Child abduction – the new scourge of the nation

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.

 

Click here for our complete October 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

Top city human rights lawyer dies

Top city human rights lawyer dies

Such a very tragic loss. Rudolph Jansen, human rights lawyer has passed away. ProBono.Org wishes his family and all who knew him our condolences.


 

Article courtesy of www.iol.co.za/
Pretoria News / 27 November 2017, 07:55am / Zelda Venter.

THE legal fraternity is mourning the death of human rights lawyer Rudolph Jansen, who fought against injustice on behalf of the poor and marginalised for more than three decades, including with respect to the abolition of the death penalty, prison reform and land reform.

He was a long-standing member and former national director of Lawyers for Human Rights.

Jansen, who leaves his wife Mariana, and two sons Rudolph and Gustav, died on Saturday in Limpopo, where he was consulting with the Moletele Land Claim Community. He was 53 years old.

Jansen was born on New Year’s Day in 1964. He grew up in Pretoria, where he lived throughout his life.

He completed his law studies at the University of Pretoria, and as a young advocate with the Pretoria Bar, quickly turned his attention to combating issues of inequality and injustice that were a hallmark of the apartheid state.

View the full article here
Life Esidimeni – lessons on the importance of health checks for NGOs

Life Esidimeni – lessons on the importance of health checks for NGOs

By Tshenolo Masha

 

The appalling and unnecessary loss of life resulting from the Life Esidimeni tragedy has cast a spotlight on the many inefficiencies within our health system. It was however the lack of governance and legal advice in the NGOs involved that highlights the need for pro bono assistance for NGOs. Many of the organisations to which the Life Esidimeni patients were transferred were not properly registered to provide the services that they were contracted to provide and many opted to proceed in the hope that the funding received would be able to cover the loose ends. This was sadly not the case, and so began a downhill tumble of inexperience coupled with inadequate resources and support that disastrously led to the loss of many lives.

As with all tragedies, there are lessons that need to be learnt and actions put in place to ensure that they are not repeated. It is important that pro bono assistance for NGOs is provided to assist them with proper governance and contractual advice to avoid being drawn into dangerous spaces, in the hope of getting funding.

All law societies in South Africa recognise the role and contribution of NGOs in providing much needed assistance to impoverished members of society, many with limited resources and funding and a big commitment to social change. That is why pro bono legal work is extended to NGOs. ProBono.Org renders
services through volunteer attorneys to non-governmental, non-profit, community-based, public benefit, corporate or unincorporated bodies, trusts, foundations or charities working in the public interest or working to secure or protect human rights, which are mainly funded by donations.

Many NPOs are in desperate need of health checks to determine the organisation’s legal standing, status and ability to enter into certain contracts. We believe that, had some of the NGOs that received Life Esidimeni patients had access to skilled pro bono attorneys, they would have received the appropriate advice on their ability and legal standing to deliver the contracted services and would have been better positioned to respond to their situations appropriately.

Pro bono services include advice, opinions and the appointment of an attorney and/or advocate where payment of legal fees would deplete the organisation’s economic resources and adversely affect their ability to carry out their charitable or public interest work.

We are therefore calling on all legal professionals to contribute their knowledge and expertise in a practical and impactful manner. Each one of us has a duty to ensure that the law and access to the law is utilised for the greater good of our society and to protect the most vulnerable. Pro bono publico.

READ THE FULL NEWSLETTER HERE

Mandatory Pro Bono or Not?

Mandatory Pro Bono or Not?

By Erica Emdon

 

I recently attended the Pro Bono Institute (PBI) annual conference in Washington DC. This conference, convened every year by the PBI, a United States based NGO that promotes pro bono, is a gathering of NGOs, law firms, pro bono lawyers, justice officials and bar associations (similar to our law societies and bar councils). At these annual meetings, with as many as 300 participants, people get together to share ideas about pro bono.

This year a very interesting panel discussion took place entitled ‘Mandatory pro bono or not? Is it time to make it mandatory?’

The session was run as a debate looking at whether or not the state should mandate pro bono for lawyers.

The proponent of state mandatory pro bono, Judge Lippman, said that since there has been an attack on state funding in the United States and because state funding meets less than half the need there is in the country, a strong case for mandatory pro bono is created. He believes that it is a privilege to be able to practise law and the role of the regulator should be to ensure that lawyers are meeting their obligations.

