdiction the land in question is situated; and (iii) the head of the relevant provincial office of the Department of Land Affairs, for information purposes, not less than two calendar months written notice of the intention to obtain an order for eviction, which notice shall contain the prescribed particulars and set out the grounds on which the eviction is based:

35 Remedies Automatic Review s19(3) Compensation s13 Restoration orders Criminal Offence s23 S4 subsidies SA citizens and residents

36 Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE), No 19 of 1998

37 Who is covered by PIE? Anyone who is an unlawful occupier, which includes tenants who fail to pay their rentals and bonds, is covered by PIE. It excludes anyone who qualifies as an occupier in terms of the Extension of Security of Tenure Act

38 When is an eviction lawful? Owner or person in charge : gave the occupier notice of his/her intention of going to court to get an eviction order. apply to the court to have a written notice served on the occupier stating the owner s intention to evict the occupier. The court must serve the notice at least 14 days before the court hearing. The notice must also be served on the municipality that has jurisdiction in the area.

39 When is an eviction lawful? The notice must contain the following: a statement that says proceedings are being instituted in the court in terms of PIE the date and time of the court hearing the grounds for the proposed eviction that the occupier is entitled to appear before the court and defend the case that the occupier can apply for legal aid Vulnerable persons in terms of the Constitution The unlawful occupier can go to the court hearing on the day it is set down and defend themselves if they believe the eviction is unfair.

40 The court will only give an eviction order if it is proved that: the person who is applying to evict you, is in fact the owner of the land or the person in charge you are an unlawful occupier

41 When to effect the order The Constitution Chapter 2: Bill of Rights 26 Housing 3. No one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances.

42 Remedies Mediation Negotiation Mandament van spolie

43 Buying a house

44 Buying a house Getting money is the first step in the process of buying a house. deposit of between 5% and 20% of the price of the house, before any bank will lend you money. The money you borrow from a bank is called a mortgage bond or home loan. Your monthly repayments go towards paying off: the lump sum of money you borrow the interest which is the money that the bank charges you for lending you the lump sum. The time over which you pay back the loan is called the 'redemption period'. It is usually 20 years Banks usually only lend money to people with stable jobs. Most banks insist that your bond repayment is not higher than 25% of your income, or 30% of your joint income if you are married. Banks will also only lend you money to buy a house made with brick or concrete walls, and zinc or asbestos roofing.

45 The offer to purchase Your offer to the seller to buy the house must be made in writing. Sometimes the seller tries to put a 'voetstoets into the offer before he or she will sign it. This means that you agree to buy the house exactly as it is and you can never ask the seller to do repairs for anything. Before you allow a voetstoets clause, you should make sure you are happy that there are no problems that you don't know about. When both you and the seller sign the Offer to Purchase it becomes a contract, called the Deed of Sale. By law the buyer and seller must then obey the contract.

46 Transfer This is the change of ownership from the seller to you, the buyer. A special lawyer, called a conveyancer, writes a document known as a Deed of Transfer. This document then goes to the Deeds Office for the area where the house is. Once the Registrar of Deeds signs the Deed of Transfer it is called the title deed and it proves that you are the legal owner of the property. You get a copy and the Deeds Office keeps a copy. Before you buy the house you should check that the seller is the real legal owner of the house. You can do this by checking the title deed at the Deeds Office.

47 Tenants, landlords and leases

48 Tenants, landlords and leases If you pay to rent a house, you are called a tenant, or a lessee. The owner of the house is called the landlord or lessor. The tenant and landlord have an agreement, called a lease. The lease can be for a fixed time, in which case the landlord does not have to give you notice to end the lease and you must leave the house on the date when the lease ends, unless the lease is renewed by agreement with the landlord. The landlord cannot make you leave before the date when the lease ends, unless you break a condition of the lease, for example, if you do not pay rent on time.

