Events and work with SMME’s

Events and work with SMME’s

By Swazi Malinga.

 

ProBono.Org generally provides legal assistance on corporate governance to young aspiring entrepreneurs, business start-ups and SMMEs by referring their requests for assistance to law firms who have volunteered their services on a pro bono basis. We assist clients with an annual turnover of less than R1million.

Because many of these business owners lack the basic knowledge of what the law requires of them when operating their businesses, we tend to spend a lot of time explaining and providing a crash course in commercial law.

In response to this we hosted an SMME seminar on 7 September at Constitution Hill together with Stevens Attorneys, which addressed The Companies Act, Insolvency Law and Commercial Contracts. The 56 participants ranged from owners of start-ups, established entities and spaza shops.

Since 2015 ProBono.Org has run an SMME help desk called YAKHA ISIZWE, based in Soweto, which is a collaboration with Fasken Attorneys and the University of Johannesburg Centre for Entrepreneurship. The objective of this help desk is to provide the services of attorneys to a wide range of businesses, including spaza and tuckshop owners, business women, hawkers, bed and breakfast establishments and hair and beauty salons. The attorneys assist with drawing up service level agreements, lease and finance agreements, as well as advising on appropriate forms of entities to register and providing education and training on commercial law.

To create more awareness about the help desk we hosted an Entrepreneurship Fair on 27 September 2018 together with Fasken and the University of Johannesburg. A young female entrepreneur who owns an online pre-owned clothing business was the guest speaker. A panel consisting of a labour attorney from Fasken, the SA Revenue Service, E-Squared and the CIPC provided information and advice to the participants.

Our goal for 2019 is to have a weekly clinic for SMMEs that will operate at our head office.

 

Click here for our complete October 2018 Newsletter

Impact Africa 18 Summit

By Molebogeng Manyako, Johannesburg intern.

 

Further focus on SMMEs and advancing young entrepreneurs saw ProBono.Org and the British Council collaborate on a session presented by ProBono.Org and Bowmans at the Impact Africa Summit from 20 to 22 June. The purpose of the event was to accelerate innovative solutions to Africa’s most pressing challenges by inspiring, supporting and connecting leading social entrepreneurs and key ecosystem players across countries, organisations and sectors such as policy, social investment, business and education.

The first day dealt with leadership for change addressed by the likes of Pat Pillai and Jay Naidoo, to mention a few. The second day was about building a strong ecosystem and the third day addressed collaboration, which does not necessarily involve having money. One’s hands, mind and time can all be used to collaborate.

The Impact Africa summit has shown that we all have a role to play in shaping our societies to be more conducive for the holistic development of women. Last but not least, who can forget Sylvia Banda, a Zambian entrepreneur and a great storyteller. She said that “ I didn’t need to tell anyone about my first business. I just fried the food and filled the room with a nice aroma. People came to my door asking if I’ve started a restaurant”.

 

Click here for our complete October 2018 Newsletter

Public Interest Law Gathering (PILG) 4-5 Sept 2018

Public Interest Law Gathering (PILG) 4-5 Sept 2018

By Tshenolo Masha.

 

At this year’s event, convened by the Legal Resources Centre (LRC) ProBono.Org organised a plenary session on Transformation, both in the public interest law sector and the profession as a whole.

The panellists were Lisa Chamberlain (CALS), advocate Amelia Rawhani (Johannesburg Bar), Silomo Khumalo (Black Workers Forum), Mari van Wyk (Lexis Nexis) and Khululilwe Ntombi Bhengu (former ProBono.Org intern currently serving articles at SERI).The panel was facilitated by Tshenolo Masha of ProBono.Org.

The ojectives of the session were to look back on what has been achieved and some of the challenges within the public interest law sector and also to get an understanding of how the question of transformation is addressed by the legal profession as a whole.

