Archive by Author | Sasha Jungschlager

What Is Happening With The RAF’s New Actuarial Panel?

6 Actuaries

For those who don’t know (I would imagine you would be claimants attorneys and disgruntled defendants attorneys) the RAF has announced that it is to implement a new panel of 6 actuaries, who will be appointed on a rotational basis at branch level, to calculate loss of income and support claims for the RAF and its panel attorneys.

It would seem that should a defendant’s attorney want to appoint an actuary on a matter he or she would have to send a request to the relevant branch and they will then issue him/her with a name from the new panel based on a rotational allocation system whereafter the attorney would then send the actuary the instruction.

The new panel and the rotational system was initially set to be implemented on 1 April 2013 which might have caused some confusion out there as to whether you, as a defendant attorney, have to appoint actuaries from the new panel.

The answer is NO, the implementation date of 1 April 2013 has been postponed sine die, hence you can still appoint IAC or any other actuary you used to appoint.

I will keep you updated of any progress or developments herein.

Sending us an Instruction

Our dedicated full time professional team receive instructions by any of the following means:

• Email : damagesclaims@iac.co.za, or
• Post : PO Box 1172, Cape Town, 8000
• Fax : 086 616 8308

Now for some fun –

A prominent young attorney was on his way to court to begin arguments on a complex lawsuit when he suddenly found himself at the Gates of Heaven. St. Peter started to escort him inside, when he began to protest that his untimely death had to be some sort of mistake. “I’m much too young to die! I’m only 35!” St. Peter agreed that 35 did seem to be a bit young to be entering the pearly gates, and agreed to check on his case. When St. Peter returned, he told the attorney, “I’m afraid that the mistake must be yours, my son. We verified your age on the basis of the number of hours you’ve billed to your clients, and you’re at least 108.”

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Can An OT Or IP Assess A Plaintiff For Purposes Of The RAF 4?

Court of appeal

The RAF v Duma, Kubeka, Meyer & Mokoena [2012] ZASCA 169 (27 November 2012).

The Fund contended on appeal that the High Court should have held in each case that the issue whether the plaintiff had suffered ‘serious injury’ had not been determined by the method prescribed by the regulations and that the High Court should therefore not have awarded general damages.

In all four cases the RAF 4 form was signed by a psychiatrist, Dr Braude. In all four cases the Fund filed special pleas stating that the plaintiff had not complied with regulation 3 and that his or her claim for general damages was either not competent or premature. In all four cases the Fund subsequently rejected the RAF 4 by means of a letter from its attorneys. These letters were written at least one year after the RAF 4 form had been delivered to the Fund and very shortly before the commencement of trial.

In each case the RAF 4 was completed by Ms Marks an occupational therapist and signed by Dr Braude without him examining the patient, instead relying on the hospital records and other expert reports which in some cases were 7 months old.

The Fund contended in the High Court that the plaintiffs’ RAF 4 forms did not comply with regulation 3 because Dr Braude had failed to do a physical examination and Ms Marks was not a medical practitioner, the RAF 4 forms had been rejected by the Fund, and therefore the plaintiffs’ remedy was to declare a dispute with the HPCSA in terms of regulation 3(4); and that in the circumstances, the court could not entertain the claims for general damages.

The High Court did not agree and held the RAF 4 forms were in fact compliant with regulation 3 and it was apparent from the medical evidence that the plaintiffs did indeed suffer serious injuries.

Moreover, the Fund’s rejection was invalid because the Fund had failed to reject the RAF 4 forms within a reasonable time and its right to do so had therefore expired and secondly, since the Fund had given insufficient or invalid reasons for its rejection, it did not constitute a proper rejection.

The Appeal Court did not agree with the High Court’s construction that if the Fund should fail to properly or timeously reject the plaintiff’s RAF 4, such rejection can be ignored, if the medical evidence before the court then shows that the plaintiff was indeed seriously injured the court can decide the issue of general damages.

