Author Archive: Simon Dippenaar | SD Law Cape Town

16 Days of Activism for No Violence Against Women and Children

Violence against women in the workplace – time for it to stop!

16 Days of Activism for No Violence Against Women and Children runs from 25 November till 10 December each year. In fact, the 25th of November is specifically observed as the International Day for the Elimination of Violence against Women, an initiative started by activists at the inaugural Women’s Global Leadership Institute in 1991, which continues to be coordinated each year by the Center for Women’s Global Leadership (CWGL). The 16 Days of Activism is an international campaign, also coordinated by the CWGL, which is used by activists around the world as a platform to call for the elimination of all forms of gender-based violence.

South Africa is one of 187 countries to participate in the 16 Days of Activism Campaign since 1991, with a reach of 300 million. The objectives of the campaign, taken from the dedicated website, are to:

  • Raise awareness about gender-based violence against women as a human rights issue at the local, national, regional and international levels
  • Strengthen local work around gender-based violence against women
  • Establish a clear link between local and international work to end gender-based violence against women
  • Provide a forum in which organisers can develop and share new and effective strategies
  • Demonstrate the solidarity of women around the world organising against gender-based violence against women
  • Create tools to pressure governments to implement commitments to eliminate gender-based violence against women

2019 theme for 16 Days of Activism – ending violence at work

Each year’s campaign has a theme, and this year it is ending violence against women in the world of work. This is particularly salient in the South African context, where there is a push to encourage women into traditionally male-dominated occupations and professions. Take mining, for instance – a mainstay of our economy and our labour market. Until 1996, women were not permitted to work underground. The South African Mining Charter of 2004 introduced a requirement that a mine’s staff complement must include at least 10% female miners. But a mine is not an easy environment for women to enter. Early women mineworkers faced challenges such as equipment and protective clothing sized for men, forcing women to use ill-fitting gear that made their jobs harder and even unsafe. Fortunately, this is beginning to change, through pressure from unions and female employees and efforts by the Chamber of Mines and equipment manufacturers. However, there are still inadequate ablution facilities, and women often have to share changing rooms with men.

The outcome is sadly predictable: women are subjected to sexual assault and rape in the workplace. In one tragic and high-profile incident, a woman miner was found dead, a used condom next to her body, at Anglo Platinum’s Khomanani mine in 2012. In 2015, at another Anglo Platinum mine, Thembelani in Rustenberg, a woman was attacked and raped by a suspected illegal miner in the women’s changing rooms while showering.

No industry is immune

Violence against women at work is not confined to blue collar occupations. Sexual violence – and its close cousin, sexual harassment – are of course illegal in this country. Obviously assault, sexual or otherwise, is a criminal offence, but sexual harassment is also a form of unfair discrimination on the basis of sex, gender and/or sexual orientation. It has been described by the Labour Appeal Court as “the most heinous misconduct that plagues a workplace”. Why, then, is it so rife?

Social structures, social norms

According to unwomen.org, “Rape is rooted in a complex set of patriarchal beliefs, power, and control that continue to create a social environment in which sexual violence is pervasive and normalised.” South Africa still has a deeply entrenched patriarchal society, borne out by our rape statistics, despite a progressive constitution and ground-breaking advances in other aspects of our society.

Ending sexual violence requires fundamental changes to systems of power and control, and existing social structures are critical to this transformation. One of the most influential social structures is the workplace, so employers have a vital role to play in defeating sexual violence at work.

Employer obligations

Employers are obliged, under the Occupational Health and Safety Act, to create a workplace that safeguards the health and safety of employees. It would be impossible to foresee and pre-empt every possibility of harm, but employers must take all tenable steps possible to protect employees from injury or distress that can reasonably be prevented.

Furthermore, the 2005 Amended Code of Good Practice: Sexual Harassment Cases (the Code) requires employers to ensure that the dignity of employees is respected in the working environment. Part of this stipulation is the inclusion of appropriate sexual harassment policies defining the process of handling sexual harassment sensitively and efficiently, including the provision of support to victims. However, while employers are permitted to report sexual violence to the police, there is no legal requirement for them to do so. The responsibility to press charges lies with the victim, and there are many obstacles that prevent this happening. This needs to change.

Employee engagement is key

Employers must lead the way, but they cannot change mindsets by imposition. Workers of both sexes need to buy into the problem in order to be part of the solution. This is not just a “women’s issue”.

Security is essential

Employers need to provide adequate security on the premises to ensure the safety of women, especially after hours; and there needs to be a confidential means of communication that allows victims of sexual harassment or violence to report it, without fear of repercussions. These are the basics that must be in place so long as sexual violence is still a threat in our society.

