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

Swapped babies to remain with families raising them

Swapped babies to remain with families raising them

Congratulations to Henk Strydom of Strydom Attorneys. He represented one of the mothers, who initiated this case, on a pro bono basis. He also does a great deal of pro bono work for children, and has been actively involved in assisting children in our One Child a Year Campaign.ProBono.Org wishes to thank Henk for his commitment.

Article taken from Times Live website.

After hearing final arguments in the matter on Monday‚ the court ruled that the five-year-old boy and girl are to be considered as having been adopted by the parents who have raised them without them needing to undergo a formal adoption process.

They will continue to have contact with their biological parents.

The children were swapped at a hospital on the East Rand in 2010 and the error was discovered nearly three years later when one father asked for a paternity test when the child’s mother claimed maintenance. The results revealed that neither of them were the biological parents of the little boy they thought was theirs.

Read the full article here

The question of human rights violations against the #feesmustfall protesters

The question of human rights violations against the #feesmustfall protesters

Article and image courtesy of: https://theconversation.com/


 

In the wake of the student protests on South African campuses, universities need to engage in some critical reflection. Did their responses protect the constitutional rights and freedoms of those engaging in the protests, as well as those not wishing to? How did university responses relate to police responses? And were police responses proportional to the level of threat posed to public safety?

Sadly, many universities did not adequately rise to the challenge, and some engaged in deeply worrying violations of students’ rights and freedom.

Freedom of assembly

Although not apparent from the media coverage, the protests were overwhelmingly peaceful and highly disciplined, even if many were disruptive.

But all protest involves some level of disruption, and disruptive protests are not necessarily violent. Disruption may, in fact, be the only way in which protestors can make institutions hear their voices.

Universities need to tolerate peaceful disruptions, as this option is by far the lesser evil by far. The alternative – namely to limit fundamental assembly, association and speech rights – is much more drastic and can have far-reaching consequences for society.

No-one should be criminalised for participating peacefully in a protest, even if the authorities have not been notified as per the Regulation of Gatherings Act, which gives effect to the constitutional right to assembly, demonstration and picket. Such gatherings should not be dispersed.

But many universities may ask: what about the thug element that infected some protests? Individuals that engage in thuggery should be held liable for their actions, as they are infringing the rights of others. This liability, however, should apply to the individual, not to crowds.

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Editorial: SA’s democracy is under attack

Article published on Mail & Guardian – 26 June 2015.

A fortnight ago, in an extensive interview with the Mail & Guardian, Chief Justice Mogoeng Mogoeng dropped a bombshell. The head of the judiciary had last year signalled that there were “very desperate attempts to frame me for criminal acts you can’t even begin to imagine”. Mogoeng’s former spokesperson also referred to attempts to “falsely accuse the chief justice of a crime”.

In the interview, Mogoeng said he had chosen to go public about the alleged smears, including a tale that his official vehicle was involved in an attempted hijacking and that he allegedly raped a sex worker, to counter any attempts to blackmail him in future. He also spoke of how three Constitutional Court justices had been falsely accused of being CIA spies, noting that the inspector general of intelligence, Faith Radebe, had been asked to investigate and had exonerated them.

Puzzlingly, there was little reaction, let alone outrage, from civil society, the legal profession, Parliament or the executive to Mogoeng’s startling claims. Since the chief justice went public with his allegations of a possible dirty tricks campaign, South Africa has been treated to a mind-boggling display of executive contempt for the judiciary.

Last week, the government thumbed its nose at an interim court order ordering it not to allow Sudanese leader Omar al-Bashir to leave South Africa, where he was attending the annual African Union summit.

A clear picture is emerging: President Jacob Zuma, Cabinet ministers and South Africa’s law enforcement agencies actively colluded in this flagrant violation of the court order and our own legislation, ensuring that al-Bashir was not arrested to face the charges of crimes against humanity, war crimes and genocide that have been brought against him by the International Criminal Court. South Africa is a signatory of the Rome Statute, which mandated the existence of the ICC; in fact, South Africa’s Parliament gave the statute a place in our own law books.