The Appeal Court held this approach to be fundamentally flawed as the legislature chose to confer the right to decide whether or not an injury is serious enough to justify an award of general damages on the Fund and not on the court.

The Appeal Court further held that any determination of the period within which the Fund should reasonably take that decision must depend on the facts of each case.

As regards the 2nd reason given namely that the the RAF 4 forms were rejected without proper reasons the Appeal Court held that the Fund’s decision to reject the RAF 4 forms constituted administrative action and until that decision was set aside by a court on review or overturned in an internal appeal, it remained valid and binding.

Additionally the court was asked to deal with the question of whether the RAF 4 forms in these cases met the requirements of regulation 3(1).

Must a medical practitioner physically examine the claimant for purposes of the assessment?

The honourable Judge found that regulation 3(1)(a) requires a medical practitioner to physically examine a claimant.

Can the assessment be done by an occupational therapist?

The short answer is no. The honourable Judge found that Ms Marks, who is an occupational therapist, did not qualify as a “medical practitioner”, within the meaning of regulation 3(1)(a), but rather as a “health practitioner”.

Can an assessment in terms of regulation narrative test be conducted without first performing the assessment in terms of regulation AMA guides?

The honourable Judge found that if one had a look at the contents of the RAF 4 form itself, which is incorporated in the regulations, it is of significance that paragraph 4, which deals with the AMA guides, contains the substance of the report. If paragraph 4 were to be left uncompleted, the report would be of little substance. The inference to be drawn from the contents of the report is that it was never intended that an assessment could bypass the AMA/WPI test.

Sending us an Instruction

Our dedicated full time professional team receive instructions by any of the following means:

• Email : damagesclaims@iac.co.za, or
• Post : PO Box 1172, Cape Town, 8000
• Fax : 086 616 8308

Now for some fun –

Who is the roundest knight at king Arthurs table?
Sir Cumfrence

Unmarried Partners And Dependents Now Have A Claim For Loss Of Support

RAC image

Paixão v Road Accident Fund (640/2011) [2012] ZASCA 130

The main issue in this appeal was whether or not the common law should be developed to extend the dependents’ action to permanent heterosexual relationships.

The appellants sued the Road Accident Fund for loss of maintenance and support arising from the death of José Adelino Do Olival Gomes in a motor vehicle collision on 2 January 2008. The deceased had been living with the first appellant (Mrs Paixão) and her children at the time and supported them financially. He had planned to marry her, but had not yet done so.

The South Gauteng High Court found that the deceased had supported the appellants out of ‘gratitude’ in return for their assistance during his illness rather than from any legal duty, and also that it ‘would be an affront to the fabric of our society . . and seriously erode the institution of marriage’ if the dependents’ action were to be extended to the appellants. It therefore dismissed their claims but granted them leave to appeal to the SCA.

In its judgement the SCA stated that a plaintiff’s assertion that he or she was in life partnership, cannot be taken as sufficient proof of the fact. Proving the existence of a life partnership entails more than showing that the parties cohabited and jointly contributed to the upkeep of the common home. It entails demonstrating that the partnership had similar characteristics to a marriage.

The implied inference to be drawn from the proven facts must be that the parties, in the absence of an express agreement, agreed tacitly that their cohabitation included assuming reciprocal commitments – ie a duty to support – to each other.

The facts showed that the community accepted the deceased, Mrs Paixão and her children as a family and did not regard their cohabitation as opprobrious. Cohabitation outside of a formal marriage is now widely practiced and accepted by many communities universally and therefore not against the boni mores.

Evidence that the parties intended to marry may be relevant to determining whether a duty of support exists, as in this case. But it does not mean that there must be an agreement to marry before the duty is established.

The court held that the dependents’ action is to be extended to unmarried persons in heterosexual relationships who have established a contractual reciprocal duty of support.

Sending us an Instruction

Our dedicated full time professional team receive instructions by any of the following means:

• Email : damagesclaims@iac.co.za, or
• Post : PO Box 1172, Cape Town, 8000
• Fax : 086 616 8308

Now for your joke:
Q: What’s the difference between an accountant and a lawyer?
A: Accountants know they’re boring.