But security alone is not enough

To remove that threat altogether, attitudes and norms must change. To encourage this, employers can offer sensitivity and awareness training. Many men pay lip service to gender equality and are genuinely appalled by gender-based violence, but at the same time they participate in bar conversations ranking the females in their office in order of attractiveness. They need to realise and understand that this is not acceptable; it’s on a continuum of debasement of women that ultimately ends in violence and rape. Men need to speak out when they witness sexual harassment, abuse or violence. This includes innuendo, “accidental” touching, and lewd looks. It doesn’t matter if the perpetrator is their best mate; silence is collusion. Good men must speak up in the presence of unacceptable behaviour by other men. Claiming to be without blame but turning a blind eye to the transgressions of others makes one as guilty as the offender himself.

SD Law stands against gender-based violence

SD Law stands firmly behind the campaign to end violence in the workplace and supports 16 Days of Activism for No Violence Against Women and Children. We will not stand by when we see men mistreating women or in any way perpetuating the social norms that feed our horrendous rape statistics.

We can act for you if you have been a victim of sexual violence, in the workplace or anywhere else, and would like to bring charges against your assailant. We understand that the process of coming forward is frightening and distressing. We will provide a safe, trusting environment where you will always be believed. SD Law is a firm of Cape Town lawyers, also practising in Johannesburg and Durban, with expertise in family law and criminal law. Contact Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za for a confidential discussion.

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Liquor licensing – a slow process

Don’t be left (high and) dry. Get your liquor licence application in on time.

Despite our struggling economy, there seems to be no shortage of new establishments opening their doors to a thirsty and hungry clientele. Linden, a suburb of Johannesburg, has seen a boom of new bars and restaurants recently, catering for every taste from burgers to tapas. But some of these eateries are opening without a liquor licence. Across the country, restaurants and businesses wishing to sell alcohol are facing long delays in the liquor licensing process. A publican in Mbomelela, Mpumalanga, has been waiting eight months with no delivery date in sight. What’s the hold-up?

Due diligence

Let’s be fair to the authorities. South Africa has a huge social problem with alcohol. Alcohol abuse fuels crime and violence, against women and children in particular. There is an epidemic of illegal sale of alcohol. The provincial Liquor Boards, who issue on- and off-consumption liquor licences, have a duty to scrutinise every application and ensure the suitability of the licence holder and the premises. This is part of their duty to protect the public. 

The National Liquor Authority is part of the DTI and is charged with regulating the macro manufacturing and distribution tiers of the liquor industry. Each province has its own liquor authority and you must apply to your local board for a liquor licence for on-consumption, off-consumption and micro manufacturing.

Applicants must undergo police clearance and submit building plans, photographs of the premises, information about where the alcohol will be stored, written representations in support of the application, and various other documents. Checking the authenticity of these documents and conducting due diligence on the applicant takes time. In a period of expansion in the industry, there  will be an inevitable backlog of applications in the processing pipeline. The Liquor Board is just doing its job.

Liquor licence nominal timelines

There are certain milestones that must be met in the liquor licensing process. Fore example, in the Western Cape, a notice must be publicly displayed on the proposed licensed premises indicating that an application has been lodged for a liquor licence. This must be on display for 28 days from the date of application lodgement.

Furthermore, there is a cut-off date every month by which applications must be lodged. They must be submitted by 14:00 on the Friday preceding the first Friday of any month (or if the preceding Friday is a public holiday, by the last working day before the holiday). When you add these lead times together, and allow for the workload of the Liquor Licensing Tribunal, it’s not hard to see how the time required to grant a licence adds up. If you are opening a new establishment, be sure to allow at least six months for your licence to be granted, but don’t be surprised if it takes much longer. 

Temporary and event licences

It’s the time of year when non-commercial and other organisations want to hold functions selling alcohol. To do that legally, the event organiser or whoever wishes to sell alcohol must apply for either a temporary or event licence, depending on the nature of the function. They are not the same thing and the requirements for each are very different.

Temporary liquor licence

A temporary liquor licence must be held by an existing licence holder. For example, a restaurant or bar may be holding a pop-up at a seasonal market. Temporary liquor licences are granted for 14 consecutive days at a time, so only one licence is needed for a market that runs for a week, for example. A temporary licence may not be held for more than 30 days in a year, and the information and supporting documentation required with the application are similar to a permanent licence. Don’t be fooled by “temporary”. The application process is just as thorough. So if you haven’t yet applied for that temporary licence for the Christmas market you want to participate in, it may be too  late. Temporary licences must be applied for at least 40 days in advance of the first day of the function or event in question.

Event liquor licence

Unlike a temporary licence, anyone can apply for an event licence in the Western Cape, provided they are “a person of 18 years and older that are not disqualified according to Section 35 of the Western Cape Liquor Act 4 of 2008 as amended”. The documentation required is also similar to an application for a permanent liquor license and  requires, amongst others, details regarding the event venue and the credentials of the applicant. It takes time and care to prepare correctly. An application for an event liquor license must also be submitted 40 days before the first day of the event in order to avoid having to apply for condonation and the payment of penalty fees.  

