The unsung heroes of ProBono.Org, Durban

By Petrina Chetty.

 

Fawzia-Khan

Fawzia Khan

Fawzia Khan of Fawzia Khan & Associates is a sole proprietor and general litigation attorney. She joined our panel in 2015. Since then, Ms Khan has maintained a consistent presence at ProBono.Org due to her desire to help people. Apart from taking on numerous matters, Ms Khan has assisted us with many of our special projects, such as the 16 Days of Activism help desks, and seminars for GreenAble and the KZN Blind & Deaf Society. Ms Khan is one of the attorneys that we can (and do!) approach when we need assistance urgently. In an organisation like ProBono.Org, it is most valuable to have attorneys like Ms Khan on our panel. She has proven that everyone can give back if they so wish.

“Giving back to the community by providing free legal services to the vulnerable and indigent is most fulfilling and highly rewarding”

Gregory Botha Pitcher & Fismer Attorneys

Gregory Botha

Another attorney who we wish to acknowledge is Gregory Botha of Pitcher & Fismer Attorneys. Mr Botha is a general litigation attorney and also joined our panel in 2015. As Mr Botha practises in Pietermaritzburg, it is difficult for our Pietermaritzburgbased firms to staff our help desks in Durban. Mr Botha compensates for that by being ever willing to take on individual matters and has assisted us tremendously in this regard. He has gone above and beyond his mandate to ensure that clients are assisted.

“ I believe ProBono.Org helps to ensure that those less fortunate in our society have access to quality representation, ensuring these individuals’ rights are properly protected and / or enforced, making ‘access to justice’ a reality for them.”

We salute our East Rand pro bono attorneys

By Swazi Malinga.

 

Sumadhi Naidoo Attorneys

Sumadhi Naidoo Attorneys

The ProBono.Org Palm Ridge help desk services the community of Thokoza, Alberton and Palm Ridge. The help desk is operational on Mondays and clients receive assistance with family law matters, deceased estate and maintenance cases. We would like to salute our volunteer attorneys from Klopper Jonker Attorneys and Sumadhi Naidoo Attorneys.

Their dedication and hard work has kept this help desk afloat. They even go the extra mile by not just providing legal advice, but taking on cases and appearing in court for clients who cannot afford to pay legal fees.

Klopper Jonker Attorneys

Leana-Eliot

Leana Eliot

Nerina-Austin

Nerina Austin

P-W-Steinberg

P W Steinberg

 

Life Esidimeni – lessons on the importance of health checks for NGOs

Life Esidimeni – lessons on the importance of health checks for NGOs

By Tshenolo Masha

 

The appalling and unnecessary loss of life resulting from the Life Esidimeni tragedy has cast a spotlight on the many inefficiencies within our health system. It was however the lack of governance and legal advice in the NGOs involved that highlights the need for pro bono assistance for NGOs. Many of the organisations to which the Life Esidimeni patients were transferred were not properly registered to provide the services that they were contracted to provide and many opted to proceed in the hope that the funding received would be able to cover the loose ends. This was sadly not the case, and so began a downhill tumble of inexperience coupled with inadequate resources and support that disastrously led to the loss of many lives.

As with all tragedies, there are lessons that need to be learnt and actions put in place to ensure that they are not repeated. It is important that pro bono assistance for NGOs is provided to assist them with proper governance and contractual advice to avoid being drawn into dangerous spaces, in the hope of getting funding.

All law societies in South Africa recognise the role and contribution of NGOs in providing much needed assistance to impoverished members of society, many with limited resources and funding and a big commitment to social change. That is why pro bono legal work is extended to NGOs. ProBono.Org renders
services through volunteer attorneys to non-governmental, non-profit, community-based, public benefit, corporate or unincorporated bodies, trusts, foundations or charities working in the public interest or working to secure or protect human rights, which are mainly funded by donations.

Many NPOs are in desperate need of health checks to determine the organisation’s legal standing, status and ability to enter into certain contracts. We believe that, had some of the NGOs that received Life Esidimeni patients had access to skilled pro bono attorneys, they would have received the appropriate advice on their ability and legal standing to deliver the contracted services and would have been better positioned to respond to their situations appropriately.

