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.

 

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Case Study: Maintenance order granted for C

Case Study: Maintenance order granted for C

Article published in Probono.Org June 2016 Newsletter.

On 25 June 2015 our offices sent out a request for assistance on behalf of a young man in need of financial assistance from his biological father. This young man had previously been removed from his family home (due to substance abuse) and placed with his elderly aunts by the Children’s Court. Although this placement was secure, the aunts were both on pension and not in a position to care for this boy financially.

The young man (we will call him C) brought a maintenance application in court, requesting financial support from his father. However, his father, who also appointed a legal team to argue the matter, opposed this application. C felt intimidated and overwhelmed by this and sought assistance to see this application through.

Jonathan Small and Sune Bosch of Ramsden Small Attorneys accepted the instruction and assisted C in arguing in court for financial support from his father. The application was heard in May this year and after hearing argument for both sides, the court granted C maintenance in the sum of R5000 per month.

C is now enrolled for further studies and hopes to complete a financial degree.

Case Study: Placement in cases of special need

Article published in Probono.Org June 2016 Newsletter.

 

J, a girl of 7, was found abandoned on the 9th floor of the Charlotte Maxeke Hospital in Johannesburg in December 2015. An initial assessment by the hospital staff showed that she could be autistic. The police were called to transfer her to a more suitable place of safety but for whatever reason could not effect this transfer and the young girl spent the night at the police station.

She was then admitted to the Rahima Moosa hospital and our offices were asked to assist with finding her a suitable placement.

Our involvement was necessary since no state department has accepted responsibility for her placement. Both the Department of Health and the Department of Social Development have been unwilling or unable to accommodate her. We are presently looking at bringing an application in the Children’s Court for a temporary care placement order for the little girl at a private facility with autistic expertise.

Despite our having extensive legislation aimed at protecting the rights of children, such as the Constitution, the Children’s Act of 2005 and the Child Justice Act of 2008, each of which create a strong legal framework in support of children’s rights, there are still substantive barriers to the real lived protection of children.

The barriers are not in the design of the laws, but the way in which these laws are managed, implemented and administered. When we see that departments responsible are failing people on a day to day basis, and that the officialdom is characterised by tardiness, lack of interest, ineffective management, poor skills, lack of capacity; and when we see the over-burdened courts and overall inefficiencies in the system, we believe we have an imperative to act and offer assistance.

So many of our clients have attempted to use the legal system to obtain relief, only to find that without legal representation they have been unable to exercise the rights they have in terms of the laws we have on our statute books.