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Tag Archive: COVID19

COVID-19 In South Africa: Socio-Economic Impact Assessment

We have covered the COVID-19 pandemic, as it relates to South Africa and the issues that concern South Africans, since the lockdown was first announced on March 27th. We have reported on gender-based violence, the alcohol ban, evictions, and the overall impact on economic prosperity. This report from UNDP on the socio-economic impact of COVID-19 provides a high-level analysis of what we can expect, as we slowly recover.

Reprinted from reliefweb.int, prepared by the United Nations Development Programme – 2020-08-24

socio-economic impact of covid-19 on south africaSouth Africa is the country with the fifth-highest number of cases COVID-19 in the world, and the highest number of cases on the African continent. © UNDP Africa/ Morris Moma

South Africa’s GDP will take at least five years to recover from COVID-19 impact, says UNDP study

Pretoria, 24 August 2020 – South Africa’s overall GDP is expected to decline by at least 5.1 and up to 7.9 percent in 2020 and recover slowly through 2024. This will lead to major setbacks in addressing poverty, unemployment and inequality, according to a new UNDP study on the socio-economic impact of COVID-19 in South Africa.

The study focuses on how COVID-19 will drive temporary and long-term changes in poverty levels in South Africa. The number of households below the poverty line increases as households fall from the lower middle class. Fifty-four percent of households that have been pushed out of permanent jobs to informal or temporary contracts as a coping mechanism for businesses affected by COVID-19, are likely to fall into poverty after the 6-months stimulus package is over. Thirty-four percent of households are likely to exit the middle class into vulnerability.

“Inequalities within and among nations are being exposed and exacerbated by COVID-19, as the poor and vulnerable are unable to protect themselves,” said UN Resident Coordinator Nardos Bekele-Tomas. “While Government social protection grants tend to target the poorest, this study posits that care and support needs to be provided to those at the borderline of the poverty line, such as the vulnerable middle class, to reduce their likelihood of slipping into poverty.”

Populations hit especially hard are already-impoverished female-headed households, persons with only primary education, persons without social assistance, black populations, and heads of households who have been pushed from permanent to informal employment.

The launch of “The Socio-Economic Impact Assessment of COVID-19 in South Africa” report brought together representatives from government, civil society, private sector and academia. South Africa’s Minister of Cooperative Governance and Traditional Affairs Dr Dlamini-Zuma urged that the study should find its way into every district and municipality. She called for a skills revolution complemented by the adoption of a technology strategy and the delivery of a district developing model by promoting gender-responsive budgeting.

The personal testimony of Khumbulile Thabethe, a single parent with three children, was a stark reminder of how the virus impact hits hardest on the most vulnerable ones. “I’ve had to prioritize food over winter clothing for my three kids. Lockdown started in the warmer months and as we moved to the colder months, I could not cope,” she told the audience.

South Africa is the country with the fifth-highest number of cases COVID-19 in the world, and the highest number of cases on the African continent. The study further observes that economic sectors most disadvantaged by the COVID-19 outbreak include textiles, education services, catering and accommodations (including tourism), beverages, tobacco, glass products, and footwear. Small and medium enterprises are most negatively impacted.

Further reading:

Life: Working, pivoting and surviving under lockdown in SA

‘Calamitous’: domestic violence set to soar by 20% during global lockdown

Lockdown is hard on everyone

Women’s Day in a time of COVID-19

Ignoring effects of Covid-19 on women could cost $5tn, warns Melinda Gates

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Alcohol not the sole cause of gender-based violence

‘The level of violence against women is beyond just alcohol consumption,’ says Les Da Chef

When lockdown began and the alcohol ban was announced, we expressed reservations. While done with the best of intentions, we were not convinced it would curb the widespread incidence of domestic violence, despite the known links between alcohol and gender-based violence. It gives us no pleasure to be proved right.

Reprinted from TimesLive, by Kyle Zeeman. 2020-06-14

Lesego "Les Da Chef" Semenya has spoken out on femicide in the country.

Lesego “Les Da Chef” Semenya has spoken out on femicide in the country.
Image: Via Lesdachef’s Instagram

Celebrity chef Lesego “Les Da Chef” Semenya has weighed in on gender-based violence in SA, claiming that SA’s issues run deeper than just alcohol consumption.

Gender-based violence and femicide have dominated headlines this week after the deaths of Tshegofatso Pule and Naledi Phangindawo reignited calls for the government to take action.

Tshegofatso was found hanging from a tree in an open veld in Roodepoort on Monday after going missing last week. She was eight months pregnant.

Naledi was attacked while attending a cultural function over the weekend in KwaNonqaba, Mossel Bay.

The murders also sparked a debate on whether alcohol was to blame for the violence.

Lesego took to Twitter to claim that “the level of violence and hatred for women is beyond just alcohol consumption”.

He said that men around the world drink, but they do not murder at the rate SA men do.

“Men all over the world drink alcohol but they don’t go out and kill women on the levels we do in SA. The issue isn’t booze, this thing in SA runs much deeper and needs serious focus and strategy,” he said.