The panellists covered aspects such as:

  • How transformation affects the sustainability and funding of organisations
  • A demographic overview of the profession in terms of race and gender (outlined in the Lexis Nexis 2016 survey)
  • How the lack of real transformation hinders young black female lawyers.

The session made it clear that a huge amount of work needs to be done to gain real transformation. We will be engaging young professionals to plan how active, progressive results can be achieved.

 

Click here for our complete October 2018 Newsletter

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

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

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

The Department of “Happiness Affairs”

The Department of “Happiness Affairs”

By Zekhethelo Cele, Legal Intern, Cape Town

 

On 6 April ProBono.Org Cape Town together with Sonke Gender Justice, the Legal Resources Centre, the South African Human Rights Commission, UCT Refugee Law Clinic, Scalabrini, Resilience Africa and UNIFAM held an awareness event as part of their mission to ensure that the Cape Town Refugee Reception Office (CTRRO) reopens and is fully functional.

The Director General of Home Affairs decided to close the CTRRO to new applicants for asylum after 29 June 2012, which the Western Cape High Court ruled was unlawful. The court ordered that the CTRRO be reopened by 1 July 2013, but the Director General took the decision on appeal. Consequently, on 26 September 2017 the Supreme Court of Appeal upheld the Western Cape High Court’s decision, stating that the Department of Home Affairs’ decision to close the CTRRO was both unlawful and irrational, citing the Department’s responsibilities towards the rights of asylum seekers and refugees, and ordered the CTRRO to reopen by 30 March 2018.

Despite the constitutional implications of closing the office, the Department of Home Affairs had argued that the CTRRO was closed due to the undesirability and difficulty in operating urban Refugee Reception Offices. It further stated that the location of Cape Town is unfavorable due to many asylum seekers entering South Africa through its northern borders. In spite of the latest court ruling, it was apparent that the CTRRO would not reopen to assist new asylum seekers by 30 March 2018 as per the court order. As civil society representatives, our purpose is to ensure that the Department of Home Affairs, the Ministry and the Director General are held accountable and remain answerable to the public in this regard, as they stand in contempt of court.

We have made various attempts to find out when the office will reopen, but representatives from the CTRRO advised that they need to secure new premises first and allege that the Department of Public Works has been delaying the process. When asked why they needed to obtain new premises since the current office was fully functional before it closed its doors to new asylum seekers, we were advised that they did not have the mandate to answer this question.

As civil society representatives, we are well aware of the hardships that new asylum seekers in Cape Town have to go through to get their papers. The logistical implications are simply unreasonable and very unfair. People have to travel long distances to either Pretoria, Durban or Musina, regardless of where they are living in the country. This involves asylum seekers in the Western Cape and surrounding provinces having to travel to these cities at their own expense, taking days off work and being forced to keep their children out of school for the duration of their trip. Even then, it is not guaranteed that they will be assisted within a day, since the lines are exceptionally long and the process itself a dreadful one that could take months and even years to finalise.

ProBono.Org together with other NGOs believe that this situation is dire, and the rights of asylum seekers are being undermined.

We have been tirelessly appealing to the Department of Home Affairs and the Minister to prioritise the reopening of the CTRRO. Its closure has given rise to gross constitutional implications and the effects thereof will have a negative impact on South Africa’s interactions with neighboring countries.

As NGOs, we have dubbed ourselves “The Department of Happiness Affairs” and asylum seekers and the general public participated in the 6 April awareness event. We hope that this event has regained the attention of the relevant departments to ensure that the court order is not simply lost in processes and swept under the rug.

 
Click here for our complete April 2018 Newsletter

Congratulations to all the winners of the Pro Bono Awards on 7 September

Congratulations to all the winners of the Pro Bono Awards on 7 September

On Thursday 7 September 2017 the fourth Pro Bono Awards ceremony was held at The Social Kitchen at Exclusive Books in Hyde Park Corner.

