COVID-19 Infection and the workforce

By Siyabonga Zondi – Intern, Durban Office

In the most unequal society in the world, which is currently going through a recession, perennial power cuts and one of the highest unemployment rates in the world, a deadly communicable virus outbreak is the last thing South Africa needed. Apart from the lives that may be lost, a major area of concern is an economy, which was already on a declining trajectory prior to the outbreak hitting South Africa’s shores, being made more vulnerable than ever and bordering on collapse. The people who will bear the brunt of this are the poor working class, who may be exposed to mass dismissals, unfair labour practices and a flouting of the basic conditions of employment.

This then begs the question: what role does the Labour Relations Act 66 of 1995 (LRA) and the Basic Conditions of Employment Act 75 of 1997 (BCEA) play in the wake of the COVID-19 outbreak? Do employees still enjoy the protection afforded by these two pieces of labour legislation, even in a time where employers may not be in a position where they are able to meet their obligations towards their employees?

Among the most pressing concerns by most employees is whether they can be dismissed due to contracting COVID-19. In terms Schedule 8: Code of Good Practice Dismissals, an employer is obligated to investigate the extent of an illness if an employee is temporarily unable to work. If the illness may result in a prolonged absence from work, alternatives to a dismissal must first be considered. The factors that should be taken into account when considering alternatives to dismissal include the seriousness of the illness, the period of absence, the nature of the employee’s job and whether a temporary replacement may be secured. Throughout the process the employee is to be afforded an opportunity to make recommendations. If all processes have been followed and no suitable alternative to dismissal is found, the employer would then have an option to dismiss the employee.

There are also situations where businesses may find themselves having to dismiss much of their workforce due to operational requirements. Dismissals based on operational requirements are carried out in terms of section 189 of the LRA. These requirements can be defined as technological, structural, economic or similar needs of the employer. The recommended recovery/isolation period for a person who is deemed to have COVID-19 is 14 days, which in itself would not justify a need to retrench the employee. This position would significantly change, however, where an employer would have several employees being infected and requiring time away for isolation or recovery. In this situation a retrenchment based on operational requirements would be necessitated.

The Occupational Health and Safety Act 85 of 1993 (OHSA) obligates an employer to maintain as far as reasonably practicable a safe working environment that is without risk to the safety and health of its employees. This, however, does not mean that an employee may refuse to come to work in fear of contracting COVID-19. Employees who stay away from work may be required to furnish reasons for their absence, and failure to provide them may result in the employee facing disciplinary action.

A point of much debate and uncertainty for many employees is the “no work, no pay” principle. To pay employees for work done is one of the obligations of the employer, but what happens if the employees show up at work but are unable to work for some reason or another because of COVID-19? In such a situation the employer is obliged to pay the employees, as they have made themselves available and shown up at work. The fact that something beyond their control has inhibited them from performing their duties should not result in the employees not being given their due remuneration. The employer may, however, have recourse to the temporary layoff of employees where normal business operations may not continue.

They say every generation has a war that it must fight. In the past it was the attainment of freedom and equality, both in general and in the workplace. Our labour legislation is now very liberal in its nature and promotes equality. The battle we now face is one of decreasing unemployment rates, and increasing the quality of life of all employees, in the wake of a weakened economy and a dangerous communicable virus.

 

Click here for our complete April 2020 Newsletter

Birth certificates for undocumented minors

Birth certificates for undocumented minors

Lesley Blake studied at
Wits University and was
admitted as an attorney
in 1995. Her practice
consists of service to the
SMME market – general
legal advice, collections,
drafting agreements and
general litigation. The
practice is also slanted
towards Family Law
including access and
maintenance disputes.

Lesley Blake studied at Wits University and was admitted as an attorney in 1995. Her practice consists of service to the SMME market – general legal advice, collections, drafting agreements and general litigation. The practice is also slanted towards Family Law including access and maintenance disputes.

