Our fight against domestic violence, one community workshop at a time

Our fight against domestic violence, one community workshop at a time

By Zunaid Latief, Cape Town

 

Domestic violence, in all its unsightly forms, reaches every corner of our society. Abuse is an issue that does not respect race, gender, sexuality, class, religion or wealth. It is however, especially prevalent in previously disadvantaged communities. Women, children and men are subjected to physical, verbal, psychological, emotional and financial abuse daily. Alarmingly, abuse most commonly occurs within a domestic setting. Bearing this in mind, we are faced with a simple question. What can we do to combat and prevent domestic violence?

Between the period of 17 January and 17 July 2018, the ProBono. Org Cape Town office has seen a significant decrease in the number of cases pertaining to domestic violence. We would like to think that our various community workshops held across Cape Town’s most poverty-stricken regions is positively influencing the number of clients seeking legal advice in respect of domestic violence. With the assistance of the selfless attorneys on our panel, we have managed to embark on a venture that entails educating the public and creating awareness on domestic violence and its far-reaching consequences.

The aim of these workshops is not limited to merely creating awareness. We also aim to equip communities with the legal tools and mechanisms afforded to them in terms of the Domestic Violence Act and the Harassment Act. For example, the court process involved with instituting an application for a protection order is thoroughly explained and attendees at the workshops are encouraged to liaise with the local South African Police Services and court officials when utilising these tools.

Previously, these workshops were limited to a few areas in Cape Town such as Khayelitsha and Macassar. However, during the course of the year, the staff at the ProBono.Org Cape Town office in collaboration with the enthusiastic attorneys on our panel, have overseen workshops in several new areas such as Elsies River, Kuils River, Gatesville and Athlone. Furthermore, we are looking at branching out even further, with workshops scheduled to be held in Bonteheuwel, Delft and Bishop Lavis in the near future.

The effects of branching out into these areas have been overwhelmingly positive. In tandem with the commitment of our panel attorneys as well as the dedication of the local community advice offices, a platform is being established where members of the community are being empowered with knowledge and equipped with mechanisms to combat and prevent domestic violence and, more importantly, educate their families, neighbours and colleagues in this regard.

While the fight against domestic violence is a long and tedious one, blighted with obstacles and hardships, it is evident that the most significant way to assist communities in navigating these obstacles is to empower them with knowledge, creating a sense of awareness and informing them of the legal mechanisms in place. This in turn breeds a sense of confidence amongst the community and, we believe, impacts the number of cases relating to domestic violence that come through our door. This idea must continue to be enforced and should later transcend into all other areas of concern in the law… one community workshop at a time.

 

Click here for our complete August 2018 Newsletter

Marriages (civil, civil unions and registered customary marriages) concluded with the (main/only?) aim of obtaining permanent residency and ultimately South African citizenship – are they valid marriages?

Marriages (civil, civil unions and registered customary marriages) concluded with the (main/only?) aim of obtaining permanent residency and ultimately South African citizenship – are they valid marriages?

By Elsabe Steenhuisen

 

This is a complex issue with legal and moral implications which are briefly dealt with here. The full discussion is available on our website.

Marriage is a special type of juristic act resembling a contract, but remaining sui generis as marriage creates a status while ordinary contracts do not. The right to marry is not protected in our Constitution, but it was held that sec 10 in the Bill of Rights should be interpreted so as to afford protection to the core elements of the institution of marriage and family life and the right and duty of the parties to live together as spouses.

In light of the above, should there be a problem when a person opts to change their status from unmarried to married in order to obtain other rights, and then opts to get divorced upon securing such other rights? In other words, is it correct to refuse a divorce in order to punish a person for obtaining these other rights by forcing a person to stay married? Is it a legal problem, a moral problem, or both?

The Department of Home Affairs (DHA) discovered in 2010 that almost 7 000 South Africans ended up in fake marriages with foreigners in the past three years. “In cases where the transaction is honoured, the victim will approach Home Affairs… to apply for a new identity document, claiming his or her ID is lost. When records show the applicant is married, he or she will claim the marriage took place without his or her consent, and will then seek annulment. Often, when this scam happens, the foreigner has by then already obtained citizenship and/or permanent residence in the country.” (www.iol.co.za/news/ politics/7-000-locals-in-fraudulentmarriages-670475).

ProBono.Org encountered at least three scenarios in this situation:

  1. One of the spouses had no idea of the marriage but found out later by chance that he/she is married. One normally asks for expungement from the DHA and if necessary one would approach the court asking for an order to compel the DHA to expunge.
  2. Both spouses agreed to the marriage – the SA citizen is normally compensated or promised compensation for the assistance given to the non-SA citizen. The non-SA citizen usually disappears immediately or a short while thereafter. In most instances the parties did not have an intimate relationship or at most, a few liaisons.
  3. Both spouses agreed to the marriage – one of the spouses is totally innocent and the behaviour of the other spouse comes as a shock. Sometimes the SA citizen ensures large gifts from a foreign spouse and then disappears, or a SA citizen was naive and did not know that the noncitizen had ulterior motives.

