By its very nature, death is tragic. The death of a loved one evokes deep feelings of grief. These feelings may be exponentially compounded by other feelings—such as anger, frustration, and despair—where the circumstances surrounding or leading up to the death of a loved one are unclear. To obtain the required clarity, it may sometimes be necessary to initiate inquest proceedings.

Such will be the case in September 2026, when inquest proceedings into the death of Anele Tembe are expected to commence in the Cape Town Magistrates Court (following a postponement of the proceedings on 13 July 2026).

Ms Tembe died in April 2021 after falling from a hotel room (on the 10th floor) that she shared with her now-deceased fiancé, Kiernan “AKA” Forbes, a well-known rapper who was subsequently murdered in February 2023. Following Ms Tembe’s death, questions arose about whether her death was the result of suicide or murder. Seeking clarity about the circumstances of her death, Ms Tembe’s family approached the authorities, who eventually initiated the anticipated inquest proceedings.

But what is an inquest and how does it differ from other legal proceedings?

When a person dies from unnatural causes, the police are required to investigate such a death to determine whether it was caused by the commission of a crime. Once they have concluded their investigation, the police must submit a report and any supporting documents (such as witness statements and any forensic reports) to the National Prosecuting Authority (NPA) which must then decide whether there is a prosecutable criminal case in relation to the death. If the NPA elects not to prosecute, the report must then be submitted to a magistrate. If the magistrate, after reviewing the report, determines that a death has occurred and is not due to natural causes, inquest proceedings must be initiated (subject to any directions from the Minister of Justice).

Inquests are judicial proceedings in which the court is tasked with investigating the circumstances and cause of the death of a person where it appears that such death was not due to natural causes. The courts have stated that the purpose of holding an inquest is to investigate the circumstances of death seemingly occurring from unnatural causes, where the NPA has declined to prosecute. The courts have also stated that inquest proceedings are intended to promote public confidence and to reassure the public that all deaths from unnatural causes will receive proper attention and investigation so that, where necessary, appropriate measures can be taken to prevent similar occurrences and so that persons responsible for such deaths may, as far as possible, be brought to justice.

Unlike civil law or criminal law proceedings—and because of their inherently investigative function—inquest proceedings are usually conducted in an inquisitorial manner, with the presiding officer playing an active role in questioning witnesses. Although inquest proceedings differ from the other types of proceedings, the courts have stated that they should be conducted more in line with criminal proceedings than civil proceedings. However, unlike criminal proceedings, the aim of inquests is not to determine any person’s guilt beyond a reasonable doubt, nor is it to enforce a person’s rights and obligations on a balance of probabilities, as in civil law proceedings.

The nature of the witnesses that may be required in inquest proceedings will differ depending on the unique circumstances of each case. Generally, however, potential witnesses may include relatives of the deceased, eyewitnesses, expert witnesses (e.g. forensic specialists), investigating officers (from the police), and any other person/s with knowledge about the circumstances of the death.

The Inquests Act 58 of 1959 provides that once all the evidence has been heard and evaluated, the presiding officer must make a finding on the following facts, which must be explicitly recorded in the inquest judgment: (a) the identity of the deceased person; (b) the cause or likely cause of death; (c) the date of death; and (d) whether the death was caused by any act or omission seemingly involving a crime by any person. Notably, if the presiding officer is unable to make a finding on any of these facts after having considered all the evidence, they must record that in their judgment. Lastly, the Inquests Act also provides that the judgment and transcribed record of the inquest proceedings must be submitted to the NPA, which must then consider whether any individual/s should be prosecuted in criminal proceedings.

While the inquest into the death of Ms Tembe has yet to commence, an inquest into the deaths of 21 youths, who died at a tavern in KuGompo City (formerly East London) on 26 June 2022 has recently concluded. On 10 July 2026, the KuGompo City Regional Court (sitting in Mdantsane) handed down judgment in inquest proceedings intended to provide clarity about the cause and circumstances of the youths’ deaths. As required by the Inquests Act, the court established the identities of the deceased youths, the cause/s of their deaths (i.e. crush asphyxiation), the date of their deaths, and the acts and omissions that led to their deaths (including the people who committed them). The court found that there was prima facie evidence that several individuals—including the tavern owners, a former bouncer at the tavern, a police officer, and an official of the Eastern Cape Liquor Board—collectively caused or contributed to the occurrence of the deaths. Consequently, the court referred the findings to the NPA, which must now decide whether to prosecute the responsible individuals.

Ultimately, inquest proceedings cannot undo the tragedy (and associated grief) of deaths occurring by unnatural causes. What inquests can do, however, is to help families, the public, and the justice system make sense of the circumstances surrounding unnatural deaths and whether any individual/s should be held accountable. In this way, it is hoped that grieving families might begin to find some semblance of closure.

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As the 2026 school year begins, many parents in Gauteng are not celebrating. They are anxious, frustrated, and in some cases, angry, because their children have not yet been placed in schools, especially in Grade 1 and Grade 8. These frustrations are visible on both social and mainstream media, with parents asking why the system cannot accommodate their children.

The parents of affected children report of a variety of issues that led to their children’s non-placement (at either a specific school, or in some instances, any school), such as: applications were submitted late, technical issues prevented the online system from capturing certain applications, children were allocated to schools that are unreasonably far from their home or the parents’ place of work, or their children were placed at a school that the parents never selected. Some parents have stated that they applied timeously but are still waiting for their children to be allocated to a school. Other parents have expressed frustration over their children—who are South African citizens—not being placed at a school in circumstances where foreign and/or undocumented children have been placed at schools. These frustrations have raised difficult questions about fairness, legality, and the State’s obligations.

The Gauteng Department of Education has acknowledged placement delays, attributing them to capacity constraints, rapid population growth, and pressure on schools in densely populated areas. The Department maintains that the majority of learners placed are South African citizens and denies that foreign nationals are prioritised.