He called for a separate investigations unit to be set up to deal with gender-based violence.

“A separate section on the same level as the Hawks, independent from cops but legally backed by laws and government, solely focused on this issue. Where women will feel safe and know they will be heard. Where whistle-blowers will be listened to. We need proper structures,” he explained.

He also shaded the ministry of women, youth and persons with disabilities, asking what power it had.

We can help

SD Law is an outspoken advocate against gender-based violence and the toxic socialisation of boys in our society. We have helped numerous women escape controlling and abusive relationships. We can help you secure a protection order or escape a narcissistic partner. If you are locked down with an abuser or suffering violence or abuse of any description, even if you’re not ready to go on record, contact us today and we will help get you to safety. As family lawyers, the interests of you and your children are our first priority.

Contact Simon on 086 099 5146 or email simon@sdlaw.co.za to discuss your case in complete confidence. If you can’t get out, or prefer not to, we now offer online consultations. We’ll call you back, to schedule a meeting at a time that suits you, on the platform of your choosing

Further reading:

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Disinformation – now you can report it

Both disinformation and misinformation can cause harm, but one is intentional

Donald Trump may have coined the expression “fake news”, but the concept has been around a lot longer. From free airline tickets offered on Facebook to cures for COVID-19 circulating on WhatsApp, unless you’ve been living under a rock you’ve probably been the recipient of disinformation or misinformation at some point. What’s the difference?

Disinformation

Disinformation is intentional, it is “false information which is intended to mislead, especially propaganda issued by a government organisation to a rival power or the media.” Digital disinformation, furthermore, is: “false, inaccurate, or misleading information designed, presented and promoted online to intentionally cause public harm.” 

Misinformation

Misinformation is also defined as “false or inaccurate information, especially that which is deliberately intended to deceive”; but to differentiate it from disinformation, it has come to mean unintentional false information. However, misinformation can and often does have its roots in disinformation. For example, false information may be fed to the public via social media, and from there it is picked up and recirculated by any number of unsuspecting users who trust the information because it came from a friend. In the early days of lockdown, a WhatsApp message went viral, purporting to be the words of a doctor based at Groote Schuur Hospital in Cape Town, about COVID-19. He took to Twitter to deny authorship, and his rebuttal was published online by a reputable news agency. He felt compelled to do that because the message had spread round the country on WhatsApp groups in a day.

Scams

A scam is a form of disinformation, but its meaning is more limited. A scam is a fraudulent scheme, usually intended for the profit of the scamster. Along the way, gullible individuals are harmed, at least financially, but the impact is nowhere near as pervasive or subversive as disinformation.

Why is disinformation so dangerous?

Real411 is an organisation set up to allow members of the public to report incidents of disinformation. In the words of Real411, disinformation is dangerous because it is “…biased information that deliberately misleads by manipulated facts or narrative. What appears to be truth can sometimes be propaganda being peddled to sway public opinion with the intent to cause harm. Disinformation can cause public harm where it is published with the intention to interfere with or infringe the public’s right to make informed decisions about matters of public importance or matters of public interest. This in turn affects the public’s right to participate fully and effectively in society.”

Fearmongering

Disinformation can disrupt elections or spread fear. The latter is a particular concern at the moment, as our government struggles to convey accurate information about COVID-19 in the face of widespread mis- and disinformation. We are all particularly vulnerable to disinformation where there are heightened emotions, complex issues at stake, and where none of us really know very much about the subject. It becomes very easy for unscrupulous individuals to use our fear and their disinformation for gain, e.g. to sell sanitisers and, worse, unfounded “cures”. 

President Ramaphosa said, back in March, “While we are battling a contagious virus, perhaps the greatest dangers to our country at this time are fear and ignorance. We must appreciate the extent of the threat that this disease presents. We must accept the anxiety that it causes amongst our people, but we cannot allow ourselves to be overwhelmed with fear and panic. We should stop spreading fake and unverified news, and create further apprehension and alarm amongst South Africans.” The government has taken the arguably extreme step of criminalising those who intentionally deceive people about COVID-19, because mis- and disinformation puts people’s lives at risk.

What can you do about it?

Unfortunately, three months later disinformation is still with us. But the good news is, now there is something you can do about it. To stop the spread of disinformation, if you see something online that doesn’t look right to you, report it to Real411.org.za. You will need to indicate whether your complaint refers to misinformation or disinformation, hate speech, incitement to violence, or journalist harassment, along with where you saw it and what language it is in.

