16 Days of Activism For no violence against Women

16 Days of Activism For no violence against Women

Our first event for the 16 Days of Activism For no violence against Women and Children took place at the Orange Farm Community Office.

The event was well attended even by males who have shown their support of this campaign. Swazi an attorney from ProBono. Org and Bricks a Paralegal , were given a slot at the local radio station where they spoke about the event that was held on 29 November 2016.

Celebrating the contribution of the legal profession

Celebrating the contribution of the legal profession

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
  2. 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

     

  3. Firm without a dedicated pro bono department
  4. 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.

     

  5. Firm with a dedicated pro bono department
  6. 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

     

  7. The constitutionalism award
  8. 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

     

  9. The advocate award
  10. 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.

     

  11. The Juta award to a student at a university law clinic.
  12. 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

     

  13. Legal Aid South Africa (LASA) award
  14. 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.

     

  15. Law Society of the Northern Provinces Award
  16. 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.

     

     

     

     

  17. National Director’s Special Mentions
  18. 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.

The official opening launch of the Isivivana Centre in Khayelitsha

The official opening launch of the Isivivana Centre in Khayelitsha

On Thursday, 13 October 2016, ProBono.Org Cape Town attended the official opening launch of the Isivivana Centre in Khayelitsha.
The centre is like none before, and aims to make access to social justice realisable and accessable to marginalised communities.

14712628_1284336468275612_3697824854181782226_o

It will house a total of 9 NGO’s, such as the new ProBono.Org Cape Town office opening late October 2016, Social Justice Coalition, Treatment Action Campaign, and Equal Education Law Centre, but to name a few.
The launch was well attended by relevant stakeholders, donors, media, and the legendary Zakes Mda, major literary award winner.

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Address by Justice Ponnan of the Supreme Court of Appeal∗ at the launch by the Centre for Child Law of the Guidelines for Legal Representation of Children in Civil Matters

When I was informed by the Registrar of my court that I had been invited to speak about my judgment[1] in Centre for Child Law v Hoërskool Fochville & another 2016 (2) SA 121; [2015] 4 All SA 571 (SCA), my response was that Judges are supposed to speak through their judgments.[2] I also reminded him that Lord Denning is reported to have once famously said – I have been concurred in and dissented from but I have never suffered the indignity of having one of my judgments explained. I have since been re-assured that I have been spared the indignity to which Lord Denning referred and that my remit extends beyond having to explain one of my judgments.

Like toilet paper, children do not come with instructions. It is quite fallacious though to assume that getting a handle on the former naturally qualifies you to manage the latter, because children are far more complex than a series of perforated paper squares. Most adults believe that they know everything – children are nature’s way of reminding them that that is not so. As a parent, I sometimes wish that children did come with instructions. More importantly, if they did come with instructions I wonder what those would be. Aside from the usual such as ‘fragile – handle with care’ or ‘this side up’, I imagine they would be, as our Constitution dictates, that in all matters concerning this child, its best interests shall be paramount. As Professor Julia Sloth-Nielsen pointed out with prophetic foresight, [zRPz]the inclusion of a general standard such as that for the protection of children’s rights in the Constitution can become a benchmark for the review of all proceedings in which decisions are taken regarding children.[3]

I say prophetic because as I shall endeavour to illustrate, first with reference to three other perhaps lesser known judgments of the SCA penned by me, and thereafter Hoërskool Fochville, that that overarching constitutional principle has had – as well it should – a profound effect on the development of our jurisprudence in relation to children.
The first in the trilogy is Brandt v S [2005] 2 All SA 1 (SCA),[4] which concerned the application of the minimum sentence legislation[5] to offenders under 18 – in terms of which a court was obliged to impose a statutorily prescribed minimum sentence (in that case a sentence of life imprisonment) unless substantial and compelling circumstances were found to be present. That enquiry was approached by us on the basis that the minimum sentencing legislation must be read in the light of the values enshrined in the Constitution and that the general principle, namely ‘the best interests of the child’ is the clearest indication that child offenders are deserving of special attention. Historically, so we noted in the judgment, our justice system has never had a separate, self-contained and compartmentalised system for dealing with child offenders. Instead, child offenders have generally been treated as smaller versions of adult offenders. Accordingly, it was necessary for the traditional aims of punishment in respect of child offenders to be reappraised and developed to accord with the spirit and purport of the Constitution. Thus, a child charged with an offence had to be dealt with in a manner which takes into account his/her age, circumstances, maturity as well as intellectual and emotional capacity. After referring to several international instruments, the judgment emphasised that in sentencing a young offender, the sentencing officer must be guided by certain principles: including the principle of proportionality; the best interests of the child; and, the least possible restrictive deprivation of the child’s liberty, which should be a measure of last resort and be restricted to the shortest possible period of time.