49 Tenants, landlords and leases The tenant and landlord have an agreement, called a lease. The lease can also be for an indefinite time where there is no time limit on the lease. In this case the landlord can only end the lease by giving you notice as prescribed in the lease agreement. If there is no lease agreement then the notice given should be reasonable. If you think the notice was unreasonable, you can take the case to court where it will be decided whether the notice was reasonable or not.

50 CPA Tenant has 20 business days to arbitrarily cancel a lease agreement Lease agreements now have a maximum duration of 24 months After expiry, the lease will continue on a month to month basis Unless a new lease is signed

51 The Rental Housing Act (No 50 of 1999) A landlord has the right to: prompt and regular payment Recover debt after an order of court has been obtained Terminate a lease on grounds not deemed unfair and as specified in the lease agreement Upon termination of a lease, receive the property back in good state and repossess the property after an order of court has been obtained Claim compensation for damages/improvements

52 The Rental Housing Act (No 50 of 1999) A tenant has the right to: Not have his/her person or residence searched Receive vistors Not have his/her property searched Not have his her possessions seized without an order of the court Privacy of communication

53 The Rental Housing Act (No 50 of 1999) A landlord a duty to: ensure that the premises is in a safe and livable condition when rented out allow the tenant to receive visitors place the tenant s security deposit in a savings account which has the highest rate of interest for that financial institution return the security deposit, plus all interest accrued, to the tenant minus any costs for reasonable repairs for damages caused by the tenant provide proof to the tenant of any costs incurred through having a lease drawn up when passing on such costs to the tenant

54 The Rental Housing Act (No 50 of 1999) A tenant has a duty to: pay the rent on time as specified by the lease keep the dwelling/property clean and tidy not use the premises for an improper purpose (for example, overcrowding, illegal activities and unregistered retail) at the end of the lease, return the property to the landlord in the same condition minus reasonable wear and tear keep to the provisions of the lease as long as all the provisions are legal

55 The Rental Housing Act (No 50 of 1999) Rental Housing Tribunals The Act provides for the establishment of Rental Housing Tribunals in all the provinces. The Act gives the Tribunals the powers to make rulings that are the same as the ruling of a magistrate's court. The service they provide is free.

56 The Rental Housing Act (No 50 of 1999) Rental Housing Tribunals Unfair Practices Regulations. These deal with: Changing of locks Deposits Damage to property Demolitions and conversions Eviction Forced entry and obstruction of entry House rules Intimidation Issuing of receipts Tenants committees Municipal services Nuisances Maintenance Reconstruction and refurbishments

57 The Rental Housing Act (No 50 of 1999) Rental Housing Tribunals 1. Spoliation orders: This prevents a landlord or tenant from taking the law into their own hands by seizing goods. A spoliation order restores the property to the owner while waiting for a full hearing on the matter. 2. Interdictions: These are orders which would prevent a landlord or tenant from continuing with a certain action or require either party to undertake a particular action. The complaining party alleges that such an action, or the lack of an action, is an Unfair Practice. Spoliation orders would generally be sought by the tenant against the landlord. Interdictions, however, are likely to be sought by either a landlord or tenant in various situations where one party is alleging that the other is committing an unfair practice.

58 The Rental Housing Act (No 50 of 1999) Rental Housing Tribunals New Tribunal Powers 3 Attachment orders: A landlord would usually try and get an attachment order for the tenant s property once the Tribunal has determined that back rent owing to the landlord has not been paid and following an interdiction against the tenant Attachment orders would usually be sought by a landlord against a tenant.

59 The Rental Housing Act (No 50 of 1999) Rental Housing Tribunals Making a complaint to the Rental Housing Tribunal Complaints must be lodged on the prescribed complaint form which you can get from the Tribunal. A case file will be opened and a reference number allocated. The Tribunal will conduct a preliminary investigation to determine whether the complaint relates to a dispute over which they have authority. An inspector may inspect the property and draw up a report if necessary.