In South Africa, the legal position on the right to education is clear. Section 29(1)(a) of the Constitution of the Republic of South Africa, 1996 guarantees everyone the right to a basic education. This right is immediate. It is not subject to progressive realisation, and applies to all children in South Africa, regardless of nationality or immigration status. Additionally, the South African Schools Act No. 84 of 1996 places a duty on provincial education departments to ensure that schools have the necessary capacity to accommodate children, while parents are legally obligated to ensure that their children attend school. The law does not allow schools to exclude children based on documentation status.

Courts have reinforced this. In multiple judgments, South African courts have confirmed that undocumented children may not be denied access to basic education. Policies requiring birth certificates or permits as conditions for admission have been struck down as unconstitutional, because they undermine a child’s right to education.

These judgments do not create special privileges for foreign children. They confirm the simple principle that children must not be punished for their parents’ immigration status or for administrative failures such as unregistered births.

The legal position is settled. The reality, however, is more complicated. Schools are under severe pressure. Popular schools reach capacity quickly. Infrastructure has not kept up with population growth and administrative backlogs delay placements. In this environment, perceptions of unfairness are easy to form, especially when parents receive little communication and no clear timelines. Weeks into the school year, frustration is understandable.

The issue of children’s non-placement at schools is not about citizens versus non-citizens. It is about a system under strain, failing the very children it exists to serve. The Constitution guarantees every child the right to a basic education. Parents demand answers and children cannot wait. Blame will not solve this crisis—clear governmental planning, accountable administration, and urgent investment will. The law gives every child a right to learn, but that right is meaningless if the system cannot put them in a classroom. Gauteng cannot afford more delays. Every child deserves a seat, every parent deserves clarity, and the State must deliver. Not next week or next month, but immediately.

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The short answer: nothing! But that is not the end of the enquiry.

While gaslighting is not specifically mentioned in the Domestic Violence Act 116 of 1998, it arises in circumstances which are provisioned for in the Act. This article briefly examines those circumstances.

By definition, gaslighting is a type of psychological manipulation by a person (the perpetrator) who distorts the narrative circumstances of an event or a factual truth in order to cause self-doubt or confusion in the mind of another person (the target), such that the target questions their sanity or sense of reality.[1] Although the definitional parameters of “gaslighting” may vary depending on the context (e.g. law, psychology, sociology, philosophy, etc.), fundamentally, it involves: “a pattern of manipulative behaviors that target a victim’s capacity to perceive and evaluate reality independently. These behaviors can take many forms, vary in severity, and can be enacted through different modes including speech, actions, facial expressions, and manipulation of the physical environment or social networks”.[2] The objective of the perpetrator’s manipulative distortions is to influence the target to abandon their real and objective observations, knowledge, recollections, and/or beliefs in favour of the perpetrator’s false narrative.

Technically, the above descriptions of gaslighting are not limited to domestic relationships and may therefore arise in other contexts (e.g. collegial relationships in an employment context).[3]

In domestic relationships, the perpetrator intentionally and maliciously creates an “unreality” – a psychological cage in which the target is entrapped by the perpetrator’s manipulations.[4] If the target succumbs to the unreality, rather than trusting their own mind or the veracity of their own perceptions, they effectively submit to the perpetrator’s psychological domination or coercive control.[5] Prolonged subjection to gaslighting (and the perpetrator’s unreality) can be detrimental to the target’s psychological well-being,[6] may cause psychological and/or emotional distress, and may erode their self-esteem, self-determination, autonomy, and sense of individuality.[7] It may also make the target more susceptible to more and/or other abuses.[8]

While South African courts have not yet judicially analysed gaslighting in abusive domestic relationships, English courts have recognised it in the context of domestic violence. For example:

• In M v F [2024] EWFC 55 (B) the court had to determine whether F was subjecting M to coercive and controlling behaviours. Following some odd incidents in their household, F suggested to M that the “only logical explanation” for the occurrences was that M had been sleepwalking, which M accepted because she could not explain the occurrences. Based on the evidence, the court found that this constituted gaslighting and coercive control, because it was a form of “psychological manipulation” perpetrated by F, which caused M to doubt herself and to unjustifiably fear harming herself and her children in her sleep. In its judgment, the court considered that: it was F who planted the idea of sleepwalking in M’s mind; sleepwalking was not the only logical explanation for the incidents; F had never actually seen M sleepwalking in all their years together; F provided “his own diagnosis of [M] with no medical evidence” to support his claims; F’s assertion had a “material impact on [M]’s wellbeing” and caused her to worry about her mental health and become distressed; F made running jokes (to M and other people) at M’s expense leaving her feeling “belittled”, “humiliated”, “mocked”, and “stupid”.
• In Re B-B (Domestic Abuse: Fact-Finding) [2022] EWHC 108 (Fam) a mother and father accused each other of coercive and controlling behaviours. The court found that the father had repeatedly alleged that the mother suffered from bipolar disorder without any medical evidence that she suffered from that condition “in an attempt to characterise her to third parties as mentally unstable and/or unreliable”. The court identified this as gaslighting as “the father’s conduct represented a form of insidious abuse designed to cause the mother to question her own mental well-being, indeed her sanity”.

In the judicial analyses that South African courts will inevitably undertake, they will have to navigate how to differentiate gaslighting from conduct that resembles gaslighting but is definitionally not. For example, instances may arise where two people recall the same event differently, and one vehemently insists that their recollection is correct and the other person’s is not. To determine whether such a scenario amounts to gaslighting or is merely a difference in recollections, courts will have to juxtapose the unique evidential matrixes presented to them by parties against the above definitions and elemental factors (e.g. manipulation, narrative distortion, intent, malice, impact, self-doubt/confusion, psychological/emotional distress, etc.).