Pro bono services include advice, opinions and the appointment of an attorney and/or advocate where payment of legal fees would deplete the organisation’s economic resources and adversely affect their ability to carry out their charitable or public interest work.

We are therefore calling on all legal professionals to contribute their knowledge and expertise in a practical and impactful manner. Each one of us has a duty to ensure that the law and access to the law is utilised for the greater good of our society and to protect the most vulnerable. Pro bono publico.

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Mandatory Pro Bono or Not?

Mandatory Pro Bono or Not?

By Erica Emdon

 

I recently attended the Pro Bono Institute (PBI) annual conference in Washington DC. This conference, convened every year by the PBI, a United States based NGO that promotes pro bono, is a gathering of NGOs, law firms, pro bono lawyers, justice officials and bar associations (similar to our law societies and bar councils). At these annual meetings, with as many as 300 participants, people get together to share ideas about pro bono.

This year a very interesting panel discussion took place entitled ‘Mandatory pro bono or not? Is it time to make it mandatory?’

The session was run as a debate looking at whether or not the state should mandate pro bono for lawyers.

The proponent of state mandatory pro bono, Judge Lippman, said that since there has been an attack on state funding in the United States and because state funding meets less than half the need there is in the country, a strong case for mandatory pro bono is created. He believes that it is a privilege to be able to practise law and the role of the regulator should be to ensure that lawyers are meeting their obligations.

The opposing view covered by Jim Sandman is that mandatory pro bono is very impractical for three reasons:

  1. Mandatory pro bono places a huge burden on legal NGOs who have to manage pro bono lawyers. Pro bono lawyers need help, mentoring and training. One has to be careful of incompetent work which means that you have to fund legal NGOs to manage and train pro bono lawyers.
  2. You don’t want clients to be served by lawyers who have been compelled to serve them and lawyers that aren’t willingly undertaking their obligation. The clients are negatively affected.
  3. Practically – the definition of pro bono is frequently expanded to things like serving on bar councils and CSR. Making it mandatory allows people to fulfill their obligations in ways other than serving low income people.

He added that pro bono should be done because it is in the fundamental DNA of being a lawyer. It is part of the culture of being a legal practitioner, the raison d’etre of providing legal services, so it shouldn’t have to be mandatory.

His points are valid and raise a critical issue. If we share his view that doing pro bono is an essential element of being a lawyer, and the hallmark of the profession, why are we finding it so difficult to find enough pro bono attorneys and advocates to serve our clients, and the clients of other NGOs – the poor and vulnerable? Why are the same lawyers doing it again and again, while the vast majority show no interest or commitment to pro bono? Law society rules are putting some pressure on the latter group to do pro bono, which indicates that here in South Africa, at least for the time being, mandatory pro bono may be necessary. But isn’t the ideal that it becomes a natural and routine part of every legal practitioner’s professional life, internalised as Sandman says, into their DNA?

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When can an employer be held liable for an employee’s injuries?

When can an employer be held liable for an employee’s injuries?

By Swazi Malinga

 

When Mr A contacted our offices he was convinced that he had a claim against his employer for the injuries he sustained and, further, that he had a case of unfair labour practice against his employer. Mr A was employed by a company named B as a general cleaner and caretaker. B’s main business was to maintain and service a block of flats at an upmarket suburb in Johannesburg.

On or about July 2015 Mr C asked Mr A to clean the windows of his flat. Upon his arrival on the day, Mr C gave Mr A a stepladder to use as the flat was on the first floor. While Mr A was on the ladder, the ladder broke and Mr A fell to the ground. He was taken to the nearest hospital where it was confirmed that he had broken his spine and would be confined to a wheelchair for the rest of his life.

Mr A was very disappointed that his employer refused to compensate him in any way or to report and lodge a claim on his behalf with the Labour Department under the Compensation for Occupational Injuries and Diseases Act (COIDA).

Mr A came to consult with us believing he had a case of ‘vicarious liability’ against B. We explained to Mr A that in a workplace context ‘vicarious liability’ refers to a situation where an employer can be liable for the acts or omissions of its employees, provided it can be shown that there is an employment contract in existence; that the action took place in the course of their employment and that the employee’s actions caused harm to another. However, in this instance the flat owner, Mr C, gave instructions in his personal capacity and, most importantly, Mr A is not an employee of Mr C. It is evident that B cannot be held liable for the actions of Mr A in terms of vicarious liability.

