Issue 21

Pro law for all

In this issue MARCH 2012

Intro

Cliffe Dekker Hofmeyr assists residents of Chris Hani informal settlement

Report on Deceased Estates Training Workshop

Report on Housing Training Workshop

Draft mediation rules

Durban Report

Events held so far

ProBono Law

2012 has started with a bang for ProBono.Org. We have held no less than 11 training workshops, community education workshops and information sessions since the beginning of the year. These events, which are offered to attorneys, advocates and other stakeholders such as NGOs, CBOs and court and government role-players, are aimed at:

• Equipping and assisting legal professionals to undertake pro bono work for our clients in areas they are not familiar with;

• Introducing stakeholders to new and interesting developments in the law and providing them with information;

• Enabling lawyers to assess their work with their peers;

• Encouraging lawyers and stakeholders to network, and meet others who are involved in our work;

We are fortunate to be able to draw on the voluntary contribution of experts to make presentations at these workshops.

(see page 4 on events held so far in 2012)

Intro

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On 11 August 2011, Cliffe Dekker Hofmeyr’s director Christine Jesseman and

Khaya Mantengu of the Pro Bono and Human Rights Practice consulted with representatives of evicted residents of the Chris Hani informal settlement in Daveyton. The residents had been evicted by the local municipality without notice and without a court order, from land that they had been occupying.

In order to gather the necessary information and more importantly to fully appreciate the circumstances in which the residents found themselves; Christine and Khaya visited the informal settlement in Daveyton and consulted with the residents on numerous occasions. The urgency of the matter was exacerbated by the residents’ personal circumstances. Some of them used their minimal income to rent alternative accommodation, while others were fortunate to have relatives provide them with shelter within their own informal structures.

The attorneys of Cliffe Dekker Hofmeyr pursued the matter with the necessary urgency, and negotiated a settlement agreement with the local municipality. The local municipality agreed to relocate the residents, at no cost to the residents, to newly built structures within the informal settlement. The local municipality agreed to timeously construct new structures that are fit for the purpose, to consent to residents

occupying the land, and to provide the residents with access to basic services.

Gcobisa Sigwili (candidate attorney) joined Cliffe Dekker Hofmeyr’s Pro Bono and Human Rights Practice in January 2012. The residents and their

families took occupation of their new homes on 4 February 2012. This was a truly fitting start to the New Year, and a wonderful outcome for Cliffe Dekker Hofmeyr’s Pro Bono and Human Rights Practice.

Cliffe Dekker Hofmeyr assists residents of Chris Hani informal

settlement

Staff of DLA Cliffe Decker Hofmeyr with members of the community

ProBono.Org’s annual Deceased Estates Workshop was held at Eversheds, Sandton on 3 February 2012.

After Erica Emdon, the Advancement Director at ProBono.Org, welcomed all of the attendees to the workshop, our dynamic and passionate presenter, Arnold Shapiro (Director of the Deceased Estates Department, Eversheds) gave an informative overview of the law relating to deceased estates and succession planning.

The format of the workshop was very open and

all attendees were invited to ask questions as and when they arose. Following on from the open format of the workshop, the participants – civil society, attorneys and representatives from grass roots community based organisations – were also given an opportunity to network with each other.

Barnard Aphane (Johannesburg Masters Office), Erica Emdon (ProBono.Org), Lesley Maman (Eversheds) and Lebogang George (ProBono.Org volunteer intern) all spoke about the importance of ProBono.Org’s help desk at the Masters office and the success of the project to date. An appeal was made to the legal practitioners in the audience to volunteer their services at the help desk and ProBono.Org is appreciative of all of those attorneys who have since indicated their willingness to assist.

From the positive feedback received, it is clear that not only did the workshop lay a solid legal foundation for all of the participants in respect of the law relating to deceased estates, but it was also a great opportunity to expand the excellent services that are already being offered through ProBono.Org’s Masters Help Desk.

On Friday, 17 February 2012, ProBono.Org, in association with Bell Dewar, hosted a successful and interactive workshop on housing related matters.

The awareness of housing matters as a national concern was echoed by the presence of members from the legal profession, grassroots community-based organisations, NGOs and representatives from various government departments.