In conclusion, when interrogating the place of gaslighting in the Act, it may be regarded as either a form of psychological abuse, a tactic of coercive control, or both. As psychological abuse, a single serious instance of gaslighting may conceivably constitute domestic violence. However, to cross the threshold of actionable coercive and controlling behaviours, there must necessarily be repeated conduct as the indicators of coercive control include behaviour that is “patterned, repeated and/or continual”.[9]

The psychological manipulation involved in gaslighting may also form constitutive aspects of other types of domestic violence in the Act (e.g. emotional abuse, economic abuse, spiritual abuse, elder abuse, harassment, etc.), depending on the abuser’s intentions and/or the impact on the affected target. Oftentimes, psychological abuse and coercive control are subsumed into other types of abuse, because they are rooted in the abuser’s efforts to dominate and control the survivor. This need for domination, power and control is a core part of domestic violence in general, and gender-based violence in particular.

____________________________________________________________________________________________________________________________________

[1] Dakalo Singo “Coercive and Controlling Behaviour in the Domestic Violence Act” South African Law Journal (2023) Vol. 140, Issue No. 4, 763-794 at 775 (https://doi.org/10.47348/SALJ/v140/i4a4).

[2] Darke, L., Paterson, H., Dhillon, H., & van Golde, C. (2025) “Defining Gaslighting in Intimate Partner Violence: Insights from victim survivors and support service providers” Psychology, Public Policy, and Law at 13 (https://dx.doi.org/10.1037/law0000461).

[3] Singo, 775.

[4] Emma Williamson “Living in the World of the Domestic Violence Perpetrator: Negotiating the Unreality of Coercive Control” Violence Against Women (2010), Vol. 16(12) 1412-1423 at 1414 (https://doi.org/10.1177/1077801210389162).

[5] Williamson, 1415.

[6] Williamson, 1415.

[7] Singo, 776.

[8] P.L. Sweet “The Sociology of Gaslighting” American Sociological Review (2019) Vol. 84(5), 851-875 (https://doi.org/10.1177/0003122419874843).

[9] Singo, 783.

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Introduction

People in abusive relationships are often asked: “Why don’t you just leave?”. While this base question is simple, the answer is decidedly complicated. Understanding the complexities involved requires an interrogation of the underlying relational dynamics.

Several models and theories have been formulated to analyse the base question. This article considers two such models, before examining judicial insights into a theory that may clarify this enquiry.

Cycle of Abuse

The “Cycle of Abuse” model describes a cyclical pattern of abusive behaviours, typically recurring in four phases: “tension-building”; “incident”; “reconciliation”; and “calm”.

In the tension-building phase, the abuser creates a tense and stressful environment, causing the survivor to fear an imminent domestic violence incident. Consequently, the survivor adapts their own behaviour toward the abuser – usually by appeasing them – to prevent an abusive incident.

In the incident phase, the abuser commits domestic violence to dominate and exert power over the survivor. This may take the form of physical, sexual, psychological, emotional, verbal, or other types of abuse.

In the reconciliation phase, the abuser either: apologises for the incident; makes excuses to avoid responsibility for it; blames it on the survivor; or gaslights the survivor into believing that the incident was not as bad as the survivor claims (or that it did not occur in the manner that the survivor remembers it, or at all). The abuser may appear or pretend to be remorseful or saddened by their conduct, often showing the survivor excessive affection or buying gifts to make up for the incident. Sometimes abusers resort to manipulating the survivor by threatening to commit self-harm or suicide.

In the calm phase (sometimes called the honeymoon phase), the parties have reconciled, and the relationship is calm. However, as this phase progresses, the abuser’s remorse, apologies, and promises, become disingenuous or disappear altogether, recreating tensions that revert the cycle back to the first phase.

This model highlights that abusive incidents are interspersed with phases of relative normalcy during which the survivor believes the relationship can work out or improve, usually because of the abuser’s manipulative machinations.

Power and Control Wheel

Another model is the “Power and Control Wheel“. As the name suggests, an abuser seeks to establish, maintain and exert power and control over the survivor. The Wheel has two bands delineating how the abuser achieves this.

The inner band lists eight abusive tactics commonly used by abusers, on an ongoing basis. These are: using coercion and threats; using intimidation; using emotional abuse; using isolation; minimising, denying and blaming; using children; using male privilege; and using economic abuse. Importantly, not all of these tactics must be present to constitute abusive behaviour.

The outer band lists two additional tactics: physical and sexual violence. Abusers use these tactics (or the threat thereof) to reinforce the efficacy of the other tactics, ensuring that the survivor becomes so fearful of potential physical or sexual violence – which does not necessarily have to be directed at the survivor – that they submit to the abuser’s power and control.

This model illustrates that abuse is often systematic, strategic and ongoing. Using any one or a combination of the listed tactics, the abuser induces fear in the survivor, creates dependency, and isolates the survivor, in order to dominate and control them.

Coercive Control Theory

In addition to the above models, “coercive control theory” provides further context for addressing the base question.

Domestically, coercive control in domestic relationships was initially recognised in S v Engelbrecht [2005] JOL 13771 (W). The court defined domestic violence as “a pattern of coercive control characterized by the use of physical, sexual and psychological abusive behaviour” and noted that “understanding domestic violence as coercive control points to the instrumentality of such abuse”. The court acknowledged that coercive control theory establishes that abusers aim to exert power over their partner and control their life by isolating them from outside support and “reinforcing the futility of the victim’s efforts to leave or protect herself”. Additionally, the court observed that: “To understand the psychological impact of domestic violence, it is important to look at the pattern of overall coercive control present in the relationship, rather than specific instances of such control” and that coercive control “does not require physical violence, only that the victim perceives that there is no means to escape as a result of the abuser’s behaviour”.

These perspectives in Engelbrecht directly address the complexity of why it is difficult to leave abusive relationships.

Subsequently, coercive control was formally recognised when the Domestic Violence Act 116 of 1998 was amended in 2023 by introducing the following definitions:

“‘coercive behaviour‘ means to compel or force a complainant to abstain from doing anything that they have a lawful right to do, or to do anything that they have a lawful right to abstain from doing”; and

“‘controlling behaviour‘ means behaviour towards a complainant that has the effect of making the complainant dependent on, or subservient to, the respondent and includes —

            (a) isolating them from sources of support;

(b) exploiting their resources or capacities for personal gain;

(c) depriving them of the means needed for independence, resistance or escape; or

(d) regulating their everyday behaviour”.