The complaint will be reviewed by the Digital Complaints Committee, which consists of a legal expert, a digital expert and a media expert. If the complaint is upheld, the recourse will include one or more of the following (in the case of disinformation): 

  • Online platforms will be approached for assistance to take down content
  • A fact-checking organisation will be approached for verification
  • Counter-narratives will be published in response to the harmful false information

COVID-19 disinformation

If the disinformation relates to COVID-19, the action will include:

  • Content will be referred to the platform(s) for removal
  • Counter-narratives will be quickly issued and the mis/disinformation flagged on social media
  • The case may be escalated to SAPS for further action

The law tightens

We also welcome the news that Parliament’s Select Committee on Security and Justice has adopted the Cybercrimes Bill. This will align our cybersecurity legislation with the rest of the world. The Cybercrimes and Cybersecurity Bill criminalises the theft and interference of data and the distribution of harmful data messages. Harmful messaging includes:

  • A message that incites damage to property or violence
  • A message that threatens persons with damage to property or violence
  • A message that unlawfully contains an intimate image

Cyberbullying

We’ve written before about cyberbullying, which can cause tremendous distress and, in extreme cases, even lead to suicide. The Protection from Harassment Act 2011 covers electronic as well as physical harassment but, until now, we have not had specific legislation dealing with digital harassment. We welcome the new bill, which will also be the first non-binary legislation to be passed in South Africa. We will keep you informed and let you know when it is enacted (i.e. becomes law).

If you are the victim of disinformation or cyber crime

If you spot something you think is disinformation, contact Real411 or contact us. We will help you report it. If you are suffering digital harassment, contact us and we will review your situation and advise you of your rights, arranging a protection order if appropriate. Contact Simon on 086 099 5146 or simon@sdlaw.co.za today for more information or to make an appointment. We now offer online consultations. We’ll call you back and schedule a meeting at a time that suits you, on the platform of your choosing.

Further reading:

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Lockdown level 4 – what now for evictions and moving house?

As lockdown restrictions ease, what does it mean for the rental market?

evictions - what happens under lockdown level 4

Lockdown level 4 – are evictions allowed? The easing of the rigorous lockdown rules that governed us for five weeks was met with rejoicing by most South Africans, particularly those with dogs and athletes who were missing their daily runs/cycle rides. More business categories are now deemed “essential” and some people have been able to return to work, albeit under very strict conditions. Most normal daily activities remain prohibited or restricted, but new rules were announced on 7 May, in Government Gazette 43293, allowing the movement of persons and goods under certain conditions. This includes moving house.

Let’s look at what you – whether you are tenant or landlord – can and can’t do under level 4.

Moving house during lockdown level 4 

As of 7 May, up until 7 June, you may move to a new property, provided the lease was signed before or during the lockdown period or the transfer of the property was completed before the lockdown. This includes movement across provincial borders. Furthermore, you may use public transport to effect the relocation, following all other directives that apply (e.g. wearing of masks). The precise wording of the directive is as follows:

2. The purpose of these Directions is to facilitate the movement of persons and goods within and across provincial, metropolitan or district boundaries during the period of Alert level 4.
(a) The movement of persons and goods, where –

(i) new lease agreements were entered into before or during the lockdown period: or
(ii) the transfer of immovable property occurred before the lockdown period, requires a change in place of residence. including the transport of goods to a new place of residence, within the Republic.

(b) The circumstances in subparagraph (a) require the once -off movement of persons who are relocating to their new place of residence, as permitted in terms of regulation 16(5): and
(c) The transport of goods within the Republic is permitted in terms of regulation
22(1)(f).

You must have a permit during lockdown level 4

If you qualify under these directions, you must secure a permit from your local police station, indicating the household members who are relocating. To obtain the permit, you must present your lease agreement or transfer documents, as detailed below. You must travel with all relevant documents in your possession.

3. (a) A person who needs to travel to his or her new place of residence and to transport goods, which are limited to household furniture and effects, as required by the circumstances in paragraph 2 of these Directions, is permitted to do so between the period 7 May 2020 to 7 June 2020.


UPDATE 15 May!! The cut-off date of 7 June has now been removed.


(b) A person referred to in subparagraph (a) must

(i) obtain a permit to travel across provincial, metropolitan or district boundaries from the station commander of a police station or a person designated by him or her The permit must correspond to Form 1 to these Directions;
This gazette is also available free online at www.gpwonline.co.za 4 No. 43293 GOVERNMENT GAZETTE, 7 MAY 2020
(ii) indicate the persons who are part of the household who will be required to move; and
(iii) have in his or her possession the relevant lease agreement indicating the date of expiry of the old lease and the date of commencement of the new lease, or the transfer documents attesting to the change in place of residence or change of ownership of property.

Rent during lockdown level 4

If the lease has expired, and the tenant is unable to relocate immediately, they must continue to pay rent, and the lease agreement becomes a month-to-month lease. However, if a tenant is having difficulty paying rent (whether the lease has expired or is ongoing), due to loss of income, TPN Credit Bureau has created a rental recovery pack, containing all the documents needed to negotiate a payment holiday and repayment plan with a landlord. Landlords placed in difficulty with bond payments due to loss of rental income should contact their lenders. Almost all South African banks have relief packages in place to help beleaguered borrowers.

What about evictions during lockdown level 4?

Here’s where there has been some movement. The moratorium on evictions introduced at the beginning of the lockdown (level 5, although we didn’t know that term then) remains. No one can be evicted from their home under level 4. However, an application for an eviction order may be brought before the courts, which are now able to hear cases and grant eviction orders. Sheriff services have resumed. The deeds office is open and consultations related to evictions will take place.  

