Expropriation of land without compensation – Dialogue with the legal profession

Expropriation of land without compensation – Dialogue with the legal profession

By Tshenolo Masha.

In collaboration with Bowmans and Wits University, we held a dialogue on this hot topic on 23 August. The panel consisted of Prof. Elmien du Plessis (North West University), Nomzamo Zondo (SERI), Pierre Venter (Banking Association of SA), Stephen Grootes (SAFM) and Tebele Makhetha (Business Leadership SA). The dialogue was facilitated by Nompumelelo Seme from Wits.

The dialogue was specifically aimed at the legal profession and looked into various legal aspects of expropriation, for example, the regulation of land use and how it could be translated to the majority of the population who currently do not benefit from land in its current legal framework. It also discussed the interpretation of Section 25 of the Constitution in its reference to fair compensation.

There was lively debate and interaction from the large audience. The success of this event will be followed by a similar dialogue in Cape Town on 18 October.

 

Click here for our complete October 2018 Newsletter

Child abduction – the new scourge of the nation

By Courtney Cupido, Cape Town intern. 

According to a recent Eye Witness News report, there have been at least 13 reported cases of child abduction and attempted kidnappings in communities across the Western Cape since 8 August 2018.
The motives for these abductions may vary from forced child labour, financial and sexual exploitation, the use of children as drug mules to involuntary domestic servitude which is especially rife within the international context.

Over the past month there have been numerous reports of child abductions on various social media and news platforms, which has caused widespread panic, both within the Western Cape Province and beyond.

Incidents of child abduction and attempted kidnappings have taken place in shopping malls from under their parents’ noses, while playing in their neighbourhoods and even when walking to and from school.

The radical increase in reported abductions resulted in many government departments issuing warnings regarding child safety. The Western Cape Education Department in particular instructed all principals to inform and educate leaners around vigilance and taking necessary safety precautions.

In addition, the South African Police Services has sought to emphasise the need for continuous responsiveness amongst communities regarding the safety of children by conducting educational sessions and rights awareness interventions.

On 15 November 2000, the United Nations General Assembly adopted the Organised Crime Convention containing the Palermo Protocol, the first international instrument to define trafficking as:

Recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion. These other forms of coercion extend to abduction, fraud, deception, the abuse of power or of a position of vulnerability, or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation.

All countries which were signatories to the protocol had a duty to create legislation which would combat the crime of human trafficking.

Culturally unique forms of trafficking such as ukuthwala are however not addressed in the definition of trafficking. Ukuthwala is the illegal removal of a girl from her parents’ dwelling for the purpose of forced marriage or sexual intercourse.

In the unreported case Jezile v S and Others, a full bench of the Western Cape High Court delivered a landmark judgment where the court held that ukuthwala is no defence for crimes of rape, human trafficking and assault with the intent to do grievous bodily harm.

Thirteen years after ratification, South Africa satisfied the duty imposed on it by the Palermo Protocol. On 29 July 2013, South Africa’s former President, Jacob Zuma signed into law the Prevention and Combating of Trafficking in Persons Act of 2013. This is the country’s first piece of legislation centred around combating and preventing human trafficking.

While South Africa’s legislation in this regard may be viewed as being in its infancy, measures adopted by the country in criminalising acts associated with trafficking illustrate a step in the right direction.

 

Click here for our complete October 2018 Newsletter

Visit from Judge Thina Siwendu

Visit from Judge Thina Siwendu

By Suraya McKenzie-Pillay, Johannesburg intern.

 

As part of ProBono.Org’s commitment to the career development of its legal interns, the Johannesburg office was honoured to have Judge Thina Siwendu accept an invitation to address them and provide an insight into her journey within the legal profession.

Judge Siwendu’s remarkable journey from being an articled clerk at Cheadle Thompson & Haysom Inc., a fellow at the Centre for Applied Legal Studies, establishing and running her successful practice Siwendu Inc. after saying no to a job offer, and transitioning into the Judiciary was both inspiring and motivational.

Judge Siwendu explained how life will give you signals and you need to constantly be alert as to how you respond when venturing into new territory. Saying no to attractive opportunities is sometimes required and in order to grow on your journey you need to have a model of success which you continuously evaluate fearlessly.

