Hero of the Month: Miss Mabaso

Not all Heroes wear capes. Although we tend to think Miss Mabaso should! After being awarded a certificate of excellence as a top KZN educator, we simply had to catch up with the woman who believes in, and takes daily strides towards, a better tomorrow…

Thando: Please tell us about yourself - where did you grow up, where did you go to school and why did you start teaching?

Miss Mabaso: I'm a woman who believes in herself. I have a clear vision and passion for life. I always strive for excellence. I run the extra mile in my career. I try to always do more than what is expected of me. I am a very dedicated person and a good motivator. 

I grew up in Estcourt, Ntabamhlophe Location. I started Primary Education at Sakhile Primary School, Sobabili High School and Estcourt Senior Secondary School

I am a Teacher by profession. I did my Bachelor's Degree in Education from Durban University of Technology and hold an Honours Degree in Education from UNISA. I started teaching in 2007. In 2013 I was promoted to be a Head Of Department. In 2016 I was again promoted to be Deputy Principal where also I got a special opportunity to act as Principal.

A happy Miss Mabaso at the KZN Department of Education 2016 Awards Ceremony.

T: What inspires you to strive for such greatness?

M: As an innovative person, I always want to turn things around. Teaching is my calling. I like transformation. Changing the lives of African children is my vision, this is what inspires me. It gives me a reason to wake up in the morning and speak life to these young girls and boys. I am a visionary leader. Changing the lives of South African children inspires me to never stop doing what I do.

T: You must be their hero. Question is, who is your favourite superhero and why?

M: My favourite superhero is my former Grade 12 accounting educator, Dr. ATM Gwala. He managed to identify a talent and a special skill in me. He advised me to further my studies because of the potential he saw in me. He taught me so many things other than accounting. He is my mentor and life coach. He taught me the skills of being a good leader.

T: What is your vision for South Africa?

M: My vision for South Africa is seeing people who were previously disadvantaged changing their lives for good. I would love to see all citizens being able to read, write and be computer literate. This will enable them to try and do things on their own and not always depend on government.Seeing an old African woman or child reading a book in a train or taxi would make me happy. Every home should have a book to read! Every South African should be able to enforce their rights to education.

Responsibilities towards a domestic worker

A Sectoral Determination issued by the Department of Labour for 1 December 2015 - 30 November 2016:

Note: if you are not listed in Area A, you fall under Area B. 

Screenshot/ photo cred: www.labour.gov.za

Notes:

As a Legal Hero policyholder, we can assist with a tailored domestic worker contract, salary slips and advise as to which other documents should form part of your file. Contact us today.

Yours faithfully,

Legal Hero

www.legalhero.co.za
0861 22 99 22
join@legalhero.co.za/ legal@legalhero.co.za/ admin@legalhero.co.za

Equal protection of the law?

The only problem is that the law is very expensive. People earning less than R5500 per month may have access to free Legal Aid. The rest may need to fork out hundreds of thousands for legal help. Unless you have legal cost insurance = payment of an affordable and fixed monthly premium that pays out and covers you in your future moment of need. 

Section 9 of the Constitution of the Republic of South Africa, 1996 further reads, 

‘Everyone is equal before the law and has the right to equal protection and benefit of the law.’ 

The truth is that everyone is not always equal before the law if you cannot make use of the law (when you do not know how to enforce your rights, do not qualify for free legal aid and cannot afford the assistance of a private legal professional). 

Legal cost insurance is not a new concept and started out in the United Kingdom and Canada. Often referred to as ‘pre-paid legal services,’ protection is secured for future legal and litigation costs as per the terms and conditions of the relevant policy. Different to life insurance, legal cost insurance is a short-term insurance product. It is vigorously regulated by many acts with a few more developments on the horizon. Treating customers fairly is paramount. 

Legal cost insurance also has its own Ombud. The Office of the Ombudsman for Short-Term Insurance acts as a mediator/ arbitrator to assist consumers with complaints concerning service or a litigation rejection received in contrast with the terms and conditions of the policy. The service is free, however, only available once the complaint has been lodged with the legal cost insurance company first. If the complaint remains unresolved, same may be sent to the Ombud: P.O. BOX 32334, Braamfontein, 2017. Tel: (0860) 726 890 / (011) 726 8900 | Fax: (011) 726 5501. Email: info@osti.co.za.

Knowledge is power. 

Yours truly, Legal Hero 

www.legalhero.co.za

Deceased Estate Administration 101

Hope is being able to see that there is light despite all of the darkness – Desmond Tutu. 