Therefore, an attorney is permitted to prepare an order for eviction, which may be granted during level 4. However, the order is suspended and cannot be executed until the last day of level 4. At this point we do not know when that is. It is also important to pay close attention to the official information that accompanies the announcement of level 3. Although we currently understand that evictions will be lawful under level 3, we’ve seen already that the final regulations may vary considerably from the draft or anticipated rules. 

Be like a boy scout – be prepared

If you are a landlord with outstanding tenant issues, and you were intending to commence or had already commenced eviction proceedings prior to 27 March, now would be a good time to consult with a good eviction attorney and prepare your case. You will not be able to complete the process until such time as evictions are again permitted, but you will beat the rush that is sure to ensue when the ban is lifted. We anticipate the courts will be busier than usual, as many matters have been put on hold, so you could wait a while to have your case heard. If the grounds for eviction are non-payment of rent (prior to lockdown, not caused by it), then you will delay even further the time when you can legally replace your non-paying tenant with a paying one.

Don’t be in a hurry to evict good tenants

If your tenant has previously been fully compliant with the lease agreement and has always paid rent on time, but has defaulted on rent payments due to the lockdown, we urge you to take a more sympathetic stance. Allow the tenant time to negotiate a plan with you. You may even consider waiving a month’s rent, as many landlords have voluntarily done. As recession bites, rental yields will be subdued, even if demand for properties is present. If it takes a month or two to find a new tenant, that is lost income, and you may even find you have to drop the rent to attract tenants. Better to accept an equivalent loss of income from a good tenant than to expose yourself to the unknown.

The advice of an eviction lawyer is essential – for landlords and tenants alike

SD Law & Associates are specialists in rental housing and eviction law. If you are a landlord and need help navigating these uncharted waters, we can provide expert assistance. 

If you are a tenant and are worried about your current situation, we will look into your case and advise you of your rights and your best course of action.

Contact Simon on 086 099 5146 email simon@sdlaw.co.za.

Further reading:

 

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Don’t get locked up during lockdown

Lockdown has led to high numbers of arrests. Here’s what to do if it happens to you.

Locked up during lockdown? know your rights

Locked up during lockdown? Lockdown has brought with it an increased number of arrests and incidents of police brutality. In the first three weeks of level 5 lockdown, more than 100 charges were laid against the police for abuses. Level 4 regulations are unclear and open to interpretation. For example, exercise is permitted but there are to be no “organised groups”. Among the cyclists we know, one interprets “organised group” to mean a club ride or organised event like a race. Another thinks any more than two cyclists constitutes a group. Who is right? No one knows, as our rules don’t define a group by numbers, such as five (Switzerland) or 10 (France). 

So it’s up to the police to decide who is breaking the law and who is not. In this climate of ambiguity, normally law-abiding citizens may find themselves on the wrong side of the law. What should you do if this happens to you and you are arrested? 

Lockdown lock-up – arrestees’ rights

Everyone arrested has certain rights guaranteed under the Constitution. Whether you feel you have been wrongfully arrested, for example due to a difference of interpretation of an opaque rule, or have been caught red-handed committing a crime, there is certain behaviour incumbent on the police making the arrest. You have the right to:

  • Be informed of your rights as well as the consequences of not remaining silent
  • Remain silent
  • Not be forced to make a confession that could be used against you
  • Be brought before a court within 48 hours or by the end of the first working day after the weekend (whichever comes last)
  • Be charged, or informed of the reason for continued detention, or released at the first court appearance
  • Be released if the interests of justice permit, subject to conditions, e.g. bail
  • Be informed of your right to institute bail proceedings

Make a note of how you are treated

Generally, the South African police force upholds the Constitution and acts within the law. Occasionally it does not. Unfortunately, at present our police are overreaching their authority and you may find your rights are breached. It is worthwhile making a note – mental or written if possible – of the following:

  • The precise events and conversations that occur between the representative of the law and yourself
  • The degree of force used in effecting the arrest
  • Whether a warrant was shown
  • Whether you were informed of your rights on arrest
  • Whether you were allowed to contact a bail attorney 

Most importantly, avoid inflaming the situation. It won’t help your case, no matter how aggrieved you may feel.

Lockdown lock-up – what to do if you are arrested unlawfully

Right now, because of the murkiness of the rules, it’s quite possible you will be arrested unlawfully, or feel that you have been. Keep calm and know your rights. 

  • First, try to make notes concerning everything that is happening to you. Ask for pen and paper if you don’t have writing materials with you
  • Second, remember that you are innocent until proven guilty and it is the state’s responsibility to prove your guilt
  • Third, contact your lawyer as soon as possible. You have a right to legal representation – have that vital cell number on speed dial for rapid response

In your written notes, record the following, as far as you are able:

  • Every conversation between you and the officer/s involved
  • Was a warrant shown?
  • Were you advised of your rights?
  • Were you advised about your rights to apply for bail and were you able to contact a bail attorney?
  • If force was used, describe this and try to evaluate whether the force used was excessive

If you have no writing materials and your request for pen and paper is turned down, do your best to make mental notes of these points and write a full account as soon as you are able.