Reghana Tulk, director of Bell Dewar’s pro bono department, provided an informative overview of housing law followed by Nomfundo Gobodo from the LRC who discussed the specific housing related

problems arising as a result of South Africa’s unique history. SERI’s Adv. Stuart Wilson then provided his first hand insight into the latest developments in housing case law and dealt specifically with the renowned ‘Blue Moonlight’ judgment that was handed down in the Constitutional Court. Van Gend Botha from Aurecon closed the workshop by discussing the history and current practicalities arising from the so-called 99 year leasehold system of ownership in South Africa.

Following on from the positive feedback received from the workshop attendees, ProBono.Org intends hosting a series of housing workshops on various topical issues throughout the year.

REPORT ON DECEASED ESTATES WORKSHOP

REPORT ON HOUSING WORKSHOP

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Arnold Shapiro Bernard Aphane Leslely Maman

Reghana Tulk Nomfundo Gobodo

Adv Stuart Wlison Van Gend Botha

In November 2011 friends and family of a number of detained asylum seekers in Durban approached ProBono.Org for assistance.

The arrests were brought about by a change in policy whereby the Department of Home Affairs (the Department) lured asylum seekers to their offices on the pretence that they needed to collect certain documents, only for them to be summarily arrested and imprisoned pending deportation due to a failed application for asylum in this country. This policy has no regard for the fate of the asylum seeker’s wives and children, and takes no account of the lives they may have established in South Africa over a number of years, waiting for a decision on their refugee status. (The Legal Resources Centre has challenged the policy in the Western Cape High Court and the matter is due to be heard in due course.)

Five of the six detainees were deported. The sixth, Mr. Sebastian Mamba, escaped deportation when he hid from the prison authorities. Mr. Mamba was then scheduled for deportation to the troubled Democratic Republic of Congo, on 13 December

2011 but with the assistance of Advocate Sarah Jane Linscott, who drafted the required papers and Advocate Sara Pudifin appearing, a successful urgent application staying the deportation was brought within hours of ProBono.Org becoming aware of the situation. Neither of the advocates had previously worked with ProBono.Org and kindly took up the cudgels based on a telephonic request and their personal willingness to render assistance.

On 21 December 2011 Advocate Ishan Patel, instructed by Hughes Madondo Inc, joined the fray, and despite the festive holidays, hastily filed a 188-page urgent application, for the release of Mr.Mamba, an interdict that he not be re-arrested, and a review of his appeal hearing, along with a constitutional challenge to section 34(1) of the Immigration Act.

The High Court granted the order whilst the constitutional issue is still to be heard, the state having filed its notice of opposition in the first week of March 2012.

In what can only be described as a merry Christmas tale, Mr. Mamba, a waiter at Craft Trattoria in Durban North, was re-united with his

family and able to once again, be a productive member of society by going to work immediately and taking advantage of the Christmas rush after almost four weeks in prison.

For him, good cheer came in the form of ProBono.Org, Hughes Madondo Inc. and Advocates Linscott, Patel and Pudifin, who did not just take the case on, but took the case to heart.

Christmas at home for Mr MambaDURBAN REPORT

Mediation Rules have been published by the Rules Board for all High Courts and Magistrates’ Courts.

These are expected to be implemented in a pilot project shortly. ProBono.Org believes they are far reaching and will seriously overhaul how litigation proceeds in both the High Court and Magistrates’ Courts.

The object and purpose of the Mediation Rules are to regulate the procedure for the referral of disputes to mediation and to provide an alternative dispute resolution (“ADR”) mechanism for parties to litigation. These rules provide that once a matter is opposed, that the matter will be referred to a dispute resolution officer, who will then refer

the matter to mandatory mediation.

The court may make an order of costs against parties who refuse to participate in mediation should the court find that the refusal was unreasonable and that mediation may have resulted in substantially the same finding as the court.

The issue raised on the draft rules that is of particular concern to ProBono.Org is where would legal aid and pro bono mediation fit into the new system? ProBono.Org has focused on mediation as an alternative dispute resolution mechanism for the poor and indigent, encouraging clients to opt for mediation as a time and cost effective solution.

DRAFT MEDIATION RULES

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ProBono Law

Our fortnightly Radio Today radio programme, hosted by Patrick Bracher of Deneys Reitz, is aired on 1485 AM in Johannesburg and nationally on DSTV audio channel 169 every second Thursday at 18h30. Podcasts are available on the Radio Today website and ProBono.Org’s website.