60 The Rental Housing Act (No 50 of 1999) Rental Housing Tribunals Making a complaint to the Rental Housing Tribunal The Tribunal must, within 30 days of receiving the complaint, decide whether the complaint relates to a dispute over which they have authority. If they don t have authority, they must notify the complainant in writing. If they do have authority, they must try to resolve the matter with informal or formal mediation. If the parties are unable to reach an agreement, the case will be referred for a ruling at a formal hearing.

61 What should we do problems

62 Problem 1 A landlord applies for a civil eviction order Cyril has received a summons for his eviction from his property because he is not up to date with his rental payments. He believes this is unfair because the landlord hasn t fulfilled his own duties in terms of the contract, for example, by fixing the leaking roof. He wants to fight the court action. What should he do?

63 Problem 2 Being arrested and charged with trespassing Dilly has to appear in court on a charge of trespassing. How can she defend herself?

64 Problem 3 A group of 15 farmworkers was dismissed. They are told to leave the property at the same time as their jobs end. What can they do?

65 Problem 4 What are the common problems tenants have and what can they do about them? Rent and service charges increase and this was not part of the lease agreement You owe rent so the landlord takes your belongings without a court order You owe rent, so landlord takes away goods you are still paying off

66 Problem 5 What are the common problems tenants have and what can they do about them? The landlord does not keep the property in good repair The landlord enters your house or flat in order to inspect it without your permission

67 Perhaps this? Answers

68 Problem 1 What does the law say? Cyril must respond to the summons. If he does not respond to the summons, the court will give the landlord the eviction order. This is called a 'default judgement'. Cyril should see a lawyer immediately or get help from the Justice Centre at the Magistrates Court to help him defend the summons. Cyril and his lawyer must file a NOTICE OF OPPOSITION The form must be delivered to the court and the attorneys not later than five days after he received the summons. Once the Notice of Opposition is in the process goes through the pleadings stages. The court will decide who is right in the situation. If the landlord is right, then the court will give an EVICTION ORDER.

69 Problem 1 But even when the court gives an eviction order, the landlord still cannot force Cyril off the land or out of the house until he sends a document called a WARRANT OF EJJECTMENTwhich must be stamped by the court and delivered by the Sheriff of the Court. The Sheriff can force Cyril and the people living with him off the property, and take his goods out of the house. The Sheriff can get the help of the police to make him go if he refuses. The court can fine him if he does not listen to the Sheriff. The landlord must not help the Sheriff.

70 Problem 1 If Cyril owes rent money, the landlord can ask the court for an order to ATTACH his things in the house. If the court gives this, it means the Sheriff can take Cyril s goods away. The Sheriff sells the goods and pays the landlord the money that he owes. The landlord could also ask the court for an order to stop Cyril from selling his goods or taking them away before he has paid the money he owes. This type of order is called an INTERDICT.

71 Problem 2 What does the law say? Trespassing means going onto someone's land without getting permission from the owner or the lawful occupier. The police can arrest a person for trespassing. If the court finds the person guilty of trespass, they can get a fine or a jail sentence.

72 Problem 2 What can you do? Dilly was arrested for trespass so she must appear in court on the date given to her. If she believes she had a lawful reason for being on the land, she must explain this and defend herself in court. In other words she can use a defense. These are some of the defenses she could offer the court: She had a right to be on the land because she is a tenant and proper notice was not given by the landlord She had permission to be on the land because she was given permission by the owner or lawful occupier or a person in charge She had a lawful reason to be on the land even though she didn t have permission. She had a lawful reason because: she went onto the land to ask the permission of the owner or lawful occupier to be on the land she went onto the land to sell or deliver something to the owner or lawful occupier

73 Problem 2 She thought she had a lawful reason to be on the land even if she did not have permission or a lawful reason to be on the land She honestly believed the owner would not mind about her coming onto the land. She had no choice, for example, she had to walk across the land because the public road was flooded - this defence is called 'necessity'. She has a right of retention which means she can stay on the land until the landowner pays her compensation for any improvements she made on the land. If she has one of these defences, she is not guilty of trespass

74 Problem 3 What can you do? (a) Fairly dismissed workers In the case of a fair dismissal, the workers would lose their right to live on the farm and they would be given two months notice to leave their homes. However, if the farmworkers refuse to leave, the farmer will have to apply to the court for an eviction order. The farmer must give two months notice of his intention to approach the court for an eviction order. The farmer must also give the municipality and the DOL notice at the same time of his intention to apply for an eviction order.