The opposing view covered by Jim Sandman is that mandatory pro bono is very impractical for three reasons:

  1. Mandatory pro bono places a huge burden on legal NGOs who have to manage pro bono lawyers. Pro bono lawyers need help, mentoring and training. One has to be careful of incompetent work which means that you have to fund legal NGOs to manage and train pro bono lawyers.
  2. You don’t want clients to be served by lawyers who have been compelled to serve them and lawyers that aren’t willingly undertaking their obligation. The clients are negatively affected.
  3. Practically – the definition of pro bono is frequently expanded to things like serving on bar councils and CSR. Making it mandatory allows people to fulfill their obligations in ways other than serving low income people.

He added that pro bono should be done because it is in the fundamental DNA of being a lawyer. It is part of the culture of being a legal practitioner, the raison d’etre of providing legal services, so it shouldn’t have to be mandatory.

His points are valid and raise a critical issue. If we share his view that doing pro bono is an essential element of being a lawyer, and the hallmark of the profession, why are we finding it so difficult to find enough pro bono attorneys and advocates to serve our clients, and the clients of other NGOs – the poor and vulnerable? Why are the same lawyers doing it again and again, while the vast majority show no interest or commitment to pro bono? Law society rules are putting some pressure on the latter group to do pro bono, which indicates that here in South Africa, at least for the time being, mandatory pro bono may be necessary. But isn’t the ideal that it becomes a natural and routine part of every legal practitioner’s professional life, internalised as Sandman says, into their DNA?

READ THE FULL NEWSLETTER HERE

When can an employer be held liable for an employee’s injuries?

When can an employer be held liable for an employee’s injuries?

By Swazi Malinga

 

When Mr A contacted our offices he was convinced that he had a claim against his employer for the injuries he sustained and, further, that he had a case of unfair labour practice against his employer. Mr A was employed by a company named B as a general cleaner and caretaker. B’s main business was to maintain and service a block of flats at an upmarket suburb in Johannesburg.

On or about July 2015 Mr C asked Mr A to clean the windows of his flat. Upon his arrival on the day, Mr C gave Mr A a stepladder to use as the flat was on the first floor. While Mr A was on the ladder, the ladder broke and Mr A fell to the ground. He was taken to the nearest hospital where it was confirmed that he had broken his spine and would be confined to a wheelchair for the rest of his life.

Mr A was very disappointed that his employer refused to compensate him in any way or to report and lodge a claim on his behalf with the Labour Department under the Compensation for Occupational Injuries and Diseases Act (COIDA).

Mr A came to consult with us believing he had a case of ‘vicarious liability’ against B. We explained to Mr A that in a workplace context ‘vicarious liability’ refers to a situation where an employer can be liable for the acts or omissions of its employees, provided it can be shown that there is an employment contract in existence; that the action took place in the course of their employment and that the employee’s actions caused harm to another. However, in this instance the flat owner, Mr C, gave instructions in his personal capacity and, most importantly, Mr A is not an employee of Mr C. It is evident that B cannot be held liable for the actions of Mr A in terms of vicarious liability.

We had to discuss and explore other possible avenues that Mr A could use in order to claim for the injuries. We looked at a claim against COIDA in that COIDA provides for compensation in the case of disablement caused by occupational injuries sustained or diseases contracted by employees in the course of their employment, or death resulting from such injuries or disease; and provides for matters connected therewith. COIDA basically enables employees covered by the Act to make claims against the fund. In this case, the employer, B, rejected Mr A’s case rightfully as Mr A was not carrying out functions or work under the instruction of B in this case. We advised Mr A that he could explore a case against the owner of the flat, Mr C, for his injuries, but even so there were other difficulties that he could face with regard to pursuing such a case.

The fact that Mr C gave Mr A his ladder to use does not automatically make him liable for Mr A’s injuries. Should Mr A want to pursue the case, the common law test of a reasonable man may be applied in this case in order to establish whether using the said ladder and or placing it in the manner that he did was dangerous and could lead to him getting injured. In this case the court may find that he had to some degree contributed to his injuries and that he should have inspected the ladder for his own safety as well. With all the above said, client was advised that he could proceed with the case against Mr C but he should be aware of the challenges he will face in proving his claim. The lack of evidence will not make things any easier for him as there is no information about the ladder, and no photographs were taken in order to be able to assess the condition of the ladder.

