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.

Too costly to ignore – the economic impact of gender-based violence in South Africa – KPMG Human and Social Services

Too costly to ignore – the economic impact of gender-based violence in South Africa – KPMG Human and Social Services

It is well documented that South Africa has one of the highest rates of gender-based violence (GBV) in the world. But until now what has been less well documented is the economic cost to society of these horrific and unacceptable levels of violence. This report thus represents an important contribution to the fight against gender-based violence in South Africa. As stated in the tile of the report, the findings about the cost of GBV are alarming and cannot be ignored.

View the full report here

Pro Bono: A Transformation Issue

Pro Bono: A Transformation Issue

Article by Andy Bester. Published in the April edition of the Advocate.

The majority of south africans cannot afford legal representation. In 2011 the average monthly household income was R9 962. The average household income of a black family was R5 803 and that of households headed by a woman, black or white, R5 903. However much these figures may have improved, consider the cost of legal sevices: in Johannesburg, members of the bar typically charge from R6 000 to R 8 000 per day immediately after pupillage. Two decades after the dawn of democracy, the majority of South Africans cannot afford legal services and race and gender still substantially determine access to the justice system. The inability of millions to access legal services is not only unjust; it also perpetuates inequality, thus maintaining an untransformed society. The definition of transformation remains the topic of much debate. 

READ THE FULL ARTICLE HERE

 

The Legal Practice Act and Community Service

Article by Erica Emdon


ProBono.Org is involved in discussions with stakeholders on the Legal Practice Act, and we are developing our own position on what we think “community service” (dealt with in Section 29 of the Act) should constitute.

Section 29 of the Act covers people within the legal profession, more specifically candidate attorneys (CAs) and practising legal practitioners. In regard to CAs, community service must be “a component of practical vocational training” and in regard to legal practitioners “a minimum period of recurring community service by practising legal practitioners upon which continued enrolment as a legal practitioner is dependent”. The Act is not applicable to other persons, in particular LLB students. While many universities have community service programmes, if these are to be regulated it would be necessary to do so through other legislation or curriculum requirements of university degrees.

Regarding CAs, the position is tricky, and more questions arise than answers. The amount of time that should constitute community service during articles needs to be decided. Should it be thirty days, three months, six months or a year? What activity should constitute community service for CAs? The Act provides a list of possible activities that could constitute community service. This list is also applicable to legal professionals. It includes, but is not limited to:

  • Service in the state
  • Service at the SA Human Rights Commission (this could possibly be extended to other Chapter 9 institutions)
  • Service as judicial officers, including in small claims courts
  • The provision of legal education and training
  • Other service approved of by the Minister

Which of these would be appropriate for CAs? Where should CAs undertake their community service? Within the law firm where they are working? What if that law firm is a small firm without any community service options? If it were a large firm with a pro bono department, would a compulsory period in that department constitute community service?

Perhaps a better option is that CAs should undertake a year long period of community service after they have completed articles in an institution given recognition by the state. This could be made a prerequisite for admission. If this form of community service provides a service to the state, albeit indirect, the state ought to pay for it. Examples that spring to mind are service in courts assisting the public, legal departments of different = organs of state, parastatals, Legal Aid SA, community advice offices or legal NGOs. The advantage of this system is that CAs who have completed their articles would not require high levels of supervision.

The option of requiring CAs to undertake their community service within the period of their articles could be implemented by requiring CAs to do some legal clinic work as part of their Practical Legal Training component. This would require Practical Legal Training courses to incorporate a community service component. Alternatively, what if a CA’s community service were the same length of time as a legal professional’s – that is 24 hours per annum – and could be performed while under the supervision of the CA’s principal? Or perhaps for CAs the amount of hours could be higher? And the CA would be expected to do this work within the period of articles, to be signed off by his or her principal.

The latter option would be the cheapest and an option that could be implemented immediately. The former option of one year’s community service would have to be phased in as it would require new job definitions and an assessment of appropriate institutions.

Regarding community service for professionals, ProBono.Org believes that the purpose of undertaking pro bono service is to make access to justice available to the most impoverished members of our society. For this reason we believe that the paltry 24 hours required per annum should be skewed towards casework for impoverished clients, as this is where the need is greatest. We believe that while options, such as providing training, service to the state, acting as a commissioner at a small claims court and so forth are options to be considered, there should be an imperative in the regulations requiring that a substantial majority
of the 24 hours should be devoted to case work and direct legal assistance to people unable to afford
private legal fees. (A similar provision is provided for in Rule 6.1 of the American Bar Association’s Model Rules of Professional Conduct, but requiring 50 hours per annum, not 24! See the research paper by Daniel Sive, “Pro Bono/Community Service”, commissioned by NADEL).

In essence the entire reason for providing pro bono service as a recurring service should be to ensure that every person is enabled to realise his or her constitutional right, provided for in section 34 of the Constitution, to have a dispute resolved, “in a fair public hearing before a court of law…”. Without legal representation, this right is rendered almost meaningless.
 

Empowerment disempowers marginalised refugees – April 2016 Newsletter

Empowerment disempowers marginalised refugees – April 2016 Newsletter

Article by Richard Chemaly

 

One often reads about the plethora of obstacles plaguing asylum seekers. Some believe that the system is as rigorous as it is because the benefits of acquiring refugee status place refugees on an equal footing with South African citizens. They would be wrong. Even naturalised African refugees get the short end of the stick in South Africa. The legal framework and resulting social effect has dire consequences for those attempting to establish a new life in the continent’s southernmost state.