75 Problem 3 (b) Unfairly dismissed workers If the farmworkers believe they have been unfairly dismissed, they can refer the case to the CCMA. They can ask a Magistrate to allow them to stay in their houses while the CCMA is hearing the case. If the CCMA decides that the dismissal was fair, the eviction proceedings can go ahead following the normal procedures in terms of the law. Obviously if you have been successful in keeping your job through the CCMA, then it is unlikely that the eviction will go ahead (because there will be no grounds for this).

76 Problem 4 The Rental Housing Act states specifically what should be included in a lease agreement to try and prevent disputes arising. The lease agreement should include a section on when, and by how much, rent and service charges will be increased. The landlord must stick to the terms of the agreement.

77 Problem 4 The landlord may not remove any of your belongings without a court order. He or she should refer the problem to the tribunal. If you are not paying rent because you believe the landlord is breaking the agreement (for example, not maintaining the building), then you should take steps to refer the matter to the tribunal yourself, rather than refuse to pay rent.

78 Problem 4 If you are paying something off on an instalment sales agreement, for example a TV set, then it does not belong to you yet. The shop you bought the goods from is still the owner. Show the sales agreement to landlord or Sheriff the Court, or get the company to tell the landlord that they are the owners. The landlord or Sheriff of the Court can then not take the goods away. If they have already taken it away, you should immediately go and tell them that you are still paying the goods off. Take the sales agreement with you, or get the shop to telephone them.

79 Problem 5 The common law says that it is the landlord's duty to do repairs and maintain the property in good condition. You are only responsible for maintenance such as painting the inside walls. You can write a registered letter to complain to your landlord if he or she is not doing maintenance. If nothing improves, you can make a complaint to the Rental Housing Tribunal.

80 Problem 5 The Rental Housing Act says that a landlord may only inspect premises in a reasonable manner after reasonable notice. You can complain to the Rental Housing Tribunal in your province. The complaint will be recorded. If the landlord enters the premises unreasonably and without notice again, he or she could be fined or even receive a maximum prison sentence of two years.

81 Dankie The end

82 Right to Employment and Labour Issues SAFER Refugee Training Course UCT

83 The Right to Work 2 Right to Work includes right to self employment and to enter into contracts and leases 27(f) of Refugees Act 1998: a Refugee is entitled to seek employment Watchenuka case: an Asylum Seeker is entitled to work pending the finalization of his/her asylum claim Supports local integration into society

84 Watchenuka case 3 Minister of Home Affairs and Others v Watchenuka and Another 2004 (4) SA 326 (SCA) (28 November 2003) Supreme Court of Appeal found the general prohibition on work and study for asylum seekers to be unlawful. The right to seek employment and to attend school stems from the right to dignity. Everyone, has inherent dignity and the right to have their dignity respected and protected. Prohibition against work and study can now only be made on a case-by-case basis.

85 Refugee s Right to Work No work permit is required For refugees, the document granting refugee status is proof of the right to work For asylum seekers, the asylum seeker permit is the proof of the right to work Employers may not discriminate against asylum seekers because their status has not been determined 4

86 Legal Protections In terms of employment and conditions of employment, refugees and asylum seekers are protected by most of the same rights as South Africans Foreign nationals are protected by South African labour regulations and can approach both the CCMA or the Labour Court where their rights have been violated 5

87 Legal Protections Labour Relations Act 1995 governs relationships between employers and employees; emphasises fairness, stresses rights and facilitates dispute resolution processes Basic Conditions of Employment Act 1997 sets out important protections, including paid leave, sick leave, overtime, holiday pay, payslips and lunch breaks 6