When To Submit The RAF 4?

Van Zyl v Road Accident Fund (34299/2009) [2012] ZAGPJHC 118 (11 June 2012)

The plaintiff was injured in a MVA on 2 August 2008. The period of three years specified for lodgement of a claim expired on 1 August 2011. The plaintiff’s claim was lodged on 8 January 2009. However the RAF 4 form was only served on 6 February 2012.

The defendant filed a special plea which states: ‘[t]he RAF 4 form may be submitted after the submission of the claim but before the expiry of the periods for lodgement of the claim as prescribed in the RAF Act’ and that the plaintiff’s claim for general damages ‘prescribed on 1 August due to the fact that the RAF 4 was not submitted within 3 years from date of accident’.

The question before the court was whether or not the claim lodged on 8 January 2009 constitutes a claim in respect of general damages or does such claim only arise once the ‘serious injury assessment report’ has been lodged.
The defendant argues that, without submission of ‘a serious injury assessment report’, no claim in respect of non-patrimonial loss can or does exist.

The court held that the claim envisaged by the Act is neither correspondent with nor one and the same as the serious injury assessment report. They are two documents prepared for different purposes. The claim notifies the RAF of the identity of the claimant, the motor vehicle accident, the identification of the insured motor vehicle, the injuries and the loss caused thereby and the computation of the compensation claimed. The report provides support in substantiation of the claim, it is evidence of the claim, it is not the claim itself.

The court further held that the Act stipulates only one procedure for presentation of the claim. Where the form RAF 1 is completed in full and then submitted, the ‘claim’ as intended by the Act has been lodged. Should there be any challenge to the validity of the claim, then the RAF has a period of sixty days within which to notify the claimant of any challenge to thereto. If the claim was challenged by reason of absence of the supposed prerequisite of form RAF4, then one would expect the RAF to have notified the claimant.

The court further held that the prescription periods provided for in the Act, namely the initial three years and the extension of two years, are both periods during which the form RAF 4 may be submitted to the RAF.
The court further held that the obligation of the RAF to compensate the claimant may only arise once the form RAF 4 (the serious injury assessment report) has been submitted. Notwithstanding, that no liability of the RAF may arise prior to submission of RAF 4 form, the claim may be valid in all respects.

Accordingly the claim for compensation in respect of non-patrimonial loss has not prescribed.

Sending us an Instruction

Our dedicated full time professional team receive instructions by any of the following means:

• Email : damagesclaims@iac.co.za, or
• Post : PO Box 1172, Cape Town, 8000
• Fax : 086 616 8308

Now for a joke –

You Might Be A Lawyer If….

You are charging someone for reading these jokes.

The shortest sentence you have ever written was more than eighty words long.

You have a daughter named Sue and a son named Bill.

Your other car is a BMW.

When you look in a mirror, you see a lawyer.

When your wife says “I love you,” you cross-examine her.

Loss of Earning Capacity vs An Actual Patrimonial Loss

Dear Reader,

Welcome to the thirtieth edition of Independent Actuaries & Consultant’s (IAC’s) monthly newsletter.

IAC Training 2012 – Time Management Workshop for all supporting staff

Based on the lack of response regarding the training seminar on how to work with the IAC blog we have decided not to proceed with same.

However, in line with our ethos of adding value to our clients business, we are looking at presenting a time management workshop aimed at equipping your supporting staff (personal assistants, office managers, legal secretaries, typists and article clerks) to better manage their time and your resources thereby increasing productivity.

The workshop will take place during the July 2012 recess, depending on your response.

Please indicate via return mail whether you are interested and how many people from your firm might attend.

court

LOSS OF EARNING CAPACITY vs AN ACTUAL PATRIMONIAL LOSS – Mvundle v Road Accident Fund (63500/2009) [2012] ZAGPPHC 57 (17 April 2012)

The plaintiff, the driver of a Mercedes-Benz bus, was involved in a motor vehicle collision. As a result of the collision the plaintiff sustained the following injuries: soft tissue injury of the scalp, neck, shoulder and ankle; loss of 50% of his sight to the left eye and emotional trauma.

