On 6 December a good crowd of attorneys, advocates and mediators gathered at our offices to socialise and give us feedback on their experiences staffing our legal clinics and help desks and taking on our clients’ cases. We are grateful for this feedback and also for the good work of all our partners in 2018. We are proud to report that with your help we have assisted over 10,000 needy people this year. We wish every one of you a restful and happy festive season.
By Neliswa Ncama, Durban intern
The passing of a loved one is one of the most challenging experiences that a family has to face. After a funeral, they are left to pick up the pieces and figure out how to proceed after this tragedy. The family would have to begin the process of winding up the estate by reporting the death to the Master of the High Court. A number of issues may arise at this point; one of them being the transfer of the property once the estate has been wound up.
A conveyancer is needed to handle the transfer of the property so that the ownership of the property vests in the heir. In theory, this may seem to be the sensible approach considering the complexity of transfer matters. However, it is hard for the poor and marginalised to be able to afford these services, as conveyancers’ costs are just too high. In the event that the family is able to raise the money to pay a conveyancer, or organisations such as ProBono.Org are willing and able to assist with this transfer, the family is still faced with the challenge of ensuring that utilities and rates are paid up to date, in order to receive a clearance certificate before transfer can take place.
ProBono.Org is only able to assist in matters where the value of the estate is below R250 000 and where the client is able to pay the disbursement costs, which would include transfer costs required by the Deeds Office. In the instance that someone is unable to access pro bono services, they would also be required to pay the costs of a private attorney. While the rationale is that the estate will cover such costs, the reality is that often the only asset in the estate is the house that needs to be transferred. Payment arrangements may also be made with a private attorney, but this just means that the process may take years to complete.
These expenses are the reason why many families do not have title deeds to a property. Without them, the family may still have security of tenure (or rights in the property) but these are incomplete as the heir/s are still unable to fully exercise their rights. If the heir is unable to get the property transferred, issues such as encroachment of property, payment of utilities and the ability to evict others from the property are difficult, and sometimes. impossible, for the heir to deal with, as proof of ownership is required.
The time has come when the Deeds Office needs to cater for the poor, who make up the majority of our population. The Deeds Office should put in place systems to assist a lay person with the transfer of property. Many other government institutions allow a lay person to transact on their own. An example of this is where the Master’s Office allows a lay person to report a deceased estate valued below R250 000, without requiring them to appoint an attorney. This is a massive cost saving for a poor person. Alternatively, there should be some sort of government subsidy or loan that families in this position could apply for in order for property rights to be attained by the most vulnerable in society. The death of a loved one should not be the reason why a family’s dignity is compromised and puts them in a situation where they do not own their own home.
By Uzair Adams
Social media platforms have become an increasingly convenient and instant means of communication across the globe. However, easy access to Facebook, WhatsApp and Twitter, amongst others, does not come without drawbacks, particularly relating to matters of defamation.
Defamation via social media has been the bone of contention of several hearings before the Commission for Conciliation, Mediation and Arbitration (CCMA), particularly where employees share information regarding their employers that is disgraceful or detrimental to their employers’ reputation.
On 6 November 2018, ProBono.Org Cape Town was approached by a children’s hospice for assistance with a labour dispute relating to the conduct of an employee, where an allegation was made via a WhatsApp text message to one of the employer’s board members alleging maladministration, financial mismanagement and a lack of transparency by the CEO of the nonprofit organisation.
The employee was subsequently charged with defamation of character, in that he intentionally conveyed false information to the board member, and was further charged with bringing the organisation’s name into disrepute, in that he claimed that the CEO had misrepresented the organisation’s financial position to the Department of Social Development.
In this regard, a disciplinary hearing ought to have been held on 22 August 2018, where Mr. M was appointed as an independent chairperson, but he was unfortunately involved in a serious accident and was no longer able to oversee such disciplinary process. The children’s hospice, like many NGOs in South Africa, is currently faced with an unfortunate funding crisis, and has limited financial and human resources available that would have enabled a fair and thorough disciplinary hearing. ProBono.Org Cape Town proceeded to brief counsel to act as an independent chairperson and to facilitate the disciplinary hearing, which was held on 23 November 2018.