Lockdown lock-up – what to do if you’re a victim of police brutality:

Force has been a hallmark of police activity during lockdown. The United Nations has said that South Africa is abusing the lockdown with gratuitous violence, “…using rubber bullets, tear gas, water bombs and whips, to enforce social distancing, especially in poor neighbourhoods”. This constitutes assault. If you are a victim of this, here are some steps you can take.

Step one: collect relevant information

If possible, obtain important information at the scene of the assault, such as: 

  • Names of the offending police officers
  • Names and contact details of any witnesses
  • Photographs of all your injuries

Step two: report the crime

Go to your nearest police station to report the assault and lay a criminal charge against the offending police officer. If possible, seek the assistance of a lawyer when opening the criminal charge. We can help you with this. 

Step three: see a doctor

The police officer at the police station should take you to a district surgeon, who will examine you and report on your injuries. The district surgeon should complete a J88 form, detailing your injuries. This form will be given to the police officer and will form part of your police docket.

If you are in police custody, you can request that a police officer take you to a district surgeon to be examined.

Step four: document the story 

Although you have reported the incident of assault to the police, it is important that you write down the entire incident for your own personal records. Be as specific as possible in detailing the assault and the injuries you sustained.

Other legal options:

Laying a charge against an offending police officer at the police station constitutes criminal proceedings. You may also institute a civil claim by opening an action for damages against the offending police officers and the Minister of Safety and Security. You will need to consult with a lawyer in order to begin these proceedings. Contact us for more information.

You can lodge a complaint with the Independent Complaints Directorate. Please go to www.ipid.gov.za/lodge_complaint/lodge_complaint.asp

Contact a good bail lawyer

SD Law & Associates are experts in criminal defence and bail applications. We are available 24 hours a day / 7 days a week. Contact us on 086 099 5146. Save this number in your phone under “bail lawyer”. In the current climate, you never know when you might need it.

This post also appears on baillawyer.co.za

Further reading:

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Lockdown is hard on everyone

Lockdown is hard on everyone, but it’s self-evident that it is harder on some than others. Those who live in cramped, unsanitary conditions, those who live with a violent partner, those whose income has dried up – they all have it far worse than those of us working from comfortable homes. We are very careful not to moan – or to caveat complaints about our deprivation and discomfort with: “but I shouldn’t complain. I’m not in a shack. I have work. I have a garden. I am blessed.” Etc.

 

Well you know what? It’s OK to find lockdown difficult. It’s OK to miss running, cycling, swimming, hiking. It’s OK to miss your friends, and a friendly drink in a bar, or a meal out. Zoom is great but it’s NOT the same. You don’t have to be a saint, just because you are better off than someone else.
Undoubtedly, someone else is better off than you – has a swimming pool, or a bigger garden, or a fuller wine rack, and it’s OK to be a bit jealous of that. It may not be humanity’s best quality, but it is human. While it’s important to care about our fellow citizens and behave responsibly, and be sensitive to the circumstances of others, we all live our own realities. That’s all we can live.
Recognising and owning your emotional responses to situations is a part of looking after your mental health, so that you can be there for others, whether that is your family or your community. Just because you’re not suffering…doesn’t mean you’re not suffering, whether from inactivity, boredom, loneliness, anxiety, or whatever. If you are worried about your fitness, your investments, your family overseas, these are legitimate concerns. Owning them does not mean you do not care about others, or do not have compassion for those worse off.
In general, the collective response to the threat of COVID-19 and lockdown has been fantastic among South Africans. We are seeing wonderful acts of kindness. But inevitably there is also an element of moral high ground and self-righteousness that has emerged. This can make the rest of us feel we have to be super-selfless, so as not to look callous or indifferent.
At SD Law we have always championed the rights of the less fortunate and vulnerable in society. But we also think everyone is entitled to give themselves a break right now, and acknowledge frustration, irritation, apprehension and stress as a normal, healthy, human response to the pressure we are all under, both individually and together.
Stay safe everyone.
Simon
Related reading:
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Lockdown legal update: Parents win court bid to fetch children in another province

Two Cape Town parents, who are divorced, have won legal permission in court to travel in the father’s Land Rover to fetch their young children in a different province, to relieve their struggling grandparents.

Court rules: Exchange of children allowed inter province

The story involves elderly grandparents, doing their utmost to care for their grandchildren – while both suffering medical difficulties themselves – and two children, aged eight and 10, who have been desperate to return home.

The parents, identified in court papers only by initials, challenged the regulated prohibition on “movement between provinces and between metropolitan and district areas”.

Under revised government regulations published on 7 April, the movement of children between divorced parents is permitted – if parents can prove they share responsibilities in their divorce settlements. But that was not the issue in this case.

This case hinged on the court’s interpretation of whether children can legally be moved between “caregivers” – such as grandparents – and parents. The national Department of Social Development argued that this movement was prohibited.

But the Western Cape High Court disagreed (CD v Department of Social Development).