88 Unfair Dismissal Any dismissal has two parts: the reasons for the dismissal need to be fair and the process for of the dismissal also needs to be fair Difference between being dismissed for a misconduct and being retrenched where your job is no longer available 7

89 Unfair Dismissal (cont d) Types of Dismissals: (1) Dismissal due to misconduct - Intent, fault and negligence of the employee must be proven - Examples: theft, assault, disobedience, fraud, gross negligence, being under the influence of drugs or alcohol 8

90 Unfair Dismissal (cont d) Types of Dismissals (Cont d): (2) Dismissal based on incapacity - Failure of the employee to perform due to inability or inaptitude of the person - Examples: Incompetence, ill health or incompatibility - Employee must be made aware of the standard required of him/her 9

91 Unfair Dismissal (cont d) Types of Dismissals (Cont d): (3) Constructive Dismissal - Where employee resigns due to an unmanageably poor working relationship - Employee cannot be expected to put up with employer and is forced to resign - Examples: Sexual harassment, removal of key responsibilities and demotion 10

92 Unfair Dismissal (cont d) 11 Types of Dismissals: (Cont d) (4) Automatically Unfair Dismissal Dismissal is unfair if person is dismissed on one or more of the following: Freedom of Association (i.e. in a trade union) Participation in a lawful strike Unfair discrimination Exercising a right given by law Dismissal for exposing corruption

93 Unfair Dismissal (cont d) Types of Dismissals (Cont d): (5) Retrenchment: - Due to operational requirements - Severance pay needs to be fair (at least one week for every year of service) - Dispute over severance pay can be referred to relevant bargaining council or to the CCMA 12

94 Unfair Dismissal (cont d) Possible remedies for unfair dismissals: - Order that employee be given job back unless employee does not want to return, or impossible because job filled by someone else, or relationship breakdown happened - Financial Compensation - 12 months wages for dismissal due to incapacity - 24 months for automatically unfair dismissal 13

95 CCMA Commission for Conciliation, Mediation and Arbitration is a dispute resolution body established ito Labour Relations Act Independent body, not belonging to or controlled by any political party, trade union or business Unfair labour practices and unfair dismissals (90% of CCMA s caseload) Only used if there is no established Bargaining Council in the sector An oral contract is enough to grant the right to approach the CCMA 14

96 CCMA Methods of Dispute Resolution: Conciliation: similar to mediation in that it is a structured negotiation process involving the services of a neutral party, known as a conciliator, whose role it is to assist the parties to reach an agreement Arbitration: a form of adjudication, similar to a court process, where an impartial third party decides the issue after reviewing evidence and hearing arguments from the parties 15

97 CCMA Process for Unfair Dismissal days from the date of the dismissal to open a case at the CCMA Complete case referral form and deliver copy to opposing party Send copy of referral form to CCMA Usually scheduled for conciliation first; if no agreement reached, case proceeds to arbitration See 7:11 Form

98 CCMA Process for Unfair Dismissal (cont d) 17 Applicant should apply for an arbitration hearing within three months of referral Arbitration hearing includes witnesses and documentation and well as cross examination of the parties Within 14 days of conclusion of the hearing, a final and binding decision called an arbitration award will be made If a party does not comply with the award, it may be made an order of the Labour Court or if party is dissatisfied with the award, it may review it to the Labour Court

99 Unemployment Insurance Fund UIF purpose: Short-term relief for persons out of work i.e. lost job or had baby Only available to persons who were contributing to Fund, subject to conditions Obtain guidance from DoL Labour Centre for Fund application and requirements UIF for refugees and asylum seekers still not legislated for get Legal Advice! 18

100 Injured at Work The Compensation Fund Compensation for workplace injuries or diseases acquired in the workplace available to all workers (including Refugees and Asylum Seekers), however subject to conditions Unlike the UIF, workers do not need to make contributions to the Fund to be able to access it CF covers medical costs and compensation for disability (permanent or temporary), but not for pain and suffering 19