Summary of the Chairperson’s findings:
- The chairperson noted that he could not find the employee guilty on both allegations as it would amount to a duplication of “convictions”.
- The chairperson could see no evidence showing that the employee had brought the employer into disrepute. The allegation made was via a private WhatsApp text message to one of the employer’s board members. There was therefore no evidence that the employee’s allegation was publicised in any way, or that it affected the employer’s reputation.
- The question remained whether the employee was guilty of defamation of character in that he ‘intentionally gave false information that humiliated and belittled the CEO, which made her look foolish and ridiculous and which rendered her less worthy of respect by the board members. The chairperson found the employee guilty of this allegation, in that he conveyed information to one of the employer’s board members which was false. If the employee had made the proper inquiries, he would have discovered that there was no inflation of figures. The CEO confirmed (and it was not contested) that the Department was fully aware of how the employer arrived at its figures and accepted that the employer was acting appropriately.
- The chairperson further noted that he did not accept that the employee made the allegation in order to bring an impropriety to the attention of the board. If that was so, the employee would have sent a message detailing that concern. However, the allegation relating to inflating figures was a throw-away (yet deeply insulting) remark.
- Moreover, the chairperson considered whether the employee’s allegation amounted to a protected disclosure for the purposes of the Protected Disclosures Act and found that it did not.
- Firstly, the allegation was not a ‘disclosure’ within the definition of the Act, given that it did not relate to a serious impropriety within the meaning set out in Malan v Johannesburg Philharmonic Orchestra (JA 61/11)  ZALAC 24 (12 September 2013). The allegation was one relating to figures which were readily available and known by the board. They were also known by the Department which accepted them and the manner in which they were calculated.
- Secondly, the employee’s allegation was made to the employer and, in terms of the Protected Disclosures Act, had to be made in good faith, which the chairperson did not accept was the case under the circumstances.
- The employee’s conduct was therefore unacceptable, and the appropriate sanction imposed was a written warning suspended for 6 months on condition that the employee was not found guilty of similar misconduct within the stipulated period.
Employees now have several platforms where they can vent their frustration and raise concerns regarding their employers. However, employees ought to utilise such platforms responsibly or face severe consequences, as illustrated in this case. While freedom of speech and expression, together with the right to privacy, affords us great power, the risk of publicly defaming the character of another has increased exponentially with the constant evolution of the social media landscape. Consequently, we have to remain cognisant of the fact that with such great power comes great responsibility.
By Swazi Malinga.
ProBono.Org generally provides legal assistance on corporate governance to young aspiring entrepreneurs, business start-ups and SMMEs by referring their requests for assistance to law firms who have volunteered their services on a pro bono basis. We assist clients with an annual turnover of less than R1million.
Because many of these business owners lack the basic knowledge of what the law requires of them when operating their businesses, we tend to spend a lot of time explaining and providing a crash course in commercial law.
In response to this we hosted an SMME seminar on 7 September at Constitution Hill together with Stevens Attorneys, which addressed The Companies Act, Insolvency Law and Commercial Contracts. The 56 participants ranged from owners of start-ups, established entities and spaza shops.
Since 2015 ProBono.Org has run an SMME help desk called YAKHA ISIZWE, based in Soweto, which is a collaboration with Fasken Attorneys and the University of Johannesburg Centre for Entrepreneurship. The objective of this help desk is to provide the services of attorneys to a wide range of businesses, including spaza and tuckshop owners, business women, hawkers, bed and breakfast establishments and hair and beauty salons. The attorneys assist with drawing up service level agreements, lease and finance agreements, as well as advising on appropriate forms of entities to register and providing education and training on commercial law.