There were 11 award categories, won by:

Refugee Law – Cliffe Dekker Hofmeyr Inc.
Housing Law – Sonkozi Ngalonkulu Attorneys
Estates Law – Mojelo Hlazo Attorneys
Community Advice Office – Ntsu Community Advice Office, Mabopane
Family Law – Riva Lange Attorney
Labour Law – Naledi Motsiri, Werksmans
Wills – Norton Rose Fulbright SA
Police Brutality – Candice Pillay, Hogan Lovells SA Inc.
Child Law – Suné Bosch, Ramsden Small Inc.
Advocate Award – Thulamela Group
Law Student at a University Law Clinic – Lutho Klaas, University of Fort Hare
Law Society of the Northern Provinces Award – Serialong Lebasa
Legal Aid South Africa Award – Khanyisa Ngobeni

In addition, there were several Director’s Special Mentions:

Clarks Attorneys – for their willing availability and commitment
Reg Joubert – for his support at the Divorce Help Desk and children’s matters
Claire Thomson – for drafting wills and presenting at community workshops
Susan Harris – for her many years of commitment to help desks, cases and events
Leana Elliot of Klopper Jonker Attorneys – for assisting at the Palm Ridge Help Desk and other pro bono work
Patrick Bracher of Norton Rose Fulbright SA  – for hosting the Pro Bono Law radio programme on Radio Today for the past 11 years
Baker & McKenzie – for doing pro bono work for ProBono.Org
Hoossen Sader – for his availability to take on family law matters

We congratulate all the winners and thank our generous sponsors for supporting this acknowledgement of invaluable pro bono work.

READ MORE ABOUT THE 2017 PRO BONO AWARDS HERE

AWARDS 2016

probono-awards-2016-logoOnce again, on 6 September we celebrated the extraordinary work being undertaken by lawyers, the media, the NGO sector, students and others in promoting human rights and the interests of the poor and marginalised.

Not only did this third award ceremony mark great achievements, but it marked our 10th anniversary. And anniversaries are significant. Our 10th anniversary coincides with the 60th anniversary of the women’s march, the 40th anniversary of June 16 and the 20th anniversary of the Constitution. These are all significant events and we are proud to be able to place amongst them ourselves and the attorneys, advocates and others who do such important work.

This year’s guest speaker was Dali Mpofu SC, Vice-Chairperson of the Johannesburg Bar Council. He mentioned the new Legal Practice Act presently being implemented, where pro bono work is being addressed in the category of community service. Only a small percentage of South Africans can afford even the most basic legal services and without such services the values in our Constitution of equality, the rule of law and the restoration of human dignity cannot be realised. He added that if the profession gets the exercise right, it would go a very long way in addressing the present frustration experienced by the poor and economically disadvantaged, who are mostly black people, women and other economically vulnerable groups.

He also stressed the importance of all legal practitioners doing pro bono work and congratulated those who had been nominated as finalists. It was very pleasing to see a marked increase in the participation of small law firms in the awards this year.

Six independent judges chose the finalists and winners in each category:

  • Alice Brown, a human rights activist
  • Professor Jonathan Klaaren, Professor of Law at the Wits Law School
  • Clive Ramathibela-Smith, well known radio personality and businessman
  • Nomboniso Nangu, Director of the National Association for the Development of Community Advice Offices (NADCAO)
  • Nic Swart, CEO of the LSSA and LEAD
  • Jonathan Berger, an advocate of the High Court and a member of the Johannesburg Bar

Awards Finalists

    1. The most impactful case or initiative
probono-awards-2016-winners01

L-R: Dali Mpofu, Liesl Williams, Moray Hathorn and Krevania Pillay (Norton Rose Fulbright SA)

      • Webber Wentzel – for the Southern Africa Litigation Centre and the Helen Suzman Foundation in the matter of the failure of the South African government to arrest Sudanese president Omar Al-Bashir when he visited the country in June 2015.
      • Hogan Lovells – for the police brutality legal clinic it runs in conjunction with ProBono.Org.
      • Norton Rose Fulbright SA– for the Arthurstone Village Community. The Amashangana Tribal Authority case which restored land to a community evicted by a tribal authority.

