October Newsletter

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Access to legal services and justice for women

The provision of legal services is a key component to ensure access to justice. Therefore at the Women’s Legal Centre (WLC) we offer free legal advice from our offices in Cape Town and Johannesburg. This service also extends to our mobile office in Khayetlisha and a help desk at the Family Court in Cape Town.

Made up of Busiwe Nkoloza and Sheila Matroos in Cape Town, and Veronicca Ringane and Teboho Mashota in Johannesburg, the legal services team provides practical advice and guidance to clients on a range of issues including maintenance, divorce, and religious marriages. They also regularly attend workshops aimed at educating women about their rights and the workings of the legal system.

One component of gender inequality in South Africa is the lack of access to knowledge about the legal system; while women are able to file for protection orders, appear in court, appeal fines, etc., many are unaware how to go about such matters. The WLC offers free advice because this information is needed in order for women to vindicate their rights.

Sheila Matroos, who has been working with the WLC for two years, describes that before calling her for advice, most women are panicked — they don’t know their rights within relationships or disputes, and often cannot tell if the threats that their relatives and/or associates are making are valid or not.

 A husband may tell his wife that if she files for divorce first she is not entitled to any of the property, dissuading her from going forward with the separation. Matroos explains that women are often trusting of such claims, and that the legal advice office makes sure to inform clients about the truth of these matters, empowering them.

Our legal service component is critical for the shaping of our litigation on strategic impact activities. By approaching us for guidance and providing personalized statements, women help to inform our office of the issues they face and the context around them. Over the past year, our legal services help desk has assisted 1,050 women with 93 domestic violence matters and 66 maintenance cases. With each such example, women broaden their access to justice and our centre learns more about what litigation needs to be done moving forward.

Via our help desk at the family Court, satellite office in Khayelithsa, Johannesburg office and various creative spaces – more than 2000 women were directly assisted with legal advice.

 

Helping women accessing their rights

Helping our clients understand their rights is key.  Therefore we create and disseminate information that will be of importance when women who need to access the justice system. How to obtain a protection order is a very common requests, and then this infographic is a step by step guide:

 

Legal Services

Accessing Maintenance: Attachment Of Property

A child is entitled to reasonable maintenance to provide for clothing, housing, dental and medical care, education and training, and, where applicable, recreation. Both parents have a duty to maintain the child according to their respective means. The duty exists irrespective of whether the child is adopted, born in or out of wedlock, or born of the first or a subsequent marriage

The Maintenance Act 99 of 1998 was enacted to provide an expedient and accessible means for making and enforcing maintenance orders. However, in implementation the procedure fails to successfully enable women to receive maintenance, due to the obstacles of unemployment, understaffing, and constant postponements of cases. Women often become frustrated with the court system when attempting to achieve what the Maintenance Act entitles them.

Since inception of the here was always been challenges in relation to the states accountability to assist with the enforcement of maintenance which has a prejudicial effect on women and children.

The Maintenance Act makes provision for the attachment of movable and immovable property in terms of Section 26 and 27. Section 27

Warrants of execution:

  1. The maintenance court may, on the application of a person referred to in section 26(2)(a), authorise the issue of a warrant of execution against the movable property of the person against whom the maintenance or other order in question was made and, if the movable property is insufficient to satisfy such order, then against the immovable property of the latter person to the amount necessary to cover the amount which the latter person has failed to pay, together with any interest thereon, as well as the costs of the execution.

  2. A warrant of execution authorised under this section shall be

    1. prepared in the prescribed manner by the person in whose favour the maintenance or other order in question was made;

    2. issued in the prescribed manner by the clerk of the maintenance court; and

    3. executed in the prescribed manner by the sheriff or maintenance investigator. The person in whose favour the maintenance or other order in question was made shall be assisted by the maintenance investigator or, in the absence of a maintenance investigator, by the maintenance officer in taking the prescribed steps to facilitate the execution of the warrant.

  3. A maintenance court may, on application in the prescribed manner by a person against whom a warrant of execution has been issued under this section, set aside the warrant of execution if the maintenance court is satisfied that he or she has complied with the maintenance or other order in question.

  4. Applicants who have challenges with the attachment of a movable or immovable property to enforce order, due to the Sheriff’s costs may approach the local magistrate for an order to request the Department of justice and Constitutional Development to pay the costs of the sheriff fees. There is an obligation on the State to ensure the full enforcement of Maintenance orders which includes the execution of the order where the applicant is unable to do so.