Judge Yasmin Meer ruled such movement was necessary, and is in line with the Constitution and the Bill of Rights, which demands “the best interests are of paramount importance in every matter concerning a child”.

The ruling was made on 14 April, and the court papers explained the saga: “The children had travelled to Bloemfontein on 22 March 2020 during the school holidays for a brief visit and were expected to return to Cape Town before the start of the school term on 31 March 2020.

“The lockdown intervened at midnight on 26 March 2020 and the children found themselves locked down with their grandparents in Bloemfontein. The Applicants are divorced.”

‘Childrens’ health and well-being are being put at risk’

Judge Meer wrote that the father, in an affidavit, explained that his own father and mother are 72-years-old and 68-years-old respectively, and are only able to take care of the couple’s children for “short periods”.

The father added that the grandmother suffers from arthritis and having the children around makes it difficult for her.

Meer’s judgment says: “The situation has become strenuous to his parents’ overall personal well-being and affects their ability to properly care for the children and themselves.

“Should the grandparents fall ill of Covid-19 they will not be able to look after the children. The situation will worsen if the lockdown continues. He also expresses concerns that the grandparents will not be able to supervise homework.

Children’s needs

“The First Applicant (the father) is a medical doctor and he states that the childrens’ health and well-being are being put at risk. He points out that he is equipped to deal with the childrens’ needs.

“Finally, he explains that even though the Applicants heard of the lockdown travel ban, they were under the impression that they would be permitted to travel to Bloemfontein to fetch the children and were not aware of the strict extent to which the travel ban would be enforced.”

Meer continued: “A memorandum by the Family Advocate of 7 April 2020, which supports the moving of the children, points out that there is no mention whether the grandparents are employing the Covid-19 precautionary measures, and states that the children require consistent management to ensure that they are abiding by the precautionary requirements of Covid-19 relating to good hygiene, regular sanitising and social distancing. Further to the memorandum, on 8 April 2020 a video conference interview was conducted by the Family Advocate at the request of the Respondent.

“A report compiled by a specialist also urged that the children be returned to Cape Town. From the interview with the grandmother, the report stated that the grandmother has chronic ailments of arthritis and backpain necessitating a schedule 3 medical prescription.

“The lockdown has prevented grandmother’s daily house help from coming in and grandmother has to attend to everything for the household and children. She is currently physically exhausted and her ailments are deteriorating as a result. She is normally accustomed to taking care of the children for shorter intervals and cannot cope in the current circumstances. This is going to impact negatively on her care for the children.

“They are quite active and she cannot manage them. The grandfather provides limited support. The children are going through different emotions and get heartbroken for not being with their parents.

“An interview with the grandfather confirmed his wife’s exhausted state as recorded in the report. He assists in playing with the children.

‘Unrefuted evidence’

Interviews with the children revealed their desire to return home, the judgment continued. The specialist report could not confirm whether the children are at risk in terms of hygiene or that their levels of hygiene are optimal as required.

“The unrefuted evidence makes clear that the task of caring for the children by the grandparents is already proving not to be sustainable and this will only continue and be exacerbated over a further prolonged period. The well-being and physical health of the children in these turbulent times are being placed at risk.

“The best interests of the children would undoubtedly be served if permission were to be granted for them to be fetched to travel from Bloemfontein to Cape Town.”

Judge Meer thus granted the order to allow the applicant to travel to Bloemfontein and fetch his children, and then return to Cape Town with them under strict conditions.

“The First Applicant is authorised and directed to fetch the children at[…], Heuwelsig, Bloemfontein, and to travel back with them to the Western Cape, to the residence of the First Applicant;

“The First Applicant is permitted to sleep over for one night after travelling to Bloemfontein at the paternal grandparents’ home at the above mentioned address, after which the First Applicant and the children shall return to the First Applicant’s address;

“The First Applicant shall travel to Bloemfontein in the First Applicant’s 7-seater Land Rover Discovery vehicle and the First Applicant and the children shall return to Cape Town in the said vehicle;

“This order dispenses with any further need for permit(s) to travel.”

The respondent – the national Department of Social Development – was ordered to pay the couple’s legal costs. Comment has been sought from the department and will be added once received.

Source: News24 and reblogged by DACT (emphasis by SD Law*)

* SD Law, aka Simon Dippenaar & Associates Inc., is a law firm of specialised divorce attorneys, and family lawyers in Cape Town, now operating in Johannesburg and Durban.

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Use lockdown time wisely – make a will

Why right now is a good time to make a will

Bored with lockdown? Put the time to good use. Make your will!

The current crisis is affecting different people in different ways. Some are having a great time, enjoying the break from work, cooking nice meals, drinking wine, and watching a lot of Netflix. Others are getting on with work, a bit disorientated by the lack of social contact, but easily transitioning to remote working. Some are suffering, either due to cramped living conditions they can’t escape, or from anxiety and depression brought on by isolation and uncertainty. We are all affected by the lockdown in different ways, and we all have different ways of coping. However, one thing is true for all of us: the thought of death is never far from the surface. 