The winner was Norton Rose Fulbright SA

 

 

    1. Firm without a dedicated pro bono department
Dali Mpofu with Danjelle Midgley (Cullinan & Associates)

Dali Mpofu with Danjelle Midgley (Cullinan & Associates)

      • Cullinan & Associates, Cape Town – for an environmental case involving the rights of AmaPondo communities on the Wild Coast.
      • Garlicke & Bousfield, Durban – for their work with the ProBono.Org office in Durban.
      • David Masilela – for his work with community advice offices and at help desks, and training of practitioners on areas of law affecting poor and vulnerable people.

Congratulations to the winner, Cullinan & Associates.

 

    1. Firm with a dedicated pro bono department
L-R Dali Mpofu, Candice Pillay (Hogan Lovells), Sushila Dhever (Fasken Martineau), Tricia Erasmus (Cliffe Dekker Hofmeyr)

L-R Dali Mpofu, Candice Pillay (Hogan Lovells), Sushila Dhever (Fasken Martineau), Tricia Erasmus (Cliffe Dekker Hofmeyr)

      • Fasken Martineau – for the domestic violence, refugee and housing matters it took on in 2015.
      • Cliffe Dekker Hofmeyr – for its work at the ProBono.Org Refugee Legal clinic and several high profile matters.
      • Hogan Lovells – for its partnership with Probono.Org at the Police Brutality Legal Clinic and its involvement in clinics dealing with the rights of women and children.

Fasken Martineau was the winner in this category

 

 

    1. The constitutionalism award
Niren Tolsi, Sipho Kings

Niren Tolsi, Sipho Kings

      This award went to media players who advanced social justice through their work. There were two winners in this category – freelance journalist Niren Tolsi , and Sipho Kings, environmental reporter for the Mail & Guardian.

Fasken Martineau was the winner in this category

 

 

 

    1. The advocate award
Dali Mpofu with Isabel Goodman

Dali Mpofu with Isabel Goodman

      • Isabel Goodman. Advocate Goodman appeared in the Al-Bashir matter mentioned above and acted for the Legal Resources Centre in a matter interdicting a mining company from entering community land and threatening people (part of a larger dispute relating to the attempt by an Australian mining company to mine titanium along the Wild Coast).
      • Donrich Jordaan. During 2015, he acted as counsel in a number of cases on a pro bono basis that involved cutting edge legal developments including the law on surrogacy.
      • Luke Kelly was selected for his outstanding contribution to the work of Corruption Watch over the last three years. In the EFF and DA cases against the National Assembly the powers of the Public Protector were clarified in what could be considered to be a landmark decision.

The winner was Isabel Goodman.

 

    1. The Juta award to a student at a university law clinic.
Lindie Hein, Ashley Seckel, Mikhaile Brookes

Lindie Hein, Ashley Seckel, Mikhaile Brookes

      This award celebrates the dedication and commitment of students in assisting poor and vulnerable people.

      • Mikhaile Brookes (Wits Law Clinic)
      • Lindie Hein (University of Pretoria law clinic)
      • Ashley Seckel (University of Johannesburg law clinic)

The award went to Ashley Seckel

 

    1. Legal Aid South Africa (LASA) award
Antonel Olckers, Brian Nair, Patrick Hundermark

Antonel Olckers, Brian Nair, Patrick Hundermark

      • LASA selected a pro bono practitioner or service provider that showed dedication and commitment to undertaking pro bono work for Legal Aid SA during 2015. The practitioner award went to Tsepiso Matubatuba.
      • The service provider award was given to DNAbiotec®, which offers Awards finalists a screening service to legal professionals for section 212(4) (a) affidavits containing DNA evidence. The firm formalised this into an official pro bono service for Legal Aid South Africa a few years ago.

