New Appointments

New Appointments

Teresa Yates has been appointed as the National Director of ProBono. Org. She was until recently Deputy National Director of the Legal Resources Centre (LRC). Besides legal training, she has a background in human rights and development on the continent. In her 22 years of experience she has worked in NGOs, for government and as an independent researcher and evaluator. She has acquired not only a range of important management skills, but has also been directly involved in strategic planning, law reform and policy development, fundraising and budgeting, monitoring and writing, and leading diverse teams. Teresa led substantial design work on Alternative Dispute Resolution in the Department of Land Affairs in the 2000s, where she worked in the Tenure Directorate. She has as gender justice coordinator with Oxfam in Tanzania, the South African government and Nkuzi Development Association, a South African land organisation focusing specifically on farm workers, land rights and land reform.

We are honoured to have Teresa join the ProBono.Org team.

 

Mpho Mogodi

After matriculating from King Edward VII High School, Mpho enrolled for a BA at Wits University to major in International Relations and Political Science. He then graduated with an LLB degree from the University of South Africa in 2017.

Mpho’s love for the law stems from wanting to bring about positive change and to advocate against social ills and injustices. He also strongly believes in the value of being of service to others.

In his spare time Mpho enjoys mountain biking, meditating, studying philosophy and trying out Johannesburg’s restaurants.

Mpho initially joined the organisation on a three-month contract to take on the land and housing and deceased estate matters. This contract has been extended for a further nine months and we are very pleased to have him as part of the ProBono.Org team.

 

Click here for our complete October 2019 Newsletter

Is the Return of the Death Penalty a Viable Sentencing Option In South Africa’s Constitutional Dispensation?

Is the Return of the Death Penalty a Viable Sentencing Option In South Africa’s Constitutional Dispensation?

By Yolanda Mnyengeza, Cape Town intern

 

In early September 2019, residents of Cape Town took to the streets after a series of gruesome murders of women during National Women’s Month, many of them demanding that the death penalty be reinstated as a form of punishment for those who commit violent crimes against women and children. After a three-day protest from 3 to 5 September 2019, President Cyril Ramaphosa eventually addressed the crowd outside Parliament but he did not engage the protesters on their call for the death penalty. Instead, he proposed, amongst other things, that Parliament increase minimum sentences for serious crimes. He further averred that he concurred with the masses that bail and parole be opposed in order to fight the crimes committed against women and children.

However, the general public remains largely unaware that minimum sentencing requirements already exist within our legislation, but that in itself has not deterred accused persons from committing serious offences. Moreover, the call to oppose bail will be quite problematic, bearing in mind that the Criminal Procedure Act states that an accused is entitled to be released on bail should he/ she meet the requirements imposed by section 50(6). This contention has been expressly upheld by the courts, who stated that no one ought to be deprived of his/her freedom arbitrarily and, if the interests of justice so permit, the arrested person is entitled to be released.

Thus, the question remains whether the death penalty is a viable sentencing option in South Africa’s constitutional dispensation. Section 11 of the Constitution guarantees the right to life to all within the Republic. Section 37(5) further states that this right to life is a non-derogable right in its entirety, and therefore no limitation can be imposed on it, whether by legislation or the Constitution itself.

In the case of S v Makwanyane, the Constitutional Court found it imperative to abolish the death penalty as a form of punishment and held that it directly infringed on the right to life, guaranteed under section 11. It is important to note that the court when making this decision also considered the adverse effect on the right to dignity provided for in section 10 of the Constitution. Thus, the court held that it cannot be right that a person be punished in such an inhumane and unnatural manner under a constitutional dispensation.

It is understandable that as a result of the prevailing violent crimes committed against women and children there is wide contention for the reinstatement of the death penalty to serve as a deterrent form of punishment. However, as the court stated in the case of Makwanyane, even though wide contentions may be held by a majority of the people, the court’s duty is only to act as an independent arbiter of the Constitution and not merely as an agent for public opinion.

As provided above, constitutional sovereignty does not operate on an eye for an eye basis. As such, it is safe to conclude that the return of the death penalty is not a viable sentencing option under South Africa’s constitutional dispensation. It is therefore evident that a lot more work needs to be done in relation to crime prevention strategies, rehabilitation and the sustainability of the reintegration of offenders into communities.