Need help?

Applying for a liquor licence, whether permanent, temporary or event, can be a complicated undertaking, especially if you are new to the process. SD Law & Associates are experts in liquor licensing. If you have any questions about the licensing requirements or need help with your application, contact Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za. We will help you secure your on- or off-consumption, temporary or event liquor licence as painlessly as possible.

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Britons who legally smoke cannabis in the US ‘risk being deported’

Warning comes amid rise in expulsions under federal law – even in states where drug is legal

Don’t be fooled by the use of “Britons” in the headline. This article first appeared in the Guardian, a UK newspaper, hence the focus on Britons, but the warning applies to all visitors to the US. As cannabis legislation has relaxed here in South Africa, we are even more likely to feel “safe” when visiting a US state that has also legalised marijuana. Remember the US is a highly devolved jurisdiction, with many laws set by the states and, as a result, legislation varies considerably from state to state. But there is an anomaly that exists with cannabis law: at federal level it is still illegal, and immigration falls under federal law. Read on for more important information if you are planning to visit the US.

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A legal expert at an international immigration firm has warned British tourists and employees that if they smoke marijuana in the US, even in states where it has been legalised, they risk being barred from the country for life.

UK visitors can still be arrested and deported from the US even if they consume cannabis in states such as California and Colorado, where the drug is legal, said Charlotte Slocombe, a senior partner at Fragomen in London.

Slocombe says her firm and others that deal with US immigration laws have seen a rise in cases where British holidaymakers and green card holders, working legally in the US, are being expelled or denied entry because of cannabis consumption in states where it is legal.

She said in a scenario where Americans were caught by police smoking cannabis at a party, in a state where it was legal, they could not be arrested. British people and other foreign tourists at the same party, however, could be arrested, deported and branded unfit to re-enter the US.

The warning comes as a growing number of US states are expected to legalise cannabis, among them New York and New Jersey, which will follow 11 states, including Washington DC, that have made the drug legal. Despite that change, under US federal law the drug remains illegal – meaning that foreign visitors can be sanctioned.

“Canada legalised cannabis in 2018 but as the US customs and Border Protection keep saying, US federal law has not changed,” said Slocombe. “What is confusing to people is that while states in the USA have legalised cannabis it remains illegal federally.

“Even if you are a foreigner in a state where it’s legal, it’s still illegal for you federally. If, for example, you buy cannabis from a legal dispensary and that dispensary asks for your passport details as ID that information might be discoverable. It could then trigger, as can admission of drug taking, immigration issues because immigration is covered by federal law not state law.

“This is how people get caught out even though they think they are doing something which is now legal in that state. Equally that would include green card holders and those who hold visas to live and work in the US. Even for an American it is federally illegal, but because they are not subject to US federal immigration laws they would not be as vulnerable.”

Slocombe said federal law trumped state law, and as a foreigner this could trigger inadmissability under US immigration legislation.

“Don’t take any risks, while you are not breaking state law you are still breaching federal law. It’s too dangerous because the consequences are enormous and you might be ineligible for ESTA entry and a visa forever,” she said.

Slocombe warned it was not just cannabis consumers who ran the risk of being deported and potentially permanently barred from the US. Investors, shareholders or firms that supply equipment for legal cannabis producers in also run the same risk.

“There is one example I am aware of where two known investors in the US cannabis industry, who are foreigners and on visas, had their investment deemed illegal in federal law. Another example is a farmer who was on a visa and sold a portion of his land to a cannabis producer and filed US tax returns. That came up as an issue when he tried to apply to renew his visa.”

She said Fragomen had even advised non-US technology companies to be careful over supplying IT services to American cannabis companies.

“Customs and Border Protection state that they have the right to question you about your travel to the US and the industry you are in. So if you are going to do something related to the cannabis industry then yes you could find yourself inadmissible to enter the US.”

Reprinted with thanks to the Guardian

If you need help…

Although possession of cannabis for personal use is no longer illegal, the police are still getting to grips with the implications of the change in legislation. Therefore, any encounter with the law regarding dagga possession and use is best handled with the help of an experienced bail attorneyCape Town Bail Attorneys, Simon Dippenaar & Associates Inc. is a law firm in Cape Town are experts in criminal defence, with a reputation for handling after-hours bail. You can contact bail lawyers 24/7 and know that your call will be answered. Call Cape Town Attorney Simon Dippenaar on +27 (0) 86 099 5146.

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Relief for destitute people evicted from Klein Akker farm

Humanitarian organisation Gift of the Givers and Rural Development and Land Reform Deputy Minister Mcebisi Skwatsha brought some relief to nearly 100 destitute people after they were evicted from the farm Klein Akker near Wallacedene in Kraaifontein.

They have been living in a temporary place for more than two months, with no food or water because the pumps on the land had been stolen.