The passing of a loved one is never easy. To make matters even worse, there is a certain amount of legal work that comes with the territory. 

The deceased estate administration process in a nutshell:

www.legalhero.co.za 

Exemption from Payment of School Fees

Note: a school can take legal action against both the custodian (person with whom the child resides) as well as the non-custodian parent. The school can, however, only take legal action against the parent after the exemption criteria has been applied and denied. Remember that the parent may appeal to the Department of Education. 

Wishing you a great day, 

Legal Hero

www.legalhero.co.za 

PS: Click here for the link to the various provincial divisions of the Department of Education. 

Five Unexpected Hangouts of the Law at Your Family Home

Remember to set the table for one extra (sometimes uninvited) guest that hangs out at your family home. Yes, it is important to have a basic understanding of the law, as it is with us wherever we go. Let’s have a look at a few Family, Civil, Criminal and Labour Law examples at home to put things into perspective.

1.       The irritating neighbours. Your neighbour has the right to the use and enjoyment of his/ her property. This, however, does not mean he can start a band and cause widespread upset by his 2am practise sessions. Neighbour law is based on reasonableness and tries to find a balance between opposing property rights. Your neighbour may therefore only use and enjoy his property to the extent that it does not infringe YOUR right to use and enjoy YOUR property. Remember that one cannot be oversensitive and all factors are taken into account when you apply for an interdict against your neighbour. An interdict can force someone to do something, prohibit someone from doing something or force someone to continue doing something.

2.       That new faulty washing machine. The Consumer Protection Act awards goods an implied warranty of 6 months. According to section 56 of the Act, a Consumer may ask for a repair/ replacement or refund at no cost to the consumer should a defect occur within the first 6 months. Where to complain: contact your hero or contact complaints@thencc.org.za.

3.       School fees. Previously schools could only sue the custodian parent (parent with whom the child stays) for arrear school fees. Only after the Supreme Court of Appeal ruling in Fish Hoek Primary School v GW 2010, can the other biological parent be held liable for arrear school fees. How to claim an increase in child maintenance: contact your hero or visit the Maintenance Division of the Magistrate’s Court and ask for the relevant forms. 

4.       Aging parents. It is true that an aging parent can claim maintenance from his/ her independent children. The parents would have to prove their expenses, that they are unable to support themselves and that the child is in a position to support his/her parent. How to claim: contact your hero or visit the Maintenance Division of the Magistrate’s Court and ask for the relevant forms.

5.       Domestic workers. A Domestic Worker MUST be provided with an employment contract and a pay slip. The employer must safe keep pay slips for THREE years. Impermissible deductions from your Domestic Worker’s pay include damages caused by ironing, meals provided during working time and crockery/ electrical appliances breakages. Noncompliance: the Department of Labour can send an Investigating Officer to your home and you may receive a fine. The matter could proceed to the Labour Court.

If you have any questions on one of the above, please send an email to freeadvice@legalhero.co.za.

Yours faithfully,

Legal Hero 

www.legalhero.co.za

Your School's Uniform and Dress Code

The Federal Constitutional Court (Germany) declared a ban on teachers wearing Islamic headscarves unconstitutional on Friday, 13 March 2015.

The decision reminds us of the South African Constitutional Court case of a few years ago: MEC for Education v Pillay 2008. Yes, South Africa has one of the best constitutions in the world.

With Human Rights Day around the corner (21st of March), let's have a look at the Pillay case... 

It could therefore be within a learner’s right to wear a nose stud to school if it forms part of the learner's religion or culture. Schools are thus advised to allow for a procedure in terms of which a learner can apply to wear a religious or cultural piece. According to the Pillay case, the fact that an exemption might encourage more learners to express their religion or culture, should be celebrated and not feared.

Proudly South African.

www.legalhero.co.za 

Know Your Socio-economic Rights!

Socio-economic Rights include the right to adequate housing, food, health services and water. In other words, these rights are basic essentials necessary to survive. 

It differs from Civil and Political rights (the right to vote, freedom of speech, equality, etc.) necessary to lead a full life.

Our Human Rights (both Civil/ Political and Socio-economic) are found in Chapter Two of our Constitution, the Bill of Rights. The wording of our Constitution qualifies certain Socio-economic Rights. 

Socio-economic rights can be qualified or unqualified 

· Qualified: 

- Only if the State (Government) has sufficient resources to fulfil the right;

- The State will make these rights available within its means/ depending on its budget/ ‘within available resources.'

· Unqualified: 

- The State has a duty to make these rights available; 

- This does not mean the State must make these rights available immediately or without delay (according to the Constitutional Court).

