Promoting Human Rights & Rule of Law in South Africa

Cases

SALC works with local lawyers and civil society organisations to litigate cases further human rights and rule of law in domestic courts. See below our ongoing and completed cases.

Ongoing Cases

Malawi: Litigation to decriminalise consensual same-sex sexual acts

In September 2013, the Blantyre High Court issued a notice requesting amicus curiae submissions on whether the offence of sodomy is constitutional. SALC assisted a local organisation, the Centre for Human Rights Education, Advice and Assistance (CHREAA), to file a submission which argues that the offence of sodomy, to the extent that it does not distinguish between consensual and non-consensual acts, is unconstitutional. Various human rights organisations based in Malawi » Read More

Swaziland: Activists Challenge Constitutionality of the Sedition and Subversive Activities Act

SALC is supporting three individuals who were charged with sedition for allegedly participating in a march that encouraged Swazis to boycott the 2013 national elections. The definition of sedition in the Sedition and Subversive Activities Act is extremely broad and vague, and this lack of clarity over what conduct is prohibited by the legislation has enabled Swazi authorities to use the offence to suppress legitimate dissent. The three individuals are accused » Read More

Zimbabwe: Challenging Unlawful Arrest of a Transgender Woman

On 16 January 2014 a transgender activist was arrested in Bulawayo after entering a female toilet. At the police station she was forced to strip and examined by medical doctors to verify her gender. After spending two nights in a holding cell, she was charged with criminal nuisance. SALC is providing support to the woman to pursue a claim for damages against the police for unlawful arrest. SALC is working » Read More

Swaziland: Challenging the Suppression of Terrorism Act and the Sedition and Subversive Activities Act

Mario Masuku and Maxwell Dlamini were arrested on 1 May 2014 after participating in a May Day gathering in Manzini. Masuku spoke at the gathering and Dlamini participated in the singing of songs, and both used the gathering to draw attention to various challenges facing Swaziland. They were charged with two charges of contravening the Suppression of Terrorism Act, and two charges of contravening the Sedition and Subversive Activities Act » Read More

South Africa: Challenging NPA inaction for TRC related prosecutions

Nkadimeng v the National Director of Public Prosecutions and others SALC is supporting the family of Nokuthula Simelane to compel the National Prosecuting Authority (NPA) to either refer the disappearance of anti-apartheid activist Nokuthula Simelane for an inquest or to make a decision whether to prosecute. Nokuthula Simelane was abducted, tortured and forcibly disappeared in 1983 by members of the Security Branch of the former South African Police. She was a twenty-three year » Read More

SOUTH AFRICA/SUDAN: SEEKING IMPLEMENTATION OF ICC ARREST WARRANT FOR PRESIDENT BASHIR

SALC sought the implementation of an arrest warrant for Sudan’s President Omar al Bashir who arrived in South Africa for the African Union (AU) summit that took place in Johannesburg 7-15 June 2015. The International Criminal Court (ICC) issued a warrant for his arrest in 2009 and 2010 on charges of war crimes, crimes against humanity and genocide allegedly committed in Darfur after a 2003 insurgency. As a signatory to the Rome Statute » Read More

SOUTH AFRICA: SUPPORTING REGIONAL ACCESS TO JUSTICE

SALC will be making amicus submissions before the High Court in the matter of the Law Society of South Africa vs the President and Others. In August 2014 the new SADC Tribunal Protocol was signed by President Jacob Zuma. Under this protocol the SADC Tribunal is only permitted to hear inter-state disputes, removing the previous access granted to individual citizens of SADC to bring matters before the Tribunal as stipulated » Read More

Botswana: Appointment of judges and procedures of the Judicial Service Commission

In 2015, the Law Society of Botswana brought an application in the Gaborone High Court challenging the process of appointment of judges to the High Court in Botswana. The case focused on the interpretation of section 96(2) of the Constitution of Botswana, which provides that "judges of the High Court shall be appointed by the President, acting in accordance with the advice of the Judicial Service Commission". The Law Society » Read More