The Department of Home Affairs appears to have a policy (unrelated to any law that I can find) that they will only issue a Birth Certificate in the following circumstances:

  1. To a woman who is the mother of the child, personally appearing to bring that application;
  2. Where there is documentary evidence of the birth of the child in a South African hospital or medical facility;
  3. Where she has registered the birth within seven days.

In any circumstances apart from the above, all of us as role-players in the social welfare and legal environments have had endless difficulty in getting a birth certificate issued.

Where there is a biological unmarried father of the child, Home Affairs requires that he have a genetic test to prove his fatherhood. If so established, there are some instances where they issue the birth certificate to him, particularly when Home Affairs already have him as the father on their system or where the Children’s Court forces them to do so. Of course, the law is that both parents have parenting rights and there is no real reason in law why a birth certificate could not simply be given to a father. Nevertheless, it is likely one would need a court order to force them to do so.

In cases where the other aspect is not satisfied – for example when the mother is missing or the mother does not have documentary evidence of the birth, or where the birth was not timeously registered, there would be room to bring an application to force Home Affairs to issue a birth certificate. In each such application one would need to establish to the satisfaction of the Court that:

  1. The child is a South African – whether by birth or descent. Thus, place facts before the Court on affidavit about who the parents are and the place of birth of the child;
  2. There is good cause why the mother cannot appear to apply for the certificate;
  3. The person/s applying for the birth certificate have parental rights and responsibilities or ought to have them or are entitled to the issuing of the certificate. So even where the applicant is the aunt or a children’s home or a social worker, that person should be entitled to get the birth certificate and have a purpose for it.

As a final point, the application should be brought by way of a Notice of Motion and a Founding
Affidavit. Remember that it is very easy to lose an application by asking for more urgency than the
circumstances justify. Take your time and win the first time.

 

Click here for our complete April 2020 Newsletter

The Green Market Square furore

The Green Market Square furore

By: Mattew December – Intern, Cape Town

On 8 October 2019, a group of refugees commenced a sit-in protest at the Cape Town offices of the United Nations High Commission for Refugees (UNHCR) following a wave of xenophobic attacks on foreign nationals across the country. The group, which include about 624 men, women and children and 65 undocumented refugees, alleges that they are being persecuted in South Africa by a community insensitive to their plight as refugees and therefore are living in fear for their lives on a daily basis. Their demand to the UNHCR was to be relocated to a third country, which is not South Africa or their country of origin since, in both, they feared persecution. The UNHCR could not guarantee such a demand, citing international law on refugees, as well as their operational guidelines. Since no agreement could be reached concerning relocation, the City Council proceeded to forcibly evict them from the UNHCR premises, and an ugly scene of violence erupted, resulting in the Reverend Allan Storey of the Central Methodist Church offering them temporary shelter until their plight was addressed.

Until recently, the refugees have been staying in the Central Methodist Church right in the heart of the Cape Town CBD. The conditions of their stay there became a concern, with reports of violence between factions of refugees, poor sanitary conditions, health scares and fire risks owing to overcrowding.

The conditions were clearly degrading to say the least. This prompted the City of Cape Town to seek an order from the Western Cape High Court to enforce Municipal Regulations with regard to the occupation of the church by the protesters. Court hearings were also scenes of violence between the police and the protesters. The court ruled that the City has to ensure that the protesters’ human rights are protected before any penalties for infringing by-laws could be enforced. At the end of it all, it was a battle between the City to enforce by-laws by evicting the refugees, and the refugees resisting eviction until they were moved to another country that is not South Africa or their country of origin.

To many ordinary people who witnessed the debacle unfold, the refugees were the victims and the South African government, its agencies and the UNHCR were being insensitive to their plight. In the eyes of an innocent bystander, they were caught between a rock and a hard place; either to return to their communities in Cape Town and face persecution, or remain in the CBD facing running battles with the police. Some wondered why the UNHCR is not relocating them to a third country, which appeared to be the only logical thing to do to settle this crisis. But what does the law say?