Indicators of Coercive Control

Given their relative novelty, there is currently no domestic case law involving a judicial analysis of these definitions. However, based on the jurisprudence of foreign courts, the following elemental indicators of coercive and controlling behaviours may be distilled:

“(a) There is (or was) a domestic relationship between the perpetrator and victim;

 (b) The behaviour may involve both physical and/or non-physical conduct;

 (c) The behaviour constitutes forceful compulsion;

 (d) The behaviour is patterned, repetitive and/or continual;

(e) The behaviour is unreasonable, wrongful and/or unlawful; and

(f) The effect or impact of the behaviour on the victim is deleterious in that:

• it erodes or undermines the will or volition of the victim;
• it detrimentally affects the victim’s self-esteem, self-worth, self-image, self-identity, self-determination, dignity, autonomy and/or sense of individuality;
• it causes the victim psychological and/or emotional distress; and/or
• it has an adverse effect on the victim’s day-to-day activities.” (Dakalo Singo “Coercive and Controlling Behaviour in the Domestic Violence Act” South African Law Journal 140, No. 4, page 783).

These indicators are subject to the following caveats. First, the indicators serve as guidelines and are therefore not prescriptive. Secondly, “it is not an individual act that is determinative, but rather the overall impression discernible from a collective range of acts” (Singo, page 783). Thirdly, “the absence of any one or more of the above indicators in a specific evidential scenario before the courts will not necessarily mean that the behaviour under scrutiny is not contemptible coercive control” (Singo, page 783).

Conclusion

In some countries (e.g. England and Wales), coercive control is viewed in such a serious light that it has been criminalised, with other countries (e.g. Canada and Australia) considering whether to follow suit. While cases involving coercive control are underreported, there is a gradual increase in reported cases. A 2024 report (in England and Wales) records that 45,310 coercive control offences were reported to the police in that reporting year, with 43,774 and 41,039 cases reported in the two preceding years. This increase is attributed to the police’s improving ability to recognise cases of coercive control.

It is therefore important to understand what constitutes coercive and controlling behaviours as these are fundamental aspects of domestic violence underpinning other types of abusive conduct and occurring continually over a protracted period. The fact that there is currently no domestic case law on coercive and controlling behaviour concretises the need for awareness about coercive control and its role in domestic violence.

By becoming familiar with the above indicators, not only will people recognise the signs of coercive control and address them, but they will also begin to understand the answer to the base question.

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August, celebrated as Women’s Month in South Africa, is a time to reflect on the daily challenges women face in asserting their rights and accessing opportunities. While gender‑based violence (“GBV“) is often understood in terms of physical or emotional abuse, economic abuse is another pervasive form of GBV that undermines women’s independence and dignity. One of the most devastating examples of economic abuse is when a partner deliberately overburdens a woman with debt (whether by taking out loans in her name, coercing her into signing credit agreements, or leaving her solely responsible for household debts), ultimately leading to her being blacklisted.

For many women, particularly single mothers, survivors of abuse, and breadwinners, blacklisting is not just a financial mark against their name. It can trap them in cycles of poverty and dependency, making it harder to escape abusive relationships, support their families, or access the resources needed to build independence.

What does blacklisting mean?

Generally, a blacklist is a list of people who are barred from accessing certain services or opportunities due to negative conduct that created a perception of untrustworthiness. In the context of debt, blacklisting refers to a negative notation on a person’s credit report that labels them as high risk because of either late payments or non‑payment of debts. This notation warns credit providers and others that the person may not be financially reliable and may struggle to settle their debts timeously.

Why does this matter for women?

The consequences of blacklisting are especially harsh for women for the following reasons:

Access to credit ‑ Blacklisted people cannot easily obtain loans, credit cards, or housing finance, limiting their ability to invest in businesses, buy homes, or cover emergency expenses. This can prevent women in abusive or oppressive environments from being able to establish themselves independently.

Employment opportunities ‑ Certain jobs that require financial responsibility are closed off to people with negative credit reports, further limiting employment options for blacklisted women.

Housing security ‑ Landlords may refuse to lease to blacklisted applicants, often forcing women to remain in dangerous living arrangements.

Economic independence ‑ For women leaving abusive relationships, being blacklisted often means having no access to the financial tools necessary to build a new life.

In this way, blacklisting perpetuates structural inequality that can trap many women in cycles of dependence and financial instability.

How blacklisting happens

The National Credit Act 34 of 2005, regulates the process of blacklisting. Once a consumer defaults on their payments, the credit provider may report this default to a credit bureau, but only after giving 20 business days’ notice to the consumer. The bureau then records the default as a blacklist notation on the consumer’s credit report.

Preventing wrongful blacklisting

If a person receives notice that they are about to be blacklisted, they have the right to dispute the accuracy of the information. They can demand proof from the credit provider and, if unsatisfied, escalate the dispute to the National Credit Regulator (“NCR“). Importantly, during this dispute the bureau cannot proceed with the blacklisting until the matter is resolved.

Removing a wrongful blacklisting

If notice is not given or the blacklisted person only discovers the blacklisting after it has been reported, the process of removal is unfortunately more complex. Once disputed with the NCR, the case may proceed to the Consumer Tribunal or the Consumer Court. If successful, the consumer has the right to be compensated for the costs of clearing the wrongful blacklisting.

When the blacklisting is correct

If the blacklisting is accurate, the only way forward is to settle the debt through a repayment plan with the creditor or with the assistance of a debt counsellor. Once the debt is settled, the credit provider must notify the bureau to remove the notation.

Why this matters for Women’s Month

Economic justice is a core principle of gender justice. Just as women have the right to live free from physical violence, they also have the right to financial independence and dignity.

By educating women about their rights under the National Credit Act and providing free or affordable access to legal and debt counselling services, we can empower women to regain their financial standing and break free from economic abuse.