To create more awareness about the help desk we hosted an Entrepreneurship Fair on 27 September 2018 together with Fasken and the University of Johannesburg. A young female entrepreneur who owns an online pre-owned clothing business was the guest speaker. A panel consisting of a labour attorney from Fasken, the SA Revenue Service, E-Squared and the CIPC provided information and advice to the participants.
Our goal for 2019 is to have a weekly clinic for SMMEs that will operate at our head office.
By Molebogeng Manyako, Johannesburg intern.
Further focus on SMMEs and advancing young entrepreneurs saw ProBono.Org and the British Council collaborate on a session presented by ProBono.Org and Bowmans at the Impact Africa Summit from 20 to 22 June. The purpose of the event was to accelerate innovative solutions to Africa’s most pressing challenges by inspiring, supporting and connecting leading social entrepreneurs and key ecosystem players across countries, organisations and sectors such as policy, social investment, business and education.
The first day dealt with leadership for change addressed by the likes of Pat Pillai and Jay Naidoo, to mention a few. The second day was about building a strong ecosystem and the third day addressed collaboration, which does not necessarily involve having money. One’s hands, mind and time can all be used to collaborate.
The Impact Africa summit has shown that we all have a role to play in shaping our societies to be more conducive for the holistic development of women. Last but not least, who can forget Sylvia Banda, a Zambian entrepreneur and a great storyteller. She said that “ I didn’t need to tell anyone about my first business. I just fried the food and filled the room with a nice aroma. People came to my door asking if I’ve started a restaurant”.
By Tshenolo Masha.
At this year’s event, convened by the Legal Resources Centre (LRC) ProBono.Org organised a plenary session on Transformation, both in the public interest law sector and the profession as a whole.
The panellists were Lisa Chamberlain (CALS), advocate Amelia Rawhani (Johannesburg Bar), Silomo Khumalo (Black Workers Forum), Mari van Wyk (Lexis Nexis) and Khululilwe Ntombi Bhengu (former ProBono.Org intern currently serving articles at SERI).The panel was facilitated by Tshenolo Masha of ProBono.Org.
The ojectives of the session were to look back on what has been achieved and some of the challenges within the public interest law sector and also to get an understanding of how the question of transformation is addressed by the legal profession as a whole.
The panellists covered aspects such as:
- How transformation affects the sustainability and funding of organisations
- A demographic overview of the profession in terms of race and gender (outlined in the Lexis Nexis 2016 survey)
- How the lack of real transformation hinders young black female lawyers.
The session made it clear that a huge amount of work needs to be done to gain real transformation. We will be engaging young professionals to plan how active, progressive results can be achieved.
By Tshenolo Masha.
In collaboration with Bowmans and Wits University, we held a dialogue on this hot topic on 23 August. The panel consisted of Prof. Elmien du Plessis (North West University), Nomzamo Zondo (SERI), Pierre Venter (Banking Association of SA), Stephen Grootes (SAFM) and Tebele Makhetha (Business Leadership SA). The dialogue was facilitated by Nompumelelo Seme from Wits.
The dialogue was specifically aimed at the legal profession and looked into various legal aspects of expropriation, for example, the regulation of land use and how it could be translated to the majority of the population who currently do not benefit from land in its current legal framework. It also discussed the interpretation of Section 25 of the Constitution in its reference to fair compensation.
There was lively debate and interaction from the large audience. The success of this event will be followed by a similar dialogue in Cape Town on 18 October.
By Courtney Cupido, Cape Town intern.
According to a recent Eye Witness News report, there have been at least 13 reported cases of child abduction and attempted kidnappings in communities across the Western Cape since 8 August 2018. The motives for these abductions may vary from forced child labour, financial and sexual exploitation, the use of children as drug mules to involuntary domestic servitude which is especially rife within the international context.
Over the past month there have been numerous reports of child abductions on various social media and news platforms, which has caused widespread panic, both within the Western Cape Province and beyond.
Incidents of child abduction and attempted kidnappings have taken place in shopping malls from under their parents’ noses, while playing in their neighbourhoods and even when walking to and from school.