MALAWI: CHALLENGING CONSTITUTIONALITY OF ROGUE AND VAGABOND OFFENCE

In March 2015, the applicant was arrested by police whilst on his way to the market where he works as a street vendor. He was charged with the offence of being a rogue and vagabond. Section 184(1)(c) of the Penal Code provides that "every person in or upon or near any premises or in any road or highway or any place adjacent thereto or in any public place at such » Read More

Malawi: A right to palliative care for remandees

SALC is working with the Centre for Human Rights Education Advocacy and Advice (CHREAA), building on previous work establishing a right to bail for terminally ill remandees, to develop a right to palliative care for persons in detention in Malawi. The applicant was a remand detainee at Maula prison who was in terminal liver failure. Two medical reports documented the inability of facilities and resources in detention to provide for his palliative needs » Read More

MALAWI: CHALLENGING THE USE OF THE OFFENCE OF LIVING ON THE EARNINGS OF PROSTITUTION

In February 2016, 19 women were arrested and charged with the offence of living on the earnings of prostitution contrary to section 146 of the Penal Code. The women pleaded guilty to the charges and they were convicted upon those pleas and sentenced to a fine. SALC and the Centre for Human Rights Education, Advice and Assistance (CHREAA) supported the women to bring a review application on the basis that the » Read More

BOTSWANA: PROTECTING WOMEN’S INHERITANCE RIGHTS UNDER CUSTOMARY LAW

SALC is working with Rantao and Kewagamang Attorneys to assist an adult woman, who is a daughter and only surviving child, to challenge the decision of the Customary Court of Appeal that awarded her deceased parents’ house to her two nieces. In awarding her deceased parents’ house to her two nieces, the Court reasoned that under the Kgatla Customary Law, only the last born male inherits the family homestead and » Read More

ZIMBABWE: PROTECTING WOMEN’S RIGHTS TO MATRIMONIAL PROPERTY

SALC is working with Women and Law in Southern Africa –Zimbabwe (WLSA – Zimbabwe) to challenge the decision of the Master of the High Court (Master) that approved a distribution plan awarding a farm equally amongst the surviving spouse and all the 10 children to the deceased husband, thereby reducing the surviving spouse’s share to that of a child. The farm in issue was acquired by the couple together in » Read More

ZAMBIA: CHALLENGING FORCED EVICTION TO STRENGTHEN AND PROTECT LAND RIGHTS OF THOSE LIVING ON CUSTOMARY LAND AND INFORMAL SETTLMENTS

SALC is working with the Zambia Land Alliance to challenge the newly created Chikankata District Council’s taking over of individual farms and the grazing land of a community of 4429 people without following the legal and constitutional procedures. No compensation, whether in the form of money or alternative land, was provided to affected community members. Upon taking over of the land, the Council cleared the communal grazing land and started » Read More

MALAWI: PROTECTING WOMEN FROM ILLEGAL LAND SEIZURE

SALC is working with Youth Watch Society (YOWSO) to help a poor single woman, Mary, and her widowed mother, Idesi retain the land that they inherited from their deceased father and husband respectively. After inheriting the land in 2006, Mary and her mother have been using it to grow and sell sugar cane. The land was their only source of income for themselves and their families. In April 2012, the » Read More

SWAZILAND: CHALLENGE TO THE COMMON LAW MARITAL POWER AND MARRIAGE ACT

SALC is working with Women and Law in Southern Africa’s Swaziland chapter (WLSA-Swaziland) on a case challenging the common law marital power and the Marriage Act of 1964. Under the common law marital power, a married woman cannot conclude contracts without her husband’s permission, she cannot represent herself in civil suits, and she cannot administer property. This restriction on the right to conclude contracts includes restrictions on the ability to » Read More

SOUTH AFRICA: CHALLENGING THE CONSTITUTIONALITY OF ICC WITHDRAWAL

On 21 October 2016 the South African government announced that it had deposited its instrument of withdrawal from the Rome Statute of the International Criminal Court (ICC) with the United Nations Secretary General. This was done without the necessary parliamentary procedures and is thus the subject of a legal challenge questioning the procedural and substantive aspects of withdrawal. The applicants in the matter cited all parties to the case of Minister » Read More