Human right violations: 

Speak to your hero/ attorney. Alternatively, you may contact the South African Human Rights Commission at complaints@sahrc.org.za.

Note: non-nationals can also claim Socio-economic Rights. If you have a look at the wording used in the Bill of Rights, you'll notice the word 'everyone' is used in the socio-economic sections. Also, in the Khosa case of 2004, the Constitutional Court once again highlighted that non-nationals are a vulnerable group in our society and should be protected.

Other rights, however, such as the right to vote and access to land, use the word 'citizens.'

Wishing you a wonderful Friday and weekend, 

Legal Hero

www.legalhero.co.za 

Human Dignity – fundamental value and justiciable right

When it comes to our basic human rights, those that usually jump to mind include access to water, adequate housing, health care services, basic education, etc. Perhaps it is because these rights are easy to explain.

What about the right to dignity? Section 10 of our Constitution reads that everyone has the right to have their dignity respected and protected.

Dignity is, however, often described as ‘fluffy’ in that our Constitutional Court has yet to define it. Many therefore argue that it cannot be seen as a human right on its own and rather serves as a guide/ value when interpreting the various other human rights found in our Constitution.

In the spirit of Human Rights Month, we have assembled some of our favourite judgement quotes on human dignity. 

1. In S v Dodo, concerning cruel and degrading punishment, the court raised the importance of human dignity.

2. Human dignity furthermore endorses our political rights.

3. In the case quoted below, it was acknowledged that “dignity is a difficult concept to capture in precise terms.” Nonetheless, it was ruled that the criminalisation of sodomy impairs human dignity.

 

     4. The Dawood case highlighted that human dignity is also a justiciable and enforceable right in itself. The court stressed that a human rights infringement can infringe more than one right. Cruel and degrading punishment infringes our right to bodily integrity as well as our right to human dignity, for example.

        

Wishing you a spectacular Monday! 

Yours truly,

Legal Hero. 

www.legalhero.co.za

Three Quirky Truths about Equality

1. Banning prostitution does not amount to indirect unfair discrimination against women.

This is according to the court case of S v Jordaan. The judge ruled that the problem lies with women generating supply and not with men’s demand. It was ruled that the prohibition cannot be said to be unfair on the basis that the majority of offenders are women.

2. There is a difference between formal and substantive equality.

Formal: Equal treatment for all. Section 9(2) of our Constitution reads that everyone is entitled to the same protection and benefit of the law.
Substantive: Unequal treatment in order to reach the Constitution’s goal of an equal society. Our courts have ruled that it would take much longer to restore the injustices of the past if one were to treat everyone identically, without taking into account his/ her/ the group’s social and economic circumstances. Example: Affirmative Action.

3. In S v Hugo the court agreed that there was in fact discrimination, but ruled that the discrimination was fair.

In the Hugo case the President pardoned mothers with children under the age of 12 from prison. A single father of a child under 12 applied to have this decision declared unconstitutional as it unfairly discriminated against his gender.

The court ruled that this pardon does amount to discrimination but that this discrimination is not unfair in that the generalisation (that mothers are more often than not the caretakers of minors) is acceptable. The court, however, ruled that each case should be treated on its own merits and stressed the importance of context and the impact of the discrimination (our prisons are overcrowded, society would not react well to the release of both parents as it will be a very large group & this pardon does not deprive the father from applying for an early release).

Seven Interesting Facts about Surrogacy

1.       Not for convenience

The artificial insemination of a surrogate mother is only lawful if the commissioning parent/ parents have a permanent and irreversible condition and are therefore unable to give birth to a child.

2.       The surrogate mother may not receive any form of payment

The surrogate mother may not receive any form of payment or reward apart from reasonable hospital/ medical expenses.

3.       The child and the commissioning parents must share genes

For a surrogate motherhood agreement to be valid, the genetic material of both commissioning parents, and if this is not possible, at least one of the commissioning parents MUST be used.

4.       The surrogate mother may, in some instances, change her mind within 60 days after the child’s birth.

If the surrogate mother shares genetic material with the child (in the instance where only one of the commissioning parents’ genes were used), the surrogate mother may change her mind without incurring any liability.

5.       A surrogate mother may get an abortion

The commissioning parents only receive full parental rights and responsibilities the moment the child is born. The surrogate mother must hand over the baby to the commissioning parents as soon as possible.

6.       The child may not claim maintenance from the surrogate mother

The surrogate mother has no parental rights or responsibilities in terms of the surrogate child. The child may also not claim maintenance from the surrogate mother’s husband or partner.