101 Dept of Labour s Labour Centres Service points of the Department of Labour Provide services related to UIF, Skills Development, Workers Compensation and Labour Relations Good place to enquire about your rights if you have a labour dispute with your employer, i.e. unpaid wages or UIF claim 20

102 Banking and Doing Business in SA SAFER Refugee Training Course UCT

103 Overview Giving Meaning to FICA PCC03A Approaching Banks The Banking Ombudsman Consumer Rights Business Entities Informal Trader Permit 2

104 FICA REQUIREMENTS + PCC03A 3 Financial Intelligence Centre excluded the use of S22s and S24s Court Cases in Gauteng and In Cape Town PCC03A section 22 and section 24 permits issued in terms of the Refugees Act 1998 (Act 130 of 1998) as alternative forms of identification, is permissible. Verification with in 48 hours where opening account.

105 The Banking Ombudsman 4 Complaints with the banks are common Exhaust internal banking remedies before approaching the Ombudsman. A complaint should be given a reasonable time to be addressed (approx 4 weeks). Thereafter complete application for assistance form. Addresses both sides, work towards a negotiated settlement If not satisfied can take the decision to court or reconsider if was only recommendation.

106 Consumer Rights Five day Cooling Off Period Section 16 Must return money paid in total if no delivery Return full amount of delivery unless reasonable fee for damage to goods delivered (not possible if in tact and original packaging) 20 days notice of Cancellation Section Reasonable Cancellation Fee Section 17 5

107 Business Entities -Sole Proprietorship (Individual Business), Partnership, Non-Profit Organisations, Close Corporations, Companies, Trusts - Sole Proprietorships and Partnerships are both addressed as individuals - A Close Corporation or Company have their own personality separate from members 6

108 Informal Trading 7 Schedule 5 of the Constitution Areas of Provincial Legislature Competence Local Government matters: Abattoirs, Ambulance.. Beaches, Markets and Street Trading. City Of Cape Town Informal Trading By-Law of Promulgated 20 November Informal Trader means a person or an enterprise which is not registered or incorporated in terms of the corporate laws of South Africa and which engages in informal trading

109 Informal Trading (Continued) Informal trading means trading in goods or services in the informal sector by an informal trader and which typically constitutes the types of trading described in section 3.1 and section 3.2; Section 3 defines types of Informal Trading incl: Street trading, markets, mobile (eg caravans), trading at transport interchanges and beach trading Trading Plans for Particular Areas, Includes Public Participation. Adoption (& Amendment may follow) 8

110 Informal Trading (Continued) 9 Informal Trading is only legal with an informal trading permit as applied for. S8(4) In order to qualify for a permit, the applicant must be an informal trader may not already hold a permit in the trading area in respect f which a permit is applied must be a South African citizen, failing which, must be in possession of a valid work permit which includes, but is not limited to, a refugee permit: must not employ and actively utilise the services of more than 20 (twenty) persons

111 Forming an NPO 10 To register an NPO the first step is drafting a constitution and thereafter carrying out business in terms of the Constitution (bank account, signatories..) The founding document or constitution of an NPO must comply with a number of requirements in order for it to be registered with the Department of Social Developmt. These 'mandatory requirements' are as follows:"... the constitution of a non-profit organisation that intends to register must - state the organisation's name; state the organisation's main and ancillary objectives;

112 NPO Constitution Requirements 11 state that the organisation's income and property are not distributable to its members or officebearers, except as reasonable compensation for services rendered; make provision for the organisation to be a body corporate and have an identity and existence distinct from its members or office-bearers; make provision for the organisation's continued existence notwithstanding changes in the composition of its membership or office-bearers;

113 NPO Constitution Requirements 12 ensure that the members or office-bearers have no rights in the property or other assets of the organisation solely by virtue of their being members or officebearers; specify the powers of the organisation; specify the organisational structures and mechanisms for its governance; set out the rules for convening and conducting meetings, including quorums required for and the minutes to be kept of those meetings; determine the manner in which decisions are to be made;

114 NPO Constitution Requirements 13 provide that the organisation's financial transactions must be conducted by means of a banking account; determine a date for the end of the organisation's financial year; set out a procedure for changing the constitution; set out a procedure by which the organisation may be wound up or dissolved; provide that, when the organisation is being wound up or dissolved, any asset remaining after all its liabilities have been met, must be transferred to another nonprofit organisation having similar objectives.