The second is Fish Hoek Primary School v GW 2010 (2) SA 141 (SCA). The facts are: the appellant school sued the respondent for payment of outstanding school fees in respect of one of its minor learners. It relied for its cause of action on s 40(1) of the South African Schools Act 84 of 1996, which provides that ‘A parent is liable to pay school fees’. The respondent asserted that whilst he was the biological father of the learner, he was not liable for the payment of the school fees, but that the custodian parent was. Both the Magistrates’ Court and the Cape High Court (on appeal to it) agreed with him. The High Court held that only a custodian parent is a parent as envisaged by the Act. It thus concluded that ‘parent’ in s 40(1) means ‘the [custodian by operation of law] parent or guardian’. We disagreed with the Cape High Court. Our judgment held:

‘An interpretation that burdens both parents with responsibility for school fees is consistent with the injunction in s 28(2) of the Constitution that “a child’s best interests are of paramount importance in every matter concerning the child”’.

The judgment continued that:

‘it unquestionably is in the best interests of a child that a non-custodian parent, who is unwilling, yet has the means, to pay his child’s school fees, should be made to do so, if necessary by the injunction of an order of a competent court. Were that not to be so, the custodian parent would solely be saddled with that responsibility. The sad truth is that many custodian parents are simply unable to pay or have been exempt from paying due to poverty. Were the school not to have the right to recover school fees from the non-custodian parent in those circumstances, it will either have to shoulder that loss or mulct other parents with additional charges. In either event it would be acting to the detriment of other learners’.

The judgment recognised that:

‘Historically, mothers have been the primary care-givers of children in this country.  That continues to be so. It is almost always mothers who become custodial parents and have to care for children on the breakdown of their marriage or other significant relationships. That places an additional financial burden on them and the sad reality is that they then become overburdened in terms of responsibilities and under-resourced in terms of means. Despite our constitutional promise of equality, the division of parenting roles continues to remain largely gender-based. . . . Courts should be acutely sensitive to the possibility that the differential treatment of custodian parents and their non-custodian counterparts often can and does constitute unfair gender discrimination. After all, the achievement of gender equality is a founding value of our Constitution. To interpret the section in such a way as to exclude the non-custodian parent from its operation, as the High Court has done, serves to frustrate the realisation of that goal’.

The third in the trilogy is the fairly recent judgment of Du Toit v Ntshinghila & others [2016] 2 All SA 328 (SCA), which was delivered on 11 March 2016. The home of the appellant had been searched and various items were seized. He was subsequently charged with possession of child pornography. He sought an order from the presiding Magistrate that the prosecution be directed to furnish him with copies of the images said to constitute the offence charged. He contended that he was entitled, without more, to be provided with copies of the images which are alleged to constitute child pornography. The prosecutor, who had objected to reproducing the images and furnishing copies to the defence, offered to put arrangements in place for him, his legal representatives and any expert for the defence to view the images. The Magistrate ruled that the arrangement proposed by the prosecution was adequate and dismissed his application. His appeal succeeded before the high court. The high court took the view that there was no warrant to limit his constitutional rights as an accused person and accordingly ordered the prosecutor to discover the images. The DPP then appealed to the SCA, which succeeded. We emphasised that in a matter such as this adequate weight must be accorded to the best interests of the children. We reasoned:

‘There exists in this case the reasonable privacy interests of the children who are depicted in the images. There is also a significant public interest in ensuring that no duplication or distribution occurs in the disclosure process. Those interests ought not to be further compromised by the copying, viewing, circulation or distribution of the images beyond what is reasonably necessary to give effect to his constitutional rights’.

And that:

‘A child compromised by a pornographer’s camera has to go through life knowing that the image is probably circulating within the mass distribution network for child pornography.’