Should the courts refuse to grant adivorce in scenarios two and three,based on the view that no marriage was concluded, or that the marriage was concluded for fraudulent purposes and the plaintiff comes to the court with unclean hands?

Sec 11(6) and 26(b) of the Immigration Act 13 of 2002 deal with the legal requirements for spousal visas and spousal permits. Once the marriage has been in place for five years, permanent residency can be applied for but the permit shall lapse if at any time within two years of the issuing of the permit the good faith spousal relationship no longer exists.

But the question remains: how should the court view marriages as stated in scenarios two and three – valid, void or voidable? The Martens (1952) and Maseko (1992) cases give us the answer. Provided the marriage has been properly solemnised, its validity is unaffected where the parties marry for a purpose extraneous to marriage. In such instances one can say that the parties married without the intention of establishing a true marriage relationship. For example, if they enter into it as ‘a joke’, or for the purpose of enabling one party to enter or remain in the other party’s country, or to be permitted to leave his or her own country – the marriage is valid.

Another problem arises – what grounds is the plaintiff going to present as reasons for an irretrievable breakdown of the marriage relationship?

We advise that the allegations and the evidence should provide the real reasons for the marriage.

 

Click here for our complete August 2018 Newsletter

Wills Week at ProBono.Org

By Swazi Malinga

As part of our community outreach, we conduct workshops to create awareness about the importance of having a Last Will and Testament. We regularly visit communities in areas like Orange Farm, Tembisa and Kagiso. When a client approaches our offices with a request to draft a will, we send a request to our panel of volunteer attorneys and, depending on their availability, they will take on one or two wills drafting requests at a time. Although this process works, it does take a long time and we sometimes receive at least ten client requests a week, which then results in a backlog. We therefore decided to embark on a ProBono.Org Wills Week from 23 to 27 July 2018, which coincided with the Mandela Centenary celebrations.

We are proud to announce that during the week we were able to draft 100 wills for our clients. We would like to extend our gratitude to the following law firms who volunteered their time and drafted these wills: Maponya Attorneys, Ndangije Attorneys, Klopper Jonker Attorneys, Norton Rose Fulbright SA and Werksmans Attorneys.

 

Click here for our complete August 2018 Newsletter

Women’s Day 2018

ProBono.Org Johannesburg held our annual Women’s Day event on 15 August, which was attended by 87 women from Orange Farm, Kagiso, Tembisa and Dobsonville. Grateful thanks to everyone who assisted us to make this day special:

  • Our guest speaker Sibongile Baloyi, acting head of the UNISA Law Clinic, who addressed the audience on customary marriages
  • NGOs who came and spoke about their work, including Legal Aid SA, who gave out T-shirts and water bottles, the S A History Archive, the Advisory and Information Centre Law Clinic, and the Teddy Bear Clinic who provided teddy bears.
  • Third and final year law students from UNISA, WITS, UJ and one of our previous interns who were our volunteers on the day.
  • Over 15 lawyers who volunteered their time to hold individual consultations with women who needed legal advice.
  • Mjele Msimang who volunteered to take the photos.

 

Click here for our complete August 2018 Newsletter

Lauren Salt from Baker McKenzie’s Employment and Compensation Group discusses gender pay disparities

Our guest was Lauren Salt, senior associate in Baker McKenzie’s Employment and Compensation Group in Johannesburg. Lauren represents both local and international clients in various industries including financial services, consulting, aviation, media, maufacturing and mining. To mark Women’s Month Lauren will address gender pay disparities and the rights provided by legislation, both here and internationally.

Join Patrick Bracher for ProBono Law on alternate Thursdays at 18h30 (GMT+2), proudly brought to you by ProBono.Org and Norton Rose Fulbright South Africa. ProBono.Org actively increasing access to justice! Radio Today (@Radio2Day) broadcasts on 1485 MW (AM) in Johannesburg and countrywide on #DStv Audio Channel 869. Radio Today also streams globally on: www.1485.org.za and 1485.mobi. Radio Today! Radio that delivers!

Peter Delius, Professor and historian at Wits talks about land rights and the land restitution process

Our guest was Peter Delius, Associate Professor and historian at Wits, and writer of The Land Belongs to Us, who will talk about land rights and the land restitution process. In 2015 the Constitutional Court declared the Restitution of Land Rights Act invalid and stipulated that land claims lodged by 1998 had to be finalised before the act was re-enacted. In an article published in April, Prof Delius argues that the land claims process may never be finalised (see attached).