If you are a woman struggling with debt, blacklisting, or economic abuse, seek advice from an attorney, a debt counsellor, or your nearest law clinic. Taking that step is not just about clearing your name, it is about reclaiming your independence and dignity.

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As Women’s Month draws to an end, it is worth reflecting on the measures society has taken to protect women and other vulnerable groups against gender-based violence (“GBV“). It goes without saying that combating GBV cannot only be the responsibility of government. Every sector, including the legal profession, has a role to play.

One of the ways in which Werksmans Attorneys has contributed towards the fight against GBV is by the establishment of the Diepsloot Law Clinic (“Clinic“), which opened its doors to the public in 2012 and has been operational ever since. Operating every Tuesday and Thursday, the Clinic has become a lifeline for many women and families in the community, offering not just legal advice but a sense of safety, dignity, and hope.

Serving the Most Vulnerable

The Clinic primarily assists the most vulnerable members of society which includes women, (many of whom are unemployed or single mothers) as well as elderly clients facing complex family and financial pressures. The cases we encounter reflect both the resilience of our clients and the urgent need for access to justice for the less fortunate.

Some of the most common challenges faced by clients who visit the law clinic include:

• Fraudulent marriages: There are women who have discovered that they are fraudulently married to strangers (commonly foreign nationals). This has devastating consequences for their personal and financial rights.
• Identity theft: Many victims have discovered that their personal information has been used by criminals to fraudulently obtain identity documents at the Department of Home Affairs (“Department”). As a result, their names have been flagged by the Department for fraud leaving them unable to secure valid identity documents, which prevents them from finding decent employment, registering the births of their children, applying for social grants, or accessing government housing and other social services.
• Child maintenance disputes: In most instances, these cases affect single mothers who approach the Clinic for assistance in applying for Maintenance Orders against absent fathers who refuse to contribute towards the upbringing of their children.
• Elderly clients seeking assistance: Older community members frequently consult with us for advice on the execution of wills. We also assist grandparents who take on the responsibility of raising their grandchildren by either helping them with applications for foster care grants or by addressing cases where child grants are misused by their adult children, leaving grandparents without any financial resources to care for their grandchildren.
• Elder abuse and neglect: Many elderly clients suffer mistreatment at the hands of their relatives. In such cases, the Clinic provides assistance with protection orders to ensure that their safety and dignity is restored.
• Domestic violence: We often advise and assist women who experience various forms of domestic violence (such as physical, sexual, verbal, psychological, emotional and economic abuse).

Empowering Communities Through Justice

The cases we are often presented with go beyond legal technicalities, they affect the ability of women and families to live with dignity, safety and stability. By providing pro bono legal assistance, the Diepsloot Law Clinic empowers women to enforce their rights and protect their children and families. The ripple effect is profound in that when women are supported, the entire community becomes stronger.

Conclusion

Women’s Month is a time to celebrate progress, but also to acknowledge the work that still needs to be done. Access to justice remains one of the most powerful tools for women empowerment. At Werksmans Attorneys, we believe that the law must serve everyone, not only those who can afford it. Through the Diepsloot Law Clinic and our broader pro bono initiatives, we are committed to standing with women, in Diepsloot and beyond, to ensure that their voices are heard, and their rights are protected.

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As a result of slow economic growth, high interest rates and the soaring cost of living, many South African households have had to rely on credit to make ends meet. The unfortunate result is that a large number of consumers are currently struggling to meet their spiralling debt obligations.

What is debt review (or debt counselling)?

Debt review, also known as debt counselling, can serve as a lifeline for over-indebted consumers. Debt review is a financial relief programme established under the National Credit Act 34 of 2005 (“the NCA”). It aims to assist individuals who are struggling with overwhelming debt. During debt review, a professional known as a debt counsellor assists an over-indebted consumer with debt restructuring, which includes negotiating reduced payments or better interest rates with the consumer’s creditors and offering strategies to ease the financial strain on the consumer.

What is Over-indebtedness?

A consumer is considered to be over-indebted when they are unable to meet their debt obligations as outlined in their credit agreements with multiple creditors. Several warning signs may indicate that a consumer is struggling with over-indebtedness. One common indicator is relying on credit from one source to pay off another, often referred to as “borrowing from Peter to pay Paul.” Consumers may also use credit cards or overdraft facilities to cover essential expenses like groceries, signalling financial distress. Other red flags include missing payments on certain accounts to prioritise others, and receiving payment demands or summonses from creditors. In severe cases, court orders may be granted against the consumer for unpaid debts, further exacerbating their financial difficulties.

Who qualifies for debt counselling?

Any individual with an income, who finds it challenging to keep up with their debt repayment obligations may seek help through debt counselling. Debt counselling is provided by professionals called debt counsellors, who are registered with the National Credit Regulator (“NCR“).

However, it is important to understand that while debt review aims to ease financial strain, there are important considerations to weigh before committing to the programme, including the following:

• Debt review does not reduce the total amount of a consumer’s debt; but it may extend the repayment period to make the debt more manageable.
• Debt review does not guarantee immunity from legal action by creditors, despite recommendations otherwise.
• Debt review does not guarantee lower interest rates or debt consolidation.
• Participating in debt review restricts consumers from obtaining additional credit.
• Debt review entails a long-term commitment that requires dedication and discipline to complete.
• A consumer’s debt review status remains on their credit record until the programme’s completion or full repayment of all debts included in the review.
• Not all debts may qualify for inclusion in the debt review programme.

Exiting the Debt Review Programme

Consumers have the right to exit the debt counselling programme once they obtain a clearance certificate from their debt counsellor. The process for withdrawing from debt review depends on whether a court order has been issued.

If there is no court order mandating the consumer’s participation in debt review, they can inform the debt counsellor in writing of their desire to cancel. However, this can only be done before a formal notice is sent to creditors stating that the consumer has been found to be over-indebted. Additionally, the consumer must settle any outstanding administration fees owed to the debt counsellor before the cancellation takes effect.