Although this is a very sad situation for a client who came with very high hopes that he had a good case against B, we had to tell him that legally he had no claim. Even though the injury occurred at a location where he was employed, there is no liability by the employer for his injuries in this instance.

READ THE FULL NEWSLETTER HERE

Home Affairs names and shames SA’s abandoned children

Article published on the Daily Maverick, 18 OCT 2016 01:00 (SOUTH AFRICA), by ROBYN WOLFSON VORSTER.

Child abandonment is a scourge in South Africa. As numbers soar, the battle is on to ensure that abandonment does not permanently define the lives of survivors. But those efforts are being severely hampered by the Department of Home Affairs’ decision to disclose to the public the abandonment status of some children. As a practice, it is shockingly callous, largely inaccurate and probably indefensible, so why is the department seemingly impervious to all of the concern?

There seems to be no end in sight to the abandonment crisis in South Africa. And, in the absence of long-term policy solutions, child protection practitioners aim at least to make it survivable, both physically and – for those who do stay alive – in its emotional aftermath.

To this end, they have dedicated huge amounts of time and skill to researching strategies for protecting children from the consequences of what may be the first event of their lives. While these solutions are complex, they are all predicated on maintaining the privacy of the child’s story until they are ready to face it and relate it to others.

Clearly these thinkers did not reckon on the Department of Home Affairs though. Like a school yard bully, the department seems determined to humiliate these vulnerable children by including an endorsement on their official identity document that broadcasts to the world in general that the child was “ABANDONED”.

Of course it is possible that there was no intent at all, and that the department was simply absent on sensitivity training day. But the crass use of such a loaded term on a public document still beggars belief.

And, as they say in the classics, that’s not all. It also appears that the department has a somewhat loose definition of what it means to be “abandoned” (certainly not in keeping with either the Children’s Act or common usage). As a result, it has included the endorsement on the birth certificates of children who patently weren’t abandoned. Yet, despite the fairly obvious fallout, the department appears to be both unrepentant, and even a bit bemused by all of the fuss.

CLICK HERE for the full article.

A first-hand account of a “messy“ case

by Nolia Langa, legal intern.

When clients approach you for legal assistance, many times they present their version of the events in emotionally loaded ways, requiring you to sift through it, seeking out the most relevant facts – the facta probanda and the facta probantia. One is often faced with a messy and complex version.

The very first case I dealt with involved three parties. The facts of this case were presented to me intertwined, and came at different stages, piecemeal and through various mediums and people (apart from the parties), ranging from emails and telephone conversations, to direct consultations with the parties.

This was a great challenge for me, as I had to decipher what was relevant and put together all the information in a coherent way. The instruction from my supervisor was to do an analysis, using seven questions: “Find out what happened to whom, when, where, how and why, and who was involved.”

I used the questions to extract the relevant facts from the vast amount of information to build a coherent case. I explored various methods of analysis but focused on logic and chronology.

I needed to do three things: identify the facts of the case; group and arrange the facts of the case; and list the basic elements. After having done this, I was able to form a clearer indication about the strengths and weaknesses of the case, possible conflicts amongst the parties, and possible solutions to different scenarios.

The facts of the “M” case, are:

  • N is a minor female still at school, and the mother of Baby M, who was born as a result of an alleged rape.
  • L, the mother of N, is an undocumented major, which means that N too is undocumented and so is Baby M.
  • N lent her cellphone to a 20-year old male neighbour, O, who refused its return despite demands from both L and N.
  • O insisted on intercourse with N in exchange for her cell phone.
  • At first N refused, but later gave in as she needed the phone to access the internet to complete a school assignment.
  • 7 months later, L discovered that N was pregnant by O.
  • L reported the case to the SAPS.
  • When born, N and L decided to put Baby M up for adoption. As they were both undocumented, they could not sign off any rights pertaining to Baby M. In such cases the Children’s Court has to obtain the consent of the father of the baby. This fact upset L and N tremendously, as O and his family indicated that they wanted to raise the baby.
  • The issues of the case were the lack of documentation, an alleged rape, N’s age, which may constitute statutory rape, and the lack of consent of the father of the baby to an adoption.