 

    1. Law Society of the Northern Provinces Award
Juvon Prinsloo, Anthony Millar

Juvon Prinsloo, Anthony Millar

      • LSNP President, Anthony Millar, presented the LSNP award to Juvon Prinsloo, who has taken on pro bono matters enthusiastically since opening her own firm.

 

 

 

 

 

    1. National Director’s Special Mentions
Tshenolo Masha, Bricks Mokolo

Tshenolo Masha, Bricks Mokolo

    • Ngwako Raboshakga, coordinator of the Alexandra Law Clinic run by ENSafrica. This clinic offers an invaluable legal service to residents of Alexandra.
    • Bricks Mokolo for his work in the community advice office sector, particularly at the Orange Farm Human Rights Advice Centre .
    • Henk Strydom who spends many pro bono hours and days on emotionally draining children’s matters and has taken on almost 40 cases during the past four to five years.
    • Baitseng Rangata of Maponya Attorneys for the many hours of work undertaken for communities in and around Pretoria.
    • Jeff Phahlamohlaka of Bowman Gilfillan – for his legal clinics, outreach work and SMME development work.
    • Advocate Kate Hofmeyr, who has undertaken cases involving hate crimes and attempts to muzzle the press amongst many others.

 

Ngwako Raboshakga, Erica Emdon

Ngwako Raboshakga, Erica Emdon


Henk Strydom (centre) with his family

Henk Strydom (centre) with his family


Dali Mpofu with some of the ProBono.Org staff and friends

Dali Mpofu with some of the ProBono.Org staff and friends

NGO social justice stories

At this year’s awards, we launched a new initiative to highlight the work of NGOs doing significant social justice work. We have dedicated a page on our website to their stories and we invite you to visit NGO Links on the site and see the important work that they are doing, ranging from environmental activism, protection of abused women, the right to education and strategic litigation on human rights and the rule of law. We hope to add more of these stories on the page as time goes on.

Award sponsors

Our major sponsors this year were Legal Aid South Africa, the Law Society of the Northern Provinces and Juta.

Our other generous sponsors were Spoor & Fisher Attorneys and AJS Business Management Systems.

LexisNexis and without prejudice provided financial as well as inkind trade sponsorship. Auditors Grant Thornton once again audited the nomination and judging process.

Spier donated wine, and The Hill provided the venue free of charge.

Thanks also to the following service providers:

Michele Dean of Limeblue for the design work; Lloyd Piater of The Natural Agent for digital assistance, Freshly Minced for production assistance; and Yolanda van der Stoep for photography.

AWARDS 2015

The 2nd Annual Pro Bono Awards Ceremony: 17 September2015

The 2nd Annual Pro Bono Awards Ceremony was held at the Constitutional Hill in Johannesburg on 17 September 2015.

We were honoured to have the Public Protector, Thuli Madonsela as our Keynote speaker.

Below is The Public Protector’s keynote speech:

Programme Director David Lewis

Leadership of ProBono.org

Esteemed guests

Ladies and gentlemen

 

Greetings from the Public Protector South Africa Team!

It is indeed a singular honour and privilege to join this esteemed gathering of our country’s legal minds and to say a few words on the importance of access to justice. I thank ProBono.org for involving me and my office and for bringing us together tonight to pay tribute to the champions of legal empowerment of the poor or disadvantaged persons.

Congratulations to all the winners. As you already know, through lifting others we lift ourselves. Congratulations are also due to all the nominees and others providing legal services to those who cannot afford. Just for doing the work you are doing advancing social justice by lifting others you too are winners. Your work is important.

I believe that to ensure that we have that inclusive, people centred and participatory democracy envisioned in our Constitution, we need to see more like you. We also need to see an improvement in the quality of legal advice dispensed to the poor. I’d also like to invite you to extend the reach of the legal advice and

assistance to the increasing diversity of dispute resolution forums in our landscape, which include my office, the Public Protector.

