Understanding the Constitution

Understanding the Constitution

By Koketso Molotsi, ProBono.Org intern

 

South Africa has one of the most inclusive Constitutions in the world, yet frequently ordinary people do not know the powers of the Constitution. It has recently been made more visible because of the well-publicised “Nkandla” case, which was heard in the Constitutional Court.

Even when people see the Constitution being put into practice, few people have a real understanding as to how it relates to them. A perfect example is Section 36 of the Constitution, which outlines the Limitation of Rights. The section provides that the rights in the Bill of Rights may be limited only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors.

To illustrate, I will use a case regarding a deceased estate and its surviving heirs. J and B are brothers whose mother died intestate. J went to the Master’s Office to report the estate but falsified facts by saying he was the only surviving heir of his mother’s estate. He was then issued with Letters of Authority. Subsequently J transferred his late mother’s property to himself and then sold the property to a third party. B now seeks legal assistance to reverse the title back into his mother’s deceased estate.

The problem the court would be faced with is how to remedy the matter. Should the court reverse title back into the deceased’s estate? What happens to the innocent third party who bought the house from J? Does the third party seek restitution from J for fraudulently selling him the house? Does B claim his half share of the sale of the estate from J? All these scenarios are things clients may not take into consideration when seeking legal assistance or when they say with conviction that the Constitution protects them and that they have rights. It is good that there are discussions amongst ordinary people about the Constitution, but now the conversation needs to be taken to a higher level where people are no longer just scratching the surface. People need to be educated on how the Constitution works for them in their day to day lives, making them understand that while we all have rights which are protected by the Constitution, these rights are limited and that these rights cannot infringe on the rights of others.

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ProBono.Org Durban says Thank you!

ProBono.Org Durban says Thank you!

By Petrina Chetty, ProBono.Org, Durban

 

Showing appreciation to attorneys, advocates and organisations is one of the events that the Durban staff looks forward to hosting. Not because we get to “glitter and glamour” on the day, but because we are able to give a little something back to those who go above and beyond to assist ProBono.Org and our clients.

This year, we held our second annual Appreciation Day event on 9 June at the AHA Waterfront Hotel. This occasion marks the growing success of our organisation. It is an opportunity for our staff to meet and greet some of the attorneys that we do not have an opportunity to work with. This year we were fortunate to be able to share the event with our Johannesburg colleagues.

The 2017 Appreciation Day event would not have been possible without our generous sponsors, some of which were Lexis Nexis, Juta, Sanlam, Urban Lime and Virgin Active. We were very honoured to have as our keynote speaker Professor David McQuoid- Mason of the University of KwaZulu-Natal and the founder of the Street Law Programme. Professor Mason embodied the spirit of the event and came appropriately and amusingly dressed with a “Keep Calm and Do Pro Bono” t-shirt. As our Master of Ceremonies we had popular DJ Kevin Minter-Brown of Durban Youth Radio fame. The highlight of the event and the moment our guests waited in anticipation for, was the handing out of the Certificates of Appreciation. Some of the attorneys and firms that were recognised were Carol Holness from Norton Rose Fulbright SA for her continuous support and assistance for our refugee work, Kerry Forbes for helping us the most as an individual attorney, Tate, Nolan & Knight Attorneys who completed the highest number of pro bono hours for a medium firm and Shepstone & Wylie Attorneys, being the large firm that has assisted us the most. All in all, the event was a success. The guests walked away with goodie bags, full bellies and, hopefully, good
memories.

READ THE FULL NEWSLETTER HERE

The Durban High Court Help Desk

By Sabastian Chetty, ProBono.Org intern, Durban

Durban-High-Court-Help-Desk-probono-orgThe help desk at the Durban High Court was established by ProBono.Org as part of a pilot project in April 2017 in partnership with the KwaZulu-Natal Law Society to fulfil their mutual vision to address the lack of access to justice for unrepresented people and communities appearing before the High Courts. The ultimate aim and objective of this partnership is to promote the right enshrined in section 34 of our Constitution, which gives everyone the right to access to courts. The idea for the project came from the Deputy Judge President of the KwaZulu-Natal Provincial Division of the High Court, the Honourable Justice Madondo.