115 Women s Legal Centre IMMIGRANT & REFUGEE RIGHTS THE DOMESTIC VIOLENCE ACT 116 OF September 2011 Presenter: Jody-Lee Fredericks

116 About the Women s Legal Centre (WLC) The Women s legal centre was established in 1999 by the Women s Legal Centre Trust It is a non-profit organisation and is independently funded. The Women s Legal Centre has 5 focus areas and a free legal advice clinic 5 focus areas: 1. Gender- Based Violence 2. Labour law 3. Land and Housing 4. Relationship rights 5. Health and Reproduction rights

117 Vision and mission of the Women s Legal Centre The WLC has a vision of women in South Africa, free from violence, empowered to ensure their own reproductive and health rights, free to own their own share of property, having a safe place to stay and empowered to work in a safe and equal environment. WLC aims to achieve this through public interest and constitutional litigation and advocacy WLC also work with women at grass-roots level by providing free legal advice and conducting workshops within the different communities in South Africa

118 Background on domestic violence Domestic violence has become one of the most significant causes of injury to women and children in South Africa. Statistics in South Africa has indicated that one in every five women is likely to be a victim of abuse and that family violence is also perceivable to be one of the fastest growing criminal acts in South Africa. Also one out of four women is in an abusive relationship, every twenty six seconds a woman is raped and every six hours a woman is even murdered by her intimate partner. The government has identified domestic violence as a crime that violates human rights of persons and requires legislative interventions

119 The Constitution V Refugee and Immigrant Rights against Domestic Violence Chapter 2 of the Constitution contains the Bill of rights The Bill of Rights applies to every person in SA Everyone means every person in South Africa and include refugees, asylum seekers and immigrants. NB: This means that it applies to South African citizens and Refugees and Immigrants

120 Continue: Sections of the constitution S12 (1) Everyone has the right to freedom and security of the person which includes the right c) to be free from all forms of violence from either the public and private sources d) not to be tortured in any way S9 (1) Everyone is equal before the law and has the right to equal protection and benefit of the law. NB: This means that every person has the right to be protected from all forms of violence and can access legislation which deals with violence.

121 The Domestic Violence Act(DVA) What is the Domestic Violence Act? It is the law that governs Domestic Violence in South Africa It aim s to protect victims of abuse and commits the state in stopping all forms of abuse

122 What is Domestic Violence? Physical abuse Sexual abuse Emotional verbal and psychological abuse Economic abuse

123 Continue: what is Domestic Violence Intimidation Harassment Stalking Damage to property Economic abuse includes: Unreasonably withholding money which the victim is entitled by law or requires out of necessity E.g., payment of rent, payment of bond

124 What can a victim of domestic violence do? The DVA allows a victim of domestic violence to apply for a protection order (an interdict) 1. A protection order is a court order that is meant to stop the abuser from abusing you 2. It has legal (criminal) consequences

125 Who can apply for a Protection Order? Any person who is in a domestic relationship. What is a domestic relationship? It is the relationship between a complainant (victim ) and respondent in any of the following ways: They are married to each other- includes Muslim marriages and customary marriages They lived together

126 Continue: who can apply for a protection order Parents of a child Family members related through affinity, consanguinity or adoption They are or were engaged, dating or customary relationship-includes a perceived romantic relationship They share or recently shared the same residence

127 Where can I apply for a Protection Order? The victim or person concerned can approach the nearest Magistrates court where the victim; 1. Permanently lives, temporarily lives or is employed OR 2. Where the respondent lives or is employed OR 3. Where the cause of action arouse- the place where the abuse occurred

128 How do I apply for a Protection order? You must approach the clerk of the court. You do not need a lawyer. You may take with any supporting documents like, medical reports, photographs of the injuries. You may take a friend or family member to accompany you. The clerk of the court will assist you in filling out the necessary forms. Then the clerk will take you before a magistrate who will determine whether to grant the order or not.