The timing of today’s celebration of champions of probono legal work as a vehicle for legal empowerment of the disadvantaged among us, neatly coincides with Access to Justice Week. When we initiated access to Justice Week as SAWLA and the Department of Justice in 2007, we did so like you, in recognition of the importance of extending legal services to the disadvantaged as part of broader access to justice.

Your role as providers of free legal advice and representation to those who cannot afford can never be overestimated. Access to justice, incorporating access to legal advice and or representation, is one of the essentials of the rule of law.

The Link Between Access to Justice and Legal Assistance

Our forward thinking Constitution promises everyone “the right to have their dispute resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum”. (Section 34)

I hope you will agree with me that the essence of access to justice is the opportunity for a victim of injustice or person involved in a dispute to readily access a forum that can listen to his or her grievance and/or resolve their dispute in a fair and expeditious manner that leads to redress where deserved.

I hope you will also agree with me that without a chance to understand or to be understood at whatever forum that deals with your grievance or dispute, there is no access to justice.

That is where probono legal services come in. In an utopically just world, none of us would ever be judged on the basis of laws we’ve never heard of or do not understand and in proceedings we do not understand. But it happens. When I was still working at Wits University, I remember a widow who related her story to us. She outlined how after the death of her customary law husband she was hauled to court in Benoni where she was told her marriage was invalid. She was

told to vacate a home she had shared for nearly two decades and personally renovated. She lost furniture she had paid for and a taxi and other cars she had paid for and had receipts to show. All she knew was the court number where everything happened. She did not know the capacity of the people who had dealt with her. Thanks to our Constitution and the Recognition of Customary Marriages Act, such horror stories are rare today. But are they behind us?

What are the Implications of Lack of Access to Justice for Democracy, Development and the Rule of Law?

Even during the darkest days of apartheid, access to justice opportunities minimised the sting of oppression. It was probono legal activities that helped the oppressed black majority challenge racial discrimination, forced removals and exclusion from democratic processes, among others. Some of the outcomes eased the suffering of the affected majority and pushed back the oppressive claws of apartheid. Examples in this regard include administrative justice, human rights and employment rights. In this regard, we recall the work of institutions such as the Legal Resources Centre, Lawyers for Human Rights and The Transvaal Rural Action Committee (TRAC), among others. We also remember the work of individual lawyers such as Cissie Gool, Braam Fischer, Sydney & Felicia Kentridge, Griffiths & Victoria Mxenge, Ismail Mahomed, George Bozos, Priscilla Jana, John Campbell and the recently departed Justices Pius Langa and Lewis Skweyiya, among many.

Why is it important that all experience access to justice?

The World Justice Forum, which places the rule of law at the centre of societal peace and progress, regards access to justice, incorporating legal empowerment of the poor, as an essential part of the rule of law. Part of it relates to the legitimacy of the state. I prefer to see it as our collective insurance for peace and stability. At the core of it is accountability. You will agree with me that democracy, progress and sustainable peace to be experienced by any society, its citizens should have mechanisms to have their grievances resolved fairly and wrongs redressed.

If people don’t think there are fair outlets for their grievances or disputes, they are likely to take the law into their hands. They may not do it today or tomorrow but they will eventually do it. The requirement of credible justice avenues also applies to people feeling that those who exercise entrusted public power are not treated as individuals or collectives unfairly. Where people believe they’ve been wronged, there must be a readily available independent platform to resolve the grievance or dispute fairly.

It’s not enough that the system is fair it must be manifestly or experienced as fair. This is another entry point for probono legal services. Free legal advice can and has over the years assisted by enhancing the right to understand and to be understood. In this regard ensuring legal empowerment of the poor, transcends legal advice/representation and includes legal education. The area of legal education though is one where we need improvement. Although there have always been services such as Street Law, I believe law students could be mobilised more meaningfully to make laws, particularly new laws, accessible to the public. Legal education also has the added dimension of preventing or reducing infringement.