7.       Prior to 1 April 2010 there was no law regulating or prohibiting surrogacy

‘Mater semper certa est’ = Common Law rule stating that the mother who gives birth to the child is always the parent. This meant that the surrogate mother had to put the child up for adoption and the commissioning parents had to apply in order to adopt the child.  

Today chapter 19 of the Children’s Act regulates surrogacy and explicitly states that no potential surrogate mother may be artificially inseminated without a High Court confirming the written surrogate motherhood agreement between the parties.  

Who gets to keep the ring?

TIP

The same applies to marriage and divorce. 

In your ante-nuptial agreement you may arrange to keep your engagement ring should you divorce (regardless of fault/ blame). As a policyholder of the Legal Hero product, you are covered for an ante-nuptial agreement.

Wishing you a great day, 

Legal Hero

www.legalhero.co.za 

How to Apply for a Protection Order

1. Go to the Magistrate’s Court and complete a Protection Order Application form.
- You may ask the Clerk of the Court for assistance;
- Take with you all supporting documents (including Affidavits of others, photos, text messages, etc.);

2. The Presiding Officer will consider your application as soon as reasonably possible.

3. If the Presiding Officer agrees that you are in danger of further harm, the Presiding Officer will issue you with an interim Protection Order.
- The Presiding Officer can issue an interim Protection Order without listening to the harasser’s side of the story;
- An Interim Protection Order is a temporary court order;
- This temporary court order will specify a future date – the return date – upon which both parties (victim and harasser) are to appear in court to each present their case.

4. A member of the SAPS or the Sheriff of the Court will serve the interim order on the harasser.

5. On the return date: the Presiding Officer will listen to both sides of the story.
- If found on a balance of probabilities that the harasser did indeed commit an act of harassment and that harm will be suffered if a final Protection Order is denied, a final Protection Order will be issued;
- If not, the interim Protection Order will fall away/ become invalid;
- The Presiding Officer may even issue a final Protection Order in the harasser’s absence should the harasser be a no-show.

WHAT IS THE POINT OF AN INTERIM AND FINAL PROTECTION ORDER? 
- An interim and final Protection Order both come with a suspended warrant of arrest;
- An interim and final protection order both specify certain rules for the harasser to follow (do not make contact/ do not come within a certain distance of the victim/ etc.);
- Should the harasser overstep any of the rules stipulated in the interim or final order, the victim can go to the Police Station and ask for the harasser’s arrest!

The Protection from Harassment Act - Introduction

Roses are red, violets are blue, do you know that I've been stalking you?

Say NO to harm (mental, psychological, physical or economic) caused by harassment.

Question 1: Please define harassment? Harassment = unwelcome...

Harassment includes:

the direct and / or indirect act that either causes mental, psychological, physical or economic harm or inspires the victim to reasonably believe that harm may be caused to him / her by unreasonably following, watching, pursuing or accosting of the victim, loitering outside of or near the building or place where the victim or a related person resides, works, carries on business, studies or happens to be;

The verbal, electronic or any other communication directed at the victim by sending or delivering letters, faxes, packages, electronic mail or other objects to the victim or leaving them where they will be found

Unwelcome explicit or implicit behavior, suggestions, messages or remarks of a sexual nature that have the effect of offending, intimidating or humiliating the victim. The aforesaid actions would further make any reasonable person anticipate that the victim would find it offensive, humiliating or intimidating;

The implied or expressed promise of reward for taking part in a sexually oriented request;

The implied or expressed threat of punishment or actual punishment for the victim’s refusal to comply with a sexually oriented request.

Stay tuned as we will be discussing further aspects of the Protection from Harassment Act, all to follow in the course of this week.


Wishing you a fantastic day,

Legal Hero.

www.legalhero.co.za

Can I claim money from my fiance if he decides to break our engagement?

“I do believe that the time has arrived to recognise that engagements are outdated and do not recognise the mores of our time” (Van Jaarsveld v Bridges (344/09) [2010] ZASCA 76 para 3).

Breach of promise (to marry) could lead to two claims, depending on the circumstances:

a)      Contractual damages (wedding preparations, costs to move to a different town, renovations to the new home, etc.);

b)      Delictual damages (sentimental damages if he broke the engagement scornfully and in an insulting manner. It is not enough to feel hurt or abandoned, the test is objective).

When calculating contractual damages, the point is to place you as the ‘innocent’ party in the position you would’ve been in had you and your fiancé not agree to get married. Remember to minus payments already contributed by him (towards the wedding preparations for example).