The Plaintiff was employed as a professional driver for most of his working life. His claim for loss of earning capacity was based on him no longer being physically able to drive because of the shoulder injury, loss of sight in his left eye and head injuries sustained in the accident.

In considering the claim the court held that it’s trite law that any claim in respect of future loss of earnings / earning capacity requires:

“36.1 A loss of earning capacity as a result of a damage causing event; and
36.2 An actual patrimonial loss of income as a result of the above mentioned loss of earning capacity. In which case, either the one or the other may be claimed for the same amount.”

The court further held as trite that damages for loss of income can be granted where a person has in fact suffered or will suffer a true patrimonial loss in that his or her employment situation has manifestly changed. The plaintiff’s performance can also influence his patrimony if there was a possibility that he could lose his current job and be limited in the number and quality of his choices should he decide to find other employment.

In casu the honourable Judge found that had the plaintiff remained in his erstwhile employment he would not have succeeded in his claim for loss of earnings / earning capacity. But because he left the job, irrespective of what the cause was, he must be compensated if he could establish that but for the accident he was no longer fit to drive and that his choices, either in number or quality, of finding alternative employment were now limited and his chances of retraining for a new career were negatively affected.

Sending us an Instruction

Our dedicated full time professional team receive instructions by any of the following means:

• Email : damagesclaims@iac.co.za, or
• Post : PO Box 1172, Cape Town, 8000
• Fax : 086 616 8308

Now for a joke –

Q: What’s the difference between a lawyer and a herd of buffalo?
A: The lawyer charges more

RAF 4 – The 60 Day Period Rejected

writing on form

Van Loggerenberg v RAF

In this case the plaintiff submitted a serious injury assessment form i.t.o. reg 3(3)(a) describing her injuries as a serious long term impairment or loss of a body function. The Dr’s handwritten notes stated that she had lost ¾ of her left index finger.

The defendant rejected her RAF 4 form 5 days before trial informing her that her injury does not constitute a 30% WPI as required i.t.o. the AMA guides and further that her RAF 4 form establishes no basis that the four elements of the narrative test has been satisfied.

The letter continued stating that if the plaintiff wishes to dispute the rejection she can do so by following the procedure set out in Reg 3(4) and 3(13).

Subsequently a special plea was raised that the plaintiff cannot claim general damages unless she complies with the act. The plaintiff did not respond, instead the plaintiff relied on the Louw matter, stating that the Fund had to reject the RAF 4 within 60 days of receiving it, failing which the claim for general damages is a valid claim.

The judge disagreed stating that neither the act not the regulations stated a time period within which the fund had to reject the plaintiff’s RAF 4 form.

The judge further stated that he is of the opinion that there should be a distinction between a claim for pecuniary and non-pecuniary loss in regards to the provisions of Sec 17(1)(b) of the act.

The judge went on to distinguish this case from the Louw matter on the grounds that in the latter case evidence was presented to the court in respect of the seriousness of the plaintiff’s injuries.

In closing the judge stated that the RAF 4 form should deal with the effects of the injury in detail where the narrative test is employed.

The special plea was upheld.

How to Prove the Existence of a Customary Marriage

NTHEJANE v RAF

Rings

The plaintiff sued the defendant for maintenance on behalf of herself and her minor son, Bongani, arising out of the death of Lethusang Johannes Azor (the deceased). She alleged that she was married to the deceased in terms of a customary union.

The only issue for the court to decide was whether or not the plaintiff was married to the deceased in terms of a customary union. The plaintiff called the evidence of her grandfather, Simon Nthejane and she also testified.

Mr Nthejane’s testified that the plaintiff had a relationship with the deceased and they had a child, Bongani. After the birth of Bongani Mr Nthejane approached the deceased’s grandmother who indicated that her family would like to take the plaintiff as their daughter-in-law. They agreed to enter into lobolo negotiations, it was agreed that they would give him 10 cows. This would be done at a later date.

