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<< January 2008  | February 2008 |  March 2008 >>
High Court trial dates
The JAA have received a lot of reports recently about problems with High Court trial dates.  Apparently a lot of matters have been enrolled irregularly and those firms are not being allowed to proceed with their dates.  In some cases, firms have apparently removed up to 300 matters from the roll for the rest of the year.  There are now huge queus outside the office of the Registrar for firms applying for "new" dates.  Apparently if you apply now you are getting May 2009 in Johannesburg, but the extra matters suddenly been applied for will see that move on pretty quickly.
Posted by Michael de Broglio on Wednesday 13-Feb-08   |  Permalink   |  0 Comments  Comments
Blog direction to change
Two conversations this week reminded me that this blog has a decent readership.  I have not been updating it as much recently as I have largely moved the Road Accident Fund content to a subscription site - a free one, but one has to register and this blog will most probably focus on more general issues in the future and be more of a marketing tool to the general public than attorneys.  The concept initially related to correspondent work - something I won't touch again.  Attorneys are poor payers, big squabblers and I really can't be bothered for the minimal income involved. 
Posted by Michael de Broglio on Saturday 16-Feb-08   |  Permalink   |  0 Comments  Comments
19 February is the day

The article below is extracted from my newsletter, for those who do not receive it:

The question everyone wants to know, and I am no different, is when are we going to hear more about the regulations, or for that matter, direct payments. The reality is that it is clear that what is holding the Road Accident Fund back at the moment is the Constitutional Case of Kruger v President of the Republic of South Africa & others, which is to be heard by the Constitutional Court on 19 February 2008. This is the case brought by Attorney Marius Kruger, from the Cape, in which he sought to set aside the initial promulgation, by the President, of the wrong sections of the Road Accident Fund Amendment Act – or, at least, the sections he did not intend putting into effect at that time! They then corrected that by simply issuing another Notice saying that that was a mistake and what was intended to be legislated. You will recall at that time, he issued a newsletter saying that our counsel advised us that this could not be done and so too agreed the Pretoria High Court whereafter the matter ultimately found its way to the Constitutional Court. It appears that the Department of Transport and Kruger are in agreement on one thing, and that that is that the first announcement was not valid. What made the second aspect of the case quite interesting, is that if one assumes that by simply publishing a correction Notice, as it were, that that would not be the proper way to enact legislation, then essentially one would be left in a possession that the appointment of the CEO himself, and every decision he has taken since that Notice, would be a legal nullity.

While it is essentially guaranteed that Kruger will succeed on the first point, it does not appear that he will on the second as one would imagine that the Constitutional Court is going to bend over backwards so as not to place the Road Accident Fund in that position. We have been told, that the Road Accident Fund then intervened in the matter, although that would normally be the roll of the Minister of Transport, who is the Second Respondent in this particular matter. In fact, Kruger himself says that he has not raised the question of whether the Second Proclamation, standing by itself, is valid and in his paper says “the result is that I am now being drawn into a new issue which was not raised in my Application”. He does, subsequent to the Road Accident Fund’s Application for direct access to the Constitutional Court and he has requested the Court to ask of the Fund to explain it’s failure to participate at an earlier stage and it would seem clear from his papers, although he does not oppose the Fund engaging on the case, that he does not believe they should be admitted as a party to the case at this late stage. Strangely, the Road Accident Fund has applied to be admitted to the case as an amicus curiae, which as you know, are not ordinarily liable for the costs incurred by parties to the litigation. In his affidavit, Jacob Modise, advises the Court that it was only at the end of October 2007 that he became aware of the Application to have the First Proclamation declared invalid, and off course, as you will recall from our Newsletter on 17 October 2007, Mr Modise led a delegation to Parliament, in respect of which we provided a link to the audio, where at that time, the legal adviser to the Department of Transport, presumably in Mr Modise’s presence, stated that not only had the first Proclamation been declared invalid, but that the affect of this was that the second Proclamation fell away. Kruger in his affidavit says, “it is difficult to believe that this was the first Mr Modise had heard of the matter.”

