Pro bono legal services are aimed at making justice more accessible to the most impoverished members of our society. When providing legal services to pro bono clients, it is important for legal practitioners to exercise a higher duty of care. In exercising such a higher duty of care, legal practitioners may be required to look for solutions to problems that are not necessarily the problems identified by the pro bono client.

On or about April 2018, the following matter was taken on by Fasken from the NISAA clinic it runs with ProBono.Org. The firm was approached for legal assistance by the mother of a child born with a permanent disability known as chronic subdural hematoma, which rendered him severely disabled and in need of special health care. The mother requested Fasken to assist with an application for the child’s maintenance against his father, and an application for the child’s birth certificate.

A maintenance order was accordingly obtained against the father of the child. Notwithstanding various obstacles encountered in respect of the registration of the child’s birth, the child was eventually issued with a South African birth certificate in March 2022. In the process of assisting this client, Fasken identified a number of further issues that the client required assistance with, including the following:

• The mother, who is a citizen of Lesotho, required assistance with regularising her status in South Africa;
• As a result of the child’s severe disability, he required assistance with applying for a caredependency grant from the South African Social Security Agency (“SASSA”);
• The mother needed further assistance with the enforcement of the maintenance order against the father pursuant to numerous instances of noncompliance. Having identified the abovementioned issues, Fasken assisted the client with preparing and lodging an application for:

• South African permanent residence in terms of the Immigration Act 13 of 2002;
• the child’s care dependency grant with the SASSA; and
• the enforcement of the maintenance order against the father’s employer, and subsequently his pension fund.

With the assistance from Fasken, the mother is now a permanent resident of South Africa and the child is receiving a care dependency grant. Fasken is also in the process of obtaining a maintenance enforcement order to attach the father’s pension benefits to satisfy his maintenance obligations. In many instances, pro bono clients do not have the necessary knowledge to properly identify all the legal issues they face and the remedies they need. It is therefore important for the legal representatives to exercise a higher duty of care when advising these clients. Legal representatives should strive to provide sustainable solutions for clients and properly interrogate instructions. Fasken’s journey with this client is not over yet as the
firm seeks to raise funds to purchase a wheelchair for her child, which would empower the child with mobility and the ability to undertake certain tasks independently.

We encourage any person who is able to assist to donate towards the purchase of a wheelchair for the child.

To donate, kindly contact Sushila Dhever on
(011) 586 6029 for further information.

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