Moreover, the distribution of child pornography further abused children by creating a permanent record of the child’s participation. This record, in turn permitted the harm to the child to be exacerbated each time the material was circulated and led to the creation of distribution networks that fostered further exploitation.

Turning then to the Hoërskool Fochville matter: the school, which since its inception had been an Afrikaans-medium school, had gone to the high court to challenge a directive by the Department of Education that it had to admit certain English-speaking learners. The Department launched a counter-application seeking to change the School’s language policy from Afrikaans to dual-medium. Although the parents of the learners in question had been cited as respondents in the main application, the Centre for Child Law (the Centre) applied to intervene in the matter. In support of the intervention application the Centre stated that the children who were enthusiastic about the idea of being given a chance to have their own views and wishes heard by the court, had been divided into groups of approximately six to eight learners. And that each child had been asked to complete a questionnaire without affixing their names thereto. The questionnaire had listed specific questions but the children could also write additional comments. The School gave notice that it was opposing the Centre’s intervention application, but, before filing an answering affidavit, it first served a notice in terms of Uniform Rule 35(12) on the Centre’s attorneys requiring the Centre to produce for inspection, all questionnaires completed by the learners. When the Centre refused, the School applied under rule 30A to court for an order compelling it to do so. In opposing that application the Centre stated:

‘There are 37 children actively involved in the litigation who wanted to express their views and participate in the litigation. This means that there are nuanced and varied views from each of the children. By allowing them to fill-in the questionnaires individually and consulting with them in small groups we could collate the children’s views and experiences in one affidavit. This would allow the court to get a full range of views without having to read through thirty seven affidavits’.

The high court ordered the Centre to deliver up for inspection and copying the original questionnaires and to pay the School’s costs. Unlike the high court, we approached the enquiry on the basis that in striking the appropriate balance in a case of this nature, adequate weight had to be accorded to the interests of the children. In that regard, so we held,

‘a useful starting point is an appreciation that the right of children to representation separate from their parents, flows from their right to participate in all matters that affect them. That is a right which is widely recognised in international law and forms part of South African law. . . .

The child’s right to have separate legal representation during legal proceedings in a matter such as this is thus clearly contemplated by those provisions.’[6]

The judgment reasoned:

‘Here the [Centre], in consultation with the children, elected to act in the interests of a group of children (including other similarly situated children) and in the public interest for inter alia the following reasons: The children expressed clear and strong views and opinions in respect of the case — independent of the views and opinions of their parents — and communicated some information that they were reluctant to share with their parents. They requested that their experiences of being at the [school] be placed before the court. Those parents who met with the [Centre] supported the idea of the children being separately represented in the matter. . . . Allowing [the children] to complete the questionnaires individually and consulting with them in small groups ensured that the children’s views and experiences were properly collated and articulated in one affidavit, thus allowing the court to get a full range of views without having to read some 37 affidavits. This approach appears to be more protective of the children. The children described victimisation within the school, especially by other children, and if cited individually and deposing to their own affidavits, they ran the potential risk of being vulnerable to reprisals or further victimisation. The 37 children directly affected expressed concern about siblings and neighbours who may need to attend the School in the future. The interests of children similarly placed as the children currently affected therefore may also require safeguarding. The [Centre’s] approach in this regard is consistent with that advocated by Professor Noel Zaal & Ann Skelton that —

“(i)t is necessary to promote a children’s rights culture in . . . court proceedings, and therefore the representative would ideally wish to be  supporting the wishes and instructions of the child. The child must, if possible, be convinced that the legal representative is his or her very own who will see that his or her views and hopes gain priority at the hearing.”’[7]

 

Accordingly, so continued the judgment,

‘in every weighing of rights and interests and any value judgment relating to whether the questionnaires should be produced, the best interests of the children would have to be the paramount consideration. Thus, even if the questionnaires were not protected by privilege or if the privilege had been waived, it may not have been appropriate for the court a quo to have ordered their disclosure on the basis that it would not have been in the children’s best interests to do so.’[8]

 

The judgment emphasised that the ‘best interests’ principle is but a starting point for any balancing of rights. As the School did not require to know the precise details of each incident in order to respond to the Centre’s application to intervene, there was no justifiable basis for holding that the interests of the School in investigating the identities of the children in order to answer the allegations outweighed the interests of the children in not having their identities disclosed, especially in the light of the fact that the children had disclosed the information (which they otherwise may not have done) on condition of, and in the  expectation of, their identities not being disclosed. The judgment accordingly concluded that the School could oppose the intervention application without the benefit of the questionnaires.