 

Click here for our complete October 2019 Newsletter

March against Xenophobia

By Muchengeta Hwacha, Johannesburg intern

 

On 4 September 2019, Lawyers for Human Rights (LHR) and the Consortium for Refugees and Migrants in South Africa (CoRMSA) called an emergency meeting to address the spate of violence that had erupted against foreign nationals. Civil society, faith based organisations, trade unions and community leaders heeded the call and gathered at Constitution Hill. The large turnout was unexpected and the organisers were forced to change the venue twice to accommodate the numbers.

The gathering was eventually ushered into an open air courtyard of the former prison and a discussion ensued on how to tackle this fresh scourge of violence. Many shared various ideas on how to address the current challenges facing foreign nationals. The one idea that seemed to garner the most support was that of a march in the inner city to show support to the victims of the violence.

As a result, on 14 September the participants gathered again, this time bringing along a mass of supporters. An estimated 1 000 people marched from Joubert Park through Hillbrow and onto Mary Fitzgerald Square. The march seemed to strike a chord with the residents of Hillbrow, as some were seen weeping as they witnessed the march proceed under their windows and balconies. Given the level of trauma suffered by many in that community, their reaction was understandable but heartbreaking. The march proceeded with high levels of discipline from attendees. It was well covered by the media and well protected by the S A Police Services.

 

Click here for our complete October 2019 Newsletter

Civil Society Forum at the Pan-African Parliament on the theme of Refugees, Returnees and Internally Displaced People

Civil Society Forum at the Pan-African Parliament on the theme of Refugees, Returnees and Internally Displaced People

By Muchengeta Hwacha, Johannesburg intern

 

The Centre for Human Rights, in collaboration with the Pan-African Parliament (PAP), invited ProBono.Org to participate in a Civil Society Organisation (CSO) Forum on the sidelines of the third ordinary session of the Fifth PAP legislature.

The CSO Forum was invited to engage on the African Union theme ‘The Year of Refugees, Returnees and Internally Displaced People’. The adoption of this theme comes at a time when there has been an increase in the number of incidents of xenophobic violence and related intolerances across the continent.

The forum sought to discuss and develop:

  • Avenues for countering
    xenophobic violence;
  • Enhancing protection for refugees; and
  • Mobilising effectively in protecting displaced populations.

After much discussion, civil society organisations committed themselves to continue to use the forum to advance the agenda of anti-xenophobia, internally displaced people and refugees.

 

Click here for our complete October 2019 Newsletter

Is Forfeiture Of Patrimonial Benefits In Divorce Proceedings Still Relevant In Modern South Africa?

Is Forfeiture Of Patrimonial Benefits In Divorce Proceedings Still Relevant In Modern South Africa?

By Siphesihle Mayedwa, Cape Town intern

 

When a decree of divorce is granted on the grounds of irretrievable breakdown the court may make an order that the patrimonial benefits of the marriage be forfeited by one party in favour of the other, either wholly or in part. If the court, having regard to the duration of the marriage, the circumstances which gave rise to the breakdown thereof and any substantial misconduct on the part of either of the parties, is satisfied that if the order for forfeiture is not made, one party will unduly benefit in relation to the other, then only will it consider granting such an order. In addition, the party claiming division, transfer or forfeiture of benefits should provide the grounds on which he or she makes the claim.

Where the courts grant an order for forfeiture of patrimonial benefits against a party, he or she forfeits not their share of the common property, but only the pecuniary benefit that they would otherwise have derived from the marriage. In addition to being an order for division, it is also an order stipulating that the party defending forfeiture is not to share in excess of what the party requesting forfeiture may have contributed over the contributions of the party defending same.

Previously, the power of the court to order forfeiture of benefits was based on the common law principle that no person ought to benefit financially from a marriage which he or she caused to fail. South African courts have since abandoned fault or conduct as the main reason for a forfeiture order. In terms of the Divorce Act, 70 of 1979 (the Act), the court has discretion, when granting a divorce on grounds of irretrievable breakdown, to order that the patrimonial benefits be forfeited by the party who is the cause of the breakdown, provided that such party will unduly benefit if forfeiture is not granted in favour of the other. As a result, many allege that forfeiture of patrimonial benefits as provided for in the Act seems to penalise those who are found to have committed substantial misconduct. It is therefore contended that it remains unrealistic to proceed from the view that the responsibility for the breakdown of the marriage lies only with one of the spouses while the other is completely innocent.