Knowing the law and related regulatory frameworks empowers all to participate meaningfully in democracy, development and other societal processes. It further fosters respect for the rule of law.

The Public Protector as Part of our Access to Justice Architecture

We all understand that crime hurts and that both victims and accused persons deserve access to justice. Over the years we’ve also come to accept the importance of access to justice in civil matters. Regarding civil matters we’ve also invested a lot of resources in small claims courts to ensure that the average person, whom in my office we refer to as Gogo Dlamini, has a no frills forum to resolve his or her small but to him/her important civil disputes. The budget and number of small claims courts have rightly increased exponentially since the dawn or democracy.

But what about a Gogo Dlamini who is facing the state with its Goliath like bureaucratic power and resources? As you know disputes involving the state are excluded from the remit of the small claims court. In other words a Gogo Dlamini can take her neighbour to a small claims court for a small civil matter (R15 000.00) but if it’s the state she cannot do the same with government.

In my 6 years as Public Protector, I’ve come to realise that we underestimate the harm or injustice caused by maladministration and abuse of power in state affairs.

Fortunately the architects of our democracy knew that the state may harm people whether benevolently or maliciously. It was for this reason that innovative structures such as the Public Protector and other Institutions Supporting Constitutional Democracy, including the South African Human Rights Commission, Commission for Gender Equality, Electoral Commission, Commission on the Protection and Promotion of the Rights of Cultural, Religious and Linguistic Communities and the Auditor General, were given a special place in chapter 9 of our visionary Constitution.

Initially established in 1979 (In terms of the Advocate General Act 118 of 1979) as a graft buster, the office I head has undergone a metamorphosis over the years. A statutory body in the Department of Justice with no executive authority of its own, the Public Protector’s powers then were similar to the Auditor General’s and a commission of inquiry being to investigate, report and advise or recommend to those with power to execute, principally the Executive.

By 1991, the law-makers saw it fit to extend the office’s powers to include Ombudsman related violations such as maladministration, abuse of power, undue delay, etc. When the Interim Constitution was passed in 1993, it changed the name but not the functions of the office and so did the Public Protector Act of 1994.

It is worth noting that when the current Constitution was passed in 1996, the powers of the Public Protector were drastically changed to the following:

(1)The Public Protector has the power, as regulated by legislation-

  • To investigate any conduct in state affairs, or in the public administration in any sphere of government, that is alleged or suspected to be improper or to result in any impropriety or prejudice;
  • To report on that conduct; and
  • To take appropriate remedial action.

(2) The Public Protector has additional powers and functions prescribed by national legislation.

(3) The Public Protector may not investigate court decisions.

(4) The Public Protector must be accessible to all persons and communities.

(5) Any report of the Public Protector must be open to the public unless exceptional circumstances, to be determined in terms of national legislation, require that report to be kept confidential”

From an access to justice point of view, my take is that the Constitution gives a Gogo Dlamini who chooses the Public Protector as an avenue to mediate power between her and the mighty bureaucratic state, a similar opportunity to the Gogo Dlamini who approaches to a small claims court to have her grievance or dispute resolved. I believe that access to justice for both Gogo Dlamini’s includes with redress or remedial action where deserved or injustice confirmed. I further believe that section 182(4) gives Gogo Dlamini the right to have the Public Protector properly funded and accessible like a small claims court, in proximity to all government service delivery centres. I am interested in your views.

Partnership Between the Public Protector and the Probono Legal Community

Although no legal assistance is required in approaching or dealing with my office, we’ve had a few occasions where disadvantaged persons have been assisted by lawyers. In some of the cases we all benefited immensely from the added insights. One case that comes to mind is one where the De Klerk Foundation provided probono assistance to a whistle-blower and another where Lawyers for Human Rights assisted a group of foreign nationals. I must indicate though, that the innovative nature of this office includes ability to frame the issues, find the

facts and establish the law or regulatory standard that should have been complied with by the state on our own. I must also hasten to indicate that in our case legality is not enough where state conduct results in patently unfair treatment or prejudice.