 

What these four cases demonstrate is the normative force of the yardstick – the best interests of children. In Brandt, like Fish Hoek Primary School, the principle was invoked to interpret legislation. Approaching the enquiry on the strength of that principle, Brandt concluded that where an offender was under 18, the sentencing court had an automatic discretion to depart from the prescribed minimum sentence and that such offenders did not have to establish substantial and compelling circumstances. Importantly, Fish Hoek Primary School favoured an interpretation that was not just protective of the interests of children, but also another vulnerable group – mothers. It bears noting that in both Du Toit and Hoërskool Fochville the children were not the primary litigants before the court. In the former, the children were no more than potential witnesses in the contemplated criminal trial. That notwithstanding, we concluded that protecting the interests of the children, would not, without more, result in an unfair trial for the accused. In effect, in undertaking the balancing exercise, the rights of those children were permitted to trump the rights of the accused. Hoërskool Fochville was concerned with an interpretation of the Uniform Rules of the High Court. Much of the credit in this case must go to the Centre, who, to borrow from Star Trek, decided to go where no attorney has gone before. The Centre significantly challenged the traditional way in which evidence is adduced before a court and recognised that implicit in the notion of according adequate weight to the interests of the children, was an appreciation that the right of children to representation separate from their parents, flows from their right to participate in all matters that affect them. Informed by that approach we were able to place an interpretation on the relevant rules of court to the effect that the children’s interests in non-production of the questionnaires outweighed the School’s interests in demanding production.

[1] By ‘my judgment’, I really mean, as Corbett CJ referred to a judgment of the SCA (on the conferment of an LLD honoris causa by Rhodes University on 6 April 1990), as one that ‘represents an amalgam of the ideas, ingenuity, legal knowledge and expertise, humanity and wisdom of every member of the panel’. See Ellison Kahn ‘Michael McGregor Corbett – Gamaliel Redux’ in Ellison Kahn (ed) The quest for justice: Essays in honour of Michael McGregor Corbett Chief Justice of the Supreme Court of South Africa (1995) at 39.

[2] See, for instance, Power & others v Canada (Attorney General) [2003] 105 CRR (2d) 277 para 170.

[3] Cited with approval in S v M (Centre for Child Law as Amicus Curiae) 2008 (3) SA 232 (CC) para 15. See Julia Sloth-Nielsen ‘The child’s right to social services, the right to social security, and primary prevention of child abuse: Some conclusions in the aftermath of Grootboom’ (2001) 17 SAJHR 210 at 211.

[4] Also reported sub nom S v B 2006 (1) SACR 311 (SCA). For a discussion of the judgment see Professor Julia Sloth-Nielsen: ‘Juvenile sentencing comes of age’ (2005) 16 Stell LR 98.

[5] Criminal Law Amendment Act 105 of 1997 (more commonly referred to as the ‘Minimum Sentence Act’). Following upon this judgment, s 51(3)(b) of the Act was amended by the Criminal Law (Sentencing) Amendment Act 38 of 2007. The constitutional validity of that amendment was challenged by the Centre in Centre for Child Law v Minister of Justice and Constitutional Development & others (NICRO, as Amicus Curiae) 2009 (2) SACR 477 (CC).

[6] Hoërskool Fochville paras 19 and 20.

[7] Paragraph 25. (Footnotes omitted.)

[8] Paragraph 26.

SAVE THE DATE!!!!!

SAVE THE DATE!!!!!

For the Sixth Annual

Public Interest Law Gathering*

(PILG)

August 29 – 31, 2016

Venue: University of the Witwatersrand, School of Law

More Details to Follow!

 

www.publicinterestlawgathering.com

 

*PILG 2016 is organized by the Centre for Applied Legal Studies (CALS), Lawyers for Human Rights (LHR), the Legal Resources Centre (LRC), ProBono.Org, Section27, the Socio-economic Rights Institute of South Africa (SERI), the Southern Africa Litigation Centre (SALC), Students for Law and Social Justice (SLSJ) and the University of the Witwatersrand, School of Law.