Nigeria: Mandatory HIV testing and dismissal of an employee on the basis of HIV-status

SALC is working with Lawyers Alert, Nigeria to challenge the mandatory HIV testing of an employee of a security company and his subsequent dismissal on the basis of his HIV-status, in X v Brink and Others. The applicant, Mr X, was an employee of a private security company. Upon commencing his employment, Mr X was ordered by his employer to undergo a medical test at a local hospital in Abuja. He was » Read More

Malawi: Discriminatory sentencing against persons with albinism

SALC is working with the Centre for Human Rights Education, Advice and Assistance (CHREAA) and a private lawyer, Mr Daniel Kalaya, to review a discriminatory sentence against a man with albinism convicted of a criminal offence in the case of S v Precious Michael. The appellant is a man with albinism who was charged with and pleaded guilty to being found drunk and incapable in a public place contrary to section 183(1) » Read More

Malawi: Challenging the criminalisation of breastfeeding by women living with HIV

SALC worked with the International Coalition of Women (ICW), Malawi and a private lawyer, Mr Wesley Mwafulirwa, to support the appeal of a woman living with HIV against her conviction of a crime for breastfeeding a child in EL v the Republic. Facts The appellant, EL, is a woman living with HIV who was convicted of negligently and recklessly doing an act which is “likely to spread the infection of any disease which is » Read More

MALAWI: DETENTION OF LEARNERS FOR PREGNANCY

SALC is working with Youth Watch Society (YOWSO) in Malawi on a case seeking the review of a Magistrates Court decision to fine parents of students who were pregnant and those responsible for the pregnancies at a school in Malawi. The case also challenges the unlawful detention of the students in police cells until such fines were paid. The case was filed in November 2016 and will be heard on 27 » Read More

Zambia: Challenging the Mental Disorders Act of 1949

SALC is supporting a petition by three persons with psychosocial disabilities and the Mental Health Users Network of Zambia (MHUNZA) to repeal the Mental Disorders Act of 1949 in Mwewa and Others v the Attorney General and Others. The Petitioners argue that the Act unconstitutionally infringes on the rights to dignity, liberty and to freedom from discrimination of persons with mental disabilities and denies persons with mental disabilities the protection of the » Read More

SOUTH AFRICA: ICC COOPERATION PROCEEDINGS

The Southern Africa Litigation Centre (SALC) appeared before the ICC on 7 April to argue that the chamber should make a finding of non-compliance against South Africa for its failure to arrest President Omar Al-Bashir when he attended an African Union (AU) Summit in South Africa in June 2015. In December 2016 the ICC had made a decision to convene a public hearing under Article 87(7) of the Rome Statute » Read More

South Africa/Rwanda: Challenging the grant of asylum to alleged perpetrators of war crimes

This case concerns the judicial review of the decision of the South African authorities to grant refugee status to a former Rwandan general and suspected war criminal,Faustin Kayumba Nyamwasa, in June 2010. This case is being brought by the Consortium for Refugees and Migrants in South Africa (CoRMSA) and is supported by SALC. According to international and domestic refugee law, suspected perpetrators of war crimes and crimes against humanity are ineligible for refugee » Read More

MALAWI: ADVANCING THE BEST INTERESTS OF THE CHILD IN DECISIONS RELATING TO INCARCERATION OF CAREGIVERS

SALC is working with the Center for Human Rights Education, Advice and Assistance (CHREAA) to advance best interests of children in decisions to incarcerate caregivers. International guidelines recommend taking into account the best interests of the child in decisions relating to incarceration of caregivers and generally encourage non-custodial arrangements for women with young children where possible and appropriate. In one case, the Applicant, an 18 year old and a first time offender » Read More

