We thank the legal profession for their pro bono contribution

We thank the legal profession for their pro bono contribution

On 21 November 2019 we held an award ceremony at Constitution Hill to pay tribute to the many legal practitioners and others who made an exceptional contribution to pro bono work in 2018.

Our guest speaker was Judge Jody Kollapen, who pointed out that access to justice is far from the experience of far too many people in the country. “How can the scales of justice be balanced if the judge only hears one side of the story? Legal representation is essential”, he said. “Pro bono services make rights real for those living in poverty.”

 

These were the award winners:

Family Law – Joseph Sithole, Ceri Von Ludwig Attorneys
Labour Law – Manager Gumbo, K M Legal Consultants
Wills – Liesl Williams, Norton Rose Fulbright SA
Community Advice Office – Sibongile Advice Office (Zola), Represented by Thandekile Mkhize
Large Law Firm – Bowmans (Fatima Laher)
Medium Law Firm – Clarks Attorneys (Sithembiso Mabaso)
Small Law Firm – Sumadhi Naidoo Attorneys (Sue Naidoo)
Refugees – Dakalo Singo, Werksmans
Children – Suné Bosch and Jonathan Small, Ramsden Small Attorneys, Vera Kruger, Abrahams & Gross
Housing – Naledi Motsiri and Dakalo Singo, Werksmans
Estates – Corncelia Chauke, Sonkosi & Ngalonkulu Inc.
Conveyancing – Chrysi Kripotos, Chrissi Kripotos Attorneys (for Johannesburg) Illse Nieuwoudt (for Pretoria)
Outstanding student at a university law clinic – Jarrod van der Heever, University of Pretoria Law Clinic
Advocate Award – Basil Joseph, Thulamela Group

 

There were also a number of Special Mentions:

Susan Harris, Harris-Morgan Attorneys and Nikola Daniels were mentioned for working as a team on a long Germiston Children’s Court case going back to 2017
Dawn Grabe, Grabe Attorneys for attending at the Johannesburg Deeds Office every Tuesday and drafting wills
Charl Albasini, Albasini Attorneys received a special mention for two children’s cases he has been running over a period of two years
MVC Inc. represented by Marinus Labuschagne for taking on family law cases and staffing the Domestic Violence Help Desk
Rita Ozoemena, Grayston Chambers was mentioned for volunteering many hours to staffing the Refugee and Labour Law clinics as well as the Master’s Help Desk
Congratulations to all the winners and a special thanks to our sponsors, Lexis Nexis, AJS Business Management Systems, The Millennium Trust and Spier Wine Estate.
Thanks also to Freshly Minced for technical services, MC Michael Motsoeneng-Bill and Limeblue Design.

 

Click here for our complete December 2019 Newsletter

Service Delivery Protests in SA

Service Delivery Protests in SA

By Thulisile M. Buthelezi, Durban intern

The Regulation of Gatherings Act 205 of 1993 is an important piece of legislation used to regulate the holding of public gatherings and demonstrations. South Africa’s right to take to the streets to march, demonstrate or present petitions is protected by the Constitution. This right is linked to other political rights including freedom of expression and freedom of association, which means the right to associate with a cause, idea or organisation. Of course, there are certain channels and procedures that must be followed in order to organise a legal protest in South Africa. Simply put, it must be in accordance with the Regulation of Gatherings Act.

South Africa has experienced a wave of service delivery protests amounting to a rebellion of the poor and marginalised. It is unfortunate that many service delivery protests take place under conditions characterised by malicious damage to public and private property and the looting of shops. Municipalities are the most basic units of government in the country and are tasked with providing basic services and fostering development in the regions they govern. Local government in South Africa is largely understood in terms of service delivery and the South African Constitution assigns municipalities the responsibility to mobilise economic resources towards the improvement of the lives of all citizens. Basic services are the fundamental building blocks of improved quality of life and adequate supplies of water and adequate sanitation are necessary for life, well-being and human dignity.

