Commemoration of International Human Rights Day

Commemoration of International Human Rights Day

By Shamika Dwarika

ProBono.Org (Durban), in partnership with the SA Human Rights Commission and The Department of Justice and Constitutional Development, hosted an event to commemorate International Human Rights Day.

The event was held on 10 December 2018 at the University of KwaZulu Natal, Durban and was open to all legal practitioners and various organisations. The speakers were the Honourable Deputy Minister of Justice and Constitutional Development, John Jeffery MP, Judge Radebe and Professor K. Govender, with the event being facilitated by Adv. D. Ainslie. The theme of the event was “Lets Stand Up for Equality, Justice and Human Dignity”, with each of the three speakers dealing with one sub-theme.

The United Nations General Assembly adopted the Universal Declaration of Human Rights in 1948 and 10 December was declared International Human Rights Day. The year 2018 marked the 70th anniversary of the day. Partners saw this as an opportunity to celebrate the Universal Declaration of Human Rights and highlight the need to honour and uphold human rights principles and standards.

Several sponsors came on board to show their support and we are grateful to LexisNexis SA, Aquacool, Shackleton Risk, Varsity College Westville (Business School), Virgin Active | Collection, Garlicke & Bousfield attorneys and the Durban University of Technology (Department of Applied Law) for their contributions.

 

Caption for picture (Left to Right)

  • Professor K. Govender (Commissioner SA Human Rights Commission),
  • Benjamin Ntombela (Legal Officer SA Human Rights Commission (KZN)),
  • Honourable Deputy Minister of Justice and Constitutional Develpoment, the Hon. J.H. Jeffery, MP,
  • Shamika Dwarika (Regional Director: ProBono.Org),
  • Judge N. Radebe (KZN High Courts) and
  • Asiya Khan (Senior Legal Admin Officer: DOJ&CD, KZN Regional Office)

 

 

Click here for our complete February 2019 Newsletter

Unlawful Property Sales and Illegal Evictions by “Agents”

By Zunaid Latief, Cape Town intern

In South Africa the conventional purchase and sale of immovable property is administered by registered estate agents who analyse the property market, accompany clients to property sites, discuss and advise on conditions of sale and prepare agreements of purchase and sale between buyers and sellers. The process is further overseen by a conveyancer, who ensures that the necessary legal formalities are complied with and essentially ensures that transfer and registration take place.

Although it is legal for owners and prospective purchasers to buy and sell immovable property privately, it has become apparent that the Cape Flats and township areas within the Western Cape have been plagued by the presence of ordinary community members, who undertake to facilitate the process without the necessary mandate, or complying with the relevant legal framework. These individuals are often referred to as “agents” but are neither legal practitioners nor registered estate agents. In essence, their sole aim is to benefit from a healthy commission on conclusion of an unlawful transaction.

Common practice amongst these individuals entails the facilitation of a purchase and sale of immovable property by way of an affidavit and cash transaction. In the event that either the buyer or the seller has a legal dispute after the agreement has been concluded, it places them in a precarious position, as they find they have limited legal recourse available to them. At this stage, the “agent” has already received his or her compensation and is nowhere to be found.

The Prevention of Illegal Eviction and Unlawful Occupation of Land Act 19 of 1998 (PIE Act) safeguards South Africans from being unlawfully evicted from the land or property they occupy. It further sets out the procedure for the eviction of unlawful occupiers of land and avers that no person may be arbitrarily evicted from their home. Attorneys are therefore often appointed to ensure that eviction proceedings comply with the provisions of the Act. However, in light of consultations held with affected parties, it is evident that these “agents” blatantly disregard the provisions of the Act. In situations where the seller’s property is occupied by tenants or backyard dwellers, the “agent” often acts as an enforcer and proceeds to eject these occupiers forcefully and illegally.

It has become clear that a number of underprivileged and marginalised individuals are completely misguided and have little to no knowledge regarding the legalities related to the purchase and sale of immovable property, as well as the eviction process, and they become easy targets for these so-called “agents”. In an attempt to combat this scourge, ProBono.Org Cape Town has embarked on a mission to host several community legal education workshops in affected areas. The aim of these is to empower and enlighten marginalised individuals with basic knowledge in respect of the acquisition and disposal of immovable property and the legal implications in respect thereof. These workshops also focus on and break down the PIE Act, with the aim of educating community members in respect of their rights and responsibilities relating to eviction disputes.

 

 

Click here for our complete February 2019 Newsletter

Dialogue on Mandela the Lawyer

Dialogue on Mandela the Lawyer

In collaboration with the Nelson Mandela Foundation (NMF), ProBono.Org held a dialogue on Nelson Mandela the legal practitioner on 11 October to mark the centenary of Madiba’s birth.