Action taken

  • We found representation for Baby M’s family to apply for the right to put the child up for adoption;
  • Baby M’s family is currently receiving assistance from the S A Human Rights Commission to obtain their documentation;
  • N will pursue a charge of rape against O.

Conclusion

It is essential that you have a method that works for you, depending on your personality and what best assists you in analysing the information that has been given to you. We must always remember that we have a duty to act in the best interests of our client, balanced with our duty to uphold justice.

 

DOWNLOAD THE COMPLETE APRIL 2017 NEWSLETTER

Domestic violence, with a focus on economic abuse and the suspended warrant

Article by Swazi Malinga

main--pic-5-When one mentions the word domestic violence, the immediate picture that comes to mind is that of a battered woman covered in bruises with a swollen face. However the truth of the matter is that domestic violence does not end there. Perhaps she was threatened, intimidated and harassed before the abuse became physical. There is another form of abuse that often goes unnoticed and has the effect of trapping its victims and leaving them feeling they have nowhere to run. This is called economic abuse. In one of our client’s cases, A (wife) was married to B (husband) for about four years. A few months into the marriage A was asked to leave her job with the promise that B would take care of her and her two children from a previous marriage. However as the marriage progressed, B started having endless affairs and whenever A confronted him about it, he would get very defensive and abusive, he would threaten her with divorce proceedings coupled with endless insults, threaten to kick her out of their matrimonial home and then he would confiscate her car keys, cut off all money and freeze all the credit cards that she used. With the fear of being homeless and going hungry with two children to feed, she was forced to succumb to the abusive marriage. Economic abuse in short includes the unreasonable deprivation of economic or financial resources to which the victim is entitled or requires out of necessity, including mortgage bond repayments or rent. It essentially traps a person into living in a marriage or relationship from which escape becomes impossible.

Anyone who is a victim of domestic violence can approach the nearest Magistrate’s Court to apply for a protection order that includes a monetary award. This can be applied for during ordinary court hours, or on weekends and public holidays if the case is urgent. The applicant does not have to wait for the court to allocate a date for the hearing but can get an interim protection order, requiring the abuser to pay the rent or the bond, to pay to the applicant emergency maintenance or pay for the expenses that the applicant incurred as a result of the abuse, such as medical expenses. The protection order is valid throughout South Africa regardless of where it was issued and remains valid until such time that it is withdrawn, cancelled and/or set aside by the person who initially applied for it. The order may be varied by changing some of the terms. For example it may change the address of the premises at which the abuser is not allowed to enter. A protection order may appear to be useless since some abusers view it as a piece of paper, but its power and effectiveness lies in the suspended warrant that the court issues with every protection order.

The warrant is used if the abuser contravenes the protection order. The holder of the protection order must inform the police of any such contravention. The police are compelled to effect an arrest and the abuser can be charged with contempt of court. This carries a sentence of five years with an option of a fine, or both. It is important to note that such a warrant may only be used once. Thereafter the applicant needs to go back to the court to request another warrant to be issued by way of affidavit indicating when the previous one was used and outlining the need for a new warrant to be issued by the court. This process needs to be repeated each time a warrant is used up and a new one is required.

What is critically important is that the applicant depends on the police to cooperate and take action. If this does not take place it is necessary to report such non-cooperativeness to the most senior police official in the station to ensure enforcement.

Women’s Day Breakfast

Women’s Day Breakfast

Durban director Shamika Dwarika with Evita Bezuidenhout

Durban director Shamika
Dwarika with Evita
Bezuidenhout

ProBono.Org Durban currently has 218 firms on our panel of attorneys and is signing up new firms all the time. We deal with so many attorneys, but very rarely do we have an opportunity to socialise with them. Recently, however, attorneys Garlicke & Bousfield invited us to their Women’s Day breakfast to thank their partners for their support throughout the year. The event was an opportunity to meet some of the women attorneys at the firm and learn about them in a personal capacity. For example, Yvonne Boden, who staffs our Master’s Office help desk quite regularly, was honoured for having reached 25 years as a director in the firm. Sanelisiwe Nyasulu, another of their directors, who has taken on a huge amount of pro bono work for us, was also in attendance.