We had to discuss and explore other possible avenues that Mr A could use in order to claim for the injuries. We looked at a claim against COIDA in that COIDA provides for compensation in the case of disablement caused by occupational injuries sustained or diseases contracted by employees in the course of their employment, or death resulting from such injuries or disease; and provides for matters connected therewith. COIDA basically enables employees covered by the Act to make claims against the fund. In this case, the employer, B, rejected Mr A’s case rightfully as Mr A was not carrying out functions or work under the instruction of B in this case. We advised Mr A that he could explore a case against the owner of the flat, Mr C, for his injuries, but even so there were other difficulties that he could face with regard to pursuing such a case.

The fact that Mr C gave Mr A his ladder to use does not automatically make him liable for Mr A’s injuries. Should Mr A want to pursue the case, the common law test of a reasonable man may be applied in this case in order to establish whether using the said ladder and or placing it in the manner that he did was dangerous and could lead to him getting injured. In this case the court may find that he had to some degree contributed to his injuries and that he should have inspected the ladder for his own safety as well. With all the above said, client was advised that he could proceed with the case against Mr C but he should be aware of the challenges he will face in proving his claim. The lack of evidence will not make things any easier for him as there is no information about the ladder, and no photographs were taken in order to be able to assess the condition of the ladder.

Although this is a very sad situation for a client who came with very high hopes that he had a good case against B, we had to tell him that legally he had no claim. Even though the injury occurred at a location where he was employed, there is no liability by the employer for his injuries in this instance.

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Our help desks are expanding

Our help desks are expanding

By Shamika Dwarika, Elsabe Steenhuisen and Tshenolo Masha.

 

Help desks have proven to be a good service point for pro bono access. They are well situated and within easy reach for clients who frequent the courts or government departments requiring legal advice.

They are also a convenient and efficient system for attorneys to provide their pro bono hours in a space where they frequently operate and work.

DURBAN

Despite its limited staff, the Durban office runs 11 help desks, which enable us to extend our services to the wider community. In addition to specialised Consumer/Small claims, Refugee, Housing, Labour, Family and Deceased Estates help desks that are based at the Durban office in the CBD, there are several general advice help desks. These are based at the Chatsworth, Ntuzuma and Umlazi magistrates’ courts.

A number of new projects have recently been added. In December 2016, a general advice help desk was launched at the Verulam Family Court which is held on the first Tuesday of every month and is accessible to residents of the Verulam, Ottowa and Phoenix communities. The project was launched with the co-operation of the Department of Justice and there has been no shortage of attorneys willing to staff this help desk.

The office recently partnered with the KZN Blind & Deaf Association to conduct monthly workshops for their beneficiaries, and held a once-off help desk in December 2016 with six attorneys in attendance. There are plans to run a similar help desk for the Pietermaritzburg branch in due course.

In a new development, a general advice help desk will be held in the Durban High Court in partnership with the KZN Law Society. The help desk will be the first of its kind for the Durban office and will run daily from 09:00 – 12:00. ProBono.Org had a test run on 14 March and the help desk will officially launch on 10 April. This help desk will be staffed by attorneys with a minimum of 5 years experience. If any attorneys are interested in participating in this new venture, please contact ProBono. Org’s Durban office on 031 301 6178.

JOHANNESBURG

A divorce legal clinic started on 7 February 2017 at the Johannesburg Regional Divorce Court with one attorney and one advocate attending on Tuesday mornings. Ten candidate attorneys joined the programme on Monday mornings under the supervision of Adv. Elsabe Steenhuisen. After training at the court on 13 and 20 March 2017, they started to assist the public from 27 March. On average, they assist 10 members of the public per session.

As a pilot project and in support of the SA Law Reform Commission’s paper, Project 31: Family Dispute resolution, the clinic has involved the pro bono services of mediators and counsel. The aim is to offer a complete service to the indigent, and if the divorce disputes cannot be settled by mediation and settlement agreements, counsel will continue with pre-trials and trials. The focus is on dispute resolution regarding assets, and allowing children to voice their opinion in an attempt to curtail conflict.