Refugees are governed by International Law and the laws of the receiving country – in this case, South Africa. Generally, when a country receives a refugee, it is not at liberty in law to return that person to a country that they are fleeing from, by operation of the principle of non-refoulement. In the event that such a person returns to the country from which they fled, their refugee status is automatically revoked. Where a refugee is facing persecution in the country they fled to, two options are available; either they are returned to their country of origin or relocated to a third country. However, relocating them to a third country requires (a) individual determination of each case to determine the circumstances of the persecution and whether they warrant relocation, and (b) the availability of a third country that is willing to receive the refugees. In the present case, neither requirement has been met. The refugees are not willing to have each case be decided on its own merit and secondly, there is no country which has shown willingness to welcome the refugees. The refugees too are refusing to go back to their country of origin. Under such circumstances, there is nothing that the South African government or the UNHCR can do about the situation. A solution can only be found through the cooperation of the refugees, which has not been forthcoming owing to factional fights, and the availability of a third country willing to receive the refugees and settle them within their territory.

 

Click here for our complete April 2020 Newsletter

International Human Rights Day Public Lecture

International Human Rights Day Public Lecture

By Shamika Dwarika, Regional Director, Durban

Judge Johann van der Westhuizen (JICS)

It was a dark and stormy afternoon in December 2019 when a number of legal practitioners and public interest law advocates gathered for a public lecture commemorating International Human Rights Day. Despite the load shedding and the storm wreaking havoc in Durban on 10 December, we were able to proceed with this event, and what a worthwhile event it was – with esteemed speakers Judge Johann van der Westhuizen and Advocate Andrea Gabriel SC and Advocate Zak Suleman directing the programme.

Advocate Gabriel was instrumental in the first African translation of the Universal Declaration of Human Rights. She spoke about her days visiting schools and speaking to children about examples of treating each other in a cruel way. Students were then asked to draw a picture depicting something cruel happening to another person. This illustrated the value and concept of pictorial literacy within the rural community.

Each person who attended received a
copy of the SA Constitution, as well as a
notebook and pen from LexisNexis SA

They then worked with educators and a local artist to draw pictures and murals depicting each of the rights in the Universal Declaration of Human Rights in culturally understandable forms. On the 50th anniversary of the Universal Declaration of International Human Rights 29 years ago, she coauthored a book, “Amalungelo Uluntu” (Human Rights of the People), which was the first African interpretation of the Universal Declaration of Human Rights. This was subsequently translated into isiXhosa and later into all 11 official languages of South Africa.

Judge van der Westhuizen, former Constitutional Court Judge and outgoing Judge of the JICS (Judicial Inspectorate of Correctional Services) was wonderfully entertaining, informative and a consummate speaker. He spoke about watching the planned execution of a convicted criminal on death row internationally and the inhumanity of this process. He also spoke about the number of people who have been wrongfully imprisoned, sometimes for 20-25 years. He stated that it is not just in the interests of the convicted but also the victim that the correct person be imprisoned, so as not to perpetuate human rights violations.

L-R – Ms Asiya Khan (DOJCD), Adv. Andrea Gabriel SC (Durban Bar), Judge Johann van der Westhuizen (JICS), Shamika Dwarika (ProBono.Org), Fiona Kaplan (IIE’s Varsity College), Adv. Lloyd Lotz (SA Human Rights Commission) and Adv. M. Zakaria Suleman (Durban Bar);

ProBono.Org (Durban) once again partnered with the SA Human Rights Commission and The Department of Justice and Constitutional Development to host this event, with the IIE’s Varsity College joining us as well. We extend our gratitude to the sponsors who supported the event – LexisNexis SA, Origin Water and Virgin Active | Collection.

 

Click here for our complete February 2020 Newsletter

Parktown Boys High drowning: Who holds the duty of care?

Parktown Boys High drowning: Who holds the duty of care?