Some of them lived in tents which were affected by the recent heavy rains. The families of Klein Akker farm resided on the farm for two decades. They are now housed at the state-owned Mesco farm.

Resident Max Geza said: “I am very happy now because I will at least have water to drink and food to eat. We had to go and fetch water very far from here, and some of the residents are old and ill.”

Skwatsha said: “I am here today because I have to provide basic needs to these destitute people who do not have houses. They were moved to this place after they were evicted from their original place. Working with Gift of the Givers, we provided them with basic needs such as blankets, food and sanitation. I would not be able to provide the time frame to provide them with housing, but I would love to get them decent houses, but for now they are safer than before and we will slowly improve their lives.”

Gift of the Givers director Badr Kazi said: “We provided them with food, blankets and hygienic stuff, and if these people are going to be here for a little longer, then we will continue to support them for a while, and we hope the government fast tracks the housing issue for these people.”

Originally featured on iol.co.za

*Simon Dippenaar & Associates, Inc. is a law firm in Cape Town, now operating in Gauteng and Durban, of specialised eviction attorneys, helping both landlords and tenants with the eviction process. Contact one of our eviction lawyers on +27 (0) 86 099 5146 or info@sdlaw.co.za if you have been evicted unlawfully.

Further reading:

Klein Akker Evictions

Just and Equitable Evictions in South Africa?

Farm Dweller Evictions – a Fair Process

Evicted Families Stuck in Paarl Caravan Park for a Year

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Netflix “Unbelievable”…is all too believable

“Shows with traumatic plotlines are shifting the national debate”

The Netflix mini-series, Unbelievable, may be an American production, but its story is resonating with women all over the world. Conversation has turned to a discussion of Unbelievable in  Cape Town and Johannesburg bars and coffee shops more than once recently. What is your view of dramatising rape stories? Since the #metoo movement began, it has become much more acceptable to bring accounts of sexual abuse and assault out into the open. It’s unsurprising the media has followed suit. At SD Law, we agree with the author of the article below, that…

“…programmes on what consent looks like, on the impact of harassment in public places, the way it forces women to avoid the dark, or take the longer route home…”

are vital to bringing the subject of sexual harassment of women out of the shadows and tackling it head-on. Our government – and everyone in a position of educating or influencing men – needs to do much, much more if South African women are to feel safe. It requires…

“elected leaders understanding their responsibilities, with thoughtful interventions in schools, the welfare system, hospitals. With compulsory sex education that means porn isn’t a child’s default teacher on what sex is, who sex is for…”

We think author Eva Wiseman makes some salient points. Read on and decide for yourself.

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TV shows and books dealing with rape and sexual assault make for upsetting and unsettling viewing and reading, but at least the grim stories are propelling us towards the possibility of social change.

We are nearing the finale of season three, when the storyline twists and characters evolve and we are invited to question all we thought we knew. In the same way that it’s harder to care about statistics (like the proportion of rapes being prosecuted in England and Wales dropping to just 1.7%) than stories (like the new book by Chanel Miller, a blistering account of her sexual assault), perhaps it is easier to think of rape in these terms. As a horror show, unfolding.

Yesterday over lunch I read the news that, as Carl Beech was jailed after fabricating claims of historical rape, a former High Court judge concluded that the “instruction to believe a victim’s account should cease.” “Sure,” I said aloud, darkly over tea. This came after the End Violence Against Women coalition (EVAW) pointed out that, judging by the woefully low rate of prosecutions, rape appears to have been decriminalised, an idea that continues to roll around my mind like a marble. Along with the ancient image of a thong.

Where once victims were humiliated in court by defence barristers holding up the underwear they wore on the night of the attack, today they are presented with old text messages or photos, which do the same job as the asking-for-it underwear, but in higher resolution. I spent my journey home reading Miller’s book and that night lay in bed watching Unbelievable, the Netflix true-crime drama based on a teenager whose rape was discounted by detectives. I slept, not well.

Both Miller’s book, Know My Name, and Netflix’s Unbelievable shine a torch on the reality of sexual assault today, at a time when rape charges, prosecutions and convictions in England and Wales are at their lowest levels in more than a decade. Until recently, Miller was known as “Emily Doe”, the pseudonym of the “Brock Turner sexual assault victim”. Her case first became famous because of widespread public criticism of the judgment. Despite there being witnesses to the assault, as Miller lay unconscious behind some bins after a frat party at Stanford University and despite Turner being convicted of three counts of felony sexual assault, he was sentenced to only six months in prison, of which he served three. The judge said he feared a longer sentence would have a “severe impact” on Turner, a “promising athlete”. And second, because of Miller’s powerful, detailed, victim statement. “I was not only told that I was assaulted, I was told that because I couldn’t remember, I technically could not prove it was unwanted. And that distorted me, damaged me, almost broke me.” There are echoes of Miller’s experience in Unbelievable, as there are, inevitably, in all accounts of violence against women. The series opens with Marie’s rape and unravels from there, as minor inconsistencies in the victim’s story lead police to charge her with false reporting, before it becomes clear that the rapist has attacked again.