The conversation was the first of several planned to start a conversation about the importance of pro bono work and the ethics and values needed to reshape the profession to be more public-spirited. The conversation was started by Sahm Venter, senior researcher at the NMF, who emphasised the importance of pro bono work during apartheid and the work of the Independent Defence and Aid Fund (IDAF) established by Canon John Collins of St Paul’s Cathedral to defend political activists.

Former Constitutional Court Judge Albie Sachs spoke about how Madiba the lawyer was a commanding presence in a courtroom. He stressed the importance of not seeing Mandela the lawyer as a conflict with Mandela the revolutionary. He used the law to make a living and also to fight for his people in court. His legal experience also helped him when it came to drafting the Constitution.

Lwando Xaso, senior associate at ENSafrica, found Mandela’s speech about being “a black man in a white man’s court” relevant today for young black lawyers in law firms where they are expected to dress and act according to the firm’s culture and thereby feel they are losing their own culture and feel alienated in their workplaces. It is sad that even as transformation is on people’s lips and in their policies, they do not make an effort to get to know their black lawyers. Several audience members, who were mainly young black lawyers, echoed this feeling. One said that she had found that in her community people did not know about the Constitution and she felt she could give back by educating them about the law.

ProBono.Org National Director, Michelle Odayan, who facilitated the dialogue, said that legal practitioners who give their time and experience to provide access to justice should not be regarded as poor and inferior. We are planning to hold further dialogue sessions on topical issues in 2019 as part of our young lawyer development programme.

Click here for our complete December 2018 Newsletter

The Open Society Foundation in SA turns 25

The Open Society Foundation in SA turns 25

On 29 and 30 November ProBono. Org attended the 25th anniversary of the Open Society Foundation for South Africa (OSF-SA), which opened offices in 1993. However, founder George Soros had already been engaged in South Africa since 1979 when he launched a scholarship programme for black students to study at the University of Cape Town. The programme for the celebration included tours to some of the Cape Town projects funded by OSF-SA, a film preview, panel discussions at the OSF offices, a photo exhibition of grantees’ social justice projects and a commemorative public lecture at the City Hall with Samia Nkrumah in conversation with Patrick Gaspard, President of the OSF. A highlight of this last evening was the announcement of the next 25 recipients of fellowships and scholarships, one of the presenters being the first recipient of a bursary in 1979.

Congratulations OSF-SA!

Click here for our complete December 2018 Newsletter

Attorney get-together and feedback session

Attorney get-together and feedback session

On 6 December a good crowd of attorneys, advocates and mediators gathered at our offices to socialise and give us feedback on their experiences staffing our legal clinics and help desks and taking on our clients’ cases. We are grateful for this feedback and also for the good work of all our partners in 2018. We are proud to report that with your help we have assisted over 10,000 needy people this year. We wish every one of you a restful and happy festive season.

Click here for our complete December 2018 Newsletter

The dead man’s property

The dead man’s property

By Neliswa Ncama, Durban intern

The passing of a loved one is one of the most challenging experiences that a family has to face. After a funeral, they are left to pick up the pieces and figure out how to proceed after this tragedy. The family would have to begin the process of winding up the estate by reporting the death to the Master of the High Court. A number of issues may arise at this point; one of them being the transfer of the property once the estate has been wound up.

A conveyancer is needed to handle the transfer of the property so that the ownership of the property vests in the heir. In theory, this may seem to be the sensible approach considering the complexity of transfer matters. However, it is hard for the poor and marginalised to be able to afford these services, as conveyancers’ costs are just too high. In the event that the family is able to raise the money to pay a conveyancer, or organisations such as ProBono.Org are willing and able to assist with this transfer, the family is still faced with the challenge of ensuring that utilities and rates are paid up to date, in order to receive a clearance certificate before transfer can take place.

ProBono.Org is only able to assist in matters where the value of the estate is below R250 000 and where the client is able to pay the disbursement costs, which would include transfer costs required by the Deeds Office. In the instance that someone is unable to access pro bono services, they would also be required to pay the costs of a private attorney. While the rationale is that the estate will cover such costs, the reality is that often the only asset in the estate is the house that needs to be transferred. Payment arrangements may also be made with a private attorney, but this just means that the process may take years to complete.

