Has the law helped or hindered same-sex partnerships?

Has the law helped or hindered same-sex partnerships?

By Lesego Vakalisa, Legal Intern

 

A approached our offices, seeking the pro bono assistance of an attorney regarding the estate of his deceased spouse B.

Upon examining the documents provided by A, we realised that his case was an interesting one and touched on a subject that often falls through the cracks.

The facts of the case are as follows: A , who is not a South African citizen, met and fell in love with B. In January 2002 they entered into a life partnership agreement and later concluded a same sex partnership agreement, as same sex marriages were not recognised at the time.

A and B were assisted by an attorney who drafted an affidavit concerning a life partnership between them under the Aliens Control Act 96 of 1991. In April 2002 the Aliens Control Act was replaced by the Immigration Act 13 of 2002.

During the existence of their partnership they purchased immovable property registered in both their names. They subsequently registered a second bond over the property in 2006 which was granted by a reputable financial institution.

In 2010, B passed away intestate leaving no heirs. Although A received 50% of B’s pension fund, B’s family received the balance thereof. B’s family took control of all B’s other assets to the exclusion of A.

A approached the Master of the High Court’s office to be appointed joint executor of B’s estate but his application was rejected by the Master who considered that their partnership was not recognised.

A was concerned that the agreement that he and B entered into in January 2002 had been rendered null and void when the 2002 Immigration Act came into effect with additional requirements to substantiate the affidavits with a notarial contract, which A and B never signed. Even after the Civil Union Act 17 of 2006 came into effect, A and B did not enter into a union in accordance with this Act as they believed that their partnership was at all times valid.

A informed us that he felt his rights were being violated and he wished to claim his rightful inheritance as the sole heir and surviving spouse of B.

He needed clarity as to whether or not his partnership with B was legally valid and whether he was legally entitled to inherit from B’s estate, and he wished to know his legal standing as co-owner of the said property.

The facts of the matter are that the parties were neither married nor entered into a civil union in terms of relevant legislation, they purchased property which was registered in both their names, and B died intestate.

We considered the matter and concluded that A would have to bring an application to the High Court to declare the life partnership agreement signed in 2002 to be declared a civil union in terms of the Civil Union Act. If successful A would be the intestate heir in terms of Section 1 (a) of the Intestate Succession Act 81 of 1987.”

Click here for our complete December 2017 Newsletter

High conveyancing fees hold up property transactions for the poor

By Uzair Adams

 

High-conveyancing-feesThe transfer and registration of immovable property from a seller’s name into a purchaser’s name is not as straightforward as one may think. A property transaction is not only a lengthy and complicated process, but is costly too; and oftentimes unaffordable for the underprivileged. This proved to be the case with Glenda Samuels who approached ProBono.Org Cape Town for assistance with the transfer of immovable property she purchased in 2014 for R110 000.00.

Ms. Samuels is an unemployed single mother who receives a state grant for her two minor children and would not have been able to afford the conveyancing fees applicable to her sale, which would have amounted to approximately R8 000.00.

Ms. Samuels’ initial consultation was held during July 2017, but various challenges resulted in the process being delayed even though a conveyancer, Vickie Collins from Da Costa Incorporated, accepted the pro bono instruction.

One of the many challenges arose from a condition attached to the title deed, in terms of Section 10 (a) and 10 (b) of the Housing Act 107 of 1997, which stipulates that the owner of an RDP house has to get permission from the Director General of Human Settlements prior to a transfer being permitted.. As a result, the conveyancer required written confirmation from the Department confirming that it had no objection to the transfer, which was received on 16 August 2017.

In addition, the seller was often unavailable to sign the necessary documents as she resides outside Cape Town. The parties finally managed to meet at our offices on 28 November 2017, and Ms Collins guided them through the signing process and ensured that everything required for lodgment at the Deeds Office was in order.

All interested parties view this as a major victory, and a step in the right direction in our effort to making access to social justice more easily accessible and realisable for the poorest sector of our society.

Click here for our complete December 2017 Newsletter

A CASE OF DISAPPEARANCE

In May 1998, Mr. Jackson Taliwe disappeared on his way home after an evening with friends. On foot, he passed through an unsafe area and had to cross busy roads late at night. He was never seen again. His family, friends and the community searched for him, but their efforts were futile. His employer, after his 18 years of service with them, declared him a deserter. His family approached ProBono.Org seeking closure and the matter was referred to Bowmans.

Bowmans assisted Mrs Taliwe in obtaining a presumption of death order in 2017. In preparation of the application, and to ensure that they had explored all possible avenues, they requested records from the SAPS to determine if anyone was found in the area where Mr. Taliwe disappeared. Due to the time lapse, this was a challenging process. Fortuitously, records of one person were found in close proximity to where Mr. Taliwe went missing. Unfortunately these records were incomplete, unrecognisable and timeworn and accordingly not sufficient to identify the person and to obtain a death certificate. However, based on the circumstances surrounding Mr. Taliwe’s disappearance and his personal description, the family believed the records found related to him. This exercise and the records obtained were instrumental in obtaining the presumption of death order.

Bowmans prepared the application and was assisted by Adv. Xolisa Hilita who appeared in the Johannesburg High Court on the client’s behalf. The ultimate outcome of this process was to give the family closure and to enable Mrs Taliwe to claim unclaimed pension fund benefits, which claim has since been paid out to her and her children. These benefits offer substantial financial relief to the family.

