My most recent survey of attorneys, with regard to what they expected the Constitutional Court to find to be in the challenge on the new Road Accident Fund Act, was interesting as always.  95% of attorneys think the Law Society of SA will win the common law aspect of the challenge while only 23% believe that we will win all the other aspects of the challenge.  77% indicated that they did not know, until the hearing, that the general damages aspect of the challenge was not proceeded with before the Constitutional Court.  That will obviously have to be saved for another day, either by the Law Society or an attorney.  62% think that the judgment will take about three months to be delivered, while 33% went for one month and only 3% said in two weeks’ time. 

What was interesting however is that only 5% of attorneys on my newsletter list actually attended the Constitutional Court hearing and of that 5%, 50% feel that we will win the common law challenge and 50% believe that we will not.  In other words, those who did attend the hearing, are not as optimistic as those who did not attend the hearing.

The proverbial man in the street is forever complaining to the media that there is never any justice, or that only the wealthy get justice.  Subpoena that man in the street to court, as a witness in a case, and he will howl and protest and make every story under the sun to avoid giving his testimony.  Too many people don’t realise that the justice system depends on all of them and they prefer to listen to the radio, or watch TV (nobody seems to read anymore) and then call in to talk shows and mouth off about the justice system. 

I must say I’ve had my fair share of abusive witnesses who have been subpoenaed to court in various clients’ cases, and who always say, even if they got the subpoena three months before the trial date, that they just cannot be there and in any event, they decide themselves that they are not needed for the trial.  Making the courts work starts with everyone of us and it starts with doing your duty when you are called upon to testify.

In terms of the new laws, there are no limits on passengers’ claims, although they don’t qualify for much compensation either.  In terms of the old Road Accident Fund Act, a passenger’s claim was limited to R25 000,00.  A recent judgment has held that this limit is unconstitutional and the matter will now no doubt be taken on appeal by the Road Accident Fund. 

 am quite sure that they will be unsuccessful, and it is something I reported in my legal newsletter more than a year ago, and placed on record at that time that my firm had taken the same point in pleadings in a number of our bigger passenger cases but which unfortunately the defendants either had not picked up or reacted to.  In other words, we have pleaded that the limit is unconstitutional, in a number of our bigger cases, for the last year or so with the intent of taking this matter to the Constitutional Court.  I am only sorry that other attorneys will get there first! 

It seems a lot of attorneys have always been reluctant to bring a challenge on this basis, thinking that the Constitutional Court had heard this case before, whereas they always confuse the fact that a Johannesburg firm at that time brought a challenge based on the new Constitution, but for a case that had happened before the new Constitution came into effect in 1994.  The Constitutional Court rejected their argument largely on the basis that the legislation could not be retrospective and it appears that leading firms of attorneys took this to mean that the passenger case limit was valid when in fact clearly it was not. 

In any event, there is some way to go still, with the case being heard, but attorneys should not settle any substantial cases, that exceed the R25 000,00 limit, before this matter is finalised, as I warned in an article in my newsletter at www.legalnewsletter.co.za a year ago.

Attorneys will be happy to know that the party and party costs increase that we were promised, a year after the last increases, have now been Gazetted at a rough estimate, on the items that I checked, they have increased approximately 20%.  These increases come into effect from 16 July 2010.

 The Law Society applied to the Competition Commission for exemption of a number of its rules including its rules on professional fees, reserved work, organisational forms and multi-disciplinary practices and advertising, marketing and touting.  The Law Society has been advised that its application to exempt these rules has been rejected.  

A Johannesburg law firm has subpoenaed Regional and Executive Management of the RAF in respect of some of it’s High Court Trials. The contention of the attorney is that her clients are being hugely prejudiced by  inter alia having to cover preparation and/or reservation fees and costs of counsel when the bulk of these costs can and should be avoided.  We all know that the majority of High Court claims against the RAF settle on the steps of Court at the eleventh hour and at substantial cost to both the RAF and the accident victim.The attorney in question believes that this issue needs to be put before the court and this can only be done so with Executive and Regional Management present.She initially served about a dozen subpoenas in respect of different matters but has now agreed to withdraw all of them except for one. She feels that a public interest issue of such importance simply must be ventilated before the court.  The matter is apparently set to go to Court in April 2010.We all experience this problem, defendant and plaintiff attorneys alike. Defendant attorneys struggle to get instructions from the RAF and plaintiff attorneys are left to explain the astronomical trial costs to their clients.

The RAF has brought an application to have the subpoenas set aside and the attorney is opposing the application. This is an excellent opportunity to voice your opinion. Why not email me your views alternatively make some comments.  We’ll keep you posted as to what transpires.

There are always two sides to a story and I’ve found, over the years, that the clients that complain the most normally have the most to hide.  I’ve had two particularly interesting stories in the last two weeks, one being a client who complained that his case is taking far too long to handle and has been going on for years and threatened to contact the media if I did not give him a good enough explanation timeously.  A quick dig into the file revealed that the matter had been postponed on the previous occasion because none of our medical experts were prepared to consult with the client about his possible future loss of income claim, while he continued serving out his jail sentence for fraud in prison. 

