Letters to the Editor – April 2018

April 1st, 2018
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PO Box 36626, Menlo Park 0102

Docex 82, Pretoria

E-mail: derebus@derebus.org.za 

Fax: (012) 362 0969

Letters are not published under noms de plume. However, letters from practising attorneys who make their identities and addresses known to the editor may be considered for publication anonymously.

 

South African lower courts through the eyes of a candidate legal practitioner

Janet Reno once said: ‘Being a lawyer is not merely a vocation. It is a public trust, and each of us has an obligation to give back to our communities.’ Being a legal practitioner is an amazing opportunity to fight for the rights of those who cannot fight their battles themselves. It is an opportunity to fend for the people of South Africa.

I knew that my two years of articles was not going to be a ‘walk in the park’. Everyone warned me. ‘Working eight to five is tiring’, they said. ‘Dealing with all types of different people requires special skills’, they said. ‘You are going to be one of the lowest people in the food chain’, they said. To be quite frank, I really accepted all of the above when I commenced my law studies.

I prepared myself for the worst: An uncomfortable working environment, being faced with a matter, which I do not know anything about, sounding like an inexperienced toddler if I decided to voice my opinion and all other types of different, distasteful scenarios. What I did not prepare myself for, is the manner in which things are done at court.

First of all, the courts are not concerned with time. It does not matter whether you have a taxation scheduled for 10:00 am or a trial that was set down, months ago, for 09:00 am. If you have to go to court you most definitely know that you are going to spend at least half a day there.

Secondly, the court clerks only assist you if they approve of your face. I am not being dramatic, it is really my take on the matter. The worst of all is the fact that they may like your face on Monday but despise it on Wednesday. This leads to documents that cannot be filed, papers that cannot be paginated, summonses and warrants that are not issued and stressed candidate legal practitioners who cannot explain to their principals why their work is not done.

Thirdly, it is an extraordinary day if the court personnel are actually available. In the past few weeks I have been confronted with closed or locked doors on more than one occasion, situations where I walked from floor to floor, and building to building where even the supervisor could not inform me of the whereabouts of her personnel. Then to add insult to injury, some of the personnel only pitched up at the office at 10:55 am and refused to help, because they were now entitled to a tea break.

Fourthly, a handful of court personnel are actually prepared to work. Adam says it’s Eve and Eve says it is the snake. You get referred to so many different people, and each and every one tells you exactly the same thing: ‘It is not my job and I am not prepared to assist you with this. You should rather ask person A on the fourth floor’. Once you finally find person A’s office, person A informs you that they no longer deal with s 65 Applications and that you should go back to person B on the first floor.

We all have the opportunity to better the life of South Africans. When I say we, I am referring to candidate attorneys, attorneys, advocates, magistrates, judges, clerks and court personnel. We are confronted with desperate and helpless people on a regular basis and delaying the court process only adds to the burdens that so many people have to carry.

Mariëtte Wright, candidate attorney, Cape Town

 

Response to appropriate contact and maintenance guidelines for sperm donors

I wish to respond to the article by Anonymous ‘Appropriate contact and maintenance guidelines for sperm donors’ 2017 (Sept) DR 51. The article purports to deal with sperm donation, and calls for critical contemplation of how our law deals with the parental rights and responsibilities of sperm donors. The law regarding gamete donation in general is indeed subject to many well-deserved criticisms. However, any such criticism must be based on sound legal analysis. As I will show, this is unfortunately not the case with the article.

I should state upfront that the author contacted me to draw my attention to the article, and that we subsequently corresponded and met in person. This correspondence, which included court papers, did clarify important aspects regarding the litigation to which the author refers in the article. However, at the request of the author, I here limit my response to the content of the article.

Anonymous is a party to a parental rights and responsibilities legal dispute that is the subject of the article. This brings me to the first problem with the article, namely that it fails to cite the judgment of the case that it purports to discuss. No explanation is offered for the absent citation. The absence of a citation of the judgment is problematic for several reasons, most prominently the dearth of facts presented in the article itself, and the inherent danger that the author may not present the facts objectively.

The skimpy facts presented in the article are accompanied by some highly unlikely claims, such as the following: ‘A report prepared by the Office of the Family Advocate, recommended a known sperm donor be granted full parental rights and responsibilities, against the child’s mother’s wishes.’ A possible explanation for this highly unlikely claim may be found in a statement made elsewhere in the article: ‘The [Children’s] Act is silent on … whether gamete donors, in instances where intercourse is used, are excluded from the definition [of parent].’ This statement is incorrect: Sections 1(1) and 26(2)(b) of the Children’s Act 38 of 2005 both make it clear that gamete donation is only relevant for artificial fertilization, not sexual intercourse. Similarly, the Regulations Relating to Artificial Fertilisation of Person (GN R 175 GG 35099/2-3-2012), made in terms of the National Health Act 61 of 2003, clearly define a gamete donor as a ‘living person from whose body a gamete or gametes are removed or withdrawn, for the purpose of artificial fertilisation’ (my italics). If a child is conceived through sexual intercourse, the biological father can never be relegated to the position of mere sperm donor. However, as revealed by the statement (‘… gamete donors, in instances where intercourse is used …’), the author of the article clearly labours under the incorrect belief that sperm donation can take place through sexual intercourse. This incorrect belief may explain the unlikely claim by the author that the Family Advocate recommended that a ‘known sperm donor’ be granted full parental rights and responsibilities against the mother’s wishes, as this could actually simply be a recommendation by the Family Advocate that a biological father who conceived the child through sexual intercourse with the mother be granted full parental rights and responsibilities against the mother’s wishes.

A further point of concern is that the author suggests that the best interests of the child should not be applied to cases where the parties have previously agreed on a contact regime that is the subject of a legal dispute. Even if such agreement can be proven, it is trite that the best interests of the child standard must be applied and will be paramount. The author’s suggestion that parents can contractually exclude their child’s constitutional rights is untenable in our constitutional dispensation.

In conclusion, sound legal analysis of the case to which the author of the article was a party would require at the very least an objective rendering of all the relevant facts, and a legally accurate interpretation of the concept ‘sperm donor’.

Dr Donrich Thaldar, senior lecturer, Durban

 

Do you have something that you would like to share with the readers of De Rebus?

De Rebus welcomes letters of 500 words or less. Letters that are
considered by the Editorial Committee deal with topical and relevant issues that have a direct impact on the profession and on the public.

Send your letter to: derebus@derebus.org.za

This article was first published in De Rebus in 2018 (April) DR 4.

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