In May/June 2019, the Durban Municipality came to a halt as violent protests ripped through the city after municipal workers went on strike, demanding salary increases. This came after municipal workers discovered that the City was giving MK veterans preferential treatment in terms of promotions and salary increases. The said damage to infrastructure as a result of the strike amounted to over R4 million, ultimately affecting service delivery and the economy as a whole.

In order to embark on a service delivery protest within the legal parameters it is important to identify a person (convener) who will be responsible for contacting the relevant local authority. The elected convener must notify the local authority at least seven days before an action by completing a notice form (which contains the details of the gathering/protest, details of the convener and activists who will guide the protest and prevent it from becoming violent) that must be submitted to the local authority to inform them of the gathering. The Act does not require notice if there are less than 15 participants unless the protest is to take place at Parliament, the Union Buildings or any South African court.
Protests are meant to be disruptive and make statements, but within reason. While singing, chanting and marching are all allowed and encouraged, protesters cannot physically harm a person or vandalise property. Lawful protests must dissolve at the time that the organisers agreed on and if the police services (SAPS) give an order. It is illegal to continue to disobey the SAPS order and it can lead to arrest. According to the law the SAPS are meant to protect the protesters and facilitate a safe space for the protest to take place. Police officers are meant to engage with protesters to resolve any issues that may occur during the protest and intervene if things get out of hand, and some form of violence or destruction of property occurs. The SAPS are permitted to arrest protesters who break the law.

If the protest is illegal people can be charged with convening a gathering without giving notice, attending a prohibited gathering or even with public violence, malicious injury to property and assault. It is worrying that the country has been plagued by violent service delivery protests characterised by increasing damage to public and private property. This has resulted in the economy bearing the brunt of this undesirable situation.

 

Click here for our complete December 2019 Newsletter

Sex Work Sensitisation Training Seminars

Sex Work Sensitisation Training Seminars

By Uzair Adams

 
The sex work sensitisation training seminars took place in collaboration between ProBono.Org and the Sex Workers Education and Advocacy Taskforce (SWEAT), South Africa’s leading sex worker human rights organisation, providing services to sex workers since 1996. The organisation exclusively works with adult sex workers on issues of health and human rights. Its services include providing safer sex education, crisis counselling, legal advice and skills development for sex workers. SWEAT advocates for the protection, promotion and fulfilment of sex workers’ human rights through human rights defence and advocating for law reform for the decriminalisation of sex work in South Africa. In June 2017, SWEAT decided to register and open a law clinic in response to the outcry from sex workers for legal assistance in issues specific to them as a direct result of their profession.

These training seminars were therefore part of a series of workshops that were rolled out in Johannesburg, Durban and Cape Town, with the aim of sensitising legal practitioners about sex work and the experiences of sex workers in order to broaden their perspectives and to encourage them to avail themselves when their skills and expertise are needed by this vulnerable group; as well as to assist people to understand why SWEAT is calling for the full decriminalisation of sex work in South Africa.

The Johannesburg training seminars took place at Bowman Gilfillan’s offices on the 9th and 10th of September; the Durban training seminar took place at Norton Rose Fulbright SA’s offices on the 18th September, and the Cape Town training seminar took place at Norton Rose Fulbright SA’s offices on the 8th October 2019.

The training workshops covered the following subjects:

  • Language of sex, gender, sexual orientation and sexual practice
  • The effects of stigma, prejudice and discrimination
  • Transactional sex
  • The legal framework and the four legal models for sex work: criminalisation, partial criminalisation, legalisation and decriminalisation
  • How to support sex workers’ rights
  • Values and attitudes to sex work
  • Profile of a sex worker
  • Reasons people enter sex work
  • Places where sex workers find clients
  • Other people that impact a sex worker’s life
  • Risks faced by sex workers and appropriate responses

Currently, criminalisation of sex work has been in place since 1957, with clients being specifically criminalised since 2007. This has resulted in high levels of violence, a lack of access to basic services including healthcare services and abuse of sex workers, including by police officers.