A few days later I got a journalist from a tabloid newspaper calling me about a client who is unhappy about a R70 000,00 award that she got for soft tissue injuries of her lower back feeling that she could never work again, and that we did not adequately settle her claim and nor that the matter ever went to court.  The reporter did not seem to understand the very fact that he had a court order in his hands which was proof that she had been to court and somewhat surprisingly the advocates and attorneys who had been with her at court, all remembered the occasion quite well – probably because the case fell apart when her “retrenchment” due to the soft tissue injuries of her lower back was discovered to have taken place some 4 years after the accident and worse, she was in fact fired for stealing! 

The one thing I have learned is that the people that invariably terminate your mandate to go to another attorney, or do threaten you, are normally the clients who have been dishonest in the handling of their case or have some extreme discomfort with some of the tough questions you have to ask them about certain aspects of their story.  I was quite relieved approximately a year ago when a Pretoria attorney released me of a case of a client, who had alleged that his son was brain damaged and could not work and who my specialist had suggested was malingering, was taken off my hands and comprehensive undertakings given to me by the other attorney.  The defendant attorney subsequently revealed to us that they had devastating evidence along similar lines, in fact worse than what we had already uncovered, and the settlement that they did get in the end barely just covered my fees.  I got paid, and I think the other attorney, who I warned of the potential problems in the case, but thought I was trying to put him off the case and ignored me, probably learned a very valuable lesson in doing considerable amounts of work to basically earn nothing.

The Law Society of South Africa (LSSA) urges Minister of Justice and Constitutional Development Jeff Radebe to withdraw or suspend the appointment of Mokotedi Mpshe as an acting judge of the North-West High Court: Mafikeng to allow the Judicial Service Commission (JSC) to consider the matter and make its official views public. The JSC is scheduled to meet again in April. 

The Road Accident Fund constitutional case between the Law Society of South Africa and the Minister of Transport is going to be heard in the Pretoria High Court, from the dates 1 to 3 March 2010.  No doubt the party who loses this is ultimately going to appeal the decision, but we are very close to the hearing of the matter!

The Parliamentary Portfolio Committee for Transport was given the draft proposals for this new set of legislation on Wednesday, 3 February 2010.  They plan to have the legislation enacted during next year but the policy document, certainly as I understand it, will be published in next week’s Government Gazette and after that the public will be given until April only to comment.  I say April only, because this is based on a 2 000 page report by Judge Satchwell and the policy considerations are absolutely huge.  Amongst the changes:  No fault, no pain and suffering – even for serious injuries, no lump sum for future loss of income.  You can listen to the audio of the Parliamentary Portfolio Committee meeting which runs to approximately 80 minutes, at this link on the  http://pmg.org.za/node/19788

As most of my readers will know, the Road Accident Fund has called a meeting and the topic is the finances of the Road Accident Fund and payment of capital and costs.  One just cannot imagine, with the amount of money that we are seen squandered at the moment by the Road Accident Fund on Sheriff’s fees and failure to settle small matters without incurring massive costs, that there can possibly be any good news.  The question is really how bad the news is going to be, what compromises are going to be expected of attorneys and what the Road Accident Fund is going to offer in return.  I don’t want the jump the gun by putting too many of my ideas in this blog, which tends to be quite well read, but I certainly think that the Road Accident Fund has to step back from their approach of blaming attorneys for everything, and take a long and serious look at themselves.  There are just way too many cases that are settled for under R1 000,00 where their claims handlers are just not capable of making a settlement offer and getting rid of the matter and the legal costs.  We hear of attorneys who do hundreds, if not thousands of suppliers’ claims for R1 000,00 or less who end up being forced to take the matter to court and the Road Accident Fund can be paying their own attorneys R10 000,00 or more in costs and the plaintiff attorneys anywhere between R5 000,00 to R8 000,00 in party and party costs and all of this to settle a claim that they could have gotten rid of by making an offer for R500,00 and tendering R1 200,00 or R1 600,00 in costs.  The proper use of tenders – and by that I mean the realistic offers that put plaintiffs under pressure and not farcical figures thumb sucked by claims handlers who have given no consideration to the matter, could also have dramatic cost savings for the Road Accident Fund.  I think the Road Accident Fund also needs to learn to be more honest with attorneys.  It has been patently obvious for the last 8 or 12 weeks that there have been financial problems at the Road Accident Fund but have we been told that?  No, we have been fed a bunch of stories about the software not working, the finance department’s staff still being on leave, the systems being down and all sorts of other stories while we are continually being leaked allegations that all settlements have stopped (thus forcing matters to court and increasing the legal costs) in an effort to reduce what the Road Accident Fund is paying out.