We thank the Bowmans team of Melissa Strydom and Carmen Bradfield for a successful outcome in this case.

Click here for our complete December 2017 Newsletter

A MISSING ELECTRONIC MONITORING DEVICE ALMOST DESTROYS A LIFE

By Margaret Fish.

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Pic: Carolyn Raphaely

 

Bowmans Attorneys and the Wits Justice Project worked on the tragic case of Dineo Kgatle, who was wrongfully arrested and incarcerated for 26 months after his electronic monitoring device (EMD) was inadvertently lost.

Kgatle was convicted in 2002 on charges of armed robberty, housebreaking, attempted murder and rape and sentenced to 28 years in prison. He was granted parole after 12 years and was fitted with an EMD. Having qualified as a plumber in prison, he got a job on a construction site in Pretoria and started to rebuild his life. Some months later he mistakenly left the base station with the GPS tracker that is attached to the EMD in a bakkie, which then drove off with it. He immediately reported this to his parole officer and the two of them went in search of the device, only to find it was locked up in an office in Pretoria and they abandoned the search.

Later that day Kgatle was arrested and spent the next 26 months behind bars in Baviaanspoort Prison. He appeared before the Parole Board three months after his arrest and was told he had violated his parole conditions and would spend at least seven years in prison before being considered for parole again. One day he read about the Wits Justice Project in a newspaper. They contacted ProBono.Org on his behalf, who asked the pro bono coordinator at Bowmans for assistance. Bowmans put partner Mandisi Rusa and candidate attorneys Werner van der Westhuizen and Stuart Payne on the case.

Eventually, in September 2017 North Gauteng High Court judge Peter Mabuse ruled that Kgatle’s arrest and detention was unlawful. He finally walked out of Baviaanspoort a free man after more than two years.

The Department of Correctional Services (DCS) abandoned the Electronic Monitoring Project in July 2017 due to many cases where the devices were faulty and those wearing them were wrongfully arrested, as well as issues relating to possible tender irregularities in the appointment of the service provider.

This story is not over, however, as the DCS is now appealing the judgment, possibly in order to prevent or delay a hefty claim for compensation on the part of Dineo Kgatle.

Click here for our complete December 2017 Newsletter

Pro Bono Attorneys provide feedback

Pro Bono Attorneys provide feedback

On 30 November our Johannesburg office hosted some of the attorneys who did pro bono work for us during the year, either by taking on cases or staffing a legal clinic or help desk. The session provided useful feedback to us about constraints at some of the courts and how we could assist to make the work easier. There was also an animated discussion about mediation as an alternative dispute resolution in family law cases and attorneys asked for training on this. Grateful thanks to everyone who volunteered their time to assist our clients this year.

Click here for our complete December 2017 Newsletter

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Message from Erica Emdon, National Director

Message from Erica Emdon, National Director

It is with some sadness that after eleven very special and fulfilling years at Probono.Org, I have decided to step down. These years have been incredibly rewarding and enriching and I have enjoyed so much seeing the organisation grow and blossom in front of my eyes.

My time at ProBono.Org has been exciting, periodically demanding, and yet very satisfying. I have met a wide range of incredible people from the donor world, from the private legal fraternity and from civil society organisations. All have supported and backed my work in different ways which has been so very encouraging. Perhaps the most special and significant experience I have had has been seeing how our collective effort has improved the lives of the many thousands of impoverished and vulnerable people who have been our clients every year. So many of them have been able to access legal remedies that have made a vast difference to their lives and each success story has been extremely heartening.

Click here for our complete December 2017 Newsletter

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We pay tribute to our pro bono legal practitioners

We pay tribute to our pro bono legal practitioners

Welcoming the guests at the fourth annual awards ceremony, Chair of the Board Mohamed Randera explained that we approached things slightly differently this year. Instead of calling for nominations and submitting these to a judging panel in a competitive way, we chose winners from our list of over 85 legal practitioners who volunteered at our legal clinics and help desks and took on referred cases in 2016. We looked for those who had made an outstanding effort in the various areas of law that we deal with.

The event was held at The Social Kitchen, Exclusive Books, Hyde Park Corner on 7 September 2017, where the former Minister of Finance, Pravin Gordhan gave the keynote address. He remarked that ProBono.Org reminds us of the old activist structures in the ‘70s and ‘80s such as community advice offices, and that we should not leave organisations like ProBono.Org to chance but we should nurture them. The lawyers present represent the spirit of activism and the spirit of the integrity of the profession.

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The delight and joy that clients receive from pro bono service is immeasurable and rare. Despite having a good Constitution, good laws and a modern society, transformation has been lagging behind. We have to address the state of inequality in our society. Solidarity with the poor is key, and the offer of pro bono assistance is a show of the calibre of the legal profession. Gordhan stressed the need to regenerate legal professionals, especially the younger ones, to participate in social justice initiatives.

The Master of Ceremonies for the event was Michael Motsoeneng-Bill, well known for his programme The Law Report, aired on Kaya FM on Wednesday evenings.

This year, ProBono.Org staff and interns all participated in the awards by presenting the winners with their prizes.

Click here for our complete October 2017 Newsletter, and more information on the awards ceremony, prizes and winners.

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.

READ THE FULL NEWSLETTER HERE

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.

READ THE FULL NEWSLETTER HERE