I’m often left hoppy and bitter when rape is a theme in my nightly telly, another body, another drink. But lately that agitation has moved upwards, to a place where I can recognise it as energy. As something useful, even positive. Horror stories rarely have happy endings, but it does feel, doesn’t it, that a change is due. As grim and worrying as the figures are, the swell of social change, and the new clarity of storytelling, must, surely, drag the rest of the world along with it.

Source: https://www.theguardian.com/lifeandstyle/2019/oct/13/traumatic-plotlines-are-shifting-national-debate-rape-sexual-assault

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We believe you

If you have been affected by any of the issues in this article or Netflix Unbelievable, family attorneys SD Law have deep experience of helping women escape abusive relationships. If you have suffered sexual assault, and have been too scared to bring charges, we will support you through the process and help keep you safe. If you experience intimate partner violence, we can serve a protection order on your partner and  help you initiate divorce proceedings, if appropriate. We will connect you to relevant support services. At Cape Town Divorce Attorneys, we will always believe you. Contact Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za for a confidential discussion. We can call you back on a safe number.

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Alcohol fuels gender-based violence

When men feel both entitled and inadequate, and when their personalities are brittle and impulsive, then alcohol pushes them over the edge.

Alcohol is a key factor in violence against women. More needs to be done to control the availability of cheap booze in residential areas, says David Harrison of DG Murray Trust in Cape Town.

At SD Law, one aspect of our business is liquor licensing, and we unreservedly support responsible drinking and responsible marketing and promotion of alcohol. We have assisted women clients to escape abusive relationships and have seen first-hand the destructive effect of alcohol and the role it plays in violence against women by men. We share and support the views expressed in this article, written by the CEO of DG Murray Trust in Cape Town, David Harrison.

First published in the Daily Maverick, 02 October 2019

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The suggestion seems almost insensitive, but the fastest way to reduce gender-based violence (GBV) is not in changing men’s attitudes, but in limiting their access to alcohol.

Buried in the president’s recent address to Parliament on GBV was one fairly bland sentence, that “drug and alcohol abuse fuels the gender-based violence pandemic”.

Imagine he had then paused and said: “Now let us all understand what that means. It’s like taking a hose of petrol and spraying it on the fire. It causes an inferno that will keep on exploding until the fuel supply is turned off. Yes, we must get to the source of the fire and help its victims in the meantime, but our most urgent priority is to cut off its fuel supply. And if we succeed in reducing the abuse of alcohol and drugs, we will also dramatically reduce the number of murders and assault, HIV infections and traffic accidents.”

If the president had taken his one-liner to its ultimate conclusion, he would have realised just how inadequate – almost trivial – his proposed response was, namely that “the Department of Social Development has therefore been tasked with increasing the visibility of substance abuse awareness and education and prioritising funding for more treatment facilities”.

Government awareness campaigns are no match for the liquor industry, which keeps finding ways to intensify its own marketing and subverts that of the state. Far more effective is the restriction on alcohol advertising, sponsorship and promotion, which the World Health Organisation promotes as impactful and cost-effective measures to prevent and reduce alcohol harm.

If government is serious about reducing gender-based violence, it needs to stop vacillating about its proposed ban on alcohol advertising. Reducing alcohol harm will not destroy the liquor industry, but ensure that it becomes a commercial sector worth having. At the moment, it is not. The reality is that the societal cost of alcohol abuse, estimated at up to 12% of GDP, far outweighs the economic benefits of the industry.

As for funding more treatment facilities, that’s certainly needed in a country where services for drug and alcohol dependence are inadequate, but it won’t make a dent in levels of gender-based violence, which is more associated with binge-drinking than clinical alcoholism.

Binge-drinking is the strongest proximate risk factor for violence against women and children, and about a quarter of South African drinkers drink in heavy, episodic ways (more than five units at one time). According to Statistics South Africa, either the perpetrator or the victim were reported to have been under the influence of alcohol or drugs in 72% of sexual violence incidents taking place outdoors and 23.3% of incidents taking place at home.

Some argue that alcohol abuse is just the symptom of the same set of social and environmental factors that lead to male aggression, but meta-analyses of the link between alcohol and GBV show small but significant independent effects that can be devastating in the context of social and economic marginalisation. In other words, when men feel both entitled and inadequate, and when their personalities are brittle and impulsive, then alcohol pushes them over the edge.

This means that even as we try to change the cultural and economic factors that drive GBV, we must also tackle the immediate causes that propel the nation beyond the tipping point of unbridled violence and aggression. The global evidence shows that short-term interventions to shift cultures of patriarchy have little effect because gender norms are already fixed by early adolescence. Embedding gender-transformative norms requires a prolonged inter-generational project, aimed at shaping new identities for young children and teenagers. In the next year, we won’t radically transform gender attitudes, but we can intensify the intolerance of GBV and improve the policing and justice systems, which many victims currently experience as indifferent and uncaring.