WLC Intervention

A client of WLC was granted an maintenance order in 2015. The order remained unsatisfied and the Respondent and the client approached the lower court for an order to attach Respondent’s movable property for both arrear and future maintenance; which was granted by the Court. Before being able to attach the property, the Sheriff required funds, which the Respondent did not have. The Applicant once again approached the Court and the Magistrate conducted a financial inquiry on the ability of the applicant to pay the Sheriff the amount requested. The magistrate found that the Applicant was unable to afford the Sheriff’s costs and ordered DOJCD to pay the Sheriff fees to give effect the order;

DOJCD payed the Sheriff costs and the movable property was attached.

Maintenance Applicants who has unenforced orders must approach the court for a warrant of execution of property, where the Respondent has property. If they cannot afford the costs they must approach the Court Manager or maintenance office to request payment of the execution costs. If the Court Administration do not want to assist, the Applicant must approach the magistrate for an order. The magistrate will have to make an assessment of the Applicant’s financial status.

Sex Worker Outreach

Our focus on sex worker rights remains a critical focus of our Johannesburg office.    Our current legal  framework that criminalises sex work greatly increases the vulnerability of sex workers to violence and reduces the likelihood that violence will be reported or responded to by the South African Police. 

We provide free legal advice specifically to sex workers in Cape Town and Johannesburg through our legal assistance helpdesk our outreaches and our 24 hour helpline. Our outreaches in Johannesburg are geared to providing legal advice and support and to educate sex workers on their basic rights.

As a key population group sex workers are at high risk of contracting HIV/AIDS and so our outreach work includes information on accessing sexual reproductive health rights

Over the last year our helpline has been used by 840 sex workers from Johannesburg where we have represented and supported 84 clients who were charged with offences in terms of the Municipal By-Laws. These charges include loitering and loitering with the intent to solicit. Often clients are kept in custody from between 14 hours to 48 hours without any charges being brought against them. They are denied access to medication and have their condoms destroyed.

Our legal services team comprises of four dedicated women:

End Impunity In Cases Of Violence Against Women

 

WLC strives for the achievement of equality of all women and views instances of violence against women as corroding the constitutional guarantee of equality. Given the appalling high rates of violence against women and (girl) children in South Africa, constitutional functionaries holding high office must be held particularly accountable for their violent conduct against women. In addition, the democratically elected officials responsible for the oversight of the conduct of such functionaries must also be held accountable to act in accordance with the constitutional obligations they have as Members of Parliament.

Mr. Mduduzi Manana, the former Deputy Minister of Higher Education and Training, who has publicly admitted to, and has pleaded guilty and convicted of, seriously physically assaulting at least one woman, has not yet been removed as a Member of Parliament. 

WLC submitted an official complaint to the Parliament motivating for his removal in August 2017.

WLC was informed that the matter will be referred for consideration to the Joint Committee on Ethics and Members’ Interests which is scheduled to meet on 1 November 2017. We understand that the meeting will be held in a closed session, despite the fact that WLC’s complaint and the criminal case against Mr. Manana before the Randburg Magistrate’s Court has received extensive media coverage and is the public domain.In the interests of transparency and accountability, and in the public interest, WLC has requested the Committee to hold the meeting in an open session, giving access to any interested parties. WLC has also requested that a transcript and minutes of the meeting be made available within 10 days the meeting. WLC will continue to track this process.

Functionaries holding high office must also be held to account in instances where we believe they have acted unconstitutionally in protecting the rights of South African citizens. Dr. Grace Mugabe, the First Lady of Zimbabwe, was granted immunity by the Minister of International Relations and Cooperation from criminal charges brought against her for physically assaulting a woman in August 2017. Two applications have been brought before the Gauteng High Court in Pretoria challenging the granting of said immunity on the basis that the decision to do so is irrational and thus unconstitutional. WLC is lodging an application in the North Gauteng High Court to intervene as amicus curiae in these proceedings. WLC, if admitted, will advance arguments on whether the granting of such immunity to Dr Mugabe by the Minster is absolute and unconditional, particularly in light of the high rates of violence in South Africa and the gendered nature of such violence.

WLC is strongly committed in ending the State’s impunity and holding State institutions accountable for their actions (or lack thereof) in instances of violence against women

 

 

CONSULTATIVE WORKSHOP ON THE LEGAL PRACTICE ACT

On Wednesday 18 October we had a great consultative workshop hosted by NADEL, BLA, LSSA and the individual law societies on Community and Pro Bono Service provision within the Legal Practice Act. Taswell Papier AJ giving key note address. In attendance individual practitioners, Equal Education Law Centre, Women's Legal Centre ProBono.Org, Webber Wentzel, ENSafrica, Foundation For Human Rights In SA.