These expenses are the reason why many families do not have title deeds to a property. Without them, the family may still have security of tenure (or rights in the property) but these are incomplete as the heir/s are still unable to fully exercise their rights. If the heir is unable to get the property transferred, issues such as encroachment of property, payment of utilities and the ability to evict others from the property are difficult, and sometimes. impossible, for the heir to deal with, as proof of ownership is required.

The time has come when the Deeds Office needs to cater for the poor, who make up the majority of our population. The Deeds Office should put in place systems to assist a lay person with the transfer of property. Many other government institutions allow a lay person to transact on their own. An example of this is where the Master’s Office allows a lay person to report a deceased estate valued below R250 000, without requiring them to appoint an attorney. This is a massive cost saving for a poor person. Alternatively, there should be some sort of government subsidy or loan that families in this position could apply for in order for property rights to be attained by the most vulnerable in society. The death of a loved one should not be the reason why a family’s dignity is compromised and puts them in a situation where they do not own their own home.

Click here for our complete December 2018 Newsletter

Defamation via social media – rights vs responsibilities

 By Uzair Adams

Social media platforms have become an increasingly convenient and instant means of communication across the globe. However, easy access to Facebook, WhatsApp and Twitter, amongst others, does not come without drawbacks, particularly relating to matters of defamation.

Defamation via social media has been the bone of contention of several hearings before the Commission for Conciliation, Mediation and Arbitration (CCMA), particularly where employees share information regarding their employers that is disgraceful or detrimental to their employers’ reputation.

On 6 November 2018, ProBono.Org Cape Town was approached by a children’s hospice for assistance with a labour dispute relating to the conduct of an employee, where an allegation was made via a WhatsApp text message to one of the employer’s board members alleging maladministration, financial mismanagement and a lack of transparency by the CEO of the nonprofit organisation.

The employee was subsequently charged with defamation of character, in that he intentionally conveyed false information to the board member, and was further charged with bringing the organisation’s name into disrepute, in that he claimed that the CEO had misrepresented the organisation’s financial position to the Department of Social Development.

In this regard, a disciplinary hearing ought to have been held on 22 August 2018, where Mr. M was appointed as an independent chairperson, but he was unfortunately involved in a serious accident and was no longer able to oversee such disciplinary process. The children’s hospice, like many NGOs in South Africa, is currently faced with an unfortunate funding crisis, and has limited financial and human resources available that would have enabled a fair and thorough disciplinary hearing. ProBono.Org Cape Town proceeded to brief counsel to act as an independent chairperson and to facilitate the disciplinary hearing, which was held on 23 November 2018.

Summary of the Chairperson’s findings:

  • The chairperson noted that he could not find the employee guilty on both allegations as it would amount to a duplication of “convictions”.
  • The chairperson could see no evidence showing that the employee had brought the employer into disrepute. The allegation made was via a private WhatsApp text message to one of the employer’s board members. There was therefore no evidence that the employee’s allegation was publicised in any way, or that it affected the employer’s reputation.
  • The question remained whether the employee was guilty of defamation of character in that he ‘intentionally gave false information that humiliated and belittled the CEO, which made her look foolish and ridiculous and which rendered her less worthy of respect by the board members. The chairperson found the employee guilty of this allegation, in that he conveyed information to one of the employer’s board members which was false. If the employee had made the proper inquiries, he would have discovered that there was no inflation of figures. The CEO confirmed (and it was not contested) that the Department was fully aware of how the employer arrived at its figures and accepted that the employer was acting appropriately.
  • The chairperson further noted that he did not accept that the employee made the allegation in order to bring an impropriety to the attention of the board. If that was so, the employee would have sent a message detailing that concern. However, the allegation relating to inflating figures was a throw-away (yet deeply insulting) remark.
  • Moreover, the chairperson considered whether the employee’s allegation amounted to a protected disclosure for the purposes of the Protected Disclosures Act and found that it did not.
    • Firstly, the allegation was not a ‘disclosure’ within the definition of the Act, given that it did not relate to a serious impropriety within the meaning set out in Malan v Johannesburg Philharmonic Orchestra (JA 61/11) [2013] ZALAC 24 (12 September 2013). The allegation was one relating to figures which were readily available and known by the board. They were also known by the Department which accepted them and the manner in which they were calculated.
    • Secondly, the employee’s allegation was made to the employer and, in terms of the Protected Disclosures Act, had to be made in good faith, which the chairperson did not accept was the case under the circumstances.
  • The employee’s conduct was therefore unacceptable, and the appropriate sanction imposed was a written warning suspended for 6 months on condition that the employee was not found guilty of similar misconduct within the stipulated period.