If a court order has been issued placing the consumer under debt review, the consumer must apply to the court to cancel the proceedings. The court will assess the application and determine whether to declare the consumer no longer over-indebted. If the court grants this request, the debt counsellor is responsible for notifying the consumer’s creditors about the cancellation.

A consumer will receive a clearance certificate when they have paid off all the debts included in their debt counselling programme. Alternatively, they may also qualify for a clearance certificate if they can demonstrate that they are financially stable and capable of repaying the remaining debt from their long-term credit agreements in the future. Even if they have not fully paid off their long-term credit agreements, they could still qualify for a clearance certificate if they can prove that these payments are up to date and all other debts from the debt counselling programme are settled.

If a consumer is unhappy with the services of a debt counsellor, they may report the matter to the NCR for investigation.

Conclusion

Debt counselling can play a transformative role in reshaping one’s financial wellbeing. Any person with an income, struggling to meet their monthly debt repayments may seek help through debt counselling. However, before committing to this programme, it is important to consider all the financial consequences, as well as the commitment and discipline required to successfully complete the process.

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In 2019, the jurisdiction of the Commission for Conciliation, Mediation and Arbitration (“CCMA”) was expanded by the introduction of section 73A of the Basic Conditions of Employment Act, 1997 (“BCEA”). Essentially, section 73A entitles certain employees and workers – whose income does not exceed the prescribed earnings threshold, which is currently R254,371.67 per annum (or R21,197.64 per month) – to refer a dispute to the CCMA where an employer has failed to pay any amount owing to that employee or worker in terms of the BCEA, NMWA, an employment contract, a sectoral determination or a collective agreement. Any other claim for non-payment beyond those mentioned above, may not be dealt with as part of a section 73A dispute.

While employees or workers whose annual income exceeds the prescribed threshold are not permitted to refer claims in terms of section 73A to the CCMA, they are entitled to institute such claims in either the High Court or Labour Court, as well as the Magistrates Court or Small Claims Court, subject to the claimant meeting the jurisdictional thresholds for those courts.

When referring disputes in terms of section 73A, employees or workers must keep in mind three important factors. First, in terms of the CCMA Rules, no legal representation is allowed at the CCMA during proceedings brought in terms of section 73A, except in the limited circumstances described in Rule 25(1)(c) of those rules. Secondly, a claimant must be able to show that they are actually entitled to the payment they allege is owed to them by an employer and must provide proof of that entitlement. Lastly, despite the fact that neither the BCEA nor the CCMA Rules specify a timeframe for section 73A referrals, each claim must be brought within three years from the date on which it became due and payable, failing which the claim may prescribe and consequently be rendered unenforceable.

Against this backdrop, the following is a brief overview of recent cases dealing with claims for non-payment in terms of section 73A.

• The plaintiff in Kgasane v MEC Department of Health: Free State and Another (2025) 46 ILJ 359 (LC) was a retired employee who claimed that his former employer had failed to pay him out for his accrued leave days. He approached the Labour Court because his salary (at the time that he was employed) exceeded the earnings threshold. His former employer argued that the Labour Court did not have jurisdiction to hear the matter as the plaintiff’s claim was based on a provision in a collective agreement concluded at a bargaining council, which in their view could only be enforced through arbitration at the relevant bargaining council. However, the judge held that the Labour Court had jurisdiction to determine the plaintiff’s claim because a plain reading of section 73A permits employees to bring claims for non-payment based on collective agreement.

• In Safeguard Chemicals t/a Maris Polymers South Africa v Frydas and Others (JR631/20) [2022] ZALCJHB 359 a dismissed employee approached the CCMA seeking compensation for his alleged unfair dismissal. Together with his dismissal dispute he claimed that his employer had also failed to pay him outstanding salaries, a 13th cheque and a 20% profit share (“additional claims”). The CCMA found that his dismissal was unfair and awarded him compensation which included the additional claims. However, when the matter was taken on review in the Labour Court, the judge found that the CCMA had no jurisdiction to award the additional claims (as the dismissed employee’s salary exceeded the earnings threshold), nor any amounts relating to an alleged breach of contract.

• Similarly, in Adapt (Pty) Ltd v Maseko and Others [2023] JOL 57378 (LC) the Labour Court found that the CCMA had exceeded its jurisdiction by dealing with contractual claims. The employee had approached the CCMA alleging that she had been subjected to an unfair labour practice in that she had not been given a performance appraisal, a salary increase, and a bonus. The CCMA found that she had been unfairly deprived of a performance appraisal (which constituted an unfair labour practice) and awarded her two months’ compensation, as well as the salary increase and bonus she should have received. The employer approached the Labour Court to review and set aside the CCMA’s arbitration award, arguing that the employer had not committed an unfair labour practice as the employee was not entitled to a performance appraisal because she was on a performance improvement plan (based on her poor work performance). The employer also argued that the CCMA did not have jurisdiction to award the employee a salary increase and bonus. The Labour Court found that the employer had indeed committed an unfair labour practice by not giving the employee a performance appraisal, even if it would not have resulted in her receiving an increase; she was at least entitled to a meeting to inform her of the reasons that she was ineligible for an increase and bonus. However, the judge reduced the amount of compensation that the employee should receive because the CCMA had not taken into account that the employee had in fact been performing poorly. On the question of jurisdiction, the judge held that the CCMA did not have jurisdiction to award the employee with a salary increase and bonus, as these were contractual claims that fell outside the CCMA’s jurisdiction. It therefore set aside these aspects of the arbitration award.

• In Ademulegun v Monothendre (Pty) Ltd t/a GFT Group Fiveways Superspar [2024] JOL 63624 (LC) the applicant instituted action against his former employer for unpaid remuneration – such as underpayment of wages, non-payment of overtime and family responsibility leave, and not paying him the agreed amounts for working on Sundays and holidays – over a period of 8 years. The employer raised a special plea that some of the claims had prescribed. In considering the matter, the court observed that a debt becomes due when the debtor is obliged to make payment; therefore, each month constituted a new and separate debt. The court upheld the special plea in part as it found that the applicant’s claims that arose more than three years before the claim was initially instituted had prescribed.