Join Patrick Bracher for ProBono Law on alternate Thursdays at 18h30 (GMT+2), proudly brought to you by ProBono.Org and Norton Rose Fulbright South Africa. ProBono.Org actively increasing access to justice! Radio Today (@Radio2Day) broadcasts on 1485 MW (AM) in Johannesburg and countrywide on #DStv Audio Channel 869. Radio Today also streams globally on: www.1485.org.za and 1485.mobi. Radio Today! Radio that delivers!

ProBono.Org Durban’s Appreciation Day 2018

ProBono.Org Durban’s Appreciation Day 2018

By Shamika Dwarika

 

The Durban office of ProBono.Org hosted its third annual Appreciation Day on 20 April at Howard College, University of KwaZulu-Natal. The occasion is an opportunity for us to thank the attorneys who have given generously of their services on a pro bono basis, as well as expressing our  gratitude to some of our partners. Several legal practitioners received certificates for their outstanding pro bono work. Mr Ravin Jankhi, the storyteller MC, got into the spirit of the event and rendered his services on a pro bono basis. The event saw the Judge President of the KZN High Court, Judge Jappie, give a motivational keynote address. The main sponsor for this year’s event was LexisNexis.

 

Click here for our complete June 2018 Newsletter

Mediation at ProBono.Org

By Swazi Malinga.

 

As part of our service to the community, we offer pro bono mediation. We have a panel of qualified and dedicated mediators who are readily available to assist our clients. In the family law context, we offer mediation to parents of minor children, often parents who are not married to each other, who cannot decide on a workable co-parenting arrangement. A mediator tries to assist them to enter into an agreement that they are happy with and that will promote the best interests of their minor child. The parenting plan will deal with the care and contact of the child, which will include visitation schedules and primary residence, and in some instances the parents may even agree on the religion the child should follow. An important factor is that of maintenance, which is often an issue in dispute between parents. To clients getting divorced, we offer mediation of settlement agreements which will also incorporate a parenting plan. This allows the divorcing parents to decide and negotiate their own terms and conditions.

Mediation can be challenging because many people still believe that going to court is the best and only way of resolving disputes. Some clients do not regard mediation as a legal process, do not take it seriously, and fail to turn up on the day of the mediation session. Our task therefore also entails creating awareness about the importance and benefits of mediation. We conduct workshops in communities to explain that mediation is much cheaper and has the ability to resolve disputes speedily, rather than engaging in lengthy and costly litigation. However, our problems don’t end there, as we also face some degree of resistance from our colleagues in the legal profession, who may be representing the other party, and reject a suggestion of mediation as they fear losing out on their fees. We are pro mediation, as it provides a safe ground for the parties and all discussions that take place during the sessions are confidential and thus cannot be used in a court of law save for the final written agreement by the parties. We are mindful that not all disputes can be mediated, but feel that clients should be offered this option. If more legal practitioners encourage mediation, more clients and the community at large will take mediation seriously and regard it as an effective alternative dispute resolution.

 

Click here for our complete June 2018 Newsletter

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By Elsabe Steenhuisen.

In short, the answer is “yes”. The reasoning, with reference to case law, follows below.

1. What does the Common Law state?

The Common Law position is that children below the age of seven are infans and cannot act. A curator or a guardian has to act on behalf of the child. If children are over the age of seven, but under 18, they must be assisted either by a curator or their guardian. If the guardian is not available, the court must appoint a curator on motion proceedings.

2. Did the case law change this position?

Yes, by a gradual process, which is still developing. In 2000, in the Christian Education South Africa case, the court held that in a case concerning children, their “actual experiences and opinions would not necessarily have been decisive, but they would have enriched the dialogue, and the factual and experiential foundations for the balancing exercise in this difficult matter would have been more secure.”

In 2003 in the Soller case the court appointed a legal representative for the child, to whom the child gave instructions directly and without assistance of a guardian or curator ad litem.

In 2008 the court in the Pillay case remarked that the need for the child’s voice to be heard is perhaps even more acute when it concerns children mature for their age, who should be increasingly taking responsibility for their own actions and beliefs.

In 2009 the Legal Aid Board acted for a 12 year old girl. The court ruled that the Board did not need to obtain consent of either the court or the child’s guardian to represent a child. This was confirmed further in 2011 by the Supreme Court of Appeal when the Board acted in the Four Children case, and in 2012 in the Brossy case.

3. What does the legislation require?

The Child Justice Act merely requires “a parent/guardian/other suitable person” to assist child offenders who instruct their legal practitioners themselves. The Children’s Act allows representation of a child without a guardian. Some magistrates in the Children’s Courts require an application by the legal practitioner to allow the child to be represented. The Divorce Act allows the court to appoint a legal practitioner to represent a child at the proceedings and may order the parties or any one of them to pay the costs of the representation.