A word of caution for all of us

During one stakeholder hearing an MEC who deals with RDP housing and related service delivery injustices said “it is wrong to treat the poor poorly”. Often believe that because we are giving a gift, a gift horse is not to be looked in the mouth. But we may cause harm through giving an inappropriate gift or delivering it inappropriately. In this regard some of the cases that come to my office are not pro bono matters but simple cases of poor treatment of the disadvantaged who have paid for legal services. Key among the trends we have picked up, is violation of people’s agency, mostly through the lawyer proceeding to approach a case without input from the client and even settling it without consent. It is important to remember that just because a person is not a lawyer, it does not mean they are not smart, insightful nor have a view on a matter that involves their lives.

We should also be concerned about lawyers that feed the crocodile by defending the indefensible thus promoting maladministration and other forms of improper conduct, including corruption in state affairs. Apart from the fact that as a lawyer you are an officer of the court who must not mislead or allow the court to be misled, we are in the same boat. If you poke holes on my side of the boat, we’re both going to sink eventually, I may go first but you will follow.

Together taking constitutional democracy and the rule of law forward

It has been said that an engaged people is least likely to resort to violence in disputes with those that are entrusted with state power. It is also true that for people to be engaged they must know. Legal assistance in all its forms, including legal education, is accordingly a meaningful contributor to an engaged civil society and the rule of law.

Thank you again for involving me in this great occasion. More importantly, thank you for your contribution to an inclusive, socially just and fairer society. I’m

certain your work is taking us in the direction of the South Africa we want, the Africa we want and the world we all yearn for. That is the state affairs where everyone’s quality of life is improved and potential freed. That is the Constitutional dream. Our collective efforts are also contributing to a society where there is accountability, integrity and responsiveness.

Congratulations to the winners again. As a society we are grateful for your efforts in lifting others.

Thank You

 

Public Protector Thuli Madonsela

17 September 2015

The award finalists were:

1. Most Impactful case
Norton Rose Fulbright – Transkei land claim case
Cliffe Dekker Hofmeyr Inc. – Access to information – National Key Points
Webber Wentzel – Emolument Attachment Orders case
And the winner was Webber Wentzel

2. Individual Attorney
Egon Oswald – St Albans prison torture case
Sushila Dhever – Fasken Martineau – setting up domestic violence legal clinics in Soweto and Lenasia
Moray Hathorn, Webber Wentzel – 16 years of pro bono work
Congratulations to the winner, Moray Hathorn

3. Children’s Rights Defender
Hogan Lovells – Teddy Bear Clinic project – court preparation training
Webber Wentzel Pro Bono Practice Group – law reform in relation to children with mental illness
Bowman Gilfillan – work with ProBono.Org’s One Child a Year campaign
This was won by Hogan Lovells

4. Student at a university law clinic
Mxolisi Ngubane – Wits University Law Clinic
Kyle Lupke – KZN University Law Clinic
Danelle Prinsloo – Pretoria University Law Clinic
Danelle Prinsloo was the winner

5. Human Rights Champion
Centre for Environmental Rights – Vaal area environmental degradation
Rural Women’s Action Research Programme (RWAR) – opposing the Traditional Courts Bill
Southern Africa Litigation Centre – 4 cases in 2014, including Zimbabwean torture case
Congratulations to the winner, the Southern Africa Litigation Centre

6. Advocate award
This was won by Steven Budlender for his work with Corruption Watch and others

7. National Director’s Special Mentions
Albert Makwela – Community Advice Office work
Norman Moabi – work with Funanani Centre law project
Lesley Maman – work with the ProBono.Org Master’s Office help desks
Peter Jordi – Wits Law Clinic torture cases against the SAPS