As a country, our mortality rate from COVID-19 is very low. Our infection rate is low. Our president acted swiftly to contain the spread, and so far it seems to be working. We have a young population (the median age is 27), which means we are less likely to be as badly affected as somewhere like Italy, which has the oldest average population in Europe. But many South Africans live with underlying health conditions. Health is, to a large extent, socially determined, and our high rates of poverty and inequality mean that a large sector of our population suffers from poor health, particularly respiratory health. So while most of us who are unlucky enough to catch COVID-19 will experience little more than a bad chest cold, some may not survive. And that’s why death is something we are all thinking about, even if we’re not worried about our own.

Don’t take fright – take action

No one likes to think about their own demise, and as a result many put off making a will. Right now, we’re taking all the right measures to look after ourselves and our neighbours and communities by staying indoors. It’s not a time to be fearful, but it is a time to be mindful. We are aware of our health and our humanity in a way we often manage to avoid, as normal life keeps us busy and distracted. The enforced time at home is an ideal opportunity to think about the things we usually put off, and that includes drafting a will.

Hopefully you will look back on the year 2020 from a ripe old age and tell your grandchildren about ‘lockdown’. No matter when the end comes, you want to be sure your property goes to the beneficiaries of your choosing. If you die without a valid will you have no say in what happens to your estate. Your ‘estate’ is the legal term for your assets, which include your house or flat (if you own it), your savings and investments, and your personal possessions. If you die without a will you are said to be ‘intestate’. The ‘Rules of Intestacy’ will divide your estate in a way set out by law and it may not be distributed the way you wish it to be or to the people you most want to benefit. It also may not be carried out in the most tax-efficient way. What this means is that if you live with someone, even if you are married or have step-children, they may not automatically inherit your estate.

If you have children…

If you are a parent of a minor child or children it is particularly important to have a valid will. In addition to ensuring that your assets are distributed according to your wishes, your will sets out your intentions for the care of your children should you die before they reach 18. If you are married you might presume that your surviving spouse will retain custody, but you must make provision for your children’s welfare should something happen to the pair of you. It is, thankfully, extremely rare, but tragic accidents do sometimes happen. The nomination in your will of a legal guardian will at least spare your children the trauma of being made wards of court while a guardian is appointed on top of the tragedy of losing their parents. 

If you are a single parent it is even more critical to name a guardian, particularly if you have reason to believe the non-custodial parent would not be a suitable full-time caregiver. These matters are never pleasant to contemplate or to discuss but it is important to sit down with family members or close friends, as appropriate, and agree how your children will be looked after in the event of your untimely death. Second to the death of a child, dying while their children are small is most parents’ worst fear, so having legally documented plans in place can provide the peace of mind you need to forget about it and get on with living.

How do you make a will and why should you use a lawyer?

There are many do-it-yourself templates online that you can use to draft a will free of charge. You could just write your wishes on paper and have it witnessed. However, trying to make your own will without legal assistance is not a good idea. You may make mistakes or there may be a lack of clarity that would render your will invalid. If you have a number of beneficiaries and your finances are complicated, it is even more important for a professionally trained attorney to draw up your will. This makes it easier for those you leave behind and guarantees your intentions will be accurately recorded.

Before seeing a lawyer, make an inventory of what you have in your estate. Be specific. Don’t just say ‘furniture’ if you want your grandmother’s antique writing desk to go to a specific family member. Then you can decide how your estate is to be shared between beneficiaries. You also need to think about:

  • What happens if any of your beneficiaries die before you do. For example you may wish to include your parents in your will in the event that you die first; but the likelihood is that they will pre-decease you. So be clear about your instructions and also remember to update your will after any major life event
  • Who will look after your children (if you have any)
  • Who should carry out the wishes contained in your will (your executor)
  • Any other wishes you may have, for example whether you want to be buried or cremated and where – or how. It is becoming more common for people to express a preference for a ‘green’ burial

When should you update your will?

Once you have written your will you should review it regularly to make sure it reflects your wishes, especially if you undergo a major life event, such as:

  • You get married or enter into a life partnership with someone
  • You get divorced or end a life partnership
  • You have children; or other relatives you wish to benefit, for example nieces, nephews or grandchildren, come into the family
  • Someone named in your will dies
  • You buy a new property or obtain expensive assets (such as buying a new car)

How do you find a good family lawyer to help you make your will?

Not all lawyers specialise in estate planning and the drafting of wills. Even if you have a family lawyer or an attorney who has represented you for legal matters in the past, it is worth checking if they offer a will-writing service and what their fee is. 

Simon Dippenaar and Associates are specialists in family law and can help you draw up your will to ensure your estate is distributed and your children are cared for exactly the way you would like after your death. If you want to discuss your will or if you have any questions about any aspect of COVID-19, from co-parenting rights to eviction, contact Simon now on 086 099 5146 or email him on info@sdlaw.co.za for a confidential discussion.