By Melissa Engelbrecht, Cape Town intern

On 15 January 2020 the nation woke up to the shocking news of the disappearance and subsequent death of Enoch Mpianzi, a 13-year old grade eight scholar at Parktown Boys High School in Johannesburg. According to various media reports, Enoch drowned in the Crocodile River when a makeshift raft the pupils were required to build overturned during an orientation camp at Nyati Bush and River Break Lodge. With revelations emerging that the deceased had no life vest and that two days passed before school authorities realised that he was actually missing, eyebrows were raised as to the extent of the negligence implicit herein. Calls were made for the headmaster of the school in question to resign, which were followed by demonstrations and the matter becoming headline news for some days. A large portion of society feels the school authorities abandoned their moral obligation to protect students in their custody; however, it is in fact a legally imposed duty of care. Parktown Boys High hoped to escape liability by raising the issue of a signed indemnity form, but this in itself does not vindicate the school from their duty of care.

One of the most important duties that rests with any school is the= responsibility of the physical care of learners. This duty finds its roots in common law and is legally recognised as the duty of care. It entails that every school, its employees and authority must take reasonable steps to ensure the safety and welfare of learners within their control. It extends – as in this case – to excursions, and any situation that the school can reasonably be deemed to have control over. It should however be noted that breaching the duty of care attracts legal liabilities under the law of delict, hence it is essential to understand instances under which this duty is said to be breached.

One such instance is when there are acts or omissions which give rise to negligence. Negligence is defined as a failure to take reasonable care to avoid causing injury or loss to another person. It is therefore important to note that whenever negligence is raised, the reasonable person’s test applies, which is the benchmark used to measure whether conduct is reasonable under the circumstances or not. This question was settled in S v Burger where the court proclaimed that a reasonable person is only required to tread life’s pathway with moderation and prudent common sense.

As such, where a school arranges an outing and the activities to be undertaken include building a raft and rowing on waters where the current is fairly strong, as was the case in Enoch Mpianzi’s matter, it is evident that a reasonable teacher under these circumstances would have exercised prudent common sense by providing adequate material with which to build such a raft, ensure that every student was wearing a life jacket and guarantee that there were sufficient staff supervising such water activities. Thus, failure to do so would in terms of the reasonable person’s test constitute gross negligence and a dereliction of both a moral and legal duty.

It is therefore safe to conclude that Parktown Boys High were required by law to exercise reasonable apprehension or to foresee that certain activities that pupils participated in attracted greater risk to them and more cautious steps ought to have been taken to prevent potential tragedies. Thus, Parktown Boys’ High had in fact failed to uphold the duty of care implicit under the circumstances.

 

Click here for our complete February 2020 Newsletter

Welcome to our 2020 interns and staff

Johannesburg:

Ongezwa Gontshi

Ongezwa recently joined ProBono. Org as the finance administrator/project officer on the AFSA/Global Fund project aimed at reducing stigma and discrimination as well as educating and providing legal advice and assistance to persons living with HIV and TB in South Africa. Prior to joining us she was employed as a project accountant at the Legal Resources Centre. Ongezwa chose ProBono.Org because she wanted to branch out from doing solely finance work and the Global Fund project is the perfect opportunity to do that and to expand her career within the human rights space, which is an environment she enjoys working in and is passionate about.

 

Sifo Ngubo

Sifo joined the Joburg office on 6 January 2020, working in the child law department.
He was born in the Vaal area and has lived in many places around the country, including Matatiele and Queenstown in the Eastern Cape, and in Orange Farm and Soweto. The son of a domestic worker, he was raised by a single parent. His future was reimagined when he obtained an LL.B from the University of Johannesburg.

“There is only one thing that makes a dream impossible to achieve: the fear of failure.”

 

Tebogo Makwala

Tebogo grew up and went to school in Vosloorus on the East Rand. He graduated with an LLB from the University of South Africa, and also holds a National Diploma in Law from the University of Johannesburg. He started work on 6 January in the Refugee department and is looking forward to helping destitute and desperate asylum seekers and refugees to get legal assistance. Tebogo has an interest in community involvement, helping and sharing knowledge to uplift and liberate his community. This helps him achieve satisfaction in life as it feels good to be helpful to others.