• The applicant in Danster v Department of Education: Eastern Cape [2021] JOL 51199 (ELRC) was a teacher who had not received her salary since the date of her employment – a period of 9 months and 2 weeks. She referred a dispute to the Education Labour Relations Council (“ELRC”). The employer alleged that her salary was blocked on the PERSAL system, but no explanation for the blockage was ever provided to her. During the hearing she led evidence that at the school where she was previously employed, she was never dismissed, nor were charges of misconduct ever presented to her. The ELRC ordered the employer to pay the applicant the full remuneration to which she was entitled for the period since she had been employed.

• In Hollywood Sportsbook Gauteng v CCMA and Others [2023] JOL 60561 (LC) the employer sought to review and set aside an arbitration award by the CCMA. The CCMA had ordered the employer to pay the employee an outstanding portion of his salary for the last month of his employment. The Labour Court set aside the arbitration award, reasoning that the commissioner had disregarded relevant evidence and made a decision that was disconnected from the evidence placed before him. The evidence before the CCMA showed that there had been overpayments to the employee in the months leading up to the termination of his employment. Additionally, the amount withheld from the employee’s salary was not lawfully due to him as he had not worked the full month in his last month of employment.

• In Mathubela v Bidvest Protea Coin and Others [2023] JOL 65839 (LC) the applicant had previously referred an unfair dismissal dispute to the CCMA where his dismissal was found to be substantively unfair. Consequently, the employer was ordered to reinstate the applicant and pay him backpay. The employer paid the backpay. However, the applicant instituted contempt of court proceedings in the Labour Court on the basis that his former employer failed to reinstate him. Subsequently, the applicant referred a section 73A dispute to the CCMA for the outstanding backpay. The CCMA held that they did not have jurisdiction over disputes relating to breach of contract. The applicant brought a review in the Labour Court to challenge the CCMA ruling. However, the Labour Court dismissed the applicant’s review, reasoning that the applicant had provided no proof that he had tendered services to his former employer following the order for his reinstatement. The judge reasoned that the employee’s tender of services was necessary and must have been accompanied by an acceptance of the tender by his former employer for the employment contract to be revived. Accordingly, no contract existed on which he could allege a breach of contract occurred. Therefore, the CCMA had no jurisdiction to deal with the section 73A dispute.

•  The applicant in Nieftagodien v Yikusasa Building Contractors (Pty) Ltd [2024] JOL 63745 (LC) brought a claim in the Labour Court for arrear salaries accumulated over several months. The respondent disputed that the applicant was its employee. The applicant alleged that his employment contract had been transferred to the respondent (from his initial employer) in accordance with section 197 of the Labour Relations Act, 1995. However, the Labour Court disagreed, finding that there was no agreement in terms of section 197 and the respondent had, amongst other things, not taken over the initial employer’s employees, nor did it take over its customers and equipment. Therefore, the applicant failed to prove that he is an employee of the respondent. Accordingly, the Labour Court held that it lacked jurisdiction to deal with the applicant’s claim and dismissed it on that basis.

• In Nxazonke v CCMA and Others [2022] JOL 57984 (LC) the applicant brought an urgent application for numerous claims including, amongst others, claims for recovery of remuneration and deductions from his salary. The Labour Court confirmed that while it had jurisdiction to deal with claims of this nature, it is only in exceptional circumstances that financial hardship would justify a court intervening on an urgent basis. The judge held that the applicant had failed to establish grounds for the claims to be dealt with on an urgent basis and that he was therefore required to invoke the remedies available to him in the ordinary course. The applicant’s claims were therefore struck off the roll for lack of urgency.

• In Prestige Campworld (Pty) Ltd t/a Comet Caravans v Botha and Others [2022] JOL 56284 (LC) the applicant brought a review application in the Labour Court to review and set aside a decision of the CCMA in terms of which a former employee had been awarded arrear salary, commission and leave pay. The applicant argued that the CCMA lacked jurisdiction to determine the dispute as the former employee’s monthly income (which was comprised of a “fixed salary”, as well as “commission”) exceeded the earnings threshold. The Labour Court agreed and held that in considering the former employee’s salary the CCMA should have included commission in its calculation of his earnings. Accordingly, the Labour Court reviewed and set aside the arbitration award.

The above cases highlight the varying complexities that may arise in claims for non-payment in terms of section 73A. Employers and employees alike would do well to consider these (and other) cases to guide them on how to address such disputes, if they arise.

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After the President assented to the National Council on Gender-Based Violence and Femicide Act No. 9 of 2024 (“Act”) in May 2024, the operation of the Act commenced on 15 November 2024, just days before the commencement of the 16 Days of Activism for No Violence against Women and Children Campaign (on 25 November 2024; which is also the International Day of No Violence against Women).

The National Council was conceptualised as a national multi-sectoral structure mandated by the declaration made at the First Presidential Summit on Gender-based Violence and Femicide (in 2018) – which in turn was intended to, amongst other things, identify key interventions to address gender-based violence and femicide (“GBVF”), as well as wider challenges negatively affecting the rights and freedoms of women and children.

In its preamble, the Act recognises that eliminating GBVF is only possible through the implementation of a “multi-sectoral, co-ordinated government and whole of society approach” to fighting the scourge. The preamble further provides that to achieve this it is necessary to “harness the roles, responsibilities, resources and commitments across government, labour, civil society, movements, youth structures, faith-based structures, traditional structures, the media, development agencies, the private sector, academic institutions and all other stakeholders”. This multi-sectoral approach is crucial to the effective implementation of any strategies aimed at addressing GBVF.

The Act provides a legislative framework for the National Council, establishing it as a statutory body that is responsible for providing strategic leadership on the elimination of GBVF in South Africa. In terms of the Act, one of the National Council’s first official tasks is to develop an action plan for the implementation of the national strategy on GBVF, which must, amongst other things set out timeline to be complied with by all stakeholders. According to the Act, the action plan is required to be developed within six months from the date on which the National Council is established.