Section 28(1)(h) of the Bill of Rights provides that: “Every child has the right to have a legal practitioner assigned to the child by the state at state expense, in civil proceedings affecting the child, if substantial injustice would otherwise occur”. In the Van Niekerk case in 2005 the Centre for Child Law was allowed to apply ex parte for the appointment of a legal representative in terms of s28(1)(h) for two girls, without their guardian’s consent. ProBono.Org agrees with the Centre for Child Law that this section does not preclude registered legal organisations to secure legal representation for children. Section 28(1)(h) does not give the state exclusive rights in this respect.

In conclusion, if any person (who qualifies in terms of the means test) approaches ProBono.Org for assistance, we will obtain representation without the guardian’s permission, and if necessary the legal practitioner will obtain the court’s permission to act on behalf of the child, because we interpret the current state of the law as not to limit a child’s right to legal representation. We acknowledge Professor Ann Skelton of the Centre for Child Law, who dealt with this issue during a ProBono.Org breakfast on 18 October 2017, and thank her for the notes she made available for use by ProBono.Org. Full case references are available on request.

 

Click here for our complete June 2018 Newsletter

Attorney Profiles

Delia Jay


Durban attorney Delia Jay recently concluded a very interesting family law matter. When the client came to us at the pro bono desk, she had been turned away by everyone and told there was nothing that anyone could do to help her get divorced. She needed to get divorced as she had a new partner with whom she had had a child. The client’s husband was a Nigerian and he left South Africa 15 years ago. Despite client’s efforts, he could not be located.

Delia contacted a tracing agent to do a search for the husband, but he could not be found. In the end, Delia had to make an application for substituted service to get an interim order on affidavit stating that she could advertise in Canada, where client had last received a phone call from her husband in 2002. The order was granted and Delia personally raised the money to advertise in the Toronto Star, which was about R10 000 because of the poor exchange rate. ($ 1000 Canadian dollars). Delia advertised and the court finally agreed to set the matter down.

There were many delays, largely because dealing with the Durban Regional Magistrate’s Court, trying to get documents issued and a court date granted were very challenging. At times Delia felt like she was on a lone crusade and wanted to give up. It was also time consuming, as being a sole practitioner she had to attend to everything herself, including indexing and paginating, and making sure her file didn’t get lost. The magistrate eventually heard the matter on 10 April 2018 and granted the divorce. Delia feels a great deal of satisfaction in having finally achieved a happy result for the client so that she can move on with her life and her family.

 

Chrysi Kripotos


Chrysi Kripotos is an attorney practising in her own firm in Johannesburg. She is a conveyancer who has been in practice for 34 years.

The ProBono.Org Deeds Office help desk opened its doors at the Deeds Office in Johannesburg in June 2017. Chrysi has been part of the help desk since then. Chrysi says that she loves helping people who cannot afford legal services and that attending the help desk is the highlight of her week.

Chrysi has assisted clients with property transfers, donations, correction of names in the title deed, transfers from deceased estates, drafting of wills as well as section 17, 45 and 93 registrations.

Chrysi gets really frustrated when she is unable to assist clients. She feels that the help desk needs more qualified attorneys to assist with clients’ problems due to the number of people seeking help and that more days should be allocated in order to assist the indigent.

Some of the challenges include consulting with clients who coerce their elderly parents to make transfers in their favour. The consulting attorney has to ask the relevant questions in order to determine whether the transfer is in good faith and that the elderly parents are aware of the legal implications. Another challenge often encountered is the transfer of property from household permits to a title deed in terms of the Conversion of Certain Rights into Leasehold or Ownership Act. This has resulted in many clients seeking legal assistance at the help desk in order to reverse property transfers. Many of these transfers have divided families and it is unfortunate that many people still do not know about an Act that affects their lives so profoundly.

 

Portia Tsele, our latest Johannesburg intern


We welcomed Portia to the team in May and she is working with the Housing, Refugee and Community Advice Office unit.

She has an LLB from UNISA and is working towards an LLM in Property Law with the same university. She began her journey with ProBono.Org as a volunteer. Her reason for studying law was to give her the opportunity to help people. Working at ProBono.Org as a legal intern extends the reach of her charitable nature and enables her to assist the vulnerable and indigent members of our society.

Outside of work she is a member of the Catholic Women’s League and engages in their social welfare activities such as child adoption.

Portia hopes that her continued passion for assisting the marginalised and vulnerable in society helps her to make a meaningful contribution to the legal fraternity.

 

Click here for our complete June 2018 Newsletter

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