A traditional ceremony, in accordance with Sotho culture, was held at the house of the deceased’s family where the plaintiff was made to wear traditional bridal clothes and a sheep was slaughtered as part of the ceremony to welcome her as a daughter-in -law of the Azor family. She thereafter took up residence in the home of the deceased. It was also Mr Nthejane’s evidence that although the lobolo had not yet been paid, it was his intention to claim it from the Azor family.

The plaintiff corroborated her grandfather’s evidence in all material respects.

The plaintiff then closed her case. The defendant closed its case without leading any evidence.

The legislation regulating customary marriages is the Recognition of Customary Marriages Act 120 of 1998 (the Act). Section 3(1) of the Act provides as follows:

“For a customary marriage entered into after the commencement of this Act to be valid –

(a) the prospective spouses –

(i) must both be above the age of 18 years; and
(ii) must both consent to be married to each other under customary law; and
(b) the marriage must be negotiated and entered into or celebrated in accordance with customary law.”

The defendant did not dispute that the lobolo negotiations had been concluded or that the traditional ceremony and celebration took place.

However, the defendant contended that the plaintiff cannot claim to have entered into a customary union as the lobolo had not been paid.

From Mr Nthejane’s evidence, it is clear that the arrangement regarding lobolo was acceptable to both families.

The court referred to the matter of FANTI v BOTO AND OTHERS 2008(5) SA 405 (C) in which the essential requirements to prove the existence of a customary marriage is set out:

“All the authorities are in agreement that a valid customary marriage only comes about when the girl…has been formally transferred or handed over to her husband or his family. Once that is done severance of ties between her and her family occurs. Her acceptance by the groom’s family and her incorporation into his family are ordinarily accompanied by well-known extensive rituals and ceremonies involving both families [para 22]… The importance of these rituals and ceremonies is that they indicate in a rather concretely visible way that a customary marriage is being contracted and that lobolo has been paid and/or the arrangements regarding the payment of lobolo have been made and that such arrangements are acceptable to the two families – particularly the bride’s family”

The court held that the evidence tendered on behalf of the plaintiff established that:

“11.1 The plaintiff and the deceased were both above the age of 18 years at the time they were married;
11.2 Both the plaintiff and the deceased consented to be married to each other by customary law;
11.3 The marriage was properly negotiated, and celebrated in accordance with customary law. Although lobolo was not paid, adequate arrangements, which were accepted by both families, were made for payment of lobolo.
11.4 The plaintiff was “handed over” to the family of the deceased and took up residence in his family home after the ceremonies were performed.”

The court held that the Plaintiff had proven a valid customary marriage existed between herself and the deceased.

Conceding Merits – The Scope of Liability

Dear Reader,

Welcome to the twenty sixth edition of Independent Actuarial Consultant’s (IAC’s) monthly newsletter.

Have your say, build your practice with the IAC Blog.  This newsletter goes out to more than 1 000 MVA attorneys, advocates and claims handlers across South Africa.

If you want to build your practice, ask a question, get an opinion or simply speak your mind, the IAC Blog is the right forum.

We will publish interesting articles from practitioners from time to time.  Should you with to have your own article published, please email same to me at roelf.nel@iac.co.za

 

CONCEDING MERITS – THE SCOPE OF LIABILITY – Gusha v The Road Accident Fund (158/2011) [2011] SCA 242

Red yield sign

On 14 February 2006 the appellant was a passenger in a motor vehicle when it swerved off the road to avoid an oncoming unidentified motor vehicle being driven on the incorrect side of the road. The vehicle capsized and the appellant sustained severe injuries which left him paralysed.

The appellant sued the respondent for R6,7 million in damages alleging that the accident had been due to the negligence of the driver of the unidentified motor vehicle.
Before the issue of summons the parties came to an agreement wherein the respondent accepted “liability for the damages still to be proven, which the (appellant) has suffered as a result of the bodily injuries he sustained in the accident”.