In the reported case MC v JC, after 26 years of marriage the husband obtained a partial forfeiture order based on his wife’s adultery which was deemed to be ‘substantial misconduct’. On appeal, the court made a comment in passing, holding that section 9(1) might infringe the right to equality because it placed the party who had committed substantial misconduct in an unfavourable position when it comes to the distribution of the patrimonial benefits of the marriage. As a result, the court pointed out that many may feel forced to remain in an unhappy marriage for fear of losing patrimonial benefits.

Moreover, in the event that the court is tasked with having to consider a prayer for forfeiture of patrimonial benefits it does not only take into account the substantial misconduct, but also further factors such as the duration of the marriage, the circumstances which gave rise to the breakdown and whether the other party would be unduly benefited, since all factors are equally important. In the reported case of JW v SW, the court held that substantial misconduct does not on its own justify an order for forfeiture.

The courts’ intention when granting an order for forfeiture is therefore to protect vulnerable parties in divorce proceedings rather than punishing the party against which the order is sought. In the reported case Tsebe v Tsebe, the court found that the defendant used the proceeds of his pension pay-out exclusively for his own benefit, to the detriment of the joint estate and the plaintiff in particular. It was further found that the defendant would under these circumstances be unduly benefitted if the order for forfeiture was not granted. As a result the defendant was ordered to forfeit his claim to 50% of the plaintiff’s pension interest held in the Post Office Retirement Fund. It is important to note that where there is a risk that one spouse in a marriage may endanger the other spouse’s interest in the joint estate pending the divorce, our law often seeks to protect such spouse against the deliberate or reckless conduct of the other during divorce proceedings.

It is however important to note that South African courts are reluctant to grant an order for forfeiture of patrimonial benefits due to its adverse effects and its interference with the applicable matrimonial property regimes governing the division of such estates. In light of the above, it is evident that forfeiture of patrimonial benefits is indeed relevant in modern South Africa to ensure that there is a level of protection in favour of vulnerable spouses, especially women.

 

  1. Divorce Act, 70 of 1979.
  2. Supreme Court Act, 59 of 1959, Uniform Rule 18, Magistrates’ Courts Act 32 of 1944, Rule 6.
  3. These include marriages in community of property and marriages out of community of property subject to the accrual system.
  4. 1937 WLD 126, at 127-8.
  5. Quansay ‘’The order of forfeiture of benefits in divorce proceedings in Botswana’’.
  6. MC v JC 2016 (2) SA 227 (GP).
  7. 1989 1 SA 597, 602-3.
  8. JW v SW 2011 (1) SA 545 (GNP).
  9. Tsebe v Tsebe [2016] ZAGPPHC 575 – Forfeiture of pension interest in a divorce matter.

 

Click here for our complete August 2019 Newsletter

A Single Marriage Statute?

By Sethabile Sithole, Durban intern

Our country is one that has people from diverse cultures and backgrounds. This is evident in the existence of legal pluralism that exists in our legal system. This is discernable in the judicial accommodation of non-state law when it comes to religious marriages. Though not recognised under South African law, the courts have extended a piecemeal recognition of religious marriages, although this recognition still casts a shadow of uncertainty on the parties to these marriages. For this reason parties have entered into both civil and religious marriages.

The South African Law Reform Commission (“the Commission”) seeks input on whether existing laws should be reshaped into a single marriage statute and, if so, how. There are currently three laws in which the three types of marriages recognised in South Africa are governed, viz., the Marriage Act of 1961, the Recognition of Customary Marriages Act of 1998 and the Civil Union Act of 2006.

One of the primary questions from the Commission is whether they should create a single statute that is all inclusive and has consequences applying to all types of marriages, or an omnibus statute which has different chapters regulating the different types of marriages. If the former is to be adopted, the question is what about the requirements which are unique and only exist in one type of marriage and not the other? Some examples would be the payment of a bride-price or the marriage being conducted by a marriage officer. In such cases, would we have to do away with such requirements or apply them across the board?

The Commission Issue Paper 35 on Single Marriage Statute is available on its website at www.justice.gov.za/salrc
and it is open for comments on any of the issues contained in the issue paper. For those who are interested in making comments, an extension has been given until 31 August 2019. Workshops will also be held in the various provinces in due course. In addition, a consolidated questionnaire will be available in all nine official languages. The commission is liaising with the Council for the Blind to have the questionnaire available in braille as well.

 

Click here for our complete August 2019 Newsletter

Celebrating One of Our Own

By Muchengeti Hwacha, Johannesburg intern Pic Dakalo Singo

ProBono.Org would like to extend a congratulatory message to one of our partner attorneys, Dakalo Singo of Werksmans. He was featured in the Mail & Guardian’s annual list of eminent South Africans under the age of 35.