Employees now have several platforms where they can vent their frustration and raise concerns regarding their employers. However, employees ought to utilise such platforms responsibly or face severe consequences, as illustrated in this case. While freedom of speech and expression, together with the right to privacy, affords us great power, the risk of publicly defaming the character of another has increased exponentially with the constant evolution of the social media landscape. Consequently, we have to remain cognisant of the fact that with such great power comes great responsibility.

Click here for our complete December 2018 Newsletter

Events and work with SMME’s

Events and work with SMME’s

By Swazi Malinga.

ProBono.Org generally provides legal assistance on corporate governance to young aspiring entrepreneurs, business start-ups and SMMEs by referring their requests for assistance to law firms who have volunteered their services on a pro bono basis. We assist clients with an annual turnover of less than R1million.

Because many of these business owners lack the basic knowledge of what the law requires of them when operating their businesses, we tend to spend a lot of time explaining and providing a crash course in commercial law.

In response to this we hosted an SMME seminar on 7 September at Constitution Hill together with Stevens Attorneys, which addressed The Companies Act, Insolvency Law and Commercial Contracts. The 56 participants ranged from owners of start-ups, established entities and spaza shops.

Since 2015 ProBono.Org has run an SMME help desk called YAKHA ISIZWE, based in Soweto, which is a collaboration with Fasken Attorneys and the University of Johannesburg Centre for Entrepreneurship. The objective of this help desk is to provide the services of attorneys to a wide range of businesses, including spaza and tuckshop owners, business women, hawkers, bed and breakfast establishments and hair and beauty salons. The attorneys assist with drawing up service level agreements, lease and finance agreements, as well as advising on appropriate forms of entities to register and providing education and training on commercial law.

To create more awareness about the help desk we hosted an Entrepreneurship Fair on 27 September 2018 together with Fasken and the University of Johannesburg. A young female entrepreneur who owns an online pre-owned clothing business was the guest speaker. A panel consisting of a labour attorney from Fasken, the SA Revenue Service, E-Squared and the CIPC provided information and advice to the participants.

Our goal for 2019 is to have a weekly clinic for SMMEs that will operate at our head office.

 

Click here for our complete October 2018 Newsletter

Impact Africa 18 Summit

By Molebogeng Manyako, Johannesburg intern.

Further focus on SMMEs and advancing young entrepreneurs saw ProBono.Org and the British Council collaborate on a session presented by ProBono.Org and Bowmans at the Impact Africa Summit from 20 to 22 June. The purpose of the event was to accelerate innovative solutions to Africa’s most pressing challenges by inspiring, supporting and connecting leading social entrepreneurs and key ecosystem players across countries, organisations and sectors such as policy, social investment, business and education.

The first day dealt with leadership for change addressed by the likes of Pat Pillai and Jay Naidoo, to mention a few. The second day was about building a strong ecosystem and the third day addressed collaboration, which does not necessarily involve having money. One’s hands, mind and time can all be used to collaborate.

The Impact Africa summit has shown that we all have a role to play in shaping our societies to be more conducive for the holistic development of women. Last but not least, who can forget Sylvia Banda, a Zambian entrepreneur and a great storyteller. She said that “ I didn’t need to tell anyone about my first business. I just fried the food and filled the room with a nice aroma. People came to my door asking if I’ve started a restaurant”.

 

Click here for our complete October 2018 Newsletter

Public Interest Law Gathering (PILG) 4-5 Sept 2018

Public Interest Law Gathering (PILG) 4-5 Sept 2018

By Tshenolo Masha.

At this year’s event, convened by the Legal Resources Centre (LRC) ProBono.Org organised a plenary session on Transformation, both in the public interest law sector and the profession as a whole.

The panellists were Lisa Chamberlain (CALS), advocate Amelia Rawhani (Johannesburg Bar), Silomo Khumalo (Black Workers Forum), Mari van Wyk (Lexis Nexis) and Khululilwe Ntombi Bhengu (former ProBono.Org intern currently serving articles at SERI).The panel was facilitated by Tshenolo Masha of ProBono.Org.

The ojectives of the session were to look back on what has been achieved and some of the challenges within the public interest law sector and also to get an understanding of how the question of transformation is addressed by the legal profession as a whole.

The panellists covered aspects such as:

  • How transformation affects the sustainability and funding of organisations
  • A demographic overview of the profession in terms of race and gender (outlined in the Lexis Nexis 2016 survey)
  • How the lack of real transformation hinders young black female lawyers.

The session made it clear that a huge amount of work needs to be done to gain real transformation. We will be engaging young professionals to plan how active, progressive results can be achieved.

 

Click here for our complete October 2018 Newsletter

123426