The decriminalisation of sex work would allow sex workers to function within a human rights framework, as it would entail the following:

  • the removal of criminal charges against sex workers;
  • the operation of brothels and individual sex workers as ordinary businesses;
  • the ability to implement laws protecting sex workers from special risks;
  • minimising discrimination and stigma around sex work, which will in turn enable sex workers to access basic services more easily; and
  • the potential reduction of abuse, together with increased reporting to
    the police.

The training seminars therefore provided a platform for interesting and robust dialogue around these issues. Participants raised many important questions, including the issue of consent and how consent is not always easy to define when a person’s circumstances limit their choices. Most of the participants seemed to fully understand the need for decriminalisation and were in support of it. They understood how it can create an environment where it is easier to protect the rights of sex workers as well as to ensure their safety.

 

Click here for our complete December 2019 Newsletter

New Appointments

New Appointments

Teresa Yates has been appointed as the National Director of ProBono. Org. She was until recently Deputy National Director of the Legal Resources Centre (LRC). Besides legal training, she has a background in human rights and development on the continent. In her 22 years of experience she has worked in NGOs, for government and as an independent researcher and evaluator. She has acquired not only a range of important management skills, but has also been directly involved in strategic planning, law reform and policy development, fundraising and budgeting, monitoring and writing, and leading diverse teams. Teresa led substantial design work on Alternative Dispute Resolution in the Department of Land Affairs in the 2000s, where she worked in the Tenure Directorate. She has as gender justice coordinator with Oxfam in Tanzania, the South African government and Nkuzi Development Association, a South African land organisation focusing specifically on farm workers, land rights and land reform.

We are honoured to have Teresa join the ProBono.Org team.

 

Mpho Mogodi

After matriculating from King Edward VII High School, Mpho enrolled for a BA at Wits University to major in International Relations and Political Science. He then graduated with an LLB degree from the University of South Africa in 2017.

Mpho’s love for the law stems from wanting to bring about positive change and to advocate against social ills and injustices. He also strongly believes in the value of being of service to others.

In his spare time Mpho enjoys mountain biking, meditating, studying philosophy and trying out Johannesburg’s restaurants.

Mpho initially joined the organisation on a three-month contract to take on the land and housing and deceased estate matters. This contract has been extended for a further nine months and we are very pleased to have him as part of the ProBono.Org team.

 

Click here for our complete October 2019 Newsletter

Is the Return of the Death Penalty a Viable Sentencing Option In South Africa’s Constitutional Dispensation?

Is the Return of the Death Penalty a Viable Sentencing Option In South Africa’s Constitutional Dispensation?

By Yolanda Mnyengeza, Cape Town intern

 

In early September 2019, residents of Cape Town took to the streets after a series of gruesome murders of women during National Women’s Month, many of them demanding that the death penalty be reinstated as a form of punishment for those who commit violent crimes against women and children. After a three-day protest from 3 to 5 September 2019, President Cyril Ramaphosa eventually addressed the crowd outside Parliament but he did not engage the protesters on their call for the death penalty. Instead, he proposed, amongst other things, that Parliament increase minimum sentences for serious crimes. He further averred that he concurred with the masses that bail and parole be opposed in order to fight the crimes committed against women and children.

However, the general public remains largely unaware that minimum sentencing requirements already exist within our legislation, but that in itself has not deterred accused persons from committing serious offences. Moreover, the call to oppose bail will be quite problematic, bearing in mind that the Criminal Procedure Act states that an accused is entitled to be released on bail should he/ she meet the requirements imposed by section 50(6). This contention has been expressly upheld by the courts, who stated that no one ought to be deprived of his/her freedom arbitrarily and, if the interests of justice so permit, the arrested person is entitled to be released.

Thus, the question remains whether the death penalty is a viable sentencing option in South Africa’s constitutional dispensation. Section 11 of the Constitution guarantees the right to life to all within the Republic. Section 37(5) further states that this right to life is a non-derogable right in its entirety, and therefore no limitation can be imposed on it, whether by legislation or the Constitution itself.