More specifically, the Broad-based Black Economic Empowerment Act, 53 of 2003, (“The Act”) is effectively placing naturalised Africans at the bottom of the employment food chain. When the Act first came in, “black people” (the ultimate beneficiaries of the Act) was a term defined as “a generic term which means Africans, Coloureds and Indians”. In 2008, after discussions and consensus the High Court declared that Chinese people who were citizens prior to 1994 would be considered as “coloured” for the purposes of the Act. Incidentally, because there was consensus between the parties, there was no judgement delivered but merely an order. This denied us the judicial analysis we may have required to avoid the situation African refugees find themselves in today.

The effective result of this Act was that when hiring employees, employers would have to take race into consideration in an effort to redress the inequalities caused by South Africa’s history; a laudable effort which led to employers separating applicants according to race and attempting to develop and maintain a quota of “black people”. As crude, rudimentary and perhaps artificial as this process may have become, it had the nominal desired effect of getting more “black people” employed. Whether it had any real effect of shifting perceptions and racism stemming from the past is a matter for a different article. Ultimately, “black people” were being hired and more opportunities were opened to them.

In early 2014, the President assented to the Broad-based Black Economic Empowerment Amendment Act (“Amendment Act”) and this is when African refugees began to feel the sting. The Amendment Act altered the definition of “black people” to exclude citizens of South Africa who were naturalised (or only entitled to naturalisation) after 27 April 1994. To the legislature and most others, this exclusion makes sense; if foreigners were not in South Africa during the oppression, they should not benefit from the laws enacted to redress said oppression, regardless of their citizenship.

When some of our refugee clients approached the Department of Trade and Industry, which regulates the Act, they were told that the limitation is consistent with an open and democratic society based on human dignity, equality and freedom.

It is possible that the effect of the amended definition of “black people” unfairly discriminates against refugees naturalised after 1994 and ProBono.Org has briefed counsel to draft an opinion on the issue.

Pension theft: how low can you go?

Pension theft: how low can you go?

Article from: NEWS/SOUTH-AFRICA /
18 April 2016 at 17:04pm
By: Georgina Crouth


Illegal deductions from the accounts of Social Security Agency grant beneficiaries is rife, says consumer watchdog Georgina Crouth.

The parliamentary shenanigans of recent times have certainly been entertaining to watch on television, but they detract from the actual work that should be done in the country’s legislative body.

At Parliament, yet another opposition walkout from the chambers was overshadowed by a poignant moment when an IFP MP asked President Jacob Zuma what he intended to do about the illegal deductions from the accounts of Social Security Agency (Sassa) grant beneficiaries.

READ THE FULL ARTICLE HERE

Case study – Married without her knowledge

Our client AM required assistance to have her marriage declared null and void and the registry rectified by the Department of Home Affairs after she found out that she was married to someone she had never met. AM had thought that she was applying for a job shortly after finishing school, when in reality she was being scammed to obtain her fingerprints, her identity document details and her signature. When she wanted to study some years later, the study institution told her that she was married in community of property. She was shocked. After initially attempting to deal with the matter herself, she turned to ProBono.Org, who referred the matter to Clarks Attorneys.

The Department of Home Affairs was unhelpful in resolving the matter on an amicable basis, telling the attorneys to proceed to court. Therefore, they approached the High Court for a declaratory order that AM’s marriage be declared void ab initio, and that the Department of Home Affairs be directed to vary their records to indicate that AM had never been married. Marriage, and particularly one in community of property, has a substantial impact on a person’s status and financial future, and if AM did not have the assistance of ProBono.Org, and in due course that of Clarks and advocate van der Berg, there is no telling what prejudice she may have suffered in future. We are pleased to be able to record a successful outcome.

SAHRC: People need access to land and housing

SAHRC: People need access to land and housing

South Africa is 21 years into democracy, and many poor people are still without houses, basic services, and continue to routinely face inhumane evictions. Dysfunctional cooperative governance relations; a lack of capacity, and the ineffective application of policy, are some of the reasons for this, according to a report by the South African Human Rights Commission. KOKETSO MOETI unpacks some of the housing issues and recommendations of the commission.

Article and image courtesy of  Daily Maverick:

Earlier this year, Human Settlements Minister, Lindiwe Sisulu, said that “the delivery of houses has dropped by 25% over the past five years…” Apart from increasing urbanisation, this decrease is happening in a context in which homes are demolished, and we are shown pictures of distressed people, many with kids, and some on their own trying to protect their homes or collect their belongings. Other times, we are shown scenes of the notorious Red Ants evicting and carrying out people’s property, and can only imagine the trauma of not only losing one’s home, but also one’s belongings.

Take the clearing of the Wilston Court building in Hillbrow in August, when at around 7:00am, the Red Ants came in and started throwing people’s belongings from the windows. Angelinah Mosweu, a 56-year old a cleaner at a South Point building in Braamfontein, was one of those people. Because she starts work early, she was not around when the eviction commenced, and got a call later that morning from one of the three other women with whom she shared a room. “I ran as fast as I could to get home, but by the time I got there, there were things laying everywhere”, says Mosweu. “People were looking for their things, while a group of young men were trying to take them”.

Read the full article here

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