This is an updated version of a post that first appeared 17 May, 2019

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Stop Press! Child contact visits now allowed during lockdown

NEW DIRECTIVE ISSUED PERMITTING TRAVEL BETWEEN CO-PARENTS

Child contact visits now permitted during lockdown

We are past the halfway point of lockdown. I doubt anyone would say it is flying by. For most, the lack of exercise, the absence of social contact, and the sheer monotony of staring at the same four walls every day is making the time drag. For single parents stuck at home with no respite, it’s bound to be an even more testing time. But it may also be difficult for the children who are deprived of the right to see their other parent or caregiver. And the prohibition against moving a child between parental homes may go against the principle of “the best interests of the child”.

7 APRIL – INSTRUCTIONS REGARDING CHILD CONTACT VISITS

When the initial directives regarding lockdown came out, there was some ambiguity as to the transport of children between the homes of co-parents. We originally wrote on 24 March that there was no specific mention of child contact with a parent in a different location. The situation was vague and we urged parents to proceed with caution.

On 30 March, the Minister of Social Development issued new directives (GG 43182, NO. R.430 – the R430 SD directives) which explicitly stated: “Movement of children between co-holders of parental responsibilities during the lockdown period is prohibited. This is to ensure that the child is not exposed to any possible infection whilst moving from the primary caregiver premises to the other; (ii) The child must remain in the custody of the parent with whom the child was with, when lockdown period started.”

Yesterday, Minister of Social Development, Lindiwe Zulu, signed an updated directive, (GG 43213, NO. R.455) reversing that prohibition. It is now permitted, as long as certain conditions are in place:

Movement of children between co-holders of parental responsibilities and rights or a caregiver, as defined in Section 1(1) of the Children’s Act 2005 (Act No. 38 of 2005) is prohibited, except where arrangements are in place for a parent to move from one parent to another, in terms of:

  • (aa) a court order; or
  • (bb) where a parental responsibilities and right agreement or parenting plan, registered with the family advocate, is in existence.
  • Provided that, in the household to which the child is to move, there is no person who is known to have come into contact with, or is reasonably suspected to have come into contact with, a person known to have contracted, or reasonably suspected to have contracted, COVID-19.

The parent or caregiver transporting the child concerned must have in his or her possession the court order or the agreement referred to [above]…or a certified copy thereof.

Emphasis ours.

LOCKDOWN CHILD CONTACT VISITS – IN PLAIN ENGLISH

What this means is that, so long as a court order or parenting plan is in place, it is permitted to transport your child to the home of the other parent, and vice versa. However, if you do not have a formal arrangement, then unfortunately you are not covered by this directive. This might be because you and the other parent of your child were never married, or your divorce was amicable and you did not require a parenting plan. We’ve written before about the usefulness of a parenting plan even when it is not mandated by the courts. We could not have foreseen the current circumstances, but this directive is an (admittedly extraordinary) example of why it is always wise to have a plan in place.

If you filed your parenting plan away with your divorce papers, now is the time to dig it out. You must carry it with you when travelling with your child to the home of the other parent. Given that it is permitted to go to the shops for essential items, and if you are a single parent you must of course take your child with you, it’s hard to know how the police will determine your destination and enforce this condition. But our advice is to comply with the directive and follow the laws of the land.

LEGAL CHALLENGE

We are pleased to see the relaxation of a harsh legal position, which seemed to completely ignore the emotional needs of the child and was so out of line with other countries in similar circumstances. It was challenged by senior counsel and family law expert Janet McCurdie, who is also an advocate and admitted member of the Cape Bar. In a cogently argued comment paper, McCurdie said that for  some children, and some parents, the enforced separation – or enforced confinement with one parent – could in fact be detrimental to their well-being and even harmful. The Children’s Act, not to mention the Constitution, puts the interests of the child first. But it may not be in the child’s interests to be with a particular parent or without a particular parent for the period of the lockdown. She also made the point that, in following the directive, parents could be in contempt of court if they fail to adhere to the terms of a court order.

Lastly, she questioned the authority of the Minister of Social Development to “issue regulations or directives regarding the exercise by parents of their rights in terms of a parenting plans / court orders… Similarly, the Minister of Social Development is not authorised in terms of any Regulation issued in terms of the [Children’s] Act, to issue directives pertaining to the exercise by parents of their rights of care and contact to their children.”

TIME TO UPDATE THAT PARENTING PLAN?

Right now the priority is getting through the lockdown, looking after our children, families and neighbours, and staying well. However, if you have dusted off your parenting plan and realised that it no longer reflects your current situation, this might be a good time to think about reviewing and updating it. Should another emergency occur, you want to be sure your legal position is watertight. And in the course of normal life, a parenting plan can help you and your co-parent navigate the issues that arise in raising children with minimal conflict and antagonism, thus ensuring the best interests of the child always come first, and your own mental health doesn’t suffer in the process.

CONTACT DIVORCE ATTORNEY CAPE TOWNFOR HELP

If you have any questions regarding the directive or your co-parenting arrangement, now or at any time, contact Simon at Cape Town Divorce Attorneys on 086 099 5146 or email  simon@sdlaw.co.za.

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