We can also crimp the flow of fuel to the fire. Pricing is probably the most effective way of reducing binge-drinking, with poorer households and young people most responsive to price changes. In this regard, minimum unit pricing may be easier to implement in the short term than changes in tax and excise, and is likely to have greatest impact in reducing binge drinking. The alcohol industry targets poorer communities with low-cost, high-alcohol content products, with almost half of heavy drinkers consuming alcohol costing less than 50% of the median price.

Strategies to reduce the availability of alcohol in residential areas (through conditional licensing linked to shorter opening hours, reduced density of outlets and monitoring sources of supply of alcohol) have been shown to reduce consumption. At local level, active community mobilisation, such as the monitoring of bar service practices (to combat serving inebriated customers and selling liquor for consumption off licensed premises) are also effective strategies to reduce crime and violence.

GBV is one of the most searing of South Africa’s complex challenges. We tend to become bogged down by omnibus solutions to them all. Certainly their resolution requires multifaceted responses, but it is only too easy for us to lose the wood for the trees and end up doing nothing effectively. In the case of gender-based violence, that wood – alcohol and drug abuse – is the fuel to the fire, just as the president said.

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If you have been affected by any of the issues in this article…

SD Law is a firm of family attorneys with deep experience of helping women escape abusive relationships. We can serve a protection order on a violent partner and help you initiate divorce proceedings, if appropriate. We will connect you to relevant support services and make sure you and your children are safe. At Cape Town Divorce Attorneys, we will handle your case with discretion, empathy and compassion. Contact Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za for a confidential discussion. We can call you back on a safe number.

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Why #ImStaying

South Africans in their droves are standing up for what’s great about our country

No one can deny that the last few months have been a tough time to be a South African…violence against women that seems unstoppable, xenophobic attacks, a weak rand, and a government that appears unable to address these and other issues with any authority. Add to that the tragic loss of national icon, Johnny Clegg, and there hasn’t been a lot of good news to shout about.

#WhyImStaying

But we South Africans are a resilient bunch. Determined to rise above the negativity, a small group of individuals committed to showcasing the good in our country set up the Facebook group #ImStaying. The description on the page says, “This group is dedicated to the South African women and men of all races and all religions, who remain loyal to South Africa. This group is to honour all those who still believe that we as a nation can turn things around. To all those who choose to stay and work together to save this beautiful country we call home!” This group has been gaining momentum and now boasts nearly 500 000 members, with more joining by the day. People share their stories of kindness, compassion and commitment using the hashtag #I’mStaying.

We’re staying

At SD Law, we’re staying. We have dedicated our lives and careers to seeking justice for South Africans. Every day we come face to face with the best and worst of society; and we firmly believe that the good in this beautiful land far outweighs the bad. Here’s why #ImStaying.

Our Constitution

South Africa has the most progressive constitution in the world, and one of the youngest. The current constitution, officially the Constitution of the Republic of South Africa, 1996, is actually our fifth, and was drawn up by Parliament in 1994. It was enacted by President Nelson Mandela on 18 December 1996 and came into effect on 4 February 1997, replacing the Interim Constitution of 1993. Since 1996, the Constitution has been amended by seventeen amendment acts.

It is founded on the principle of human rights, enshrined in Chapter 2 – the Bill of Rights. The Bill of Rights is a human rights charter that protects the civil, political and socio-economic rights of all people in South Africa. You may know what they are, but many people do not, so it’s worth reiterating exactly what our human rights are.

Basic human rights

  • The right to equality:
    No one has the right to discriminate against you based on your race, gender, sex, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language or birth among others.
  • Human dignity:
    Everyone has the right to have their dignity respected.
  • Life:
    Everyone has a right to life and nobody, not even the state, has the right to take a life.
  • Freedom and security:
    No one can be put in prison without good reason, be detained without trial, be tortured or punished in a cruel, inhuman or degrading way.
  • Arrested, detained and accused persons:
    Any arrested person has a right to a lawyer. Prisoners must be kept in proper living conditions.
  • Personal privacy:
    No one, not even the government, has the right to search your house or property or seize your possessions without following the correct legal channels.
  • Freedom of expression:
    Everyone has the freedom to say, write or print what they want, so long as exercising this right does not violate anyone else’s right or break the law in any way.
  • Freedom of association:
    Everyone has the right to associate with a trade union, a political party, or any other club or association.
  • Political rights:
    Every citizen has the right to form a political party and to participate in the activities of a political party. Every citizen has the right to free, fair and regular elections and every adult citizen has the right ­to vote in elections for any political party, and to do so in secret.
  • Education:
    Everyone has the right ­to a basic education and to further education.
  • Healthcare, food, water and social services:
    Everyone has the right to access healthcare services, including reproductive healthcare; sufficient food and water; and social security.
  • Slavery, servitude and forced labour:
    Everyone has the right to choose who to work for and the kind of work they do, and must be paid for their work.
  • Citizenship:
    No-one’s South African citizenship can ever be taken away.
  • Housing:
    Everyone has the right to adequate housing. The government cannot evict you from your home if you own it.
  • Children:
    All children have the right to parental care, shelter, and food. Children may not be neglected or abused or forced to work.