The involvement with the clinic has led to training for counsel (two sessions) and candidate attorneys (four sessions). More training is planned on different types of curatorship in family disputes (May 2017), and the functioning of children’s courts (June/July 2017) which will be open to all legal practitioners.

Following a call by conveyancers at a pro bono briefing session held at the Johannesburg Deeds Office, we are setting up a help desk at the Deeds Office. This help desk will form the basis for a similar help desk at the Pretoria Deeds Office. We are aiming for the help desk to be operational by May.

 

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Thanking our Pretoria pro bono lawyers

by Neo Chokoe.

 

Screen-Shot-2017-04-24-at-1.36.30-PMOn 6 April 2017 ProBono. Org Pretoria hosted its first Lawyers Appreciation Ceremony to say thank you to the lawyers that have done pro bono work in collaboration with its office. The event was attended by 38 guests including Judge Mudau from the Gauteng Division, Johannesburg.

The Pretoria manager, Neo Chokoe welcomed the guests and thanked the sponsors who made the event possible through their donations. They were Maponya Inc, R W Attorneys, Savage Jooste & Adams, Lexis Nexis, Gildenhuys Malatji, Hahn & Hahn, Rudolph Jansen SC and R O Waters.

Ms Baitseng Rangata, the CEO of Maponya Inc and Secretary General of the Black Lawyers Association addressed the gathering on the importance of serving members of the community on a pro bono basis. She mentioned that the Black Lawyers Association is committed to pro bono work and will continue to encourage its members to do more. She stressed that it feels good just to be appreciated and that a ‘’thank you’’ goes a long way even when it does not come with monetary reward.

Ms Erica Emdon, the National Director of ProBono. Org, thanked the lawyers for their commitment to pro bono work before handing out the certificates of appreciation.

 

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Celebrating Human Rights Day with children<br/> – 21 March 2017

Celebrating Human Rights Day with children
– 21 March 2017

by Elsabe Steenhuisen.

A special day for the children in homes in the inner city of Johannesburg was organised by Lefika La Phodiso at the restaurant area at Constitution Hill. One of the organisations participating was the Art Therapy Centre, which uses art to assist children to deal with their emotions, to develop self-esteem and to develop skills in art.

The theme was about safe spaces and what is required to create a safe physical and emotional environment for children, in line with the Constitution.

The guest speakers were Advocate Elsabe Steenhuisen of ProBono.Org and Luke Lamprecht, a social worker who chairs the Johannesburg Child Advocacy Forum (JCAF).

Elsabe Steenhuisen demonstrated to the children how the law is creating safe spaces for children in need. She filled a glass bottle with sand, stones and water to illustrate that the law keeps children safe just as the bottle keeps the stones. Children should know that even if a situation seems hopeless, the law can still create a safe space, like the sand and water that finds a gap between the little stones.

Luke Lamprecht conducted a question and answer session on the rights of children. The children talked about food, shelter, education, love, discipline, guidance, protection, respect, a safe environment and the time to play.

The event ended with lunch and music by Zwai Bala.

 

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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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Nomboniso Nangu

Nomboniso-NanguProBono.Org is exceptionally saddened and shocked by the tragic passing of Nomboniso Nangu. Nomboniso, the director of the National Alliance for the Development of Community Advice Offices (NADCAO) who passed away on 8 April 2017, was devoted to furthering the interests of the community advice office sector with untiring passion and commitment.

Even when it seemed that the sector was unable to survive in trying economic times, she forged ahead and always remained a constant figure in the fight for recognition of grassroots level advice offices in the country and in the continent.

For the past two years, Nomboniso was a judge at the ProBono.Org Annual Awards Ceremony. With the other judges, she had to decide on the winners and finalists for various awards, including pro bono service by private legal professionals, students at law clinics, paralegals at community advice offices, and legal NGOs. She devoted considerable attention to ploughing through pages and pages of entrant applications and contributed her own insights and suggestions indicating her knowledge and experience of the needs of poor and vulnerable people in accessing legal services.

Her loss is a enormous blow to the social justice and community advice office sector, and it will be hard to fill the void she leaves. We send our deepest condolences to her family, her colleagues and her friends.

May she rest in peace.

 

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