 

Durban:

Siyabonga Zondi

Siyabonga Zondi was born and raised in Durban, KwaZulu Natal. He completed his LLB at the University of South Africa (UNISA) in 2018. While completing his Practical Legal Training in 2019 he applied for an internship at ProBono. Org in order to gain exposure to a dynamic legal environment and to be an active participant in the organisation’s mission of providing access to justice to all sectors of society. He has a deep-rooted passion for labour law and wishes to pursue a Masters in Labour Law and ultimately practise as a Labour Practitioner. Having been an avid participant of his University’s street law programme, he believes that “In the most unequal society in the world, where access to justice is more the exception than the norm, organisations like ProBono.Org and their various stakeholders play a crucial role in bridging this gap.”

 

Nongcebo Charity Mthembu

Nongcebo is an aspirant legal practitioner who was born in Ndulinde, a small village in Mandeni in northern KwaZulu-Natal. She completed her LLB in 2017 at the University of KwaZulu-Natal (PMB). She is currently completing her LLM in Advanced Criminal Justice. Nongcebo believes that the law is a tool that can be used to fight injustices and she advocates for the protection of women and children’s rights. Her passion for human rights motivated her to write a dissertation on the “Decriminalisation of Adult Consensual Sex Work in South Africa” using a human rights approach. Her future goal is to enrol for a PhD, focusing on land tenure rights in South Africa. She is thankful for the opportunity to work as a legal intern at ProBono.Org as she believes that the organisation will equip her with the necessary skills and knowledge she requires to be a human rights lawyer.

 

Sinothile Zondi

Sinothile hails from the South Coast of KwaZulu Natal, from a village called Ezingolweni and moved to Durban for educational purposes. She completed her LLB degree at the University of South Africa (UNISA) in 2019. Her passion and interest for social justice and human rights was ignited when she joined ProBono.Org as a volunteer in 2018, to the extent that she re-joined us as a consultant intern in 2019. She was appointed as a permanent intern in January 2020 and her aim is to promote and advance the right to access to justice for all. In the future she hopes to undertake her articles at an NGO, focusing on human rights.

 

Cape Town:

ProBono.Org Cape Town welcomes Shadreck Masike and Mattew December as our new legal interns who joined us on 6 January 2020. We wish them tremendous growth, learning and development during their tenure with us.
 

Shadreck Masike

Shadreck attended the University of Zimbabwe where he obtained his LLB in 2018. During his time at university he developed a passion for human rights in general with a specific focus on socio-economic and cultural rights and the rule of law. Upon completion of his degree, he was admitted as a Legal Practitioner, Conveyancer and Notary Public by the High Court of Zimbabwe and briefly practised there before he moved to South Africa. He has participated in a number of symposia and forums hosted by civil society organisations in identifying theoretical frameworks that lay the ground for the full realisation of human rights in Africa in the broader sense. Shadreck is also an avid reader and enjoys legal research and writing and is currently contributing material to a number of journals.

 

Mattew December

Mattew graduated with an LLB degree from the University of the Western Cape (UWC) in 2018. He is currently pursuing an LLM degree in International Human Rights Protection. His research paper will focus on the fraudulent acquisition of citizenship and will take the form of a comparative analysis between South Africa and Zimbabwe. In 2017, Mattew worked at the ANC Parliamentary Constituency office in De Doorns, where his role was to inform farm workers of their rights in terms of key labour legislation, after realising the extent of their exploitation. In the same year, he was elected Secretary of UWC’s Black Lawyers’ Association Student Chapter, as well as the Chairperson of Weapons of Raising Dreams (W.O.R.D) an on-campus NGO founded by UWC students in order to address the need for mentorship and guidance in high schools. Mattew hopes to complete his LLM during 2020 and is an aspiring human rights legal practitioner who wishes to be of service to his community.

 

Click here for our complete February 2020 Newsletter

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