We would like to take the opportunity to thank Judge Siwendu for taking the time to provide us with her insight, for encouraging and inspiring the legal interns as they venture onto the next step in their career paths and equipping them with invaluable knowledge and life skills.

 

Click here for our complete October 2018 Newsletter

ProBono.Org Durban’s Fundraising Brunch

ProBono.Org Durban’s Fundraising Brunch

By Shamika Dwarika

 

3 August 2018 was a culmination of months of hard work and planning for the Durban office as we held our Fundraising Brunch at the DLI Hall in Greyville. The event served a dual purpose in that we sought to raise awareness about violence and abuse against women and children, while at the same time raising funds for our office. To our delight the day dawned clear, unlike last year’s torrential downpour, and attendees were able to show up in their finery.

As there was a chill in the air however, BarMotion were on the scene to provide free hot beverages to warm the soul. 1608 Beauty on Demand were also on hand to provide free massages to get attendees in the mood for the event. We were very thankful that sponsors saw the value in what we were trying to do and came on board to support us in various ways. Our financial sponsors were Sanlam, PSI and Lexis Nexis SA (being our key sponsor). We also received goodie bag items from TAFTA, Vovo Telo Umhlanga, Varsity College and others. And with so many raffle items up for grabs, everyone had an opportunity to win! In total, we had 49 sponsorships, every one of which was instrumental in making the event a success.

In addition, we had exciting entertainment by Bluff Dance, Sizamawala Dance Group and Iris Samianathan whose performances took us through the various stages of a woman’s life. Our keynote speaker told her tale of emotional and verbal abuse. While many tend to focus on physical or sexual abuse, other types of abuse can be just as damaging and poisonous. Attendees had an enjoyable outing but were also provided with food for thought. In summary, it was a day well spent for all.

 

Click here for our complete October 2018 Newsletter

Pro Bono Law on Radio Today – the end of an era

Pro Bono Law on Radio Today – the end of an era

By Margaret Fish.

 

For the past eleven years ProBono.Org, in association with the Constitution Hill Trust and Norton Rose Fulbright SA, has had a fortnightly half hour slot on Radio Today dealing with aspects of the Constitution and the Bill of Rights. Patrick Bracher of Norton Rose Fulbright SA has been the gracious and able host of the show during its lifespan, leading our expert guests in conversation on a wide range of topics, such as media freedom, consumer and labour law, creative rights, the right to protest, land and education rights, among many others.

When we learnt in August that the station was moving from Parktown North to North Riding it was apparent that it would be difficult for both our guests and Patrick to drive out there in rush hour for the programme to air live at 18h30. Our last programme was therefore aired on 27 September. We are most grateful to Patrick for his dedication to the programme over the years. Many thanks also to our many willing and engaging guests, to Jacky Kanapi at Radio Today and to the station itself for hosting this programme. Podcasts of all the topics aired on the programme are available on our Facebook page.

 

Click here for our complete October 2018 Newsletter

Patrick Bracher speaks to Jean Ewang about women’s rights in respect of sexual harassment in the workplace

Patrick Bracher speaks to Jean Ewang about women’s rights in respect of sexual harassment in the workplace

Our guest was Jean Ewang, a partner at Hogan Lovells attorneys. She has advised state entities, multinational companies and employers on all aspects of employment law. To mark the end of Women’s Month she was talking about women’s rights in respect of sexual harassment in the workplace. She recently wrote an article on the issue for Gauteng Women in Insurance, which is attached, together with other articles on the subject written by the Hogan Lovells team.

Join Patrick Bracher for ProBono Law on alternate Thursdays at 18h30 (GMT+2), proudly brought to you by ProBono.Org and Norton Rose Fulbright South Africa. ProBono.Org actively increasing access to justice! Radio Today (@Radio2Day) broadcasts on 1485 MW (AM) in Johannesburg and countrywide on #DStv Audio Channel 869. Radio Today also streams globally on: www.1485.org.za and 1485.mobi. Radio Today! Radio that delivers!

Phumi Ngenelwa Celebrating 10 years with ProBono.Org

Phumi Ngenelwa Celebrating 10 years with ProBono.Org

Phumzile (Phumi) Ngenelwa is the Office Manager at ProBono.Org. On 1 July she celebrated her ten-year anniversary with the organisation.