The National Council is empowered to act through its board, which must be constituted of not more than fifteen members. Structurally, the board must be comprised of a chief executive officer, seven representatives from civil society and the private sector, and one representative from each of the following organs of state:

• Department of Department of Women, Youth and Persons with Disabilities;
• Department of Justice and Constitutional Development;
• Department of Social Development;
• Department of Health;
• Department of Co-operative Governance and Traditional Affairs;
• Department of Basic Education;
• South African Police Service; and
• National Prosecuting Authority.

The Act provides that the civil society and the private sector representatives must be appointed by the President. Based on the National Strategic Plan on GBVF (first published in 2020) the Presidency envisages appointing the civil society (and possibly private sector) representatives based on a public participation process. In October 2020, the Department of Women, Youth and Persons with Disabilities published an invitation for nominations of candidates to be considered for appointment to positions on a “Board of Trustees that will establish” the National Council. However, it is unclear what the outcome of that process was and whether any appointments were ultimately made.

It is hoped that by establishing and operationalising the National Council, South Africa’s efforts to combat GBVF will proceed in a more coordinated fashion, with input from people who are well-placed to advise on ways in which the scourge can be fought. While the implementation of the Act is an important step, there is still a long way to go to reduce and ultimately eliminate GBVF.

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by Ngwalemorwa Matsapola, Candidate Attorney.

Reviewed by Naledi Motsiri, Director.

Consulting with an attorney for the first time can be a nerve-racking experience for most individuals – there may be a lot of fear and uncertainty in respect of how the legal process will unfold, the possible outcome and the costs involved. Therefore, in this article we set out five tips that will optimise your first consultation and ensure that the journey towards resolving your legal matter kicks off in the best way possible.

The first consultation is an essential step in establishing a conducive relationship between you, the prospective client, and the attorney, as it is during this consultation, where the attorney will have an opportunity to assess your legal needs and obtain the necessary information and background on your matter. 

Once an attorney has sufficient information about your matter, they will be able to (i) evaluate whether they have the necessary resources, knowledge and experience to adequately handle your matter, and (ii) advise on possible outcomes. During the first consultation, the attorney should also discuss important aspects that may affect the potential attorney‑client relationship such as the legal fees that will be involved, expected timelines and potential conflicts of interest.

Regardless of the nature of your legal matter, the following five tips may help you to prepare ahead of time and make the most of your first consultation with an attorney.

BRING ALONG THE NECESSARY DOCUMENTS

In terms of section 21 of the Financial Intelligence Centre Act 38 of 2001, before an attorney may establish a business relationship or conclude a single transaction with a client, they have the duty to:

1. establish and verify a prospective client’s identity and
2. ascertain the source of the funds which the prospective client expects to use to pay the legal fees.

In view of the abovementioned duty, it is essential that you bring along the necessary documents to:

1. prove your identity,
2. confirm your residential address, and
3. verify your source of income.

These documents include, amongst other things, your identity document or passport (if you are a foreign national), your proof of residence (for example, your utility account), your most recent bank statements for the immediately preceding three-month period, and any other documents that you deem relevant to your matter.

If you are uncertain as to which documents the attorney will require, it is advisable to contact their office prior to the consultation to ensure that you are able to provide the attorney with all the necessary information during the first consultation to avoid delays.

BE ABLE TO ARTICULATE THE ASSISTANCE THAT YOU REQUIRE

As you prepare for your first consultation, it is important to make sure that you are able to articulate the nature of the assistance you require and the desired outcome for your case.

Clients can have a broad spectrum of needs in respect of their matters, such as legal representation, a second opinion or once-off legal advice.

Therefore, it is essential to have a fundamental understanding of your legal needs or preferred outcome and to clearly communicate this to the attorney.

This will assist in ensuring that you are both clear on the scope of the instruction. It is also important for you to provide the attorney with detailed information, and copies of all relevant documents and correspondence, to enable the attorney to better understand your matter.

DO YOUR HOMEWORK AND PREPARE A LIST OF QUESTIONS

Similar to a job interview, it is important that you prepare a list of carefully considered questions that you would like to ask the attorney during the consultation.

This will not only help clarify your concerns, but it will also speed up the attorney’s determination of your legal needs, potentially reducing the consultation fees and maximising your money’s worth.  

FIND OUT ABOUT FEES

It is a common practice for attorneys to charge for first consultations – even if they do not accept your mandate. Therefore, it is important to ascertain whether a consultation fee will be payable and, if so, what the attorney’s fee structure is.

An attorney may charge an hourly rate, offer a free first consultation or charge you a fee in the event that the first consultation exceeds a certain period of time.

During your first consultation, it is also essential that you ask whether a deposit will be payable and clarify what the attorney’s fee structure or hourly rate is, in the event that you engage the attorney.

If you are consulting with an attorney who offers pro bono legal services, you will not be expected to pay a consultation fee or make any payment for legal services. You may, however, be subjected to a means test in order to determine whether you qualify for this service, which is strictly reserved for indigent people who cannot afford to pay legal fees.

HONESTY AND TRANSPARENCY

As a prospective client, you must be completely honest and transparent with your attorney about all aspects of your matter, even if you believe that certain information may work against you in your case.

Withholding details may hinder the quality and accuracy of the attorney’s advice and will ultimately have a negative effect on the outcome of your case.

Following your first consultation, you may choose to appoint the attorney, or you may decline the attorney’s representation and search for another attorney.

In certain instances, the attorney may refer you to another attorney whose knowledge and experience would be more appropriate for your situation or may decline the instruction due to a conflict of interest.

Remember, your first consultation with an attorney can be overwhelming but it does not have to be. Being adequately prepared and asking carefully thought-out questions will ensure that your legal matter commences in the best way possible.

The five tips set out above will go a long way in ensuring that you have a productive first consultation with an attorney.

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