Source: South African Human Rights Commission

It’s not difficult to understand the basis for and importance of these fundamental human rights. Every single one of them was abused under the apartheid regime. But not every country with a turbulent past has been able to take such a decisive stand against human rights abuse. Our Constitution is admired the world over.

Respect for LGBTQI rights

There are only 28 countries that allow same-sex marriage, out of a total of 195 countries in the world recognised by the UN. South Africa was the fifth country to legalise same-sex marriage, in 2006. Furthermore, this legislation was a direct result of a constitutional challenge to the earlier marriage laws on the basis of human rights – the right to equality includes the right to marry.

South Africa offers asylum to people from other countries who are persecuted for their sexual orientation. Unfortunately, cultural norms have not kept pace with legislation, and members of the LGBTQI community do experience discrimination and abuse, both verbal and physical. At SD Law we condemn this and continue to fight for equality and freedom of expression, including sexuality and sexual preference. The protection of the law may not put an end to deep-seated prejudice, but it does mean there are penalties for harassment and intimidation that do not exist in many neighbouring countries, where persecution of same-sex relationships is carried out by the state.

A vibrant civil society

Perhaps it is because of our history of oppression and injustice, but civil society in South Africa is one of the most active in the world. We are proud of organisations like the Treatment Action Campaign, Section 27, the Legal Resources Centre, the Black Sash, Sonke Gender Justice, SWEAT, Open Society Foundation for South Africa, Right2Know, and many others – too many to name – that play a vital role in our democracy. These organisations function as overseers of democratic institutions; they monitor human rights and give citizens, especially vulnerable and marginalised populations, the tools to defend their rights. Some of SA’s finest activists have found their voice through – or indeed founded – these important institutions.

A beautiful country

Lastly, who can deny that South Africa is one of the most beautiful countries on earth! From the Drakensburg to the Wild Coast to the Garden Route to Kruger National Park to the Karoo to Table Mountain, and everything in between, we think South Africa has it all. #ImStaying

Contact us today

SD Law is a firm of Cape Town and Johannesburg attorneys with a deep commitment to constitutional law. If you have experienced discrimination, either at work or in your community, or you feel your rights have been infringed in any way, contact Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za for a confidential discussion. We will protect your human rights.

 

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Appointment of a curator

A practical guide to selecting and appointing a Curator Bonis

Appointing a Curator Bonis. Cape Town Lawyer

The ability to make decisions can be impaired because of diminished mental capacity, resulting from a variety of things, requiring the appointment of a curator. Sometimes the impairment is permanent, such as intellectual disability, brain injury or disease, dementia (Alzheimer’s) or incapacity related to ageing. In other cases the damage can be temporary, such as from serious illness, a stroke where the person recovers function, or mental illness. Mental disability and ageing are the most frequent causes of an inability to make effective decisions. Impairment can come on suddenly, for example following an accident or stroke (in the immediate aftermath), or it can be gradual and often dismissed, as in the case of encroaching dementia. Sometimes it takes a significant event for family members to fully accept that their loved one is slowly losing their grip on reality.

The general rule is that majors (those age 18 and above) are presumed mentally and legally competent to manage their own affairs until it is proved to the contrary. But if you have elderly parents, or if you suffer from a degenerative illness that may affect your decision making in future, you may want to think about how you will administer your parents’ affairs…or who will administer yours…should it become necessary.

Appointing a Curator Bonis

There are two ways in which you can appoint someone, called a Curator Bonis, to administer the estate of an individual who is incapable of managing their affairs. We’ll look at each procedure in turn.

1. Common law procedure – application to the High Court

The High Court may declare a person incapable of managing their own affairs, and may appoint a Curator to manage their affairs and/or property. The procedure for this is set out in Rule 57 of the Uniform Rules of the High Court.