She came from the firm CA Schoeman Attorneys in Northcliff, where she worked for two years as a filing clerk, later becoming an administrator. She heard about ProBono.Org through one of her colleagues, who heard there was a vacancy for a receptionist and passed on Phumi’s CV. She got the job and started on 1 July 2008.

At that time there were only 4 members of staff and the organisation was situated in Schreiner Chambers in Pritchard Street. Phumi was a jill of all trades at the time, making tea, cleaning and doing reception duties.

When ProBono.Org moved to Constitution Hill in 2009 Phumi took on the job of administrator, maintaining a database and undertaking simple bookkeeping, scheduling appointments for attorneys and providing clients with information and providing statistical reports.

Phumi’s duties later expanded still further to providing staff training on in-house systems and programmes, maintaining personnel files and leave, making travel arrangements, sending out newsletters and invitations and advertising vacant posts, among many others.

Phumi feels that hard work and dedication does not go unnoticed and her many promotions are evidence of this. During her time with the organisation Phumi has also furthered her studies and has a bookkeeping diploma and personnel management certificate.

She now mentors and guides the staff of over 28 permanent staff, and is particularly relied on and loved by our interns. Congratulations Phumi. Here’s to the next ten years. What would we do without you?

 

Click here for our complete August 2018 Newsletter

Our fight against domestic violence, one community workshop at a time

Our fight against domestic violence, one community workshop at a time

By Zunaid Latief, Cape Town

 

Domestic violence, in all its unsightly forms, reaches every corner of our society. Abuse is an issue that does not respect race, gender, sexuality, class, religion or wealth. It is however, especially prevalent in previously disadvantaged communities. Women, children and men are subjected to physical, verbal, psychological, emotional and financial abuse daily. Alarmingly, abuse most commonly occurs within a domestic setting. Bearing this in mind, we are faced with a simple question. What can we do to combat and prevent domestic violence?

Between the period of 17 January and 17 July 2018, the ProBono. Org Cape Town office has seen a significant decrease in the number of cases pertaining to domestic violence. We would like to think that our various community workshops held across Cape Town’s most poverty-stricken regions is positively influencing the number of clients seeking legal advice in respect of domestic violence. With the assistance of the selfless attorneys on our panel, we have managed to embark on a venture that entails educating the public and creating awareness on domestic violence and its far-reaching consequences.

The aim of these workshops is not limited to merely creating awareness. We also aim to equip communities with the legal tools and mechanisms afforded to them in terms of the Domestic Violence Act and the Harassment Act. For example, the court process involved with instituting an application for a protection order is thoroughly explained and attendees at the workshops are encouraged to liaise with the local South African Police Services and court officials when utilising these tools.

Previously, these workshops were limited to a few areas in Cape Town such as Khayelitsha and Macassar. However, during the course of the year, the staff at the ProBono.Org Cape Town office in collaboration with the enthusiastic attorneys on our panel, have overseen workshops in several new areas such as Elsies River, Kuils River, Gatesville and Athlone. Furthermore, we are looking at branching out even further, with workshops scheduled to be held in Bonteheuwel, Delft and Bishop Lavis in the near future.

The effects of branching out into these areas have been overwhelmingly positive. In tandem with the commitment of our panel attorneys as well as the dedication of the local community advice offices, a platform is being established where members of the community are being empowered with knowledge and equipped with mechanisms to combat and prevent domestic violence and, more importantly, educate their families, neighbours and colleagues in this regard.

While the fight against domestic violence is a long and tedious one, blighted with obstacles and hardships, it is evident that the most significant way to assist communities in navigating these obstacles is to empower them with knowledge, creating a sense of awareness and informing them of the legal mechanisms in place. This in turn breeds a sense of confidence amongst the community and, we believe, impacts the number of cases relating to domestic violence that come through our door. This idea must continue to be enforced and should later transcend into all other areas of concern in the law… one community workshop at a time.

 

Click here for our complete August 2018 Newsletter

Marriages (civil, civil unions and registered customary marriages) concluded with the (main/only?) aim of obtaining permanent residency and ultimately South African citizenship – are they valid marriages?

Marriages (civil, civil unions and registered customary marriages) concluded with the (main/only?) aim of obtaining permanent residency and ultimately South African citizenship – are they valid marriages?