Since its establishment, the help desk has assisted a number of disadvantaged people who would otherwise not have obtained the relief they desired. The growth of the desk is evident from the numbers of people we attend to, which is increasing daily. In June alone, 44 clients were seen. The desk deals with legal issues ranging from housing, evictions and consumer law to family law.

Many matters coming before the desk are of a family law nature, specifically dealing with urgent applications regarding children and their rights. These matters are given immediate attention due to their urgency, as they require an application to be brought or opposed in court within a very short period of time after the matter is brought to the desk. The challenges and pressure in these matters are overcome by the dedication of the advocates who are readily available to come to our organisation’s assistance in taking on the matters at short notice.

We hope that the commitment the volunteer attorneys and advocates have shown will continue and inspire other legal professionals to get involved in contributing to the vision of making justice accessible to all, irrespective of wealth or status.

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Obituary: Nic Swart

Obituary: Nic Swart

Nic-SwartProBono.Org is saddened by the sudden passing of Nic Swart on 10 August in Botswana, where he was attending the SADCLA conference. Nic was the CEO of the Law Society of SA (LSSA) and the founder and director of Legal Aid and Development (LEAD), responsible for the professional training of attorneys. Since 2003, there has been an enrolment of 10 000 per annum at LEAD courses. Prior to serving in these two institutions he was a professor (extraordinary) at the University of Pretoria and a senior lecturer at the North West University law faculty. He also sat on a number of boards. He held BA LLB and B Com degrees from the University of Pretoria and UNISA, and was both an attorney, advocate and certified assessor, moderator and facilitator. In 2015 he was awarded the Lexis Nexis SA Rule of Law Award. May he rest in peace.

READ THE FULL NEWSLETTER HERE

Women’s Day – 2 August 2017

Women’s Day – 2 August 2017

The ProBono.Org Johannesburg office hosted its annual Women’s Day on 2 August 2017. The event was attended by women from Orange Farm, Tembisa, Kagiso and our local clients. This year’s topic was Divorce, Mediation, Parenting Plans and Settlement Agreements, which was presented by our keynote speaker Advocate Veerash Srikison.

The more than 20 volunteer attorneys who attended the event held individual consultations with clients and received a presentation on Collaborative Practice in Divorces by Marissa Galloway-Bailey of the Collaborative Network. Further presentations for the community members present were given by the Teddy Bear Clinic, the Dobsonville Advice Centre, the South African Police Services and Street Law presenters from UNISA.

To make our Women’s Day even more memorable, Advocate Srikison facilitated the provision of gifts from Ackermans, Roman’s Pizza, Essay Magazine and Mama’s and Papa’s Magazine. Grateful thanks to our guest speaker and the NPOs, NGOs, volunteer attorneys, sponsors and the Johannesburg staff team for making this day a success.

READ THE FULL NEWSLETTER HERE

REFUGEE MANUALS

By Tshenolo Masha

 

Refugee-ManualsAs part of commemorating and observing the plight of refugees and asylum seekers on World Refugee Day, ProBono.Org in partnership with Cliffe Dekker Hofmeyer, Fasken Martineau and Norton Rose Fulbright SA launched three Refugee Law Guides for Legal Professionals. The guides were developed by these three law firms to assist legal professionals to render pro bono services to refugees and asylum seekers. The keynote speaker at the launch was Judge Raylene Keightley who presided over the case of FAM vs the Minister of Home Affairs, where she delivered a judgment which obligated the Department of Home Affairs to apply procedural fairness to refugees as envisaged in the Constitution, and which is widely used as case law in review applications for asylum and refugee status. In her address the judge pointed out that South Africa’s commitment to the protection of refugees and asylum seekers did not only rest with the state but also with legal professionals in ensuring the country’s international obligations are applied to this vulnerable group, who in most instances do not have access to legal services. She highlighted that the principle of non-refoulement is the cornerstone of asylum and refugee law and that legal professionals are entrusted with ensuring that the law which provides protection to this vulnerable group is utilised. She also made a call for more professionals to get involved in this space. The manuals are available for download on our website.

 

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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.”

 

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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

 

 

 

 

 

READ THE FULL NEWSLETTER HERE

 

 

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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