Zambia: Health Rights of HIV-positive prisoners

SALC is working with the Legal Resources Foundation in Zambia to secure the rights of HIV-positive prisoners to treatment, adequate food and improvements to prison conditions. The applicant inmates alleged that they only get two meals a day which makes it impossible for them to take their HIV treatment, in violation of their right to life under the Zambian Constitution. They further allege that the conditions in the prison make it more likely that » Read More

Lesotho: Women’s right to chieftainship

On 9 September 2014, Senate Masupha, the Federation of Women Lawyers (FIDA-Lesotho) and the Southern Africa Litigation Centre (SALC) submitted a complaint to the African Commission on Human and Peoples’ Rights challenging Lesotho's law that provides for male-only succession to chieftainship. Ms Masupha, the first born child of a chief, is challenging section 10 of the Chieftainship Act, which denies daughters the ability to succeed to the office of chief solely on » Read More

Zimbabwe: Assisting sex workers to hold police accountable for abuse

SALC is working with the Sexual Rights Centre in Bulawayo to act on and litigate in cases of police abuse of sex workers. The intention is to hold the Commissioner General of the Zimbabwe Republic Police, the responsible Minister and individual police officers accountable for abuse perpetrated against sex workers. In August 2013, a civil case was filed in the Bulawayo High Court on behalf of a woman who was assaulted » Read More

Malawi: Strengthening the Writ of Habeas Corpus

SALC is using the writ of habeas corpus to challenge Malawi’s authority to detain. The applicant, Mavuto Anthony, has been detained for 5 years without a trial. He has been denied bail on a number of occasions. The writ of habeas corpus is rarely used in Malawi and in cases where it has courts have tended not to view illegal detention as enough to justify release. It is hoped that this » Read More

Zimbabwe: Protecting HIV-Positive Employees from Unlawful Dismissal

SALC is working with the Women and Law in Southern Africa's Zimbabwe chapter to challenge the dismissal of a nurse from her employment due to her HIV status. The applicant argues that her dismissal violates her rights to privacy, dignity, and freedom from inhuman and degrading treatment. Preliminary issues were argued before the Constitutional Court on 11 February 2015. The Court reserved judgment on whether the matter should first be heard in the Labour » Read More

Completed Cases

Botswana: Women's Inheritance Rights Under Customary Law

SALC supported a case in Botswana before the High Court challenging a customary law rule which provides only for male inheritance of the family home.The case was an appeal from a decision of the Customary Court of Appeal finding that under customary law, women could not inherit the family home due to their gender. In a landmark ruling, the Court held that the customary law rule infringed the right to equality » Read More

Zambia: Activist defends right to freedom of expression

Paul Kasonkomona is a respected HIV activist and National Coordinator of Engender Rights-Zambia. On 7 April 2013, Kasonkomona was arrested outside MuviTV station after he appeared on a television programme. As a guest on the programme Kasonkomona argued that the rights of sexual minorities, including lesbian, gay, bisexual and transgender persons (LGBT) and sex workers, should be recognised in order to effectively address the HIV epidemic. Kasonkomona was eventually released on » Read More

Botswana: Securing access to HIV treatment for prisoners

SALC worked with the Botswana Network on Ethics, Law and AIDS (BONELA) to challenge the Botswana government's policy of refusing HIV treatment to non-citizen prisoners. Citizen prisoners were entitled to free HIV treatment. In addition, the government provided non-citizen prisoners with treatment for opportunistic infections, such as tuberculosis. However, non-citizen prisoners were expected to finance HIV treatment themselves. BONELA and two HIV-positive, non-citizen prisoners filed a challenge to the policy. » Read More

Zimbabwe: Strengthening Women’s Access to Reproductive Health Services

SALC provided support to the Zimbabwe Women Lawyers Association (ZWLA) in the case of Mildred Mapingure v The State. Mapingure was raped in 2006. She sought emergency contraception within 72 hours of her rape to ensure that the rape did not result in a pregnancy. Despite emergency contraceptives being legal in Zimbabwe, Mapingure failed to access emergency contraception on time due to delays at the police station and their failure to provide proper » Read More