By Elsabe Steenhuisen

 

This is a complex issue with legal and moral implications which are briefly dealt with here. The full discussion is available on our website.

Marriage is a special type of juristic act resembling a contract, but remaining sui generis as marriage creates a status while ordinary contracts do not. The right to marry is not protected in our Constitution, but it was held that sec 10 in the Bill of Rights should be interpreted so as to afford protection to the core elements of the institution of marriage and family life and the right and duty of the parties to live together as spouses.

In light of the above, should there be a problem when a person opts to change their status from unmarried to married in order to obtain other rights, and then opts to get divorced upon securing such other rights? In other words, is it correct to refuse a divorce in order to punish a person for obtaining these other rights by forcing a person to stay married? Is it a legal problem, a moral problem, or both?

The Department of Home Affairs (DHA) discovered in 2010 that almost 7 000 South Africans ended up in fake marriages with foreigners in the past three years. “In cases where the transaction is honoured, the victim will approach Home Affairs… to apply for a new identity document, claiming his or her ID is lost. When records show the applicant is married, he or she will claim the marriage took place without his or her consent, and will then seek annulment. Often, when this scam happens, the foreigner has by then already obtained citizenship and/or permanent residence in the country.” (www.iol.co.za/news/ politics/7-000-locals-in-fraudulentmarriages-670475).

ProBono.Org encountered at least three scenarios in this situation:

  1. One of the spouses had no idea of the marriage but found out later by chance that he/she is married. One normally asks for expungement from the DHA and if necessary one would approach the court asking for an order to compel the DHA to expunge.
  2. Both spouses agreed to the marriage – the SA citizen is normally compensated or promised compensation for the assistance given to the non-SA citizen. The non-SA citizen usually disappears immediately or a short while thereafter. In most instances the parties did not have an intimate relationship or at most, a few liaisons.
  3. Both spouses agreed to the marriage – one of the spouses is totally innocent and the behaviour of the other spouse comes as a shock. Sometimes the SA citizen ensures large gifts from a foreign spouse and then disappears, or a SA citizen was naive and did not know that the noncitizen had ulterior motives.

Should the courts refuse to grant adivorce in scenarios two and three,based on the view that no marriage was concluded, or that the marriage was concluded for fraudulent purposes and the plaintiff comes to the court with unclean hands?

Sec 11(6) and 26(b) of the Immigration Act 13 of 2002 deal with the legal requirements for spousal visas and spousal permits. Once the marriage has been in place for five years, permanent residency can be applied for but the permit shall lapse if at any time within two years of the issuing of the permit the good faith spousal relationship no longer exists.

But the question remains: how should the court view marriages as stated in scenarios two and three – valid, void or voidable? The Martens (1952) and Maseko (1992) cases give us the answer. Provided the marriage has been properly solemnised, its validity is unaffected where the parties marry for a purpose extraneous to marriage. In such instances one can say that the parties married without the intention of establishing a true marriage relationship. For example, if they enter into it as ‘a joke’, or for the purpose of enabling one party to enter or remain in the other party’s country, or to be permitted to leave his or her own country – the marriage is valid.

Another problem arises – what grounds is the plaintiff going to present as reasons for an irretrievable breakdown of the marriage relationship?

We advise that the allegations and the evidence should provide the real reasons for the marriage.

 

Click here for our complete August 2018 Newsletter

Wills Week at ProBono.Org

By Swazi Malinga

As part of our community outreach, we conduct workshops to create awareness about the importance of having a Last Will and Testament. We regularly visit communities in areas like Orange Farm, Tembisa and Kagiso. When a client approaches our offices with a request to draft a will, we send a request to our panel of volunteer attorneys and, depending on their availability, they will take on one or two wills drafting requests at a time. Although this process works, it does take a long time and we sometimes receive at least ten client requests a week, which then results in a backlog. We therefore decided to embark on a ProBono.Org Wills Week from 23 to 27 July 2018, which coincided with the Mandela Centenary celebrations.

We are proud to announce that during the week we were able to draft 100 wills for our clients. We would like to extend our gratitude to the following law firms who volunteered their time and drafted these wills: Maponya Attorneys, Ndangije Attorneys, Klopper Jonker Attorneys, Norton Rose Fulbright SA and Werksmans Attorneys.

 

Click here for our complete August 2018 Newsletter

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