129 What are the duties of the Clerk? If the complainant is not represented by an Attorney the clerk must inform the client- Of the relief available in terms of this Act And Of the right to also lodge a criminal complaint against the respondent, if a criminal offence has been committed.

130 Application for protection: Interim protection order The magistrate will listen to your side of the situation. The accused will not be present. If the magistrate believes there is enough evidence of abuse he/she will grant you the interim protection order.

131 What can the protection order state? The interim protection order will request that the respondent does not abuse you. The interim order will prohibit the respondent from: Committing any act of domestic violence Not to ask anyone to harm you Entering the family home Entering a particular parts of the home Entering the place where you currently reside Not to stop you from entering your place of employment

132 Protection order can: Tell the police to take away the abuser s firearm or any dangerous weapon Tell the abuser to provide money for food and other household expenses Refuse the abuser contact with the child Impose additional conditions necessary to protect and provide for the safety, health or well-being of the abused person.

133 If the interim protection order is granted? You will be given a court date in which to appear in front of the magistrate to make the interim protection order a final order. The interim protection order must be served on the respondent. You cannot serve the respondent with the interim protection order. The sheriff of the court or the police must serve the order.

134 Continue: You must give the interim protection order to the sheriff or police in the area where the respondent resides or is employed. If you give it to the police, please ensure that you take down the officer s name and badge number. This will make it easier to track the service. Normally there is a police officer designated to work with domestic violence. NB: The interim protection order will have no force and effect until it has been served on the respondent.

135 Return date This is the date that both parties are required to appear in front of the Magistrate. If the respondent does not appear on the return date? If the court is satisfied that: proper service has been effected i.e. that the respondent was served with the interim protection order by the appropriate officer and that the application contains evidence that the respondent has or is continuing to commit the act of domestic violence, The court will make the interim protection order a final protection order.

136 If the respondent appears on the return date: The court will hear the matter. The court will consider any evidence previously received The court will consider further affidavits and /or oral evidence (e.g. Witnesses)

137 Continue: The court will consider all the evidence and then make a decision based on the evidence. The court will grant the final protection order if it is satisfied that on a balance of probabilities the respondent has or is committing an act of domestic violence. NB: The protection order will remain in force until it is set aside.

138 What happens when the abuser breaches the protection order? Inform the police immediately and give them the suspended warrant of arrest. The abuser can then be arrested or be given notice to appear in court. The court may sentence him for up to five years or fine him or both sentence and fine him. Once the suspended warrant is used you must go to court to obtain a new suspended warrant.

139 Duty of police officers Police must at the scene of Domestic Violence, or soon thereafter or when the incident of domestic violence is reported, Explain to the complainant the remedies available including, the protection awarded under the domestic violence act and the right to lodge a criminal complaint.

140 Continue: Duty of police officers Also provide assistance to the complainant, as it may be required e.g. Assisting or making arrangements for the complainant, e.g. finding shelter for client Assisting the complainant to get medical treatment, Escorting the complainant to collect her/his things

141 Continue: Duty of Police The Domestic violence act places a great duty on the Police to enforce the protection order. What can I do if the police fails to act on my Protection order? S18 (4)(a)- Failure to comply with an obligation imposed in terms of the Act constitutes misconduct and such failure must be reported to the Independent Complaints Directorate (ICD)

142 Variation or setting aside the protection order. NB: The Protection Order will remain valid throughout South Africa until the Protection Order is Set- aside You can apply to have the order varied. You can apply to have the order set aside The court will grant the order to the if effect you request provided that: The court is satisfied that the application is made freely and voluntarily.

143 Thank you Women s legal centre Cape town Telephone: (021) Eastern cape Telephone: (043)