Over the next few months, the following shows will be on air:

● 29 March: Tembeka Ngcukaitobi of the LRC will talk about the recent case dealing with a blind Magistrate, Parvathi Singh. The case, heard in the Equality Court held that the policy of appointments of magistrates is unconstitutional because it does not consider disability.

● 26 April: Ceri Von Ludwig will talk about parental rights and responsibilities in terms of section 20 of the Children’s Act, and relate the discussion to the constitutional rights of the child.

● 10 May: Vlad Movshovich will discuss the proposed review of the Constitutional Court’s powers and jurisprudence by the SA government.

● 24 May: Reghana Tulk of Bell Dewar will give a broad overview of housing law with a focus on evictions. She will look at the procedural elements of an eviction application and when it can be said that it is just and equitable to grant an eviction order. Her approach will be to give a technical explanation of the law and focus on what the legislation requires.

4Pro law for all

1st Floor West Wing Women’s JailConstitution Hill •1 Kotze Street Braamfonteintel: 011 339 6080 • fax: 011 339 6077www.probono.org.za

7th Floor Tower A Salisbury Centre347 Dr Pixley kaSeme Street Durbantel: 031 301 6178 • fax 031 301 6941

EVENTS HELD SO FAR IN 2012

This year, these are the events we have held:

● Training Workshop on Deceased Estates including aspects relating to drafting of wills held on 3 February at Eversheds (reported on page 2);

● Refugee Law Training Workshop on the day to day legal issues and problems experienced by refugees and asylum seekers, the manner in which these can be resolved, as well as an overview of the applicable legislation. Addressed by Kajal Ramjathan-Keogh of Lawyers for Human Rights on 7 February at Norton Rose;

● Training Workshop on Housing, dealing with housing related matters, including the latest developments in case law and the law related to matters such as evictions and the illegal cut off of services held on 17 February at Bell Dewar (reported on page 2);

● Information seminar on International Child Abduction and the Hague Convention on the Civil Aspects of International Child Abduction, addressed by Advocate Ilana Ossin of the Johannesburg Bar on 21 February at Bowman Gilfillan;

● Community Education Training Workshop on Customary Marriages at which Amanda van

Loggerenberg gave the presentation on 24 February at the Methodist Church, Albert Street, Johannesburg;

● Community Education Training Workshop on Domestic Violence, at Famsa in Soweto on 29 February at which Amanda van Loggerenberg made a presentation;

● Training Workshop on the reciprocal enforcement of reciprocal maintenance orders, given by Advocate Shaida Mahomed of the Johannesburg Bar on 16 March at the Roodepoort Magistrate’s Court;

● Training Workshop on HIV/Aids and the Law on 23 March at Webber Wentzel. Presentations were made on social grants by Thilufeleni Sinthumule of the Black Sash, on employment by Reghana Tulk of Bell Dewar and on testing and the National Strategic Plan by Umunyana Rugege, of the NGO Section 27;

● Training Workshop on the reciprocal enforcement of maintenance orders given by Advocate Strauss of the Johannesburg Bar on 23 March at the Vanderbijlpark Magistrate’s Court;

● Training session on the reciprocal enforcement of maintenance orders given by Advocate Harry Mthimunye, a member of the Johannesburg Bar on

30 March at Vereeniging Magistrate’s Court;

● Training Workshop for non profits on NGO Corporate Governance and the New Companies Act, held on 30 March in Durban, at Garlicke and Bousfield with presenters Phila Magwaza and Timothy Nourse of Garlicke and Bousfield’s commercial law department. This was a seminar for NGOs, community based organisations and civil society organisations on corporate governance, the impact of the new Companies Act and what is required in order to bring non-profit organisations in line with the new Act.

Check our website:

www.probono.org.zafor upcoming events, or ask to be put on our mailing list by contacting: erica@probono.org.za

THANK YOUProBono.Org would like to thank all the presenters for their time, and Eversheds, Norton Rose, Bell Dewar, Bowman Gilfillan, Webber Wentzel and Garlicke Bousfield (Durban) for the generous use of their venues and for catering. We would also like to thank the Department of Justice for the use of its courts as venues for our training