In the case of S v Makwanyane, the Constitutional Court found it imperative to abolish the death penalty as a form of punishment and held that it directly infringed on the right to life, guaranteed under section 11. It is important to note that the court when making this decision also considered the adverse effect on the right to dignity provided for in section 10 of the Constitution. Thus, the court held that it cannot be right that a person be punished in such an inhumane and unnatural manner under a constitutional dispensation.

It is understandable that as a result of the prevailing violent crimes committed against women and children there is wide contention for the reinstatement of the death penalty to serve as a deterrent form of punishment. However, as the court stated in the case of Makwanyane, even though wide contentions may be held by a majority of the people, the court’s duty is only to act as an independent arbiter of the Constitution and not merely as an agent for public opinion.

As provided above, constitutional sovereignty does not operate on an eye for an eye basis. As such, it is safe to conclude that the return of the death penalty is not a viable sentencing option under South Africa’s constitutional dispensation. It is therefore evident that a lot more work needs to be done in relation to crime prevention strategies, rehabilitation and the sustainability of the reintegration of offenders into communities.

 

Click here for our complete October 2019 Newsletter

March against Xenophobia

By Muchengeta Hwacha, Johannesburg intern

 

On 4 September 2019, Lawyers for Human Rights (LHR) and the Consortium for Refugees and Migrants in South Africa (CoRMSA) called an emergency meeting to address the spate of violence that had erupted against foreign nationals. Civil society, faith based organisations, trade unions and community leaders heeded the call and gathered at Constitution Hill. The large turnout was unexpected and the organisers were forced to change the venue twice to accommodate the numbers.

The gathering was eventually ushered into an open air courtyard of the former prison and a discussion ensued on how to tackle this fresh scourge of violence. Many shared various ideas on how to address the current challenges facing foreign nationals. The one idea that seemed to garner the most support was that of a march in the inner city to show support to the victims of the violence.

As a result, on 14 September the participants gathered again, this time bringing along a mass of supporters. An estimated 1 000 people marched from Joubert Park through Hillbrow and onto Mary Fitzgerald Square. The march seemed to strike a chord with the residents of Hillbrow, as some were seen weeping as they witnessed the march proceed under their windows and balconies. Given the level of trauma suffered by many in that community, their reaction was understandable but heartbreaking. The march proceeded with high levels of discipline from attendees. It was well covered by the media and well protected by the S A Police Services.

 

Click here for our complete October 2019 Newsletter

Where there’s a Will, there’s a Way

By Sinothile Zondi, Durban intern

 

National Wills Week 2019 ran from 16 to 20 September. Everyone wishes for their assets to be distributed to their preferred loved ones when they pass. To achieve this however, one needs to draft a valid Will, which will ensure that everything that remains of one’s assets after all debts and administration costs have been subtracted will be inherited by one’s preferred heirs. To assist clients in ensuring that they have a valid Will, the Durban office of ProBono.Org ran Wills help desks at various venues in Durban during the month of September.

The main function of the Master of the High Court’s office is to supervise the administration of deceased estates. In this regard, ProBono. Org Durban worked closely with the Office of the Master of the High Court, as well as numerous pro bono private attorneys, in providing elderly members of the community who attended our Wills Week help desks with the required legal services to draft or update their Wills. This ensures that their wishes are followed after their passing. From 16 to 20 September we held a daily Wills help desk at the Office of the Master of the High Court, Durban. We also held a Wills help desk at the Wentworth Organisation of Women (WOW) on 16 September.

Lastly, from 25 to 27 September we held a Wills help desk at the Nelson Mandela Chatsworth Youth Centre. In addition to the help desks, we held seminars at the KZN Deaf Association, in Montclair and at the KZN Blind and Deaf Society to educate the community about the importance and benefits of having a Will and what would happen if one passed away without having a valid Will in place. Through these initiatives we successfully assisted a number of clients with drafting Wills and providing information to those who needed it. In total we drafted 155 wills during the week.