Swaziland: Human Rights Lawyer and Editor Charged with Contempt of Court

In March 2014, human rights lawyer, Thulani Maseko, and magazine editor, Bheki Makhubu, were arrested and charged with contempt of court. The Nation and its publisher were also charged. Maseko and Makhubu had both written articles in Makhubu's magazine, The Nation, in which they criticised the Swazi judiciary and the Chief Justice. Despite various applications for their release and the recusal of the presiding judge, in July 2014 Judge Mpendulo » Read More

Zimbabwe: Challenging the Constitutionality of the Criminal Defamation Offence

In 2014, the Constitutional Court of Zimbabwe ruled that the offence of Criminal Defamation was unconstitutional under the former constitution. However, the Court stated that "[i]t might also be argued that the offence of criminal defamation is a justifiable limitation on the freedom of expression as envisaged by s 86 of the new Constitution," and that "these are matters for argument and consideration as and when an appropriate case is » Read More

Lesotho: Protecting detainees against abuse

SALC worked with the Transformation Resource Centre (TRC) and Catholic Commission for Justice and Peace, Lesotho (CCJP) and the wives of 23 soldiers of the Lesotho Defence Force (LDF) to support the applicants in the matter of Mareka and 22 Others v the Commander of the Lesotho Defence Force and Others. The 23 applicant soldiers brought a challenge to their detention under "closed arrest" under conditions in which they asserted severe abuse and » Read More

Lesotho: Supporting Access to Justice

SALC supported the wife of the late former commander of the Lesotho Defence Force (LDF), Brigadier Maaparankoe Mahao, to oppose court proceedings brought to set aside an investigation into her husband's killing in the matter of Hashatsi v the Prime Minister of Lesotho and Others. Brig Mahao was killed in June 2015 by members of the LDF. His killing occurred in the context of a security crisis in Lesotho and under the » Read More

SWAZILAND: INVOLUNTARY STERILISATION OF A WOMAN LIVING WITH HIV

SALC supported a case on the involuntary sterilisation of a woman in Swaziland. The case filed in November 2015 sought an order declaring that the Applicant was sterilised without her informed consent violating her rights to: human dignity, protection from cruel inhumane and degrading treatment and right to found a family as protected by sections 18(1), 18(2), and 27(1) of the Constitution of the Kingdom of Swaziland. The Governments plea » Read More

Lesotho: Palliative Care for Military Prisoners

SALC supported a case brought by private lawyer, Advocate Mole Kumalo, to compel the Lesotho Defense Force (LDF) to permit a soldier being held in detention to access medical care, and thereafter, to be released on "open arrest" (a form of military bail) on the basis of his palliative needs. The applicant is the wife of a soldier who was detained in Maseru Maximum Prison. She approached the High Court on » Read More

Zambia: Mandatory HIV Testing of Military Employees

In May 2010, the High Court in Livingstone found that both petitioners, Stanley Kingaipe and Charles Chookole, were subjected to HIV testing without their informed consent in violation of their rights to privacy and to be free from inhuman and degrading treatment, and that they were entitled to damages. Kingaipe and Chookole, former employees of the Zambian Air Force (ZAF), alleged that not only were they subjected to mandatory HIV testing, » Read More

South Africa/Zimbabwe: Challenging the NPA’s Refusal to Act in Terms of the ICC Act

In 2008, SALC submitted a dossier to the South African National Prosecuting Authority (NPA) containing comprehensive evidence of the involvement of eighteen Zimbabwean security officials in perpetrating torture, and requested the NPA and the South African Police Service (SAPS) to initiate an investigation. The NPA has an obligation to investigate cases of alleged international crimes under the Implementation of the Rome Statute of the International Criminal Court Act. South Africa is » Read More

Zambia: Two men accused of "carnal knowledge against the order of nature"

SALC supported the defence of two Zambian men who were charged under section 155 of the Zambian Penal Code. In terms of section 155 of the Penal Code, any person who (a) has carnal knowledge of any person against the order of nature; or (c) permits a male person to have carnal knowledge of him against the order of nature; commits a felony and is liable, upon conviction, to imprisonment for at » Read More