Mr Modise, in his Application, apologizes for the Fund arriving late on the stage as it were, and points out that one of the consequences of the Application may be that the members of the Board of the Road Accident Fund would appear unlawfully appointed and that any decisions that they took subsequent to 31 July 2006 may well have been invalid. He points out that the Board has taken no fewer than 93 Resolutions since that date. The Application of the Road Accident Fund is available on the site noting that you would have to use your log in details to obtain access. Visit the site at www.legalnewsletter.co.za and log in to see the Documents.

So, in short, that answers all of your queries about what is happening. The bottom line is that the Fund are obviously scared to act until the Constitutional Court makes a decision and they will have wait for the Hearing and thereafter Judgment, presumably a month or so later. One must not think however, that they have shelved any of their plans. There is no doubt, they will see the light of day as soon as the Constitutional Court has ruled in this matter presuming, that the Court does not Rule against the Fund on the issue of the Second Proclamation, something which we doubt it will, and something that not even Kruger is himself opposing.

Personally, I expect speedy action sometime after judgment - late March/early April perhaps?

Posted by Michael de Broglio on Monday 18-Feb-08   |  Permalink   |  0 Comments  Comments
RAF directive

Many attorneys have been issuing High Court summonses out of the area in which the RAF's offices are handling the claim.  This was in terms of a directive by the RAF.  They have now reversed that in an article published in the Jan/Feb De Rebus.   From now on, in the High Court you may only issue out of the Court having jurisdiction for the area in which the accident occurred or out of Pretoria where its principal office is situated.  Clearly in publishing this in De Rebus, the intention is to take this point in future on new summonses issued after this directive was published.

Posted by Michael de Broglio on Saturday 23-Feb-08   |  Permalink   |  0 Comments  Comments
WLD High Court matters

Big numbers of matters have been struck from the roll as being irregularly enrolled recently.

On Monday two weeks ago I witnessed Counsel for a major corporate law firm conceding their matter was on the roll irregularly and tendering costs.  There was no suggestion of anything untoward about the matter - but they had not followed the rules when addressing a letter to the Registrar asking to be allocated another date instead of the one he allocated - while in fact asking for a later date.

Rule 7(1) of the Transvaal Rules provides that one may set a matter down on he roll, "by entering the required particulars in the register kept by the registrar".  It appears many matters do not exist on the register at all.  Rule 7(2) provides the Registrar must then put those matters down in chronological order - another problem it appears.  The upshot is that DJP Mojapelo has struck matters off the roll and in matters where attorneys have continued to argue that they should be on the roll, awarded costs de bonis propis against them.

The problem has reached such proportions that attorneys with perfectly in order dates, are often required to obtain a copy from the register to show that their entry number coincides with that in the register.  Incidentally, you are meant to serve a notice on your opponent once you have enrolled same although some would argue that the service of an application or a trial dates is the same thing.  Either way, you certainly have to either serve an application on the trial roll on the other side or a notice indicating that you have enrolled the matter and the entry number you have been given.

Posted by Michael de Broglio on Wednesday 27-Feb-08   |  Permalink   |  0 Comments  Comments
Away from the office

I decided to try and get away from the stress of the office, builders, and the organized profession by taking in some rugby this weekend.  I must have picked the wrong games in terms of feeling like supporting winning teams!  The famous Bulls dancers look like a miserable, unconfident sorry bunch and the team played a similar game.  24 hours later I was at Ellis Park where either I was surrounded by drunk people who were not watching the game, or they just have a lot more spirit than the Pretoria crowd, because the atmosphere (with a smaller crowd) was much better despite a drubbing for the Lions.

I took in the Telkom PGA at The Country Club, Johannesburg (and members would remind you its name is THE Country Club and not Johannesburg Country Club) and was in awe of the power with which the pro's hit the ball.  I am a poor player by poor player's standard and to watch them demolish the course - or rather watch just Louis Oosthuizen demolish the course and the field was quite amazing.

Posted by Michael de Broglio on Monday 25-Feb-08   |  Permalink   |  0 Comments  Comments
TV program to watch tonight

Special Assignment featured the WCC last Tuesday. The re-broadcast is on Monday night at 10:30.  The show which will feature the organization in all its glory, representing as it does no fault compensation and the dreams of the RAF, apparently features staff playing computer games, doing their hair and of course anything not linked to actually opening post, handling claims or even paying them.  Watch on Monday, 25 Feb at 10:30pm

Posted by Michael de Broglio on Monday 25-Feb-08   |  Permalink   |  0 Comments  Comments

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