The Johannesburg office also took part in Wills Week at various courts in conjunction with the Department of Justice, providing information on wills and inviting people to have their wills drafted by pro bono attorneys.

 

Click here for our complete October 2019 Newsletter

Civil Society Forum at the Pan-African Parliament on the theme of Refugees, Returnees and Internally Displaced People

Civil Society Forum at the Pan-African Parliament on the theme of Refugees, Returnees and Internally Displaced People

By Muchengeta Hwacha, Johannesburg intern

 

The Centre for Human Rights, in collaboration with the Pan-African Parliament (PAP), invited ProBono.Org to participate in a Civil Society Organisation (CSO) Forum on the sidelines of the third ordinary session of the Fifth PAP legislature.

The CSO Forum was invited to engage on the African Union theme ‘The Year of Refugees, Returnees and Internally Displaced People’. The adoption of this theme comes at a time when there has been an increase in the number of incidents of xenophobic violence and related intolerances across the continent.

The forum sought to discuss and develop:

  • Avenues for countering
    xenophobic violence;
  • Enhancing protection for refugees; and
  • Mobilising effectively in protecting displaced populations.

After much discussion, civil society organisations committed themselves to continue to use the forum to advance the agenda of anti-xenophobia, internally displaced people and refugees.

 

Click here for our complete October 2019 Newsletter

Is Forfeiture Of Patrimonial Benefits In Divorce Proceedings Still Relevant In Modern South Africa?

Is Forfeiture Of Patrimonial Benefits In Divorce Proceedings Still Relevant In Modern South Africa?

By Siphesihle Mayedwa, Cape Town intern

 

When a decree of divorce is granted on the grounds of irretrievable breakdown the court may make an order that the patrimonial benefits of the marriage be forfeited by one party in favour of the other, either wholly or in part. If the court, having regard to the duration of the marriage, the circumstances which gave rise to the breakdown thereof and any substantial misconduct on the part of either of the parties, is satisfied that if the order for forfeiture is not made, one party will unduly benefit in relation to the other, then only will it consider granting such an order. In addition, the party claiming division, transfer or forfeiture of benefits should provide the grounds on which he or she makes the claim.

Where the courts grant an order for forfeiture of patrimonial benefits against a party, he or she forfeits not their share of the common property, but only the pecuniary benefit that they would otherwise have derived from the marriage. In addition to being an order for division, it is also an order stipulating that the party defending forfeiture is not to share in excess of what the party requesting forfeiture may have contributed over the contributions of the party defending same.

Previously, the power of the court to order forfeiture of benefits was based on the common law principle that no person ought to benefit financially from a marriage which he or she caused to fail. South African courts have since abandoned fault or conduct as the main reason for a forfeiture order. In terms of the Divorce Act, 70 of 1979 (the Act), the court has discretion, when granting a divorce on grounds of irretrievable breakdown, to order that the patrimonial benefits be forfeited by the party who is the cause of the breakdown, provided that such party will unduly benefit if forfeiture is not granted in favour of the other. As a result, many allege that forfeiture of patrimonial benefits as provided for in the Act seems to penalise those who are found to have committed substantial misconduct. It is therefore contended that it remains unrealistic to proceed from the view that the responsibility for the breakdown of the marriage lies only with one of the spouses while the other is completely innocent.

In the reported case MC v JC, after 26 years of marriage the husband obtained a partial forfeiture order based on his wife’s adultery which was deemed to be ‘substantial misconduct’. On appeal, the court made a comment in passing, holding that section 9(1) might infringe the right to equality because it placed the party who had committed substantial misconduct in an unfavourable position when it comes to the distribution of the patrimonial benefits of the marriage. As a result, the court pointed out that many may feel forced to remain in an unhappy marriage for fear of losing patrimonial benefits.