When calculating delictual damages, it is important to note that ‘the world has moved on and morals have changed’ (Van Jaarsveld v Bridges cited above para 6). In the Van Jaarsveld case the High Court awarded Bridges R110 000-00 as delictual damages due to the manner and circumstance in which he ended the engagement (via SMS). However, on appeal, the Supreme Court found that an SMS is a perfectly acceptable way in our modern society and that Van Jaarsveld was very apologetic and compassionate by also apologizing to her mother and saying he still views her as a ‘pragtige mens’ (lovely person). 

Wishing you a lovely day, 

Legal Hero. 

www.legalhero.co.za 

Search Warrants

Question received

“The police came to my house and went through my things and looked under the carpet yesterday. I have nothing to hide so I let them come in but explain please how a police does get the right to come into my house? They found nothing and walked away.”

Reply

In order to fight and/ or prevent crime, South African Police Officers often need to invade our privacy. It is true that our Constitution enshrines our right to privacy (section 14) and human dignity (section 10).

However, we must remember that our Constitutional rights are not absolute in that it can be limited (section 36 of the Constitution) if, amongst a few other factors, the purpose of the limitation is important, reasonable and justifiable in an open and democratic society.

South African Police Officers have a duty to try and protect us. According to section 205 of our Constitution:

“The objects of the police service are to prevent, combat and investigate crime, to maintain public order, to protect and secure the inhabitants of the Republic and their property, and to uphold and enforce the law.”

The abovementioned goals of the Police would be difficult without the right to search for items that form part of, or are suspected of forming part of, a crime. Seeing as the penalty for committed crimes relies on the decision of a court based on evidence available, it is important that the Police conduct searches if they have reasonable grounds to believe that evidence may be hidden in a house. This is to ensure a safer community and life for all in our beautiful country.

However, the right to the State/ Police to search our homes is also not absolute. This right is regulated and limited in terms of the Criminal Procedure Act. What does the Criminal Procedure Act have to say about a Police Officer searching your home?

· The Police Officer should show you his/her search warrant that was issued by a magistrate or justice of peace;

· A magistrate, justice of peace or presiding officer at criminal proceedings will only grant a search warrant if there are reasonable grounds for believing that the item (connected to a suspected crime) is at a certain home;

· This search warrant allows a Police Officer to search a person, the home of a person and to take the item in question from the person;

· Police officers must search the person and / or the person’s home during the day and not at night, unless the search warrant explicitly gives the officer the right to search at night.


Only in a few circumstances may an officer search your house WITHOUT a warrant:

a) If you consent to the search and the officer removing the item;

b) If the officer has reasonable grounds to believe that a search warrant will be issued;

c) Or if the officer has reasonable grounds to believe that first obtaining a search warrant would cause a delay & lead to the item’s disappearance.

In your case you gave the Police Officers consent to enter your home, it was therefore not necessary for the Police to first obtain a search warrant. The Police must show you a search warrant if they have one but remember that the Police may also enter without one if it is urgent and in the interests of justice to not delay the search, as explained above.

When shown a search warrant, please take care to read it. The warrant may not be too general or vague but rather specific in what its aim is. This was repeatedly said in the case of Powel v Waja, which also highlighted the fact that one may challenge the validity of a search and/ or a search warrant in court. Remember that you can question the search by contacting the relevant Police Station and asking to speak to the Station Commander. It is therefore important that you request the full name and rank of the Police Officer/s searching your home.

We hope this clears matters up a bit.


Wishing you a great day,

Legal Hero.

www.legalhero.co.za 

Victimization in the workplace

Notes:

While you have 90 days to refer an unfair labour practice to the CCMA, you only have 30 DAYS to refer an unfair dismissal.

Chapter two of the Employment Equity Act also sets out a few practices that could amount to victimization (preventing employees from joining trade unions or preventing employees from engaging in union activities, prejudicing employees due to a legitimate disclosure, bribing employees not to exercise his/her rights in terms of the Labour Relations Act, etc.).

Have a look at section 5, 185 and 186(2) of the Labour Relations Act (unfair labour practices that could amount to victimization).

Wishing you an empowering Tuesday,

Legal Hero

wwww.legalhero.co.za  
0861 22 99 22
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Respect my dignity

Note: also often referred to as 'crimen injuria.'

Unlawful Deductions - Labour / Salary

Mission statement

Legal Hero steps up to secure justice in an uncertain world where legal threats are likely, skills are scarce and only a minority can afford the law. Determined to leave this world a better place, Legal Hero endeavours to not only provide quality legal assistance at an affordable monthly premium, but also legal education, so that everyone, in time, may become their own hero.

www.legalhero.co.za