Read the full Article here

RELIEF FOR EASTERN CAPE SCHOOLS AS DEPARTMENT PAYS OUT 67 MILLION BUT KEY ASPECT OF ORDER UNFULFILLED

Article published on LEGAL RESOURCES CENTRE – 24 June 2015

South Africa’s first opt-in class action law suit, Link­side & oth­ers v Min­is­ter of Edu­ca­tion & oth­ers, was the first to appoint a claims admin­is­tra­tor to man­age the pay­ment of a claim. Fol­low­ing the court order of 17 Decem­ber 2014, Price­Wa­ter­house­C­oop­ers was appointed by the Depart­ment of Edu­ca­tion to receive and ver­ify schools’ claims for reim­burse­ment for amounts spent on edu­ca­tors dur­ing 2011–2014 and to pay the ver­i­fied claims.

The total amount claimed was R82 mil­lion. To date, schools have been reim­bursed an amount of R67 mil­lion, with a few out­stand­ing claims await­ing ver­i­fi­ca­tion.

The Legal Resources Cen­tre, act­ing on behalf of all the schools that make up the class, says the schools are immensely relieved to receive this fund­ing.

”Many schools have been placed in a per­ilous finan­cial con­di­tion due to the Department’s ongo­ing fail­ure to appoint edu­ca­tors to vacant sub­stan­tive posts and pay them. Indi­vid­ual schools have accu­mu­lated between R200 000 and R5 mil­lion in debt over this period. This has resulted in schools increas­ing their fees, but this has often resulted in a higher rate of par­ents default­ing on pay­ments.”

 

Read the full article here

Bakgatla ba Kgafela CPA’s Constitutional Court case goes to heart of land reform

Article from Posted on 17 Jun 2015
By Michael Clark

The Bakgatla ba Kgafela court case hits at the heart of South Africa’s land restitution programme, and at people’s land rights protected by the Constitution. On 28 May 2015 the Constitutional Court heard the case of Bakgatla ba Kgafela Tribal CPA v Bakgatla ba Kgafela Tribal Authority and Others. The case was about whether the Communal Property Association Act 28 of 1996 (the CPA Act) allows the Bakgatla ba Kgafela CPA – a provisional CPA – to continue to exist and hold land. The CPA has struggled for many years to get registered permanently as a result of serious administrative mismanagement by the Department of Rural Development and Land Reform (the Department) and the ongoing resistance to the establishment of a CPA by the traditional council in the area.

Background
The Bakgatla ba Kgafela community brought a successful land claim over various pieces of land in the North West. This meant that they had to create a legal entity that was able to receive ownership of the land on behalf of the community. In 2005, the claimant community voted in favour of the creation of a Communal Property Association (or CPA) to hold the land, elected a committee to run the CPA and adopted a draft constitution. The community then made an application to have the CPA registered. However, the traditional council and traditional leader, Chief Nyalala Pilane, were unhappy about the decision to form a CPA. They wanted the community to create a trust instead.

As a result of his intervention, Lulu Xingwane, the then Minister of Agriculture and Land Affairs, intervened by suggesting that the community register a provisional CPA in terms of section 5(4) of the CPA Act for 12 months (rather than a permanent CPA in terms of section 8 of the CPA Act). The Department proceeded to register the provisional CPA in line with the Minister’s instruction, in spite of internal memos that show that the Department recommended that the CPA be permanently registered. In 2008 the land claimed by the community was transferred to the provisional CPA. Thereafter, the Department had almost no contact with the community – specifically, it did not help the community to convert the provisional CPA into a permanent CPA.

When the Bakgatla ba Kgafela CPA tried to prevent the construction of a shopping centre on land that it believed it owned in 2012, the traditional council argued it no longer existed. The traditional council argued that section 5(4) of the CPA Act meant that a provisional CPA is only valid for 12 months – after 12 months, if the CPA has not been turned into a permanent CPA, it no longer exists.

Read the full article here