His work in representing refugees against the Minister of Labour resulted in a landmark Constitutional Court judgement, which affirmed the labour rights of this marginalised community. That judgment has become the catalyst for ProBono.Org, with support from the HCI Foundation, to develop a campaign and monitoring mechanism to ensure its effective enforcement.

Congratulations Dakalo, continue the good work.

 

Click here for our complete August 2019 Newsletter

Children’s Project – training for legal practitioners

By Elsabe Steenhuisen

 

1. Short dialogues

This year our children’s project is conducting a series of eight two-hour dialogues in four Gauteng regions (Alberton, Roodepoort, Boksburg and Johannesburg) spread over the year. Their aim is to create a platform for recently admitted and young legal practitioners to engage with each other and with more experienced colleagues on various topics.

The first two dialogues (held on 28 March and 4 April) served to improve the practical skills of dealing with professional/client relationships – the conflict, the emotions, the relentless contact and insistence on feedback, the overload of information, the lack of co-operation and clear instructions. The third and fourth dialogues (held on 24 and 30 May) dealt with the lessons of practice we only learn the hard way. Attendees compared and shared their experiences with that of the speaker and their colleagues.

The fifth dialogue was held on 11 July at Klopper Jonker Attorneys in Alberton and dealt with appropriate billing practices, the difference between fees and disbursements, managing clients’ perceptions in respect of fees and clear communication with clients about fees. The speaker touched on overreaching, underreaching, deposits and fee estimations. This dialogue will be repeated on 29 August at Coetzee Attorneys in Roodepoort.

The last two sessions will be held on 16 August at Hogan Lovells, Sandton and on 23 August at Alice Swanepoel Attorneys, Boksburg. The speaker will open the discussion with reference to best practice in respect of the charging of professional fees and the levying of disbursements. He will conclude with ethical ways of dealing with advocates and with the courts.
ProBono.Org is indebted to Ramsden Small Attorneys that made Suné Bosch and Jonathan Small available to lead the dialogues for 2019, and to the firms for hosting the dialogues.

If you would like to attend the remaining dialogues, you are welcome to book your place with Phumi at phumi@probono.org.za. Please note that space is limited.

2. Workshops in Children’s Court practice

The second of this series of workshops was held on 19 July hosted by our partners, Werksmans Attorneys.
Presenter and former magistrate Alice Swanepoel shared her years of experience in handling Children’s Court matters. The gathering was also an opportunity for the legal practitioners who had attended the first session to probe more deeply into the intricacies of representing children and their interests.

We were also honoured by a surprise guest speaker, Acting Judge Clute Swanepoel. His significant depth of knowledge and particular experience in the higher courts provided an additional layer of detail to the session.

These workshops highlighted the need for legal practitioners to discuss practical scenarios with each other and with experts on Children’s Court practice. Plans for 2020 workshops will focus on this aspect and we will call on legal practitioners to indicate which scenarios they would like to be discussed.

Our thanks for the contributions of the speakers and the host, and the participation of the attendees.

 

Click here for our complete August 2019 Newsletter

HCI Foundation Workshop

In Johannesburg on 25 July the HCI Foundation held a well-received workshop for its grantees. The objectives of the day were to share good practices, encourage collaborations, deepen an understanding of monitoring and evaluation, explore fundraising and sustainability and to celebrate and inspire individuals and organisations. The activities included getting to see the work of the participating organisations through their colourful displays, creative group work and a feedback session on the 2018 survey sent out by the HCI Foundation. This survey highlighted the need for funders to have more contact with grantees, enable peer learning and provide mentorship to small NPOs. We thank the Foundation for a well executed and worthwhile engagement.

 

Click here for our complete August 2019 Newsletter

Women’s Day 2019

On 15 August the Johannesburg office held its annual Women’s Day event. 50 Community members came from the Johannesburg area as well as Tembisa, Zola and Dobsonville. Candice Pillay from Hogan Lovells spoke to them about child and spousal maintenance and 30 attorneys, advocates and mediators made themselves available for private consultations on the day. In addition, information was provided by the Teddy Bear Clinic, the CCMA, POWA, the Legal Resources Centre, MES and the Deeds Office. Thanks to Candice and to the legal practitioners who volunteered their time to advise and assist the women who had legal issues.

 

Click here for our complete August 2019 Newsletter

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