The radical increase in reported abductions resulted in many government departments issuing warnings regarding child safety. The Western Cape Education Department in particular instructed all principals to inform and educate leaners around vigilance and taking necessary safety precautions.
In addition, the South African Police Services has sought to emphasise the need for continuous responsiveness amongst communities regarding the safety of children by conducting educational sessions and rights awareness interventions.
On 15 November 2000, the United Nations General Assembly adopted the Organised Crime Convention containing the Palermo Protocol, the first international instrument to define trafficking as:
Recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion. These other forms of coercion extend to abduction, fraud, deception, the abuse of power or of a position of vulnerability, or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation.
All countries which were signatories to the protocol had a duty to create legislation which would combat the crime of human trafficking.
Culturally unique forms of trafficking such as ukuthwala are however not addressed in the definition of trafficking. Ukuthwala is the illegal removal of a girl from her parents’ dwelling for the purpose of forced marriage or sexual intercourse.
In the unreported case Jezile v S and Others, a full bench of the Western Cape High Court delivered a landmark judgment where the court held that ukuthwala is no defence for crimes of rape, human trafficking and assault with the intent to do grievous bodily harm.
Thirteen years after ratification, South Africa satisfied the duty imposed on it by the Palermo Protocol. On 29 July 2013, South Africa’s former President, Jacob Zuma signed into law the Prevention and Combating of Trafficking in Persons Act of 2013. This is the country’s first piece of legislation centred around combating and preventing human trafficking.
While South Africa’s legislation in this regard may be viewed as being in its infancy, measures adopted by the country in criminalising acts associated with trafficking illustrate a step in the right direction.
By Suraya McKenzie-Pillay, Johannesburg intern.
As part of ProBono.Org’s commitment to the career development of its legal interns, the Johannesburg office was honoured to have Judge Thina Siwendu accept an invitation to address them and provide an insight into her journey within the legal profession.
Judge Siwendu’s remarkable journey from being an articled clerk at Cheadle Thompson & Haysom Inc., a fellow at the Centre for Applied Legal Studies, establishing and running her successful practice Siwendu Inc. after saying no to a job offer, and transitioning into the Judiciary was both inspiring and motivational.
Judge Siwendu explained how life will give you signals and you need to constantly be alert as to how you respond when venturing into new territory. Saying no to attractive opportunities is sometimes required and in order to grow on your journey you need to have a model of success which you continuously evaluate fearlessly.
We would like to take the opportunity to thank Judge Siwendu for taking the time to provide us with her insight, for encouraging and inspiring the legal interns as they venture onto the next step in their career paths and equipping them with invaluable knowledge and life skills.
By Shamika Dwarika
3 August 2018 was a culmination of months of hard work and planning for the Durban office as we held our Fundraising Brunch at the DLI Hall in Greyville. The event served a dual purpose in that we sought to raise awareness about violence and abuse against women and children, while at the same time raising funds for our office. To our delight the day dawned clear, unlike last year’s torrential downpour, and attendees were able to show up in their finery.
As there was a chill in the air however, BarMotion were on the scene to provide free hot beverages to warm the soul. 1608 Beauty on Demand were also on hand to provide free massages to get attendees in the mood for the event. We were very thankful that sponsors saw the value in what we were trying to do and came on board to support us in various ways. Our financial sponsors were Sanlam, PSI and Lexis Nexis SA (being our key sponsor). We also received goodie bag items from TAFTA, Vovo Telo Umhlanga, Varsity College and others. And with so many raffle items up for grabs, everyone had an opportunity to win! In total, we had 49 sponsorships, every one of which was instrumental in making the event a success.
In addition, we had exciting entertainment by Bluff Dance, Sizamawala Dance Group and Iris Samianathan whose performances took us through the various stages of a woman’s life. Our keynote speaker told her tale of emotional and verbal abuse. While many tend to focus on physical or sexual abuse, other types of abuse can be just as damaging and poisonous. Attendees had an enjoyable outing but were also provided with food for thought. In summary, it was a day well spent for all.