South Africa: The Constitutionality of the Confidentiality Provisions in the South African Refugees Act

SALC was admitted as amicus curiae (friend of the court) in the Constitutional Court matter, Mail and Guardian Media Limited and others v Chipu NO and others. On 27 September 2013, the Court ruled that section 21(5) was unconstitutional as it was an unjustifiable limitation of the right to freedom of expression. In a unanimous judgment Judge Zondo suspended the invalidity for two years to enable Parliament to correct the » Read More

Malawi: Protecting Rights of Same-Sex Couple

Steven Monjeza and Tiwonge Chimbalanga were arrested on 28 December 2009 and charged with violating sections 153 and 156 of Malawi’s Penal Code prohibiting carnal knowledge against the order of nature and gross indecency between males. They had held a traditional engagement ceremony two days prior to their arrest, a fact which was widely reported in the local press. The Magistrate found the couple guilty of both offenses and sentenced them » Read More

Malawi: Mandatory HIV testing of women

On 10 March 2011, eleven women from Mwanza, Malawi, filed an application in the Blantyre High Court challenging their subjection to mandatory HIV tests, the admission of the HIV test results as evidence in criminal cases against them, and the public disclosure of their HIV status in open court. The women argue that these actions by government officials violated their constitutional rights. On 25 February 2014, Justice Dorothy Kamanga heard submissions » Read More

Malawi: Protecting women's right to property

SALC is working with the Women and Law in Southern Africa's Malawi (WLSA-Malawi) chapter to challenge a common law principle which requires a showing of monetary contribution to property when determining distribution at the time of divorce. The effect of this principle is that women are often denied property to which they provided non-monetary contributions. The case was brought by WLSA-Malawi and heard before the Constitutional Court in December 2008. » Read More

Namibia: Coerced Sterilisation of HIV-Positive Women

SALC is working with the Namibia Women's Health Network and the Legal Assistance Centre to challenge the coerced sterilisation of three HIV-positive women at public hospitals in Namibia. In July 2012, the High Court held that all three women were subjected to coerced sterilisation in violation of their fundamental rights and were thus due compensation. The Court found that there was not adequate evidence to prove that the coerced sterilisation » Read More

African Court: Request for Advisory Opinion on Suspension of SADC Tribunal

On 23 November 2012, SALC and the Pan African Lawyers Union filed a request for an advisory opinion at the African Court on Human and Peoples’ Rights. The request asks the Court to use its advisory powers to determine whether the suspension of the Southern African Development Community (SADC) Tribunal by the region’s leaders was legal or not. On 10 January 2013, the case was found inadmissible as a similar matter » Read More

Botswana: Challenging refusal to register LGBT organisation

In March 2013, twenty individuals filed a case before the High Court of Botswana, asking the court to review the decision by the Director of Civil and National Registration and the Minister of Labour and Home Affairs to refuse to register the organisation, Lesbians, Gays and Bi-sexuals of Botswana (LEGABIBO). The case was supported by the Southern Africa Litigation Centre. Once registered, LEGABIBO aims to provide an opportunity for lesbians, gays and » Read More

Botswana: Ending discrimination in adoption

SALC supported a challenge to the Adoption of Children Act in Botswana, which permitted the adoption of a child born out of wedlock without the consent of the child's father, regardless of the child's best interests. SALC worked with the Botswana Network on Ethics, Law and HIV/AIDS (BONELA) and Uyapo Ndadi, a private lawyer. The applicant sought to prevent his biological child from being adopted. He argued that the Act violated his constitutional » Read More

Malawi: Right to Bail for Terminally Ill Remandees

The case law in Malawi deemed that bail should only be granted in cases of terminal illness and only if the illness could not reasonably be managed in prison. It also dictated that bail should be granted only for terminally ill detainees, who contracted their illnesses before they were imprisoned, but not if the illness occurred in prison. SALC challenged this precedent on behalf of Chimwemwe Mphembedzu who at 15 was » Read More

Promoting Human Rights & Rule of Law in South Africa

Cases

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