Thank you to the Cape Town Candidate Attorney Association

The WLC is immensely grateful to Cape Town Candidate Attorney Association (CTCAA) for the cash donation and the commitment by its members to support women’s issues.

(from left to right: Jennipher Mudenda, Seehaam Samaai, Bongiwe Mabena)

FAMILY ADVOCATE CONSULTATIVE WORKSHOP

The Women’s Legal Centre coordinated a consultative legal stakeholder meeting with the Family Advocate in the Western Cape.  In attendance were representatives of the  Cape Law Society, National Association of Democratic  Lawyers, South African Women Lawyers, Black Lawyers Association , Legal Aid SA – Athlone and Cape Town offices and the University of the Western Cape Legal Aid Clinic. The family advocate assists parents in divorce proceedings to reach an agreement on disputed issues, namely care, contact and guardianship. If the parents are unable to reach an agreement, the family advocate evaluates their circumstances in light of the best interests of the child and makes a recommendation to the court regarding care, contact and guardianship.   

At the meeting with the Office of the Family Advocate, WLC raised the issue of children borne of religious that is not assessed in divorce proceedings even though the Children’s Act broadens the definition of marriage and recognizes religious marriages. However, in the case of issues surrounding custody of children arising out of termination of religious marriages, a separate application has to be made to a competent court as opposed to the simplified procedure followed in the case of civil marriages. Further, the procedure in the case of religious marriages seems largely unregulated. 

 

 

We would like to extend a heartfelt welcome to Natalie Buthelezi.

Natalie is an admitted attorney and will be managing the Johannesburg Sex Work Project that falls part of the Sexual Rights and Reproductive Health Focus Area as well as the Vulnerable Workers Focus Area . She studied at the University of Witwatersrand where she completed both a BA in Philosophy, International Relations and Law and a post-graduate LLB in 2012. From  2013 to 2014, Natalie served her articles of clerkship at the Wits Law Clinic, situated at the University of Witwatersrand.  She rotated and gained experience in the: Unlawful Arrests & Detention; Property & Eviction; And Family & Divorce Units. In 2015, she was appointed as a research clerk for Justice Zondo at the Constitutional Court.

Natalie is social justice proponent interested in making an effective difference in the lives of those most marginalized who, she argues, in South Africa sadly translates into ‘women of colour’. Natalie is a self-proclaimed feminist, who actively advocates for gender equality and the breakdown of patriarchal dominance. Natalie is excited to join the Women’s Legal Centre where she can marry her feminist beliefs with her professional career in advancing the feminist movement in South Africa.

The SJC Matter

This matter to be heard on 28-30 November.
The Social Justice Coalition (SJC) is taking the Minister of Police to court over the allocation of policing resources in Khayalitsha. The Women’s Legal Centre is providing a gendered perspective on how the lack of access to police resources is unfairly affecting women.

Saffer case in the Supreme Court of Appeal (SCA)

The Saffer case will be heard in the SCA on 23 November.
The WLC has been admitted as amicus in this case which is challenging the interpretation and application of the regulatory framework for exemption from the liability of parents of learners in fee-charging public schools to pay school fees in term of the South African Schools Act 84 of 1996

Muslim Marriages Update

The matter was heard 28 August until 7 September and postponed to 11 December 2017.
The Western Cape High Court will again hear arguments from the state, the Women’s Legal Centre (WLC) and interested parties on whether the failure to recognise Muslim marriages discriminates against women. The WLC are taking the South African Government to court for failing to pass legislation that will give recognition to Muslim marriages. The matter will be heard by Judges S Desai, G Salie-Hlophe and NP Boqwana

Confirmation Application Levenstein

Matter set down for hearing on 14 November 2017 at Constitutional Court.
In the matter of Levenstein, application was made to the Constitutional Court in June 2017 for confirmation of the High Court judgement which declared s 18 of the Criminal Procedure Act unconstitutional (prescription of sexual offences, other than rape, after 20 years). WLC has been cited as a respondent. While WLC supports the application of confirmation, we submitted our application to adduce further evidence in July 2017 to substantiate our argument that the declaration should include all sexual offences, and should apply irrespective if the sexual offence is perpetrated against an adult or child.

The Harneker Matter CC Application

The Harneker was heard on Monday 14 August, and , Judge Le Grange of the Western Cape High Court declared section 2 (1) ( c) of the Wills Act unconstitutional as it does not recognise the equality rights of spouses married in terms of Muslim rites. We are now awaiting the CC application (still awaiting Applicant’s confirmation application).