At the trial of the matter the court was asked to decide whether, on a proper construction of the agreement, it was still open to the respondent to apply to amend its pleadings to allege that there should be an apportionment due to the appellant’s contributory negligence by not wearing a seatbelt.

The parties agreed to separate this issue for adjudication.

After hearing the parties, the high court concluded that the terms of the agreement did not prohibit the respondent to amend its plea. The appellant appealed to the SCA.

Both parties accepted that the concession of ‘the merits’ meant no more than that the driver of the unidentified motor vehicle had been negligent.

However, the respondent also accepted ‘liability for the damages, still to be proven, which the Plaintiff has suffered’.

The respondent argued that it had thereby intended to do no more than to accept liability for the damage caused by the negligence of the driver and, if the appellant had not been wearing a seatbelt and his failure to do so contributed to his injuries, the respondent had not undertaken to be held liable for that harm. The acceptance of ‘liability’ had therefore been limited.

The SCA rejected the respondent’s argument. In interpreting the agreement, the correct approach is to have regard to the normal grammatical meaning of the relevant words, the context and the background circumstances.

At the time the respondent was facing a claim for damages it had accepted that the driver of the unidentified motor vehicle had been negligent. The respondent clearly gave no thought at the time to the possibility of any contributory negligence on the part of the appellant. In these circumstances the respondent accepted liability without qualification.

The appeal succeeded with costs.

Sending us an Instruction

Our dedicated full time professional team receive instructions by any of the following means:

• Email : damagesclaims@iac.co.za, or
• Post : PO Box 1172, Cape Town, 8000
• Fax : 086 616 8308

 Now for some fun –

The car wreck.
A doctor and a lawyer got into a car accident, on a small country road. The lawyer had figured that nobody else would be on the road, and had raced through a stop sign. The doctor, on a cross street, had no time to react and couldn’t have missed the lawyer if he had tried. Fortunately, neither driver was hurt.
The lawyer, seeing that the doctor was a little shaken up, helped him from his battered car and offered him a drink from a hip flask.The doctor accepted, took a deep drink, and handed the flask back to the lawyer. The lawyer held the flask for a minute or two, and gave it to the doctor again. The doctor took another swig. He again returned the flask to the lawyer, who closed it and put it away.
“Aren’t you going to have a drink yourself?” asked the doctor.
“Not now,” answered the lawyer. “I’ll have something after the police leave.”

The Serious Injury Appeals Tribunal

Dear Reader,

Welcome to the twenty fifth edition of Independent Actuarial Consultant’s (IAC’s) monthly newsletter.

AKAAI JUDGEMENT ANALYZED – SOUTH GAUTENG HIGH COURT, CASE NO: 10/04245

BlackWhite Professionals

In this matter the fund raised a special plea questioning whether the Court had the jurisdiction to deal with the issue of general damages as they alleged the plaintiff did not comply with regulation 3 of the Regulations to the Act.

In compliance with regulation 3(1)(a) the plaintiff submitted himself to an assessment by medical practitioners. Duly completed RAF4 forms were provided in terms of the narrative test.

In terms of regulation 3(3)(c) the Fund shall only beobliged to compensate a third party for non-pecuniary loss if a claim is supported by a serious injury assessment report and the Fund is satisfied that the injury has been correctly assessed as serious. However, in terms of sub-regulation (3)(d)(i) to (iii), if the Fund or agent is not satisfied that the injury has been correctly assessed, the Fund must:

“(a) reject the serious injury assessment report, and furnish the third party with reasons for the rejection, or

(b) direct that the third party submit himself or herself, at the cost of the Fund or an agent, to a further assessment… “

In terms of regulation 3(3)(e), the Fund must either accept the further assessment or dispute the further assessment in the manner provided in regulation 3(4)(a) to (c) which states:

“(4) If a third party wishes to dispute the rejection of the serious injury assessment report…, the disputant shall ─

(a) Within 90 days of being informed of the rejection or the assessment, notify the Registrar that the rejection or the assessment is disputed by lodging a dispute resolution form with the Registrar;

(b) in such notification set out the grounds upon which the rejection or the assessment is disputed and include such submissions, medical reports and opinions as the disputant wishes to rely upon; and …”

In terms of regulation 3(5) once the Registrar is notified that the rejection or
assessment is disputed the rejection or the assessment shall become final and binding.