Moreover, in the event that the court is tasked with having to consider a prayer for forfeiture of patrimonial benefits it does not only take into account the substantial misconduct, but also further factors such as the duration of the marriage, the circumstances which gave rise to the breakdown and whether the other party would be unduly benefited, since all factors are equally important. In the reported case of JW v SW, the court held that substantial misconduct does not on its own justify an order for forfeiture.

The courts’ intention when granting an order for forfeiture is therefore to protect vulnerable parties in divorce proceedings rather than punishing the party against which the order is sought. In the reported case Tsebe v Tsebe, the court found that the defendant used the proceeds of his pension pay-out exclusively for his own benefit, to the detriment of the joint estate and the plaintiff in particular. It was further found that the defendant would under these circumstances be unduly benefitted if the order for forfeiture was not granted. As a result the defendant was ordered to forfeit his claim to 50% of the plaintiff’s pension interest held in the Post Office Retirement Fund. It is important to note that where there is a risk that one spouse in a marriage may endanger the other spouse’s interest in the joint estate pending the divorce, our law often seeks to protect such spouse against the deliberate or reckless conduct of the other during divorce proceedings.

It is however important to note that South African courts are reluctant to grant an order for forfeiture of patrimonial benefits due to its adverse effects and its interference with the applicable matrimonial property regimes governing the division of such estates. In light of the above, it is evident that forfeiture of patrimonial benefits is indeed relevant in modern South Africa to ensure that there is a level of protection in favour of vulnerable spouses, especially women.

 

  1. Divorce Act, 70 of 1979.
  2. Supreme Court Act, 59 of 1959, Uniform Rule 18, Magistrates’ Courts Act 32 of 1944, Rule 6.
  3. These include marriages in community of property and marriages out of community of property subject to the accrual system.
  4. 1937 WLD 126, at 127-8.
  5. Quansay ‘’The order of forfeiture of benefits in divorce proceedings in Botswana’’.
  6. MC v JC 2016 (2) SA 227 (GP).
  7. 1989 1 SA 597, 602-3.
  8. JW v SW 2011 (1) SA 545 (GNP).
  9. Tsebe v Tsebe [2016] ZAGPPHC 575 – Forfeiture of pension interest in a divorce matter.

 

Click here for our complete August 2019 Newsletter

A Single Marriage Statute?

By Sethabile Sithole, Durban intern

Our country is one that has people from diverse cultures and backgrounds. This is evident in the existence of legal pluralism that exists in our legal system. This is discernable in the judicial accommodation of non-state law when it comes to religious marriages. Though not recognised under South African law, the courts have extended a piecemeal recognition of religious marriages, although this recognition still casts a shadow of uncertainty on the parties to these marriages. For this reason parties have entered into both civil and religious marriages.

The South African Law Reform Commission (“the Commission”) seeks input on whether existing laws should be reshaped into a single marriage statute and, if so, how. There are currently three laws in which the three types of marriages recognised in South Africa are governed, viz., the Marriage Act of 1961, the Recognition of Customary Marriages Act of 1998 and the Civil Union Act of 2006.

One of the primary questions from the Commission is whether they should create a single statute that is all inclusive and has consequences applying to all types of marriages, or an omnibus statute which has different chapters regulating the different types of marriages. If the former is to be adopted, the question is what about the requirements which are unique and only exist in one type of marriage and not the other? Some examples would be the payment of a bride-price or the marriage being conducted by a marriage officer. In such cases, would we have to do away with such requirements or apply them across the board?

The Commission Issue Paper 35 on Single Marriage Statute is available on its website at www.justice.gov.za/salrc
and it is open for comments on any of the issues contained in the issue paper. For those who are interested in making comments, an extension has been given until 31 August 2019. Workshops will also be held in the various provinces in due course. In addition, a consolidated questionnaire will be available in all nine official languages. The commission is liaising with the Council for the Blind to have the questionnaire available in braille as well.

 

Click here for our complete August 2019 Newsletter

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