Anyone who wants to apply to the court for such an order must first apply for the appointment of a Curator Ad Litem. This application is by way of notice of motion and must contain:

  • Full particulars of the locus standi (the right to make the application) of the applicant
  • Jurisdiction of the court
  • The age and sex of the person considered incapable, full particulars of their means, and information as to their general state of physical health
  • The relationship between this person and the applicant, and the duration and intimacy of their association (if any)
  • The facts and circumstances provided as evidence that the person is of unsound mind and incapable of managing their affairs
  • The name, occupation and address of the respective persons suggested for appointment by the court as Curator Ad Litem, and subsequently as Curator Bonis of the person’s affairs or property, and a statement that these people have been approached and have indicated that, if appointed, they would be able and willing to act in these respective capacities

The application should be supported by:

  • An affidavit by someone who knows the person well, containing facts and information about the person’s medical condition. The affidavit must also set out the relationship between the deponent (the referee) and the person, and the deponent’s interest in the matter
  • Two recent medical reports by medical practitioners, one of whom should (where practicable) be a psychiatrist, who have conducted recent examinations of the person to determine their medical condition. The reports must contain the facts about the condition and opinions about the nature, extent and likely duration of any mental disorder or defect observed. They must comment on the person’s inability to manage their affairs. The medical practitioners should not be related to the person or have any interest in the matter

The court will then appoint a Curator Ad Litem (usually an advocate of that court) to investigate the matter fully and report to the court and the Master [Rule 57(4) & (5)]. The Curator Ad Litem will interview the person and make any further enquiries necessary. They will then prepare and file a report with the Registrar of the court.

The Master also compiles a report after receiving the Curator Ad Litem’s report, making recommendations to the court regarding the merits of the application, the suitability of the nominated curator, their powers and security [Rule 57(7)]. Upon consideration of the application, the reports from the Curator Ad Litem and the Master, and any other relevant information, the court will issue the order if necessary [Rule 57(10)].

When the High Court appoints a curator to administer someone’s estate, they may not act on that appointment until formally authorised by the Master of the High Court. Section 71 of the Administration of Estates Act 66 of 1965 provides that no one who has been nominated, appointed or assumed as curator may administer any property belonging to the person under care until authorisation is received via letters of curatorship.

2. The procedure for the appointment of an administrator as set out in the Mental Health Care Act, 17 of 2002

In terms of the Mental Health Care Act, the Master of the High Court may, after considering and processing the required application, appoint an administrator to manage the property of a person who has been diagnosed as mentally ill or a person with severe or profound intellectual disability.

While the common law application is appropriate for any situation where the person is incapable of managing their own affairs, this application is only relevant in the case of mental illness or severe or profound disability. The diagnosis will have to be confirmed by medical certificates or reports by a mental health care practitioner duly authorised to make such a diagnosis.

Because no High Court application is required for the appointment of an administrator, the procedure is far less costly than the common law appointment of a Curator Bonis. The application can be lodged directly with the Master of the High Court in the relevant jurisdiction (where the person needing the administrator resides). The applicant does not need to use an attorney, although a good family lawyer’s assistance in lodging the application with the Master can make the task much easier.

The application procedure for the appointment of a curator in terms of the Mental Health Care Act is set out in section 60 of the Act and provides as follows:

  • Any person over the age of 18 may apply to a Master of a High Court for the appointment of an administrator for a mentally ill person or person with severe or profound intellectual disability.
  • The application must be made in writing, under oath or solemn affirmation and must:
    1. Set out the relationship of the applicant to that person
    2. State the reason why the spouse or next of kin did not make the application, if the applicant is not a spouse or next of kin of that person
    3. Describe the steps taken to establish the whereabouts of the next of kin before making the application, if they are not available to make the application
    4. Include all available mental health-related medical certificates or reports relevant to the mental health status of that person and to their incapacity to manage their property
    5. Set out the grounds on which the applicant believes the person is incapable of managing their property
    6. State that, within seven days immediately before submitting the application, the applicant had seen the person
    7. State the particulars of the person and their estimated property value and annual income
    8. Give the particulars and contact details of anyone who may provide further information relating to the mental status of the person
  • The applicant must attach proof that a copy of the application has been submitted to the mentally ill person.

Powers of a curator

The powers and responsibilities of a curator or administrator are primarily to administer the estate of the person who is incapable of managing their own affairs, including the following:

  • To receive, take care of, control and administer all the assets
  • To carry on/or discontinue, subject to any law which may be applicable, any trade, business or undertaking
  • To acquire, whether by purchase or otherwise, any property, movable or immovable, for the benefit of the estate
  • To apply any money for the maintenance, support or towards the benefit of the person; to invest or re-invest any funds etc.

These powers are usually subject to the prior consent and approval of the Master.

Contact a specialist family lawyer

While an attorney may not be explicitly required under the second procedure above, in both cases a family lawyer experienced in estate planning and management will make a complex and difficult situation easier to understand and manage. There are multiple steps in the process of appointing a curator, and it is important to ensure nothing is left out. There may be other considerations, too, such as a will and life insurance provisions. Don’t put the financial wellbeing of your loved one at risk. Contact family lawyer Cape Town for a consultation. Speak to Simon on 086 099 5146 or simon@sdlaw.co.za today for more information or to make an appointment.

 

Use our handy checklist to make sure you have everything you need.

Read our blog post on the different types of curatorships and administrators.

 

 

 

 

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