The Registrar shall after receiving the notification from the other party or the expiry of the 60 day period refer the dispute to an appeal tribunal paid for by the Fund.

Amongst other objections the defendant had directed the plaintiff to submit himself to a further assessment, which he did. The alternate serious injury assessments obtained by the defendant confirmed the assessment of the plaintiff’s injuries as serious.

As indicated earlier, in terms of regulation 3(4), if a third party wishes to dispute the rejection of the serious injury assessment then the third party must lodge a notice of the dispute with the Registrar. The plaintiff did not dispute the assessment performed by the defendant’s experts and it, therefore, did not refer a dispute to the Registrar to be considered by an appeal tribunal.

The defendant contended that once it rejected the serious injury assessment reports of the plaintiff, the plaintiff was required to refer the dispute to the appeals tribunal.

The court held that in view of the agreement between the plaintiff’s experts and those of the defendant’s as to the seriousness of the injuries there was no dispute which requires referral to the appeals tribunal. The mere say so by the Fund that it rejects the serious injury assessment report/s of a claimant’s medical practitioners does not, in itself, create a dispute.

Accordingly, absent a dispute as to the seriousness of the injuries, there can be no basis upon which a referral to the appeals tribunal would be justified. The defendant’s special plea was rejected.

The plaintiff was awarded R200 000 in respect of general damages.

Interestingly, during argument, counsel for the Fund contended that the Act does not contemplate the establishment of one single appeal tribunal, but rather that an appeal tribunal is to be convened by the Registrar following procedural compliance by the claimant after rejection, by the Fund, of his or her serious injury assessment report. In other words an appeals tribunal will be constituted by the Registrar, from time to time, and as and when a dispute requires consideration.

This contention seems to be in conflict with the obiter statement made in the Mngomezulu judgement, as analyzed in my October newsletter, quoted here for your ease of reference.

“3. Matters cannot be referred to the tribunal i.t.o. Reg 3(4) until such time that the tribunal is operational. – Par 41 & 50”

Sending us an Instruction

Our dedicated full time professional team receive instructions by any of the following means:

Email : damagesclaims@iac.co.za, or
Post : PO Box 1172, Cape Town, 8000
Fax : 086 616 8308

Now for some fun –

Ambulance chaser.

Did you hear about the lawyer hurt in an accident?

An ambulance stopped suddenly.

Passenger Claims – Proposed Draft Legislation

Parliament has now published draft legislation to deal with passenger claims in light of the Mvumvu judgement.

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I expressed the opinion in my July newsletter (issue no.24) that if parliament does not enact some mechanism for passenger claims, where summons was issued in the Mag court and prescription has taken place, to be transferred to the High court, some claimants might not receive any benefit from a different compensation regime.

This is exactly what has transpired.

Based on the Oosthuizen judgement (again this is available under the judgement tab at the top of this page), as discussed in my July newsletter, there are two factors weighing against a claimant successfully transferring his claim where he has issued summons in the Mag court and prescription has taken place namely, “the high court can only exercise its inherent jurisdiction … when confronted with a case over which it already has jurisdiction” and “A high court may not use its inherent jurisdiction to create a right.” especially if prescription has extinguished part of a claim.

However, such a scenario would not be based on any fault or oversight on the part of the claimant or his attorney but it would be a case of “the appellant’s access to court being impeded by some lacuna in the law” and “Furthermore the appellant is … without remedy.” These two factors might convince the court that “it is a case in which it is necessary to fashion a constitutionally acceptable remedy because of the interests of justice”

What are your views on this?