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More soccer - Bafana Bafana

I was very impressed by the performance of Bafana Bafana during the World Cup games and it certainly went as the clichéd saying goes, from strength to strength.  The free kick in the final 20 second of the game against Spain, to take it into overtime, was the kind of shock that you are beginning to believe that Bafana Bafana were not capable of, given that they are particularly good at creating numerous scoring opportunities, but not of taking advantage of them.  We need to take a note of the book of the United States in that regard who get precious few opportunities, but when they are in front of those goals, they seem to be fairly clinical about having a shot at goal, and making wonderful use of the very few opportunities that they do get.

Posted by Michael de Broglio on Wednesday 01-Jul-09   |  Permalink   |  2 Comments  Comments
Department of Home Affairs corruption

This seems to be an ongoing problem with some Departments working quite well and others not working that well and even more being overrun by what some people call “street agents.”  Some attorneys have even had to make suggestions to the Department that they erect cameras at certain corners inside the offices of the Department to address the corruption problems, but there appears to be reluctance from the Department of Home Affairs in this regard.  In a recent case involving permanent residency in the refugee backlog, a decision was made relating to the refugee status of a person living in South Africa 10 years after the person first arrived and the person now even had children that had been born in South Africa!

Posted by Michael de Broglio on Thursday 02-Jul-09   |  Permalink   |  4 Comments  Comments
Passenger case limit before 1 August 2008

The latest news from attorney Marius Kruger, who is handling the limited damages passenger case, is that the matter is going to be heard by the Cape High Court in the first week of June 2010.  That of course is the challenge with regard to the R25 000,00 limit on passenger cases and the constitutionality thereof.  Many attorneys forget that the previous challenge was brought with regard to an accident that happened before our new Constitution, and that was the actual basis for the rejection of the application by the Constitutional Court.    If Kruger & Co are successful in the Cape High Court, they will obviously then proceed to the Constitutional Court and they would expect that matter to be finalised in the Constitutional Court towards the middle of 2011.  The queue to the Constitutional Court is currently about 6 months and they normally take approximately 5 months to deliver judgment in most matters.  They are pending all of their passenger cases having issued, one would assume, High Court summonses in them, pending the finalisation of this particular case and obviously attorneys who have big cases that are affected by the passenger cap, might well want to pend some of theirs.  We pleaded the unconstitutionality in another matter, but were beaten to the punch by Marius in his case and it does not appear that the defendant attorneys against us in that particular matter have noticed the particular angle that our plea takes in our matter.

Posted by Michael de Broglio on Friday 03-Jul-09   |  Permalink   |  7 Comments  Comments
Revenue stamps

Almost all attorneys by now will know that you no longer need revenue stamps on summonses.  A lot of confusion had arisen as a result of which the Law Society of Northern Provinces, on which I sit as a councillor, brought an application to court and received a judgment approximately a week ago in that regard.  In the event that you have already, as we had, issued summonses without revenue stamps, those summonses are valid.  In short, you no longer need any revenue stamps on summonses.

Posted by Michael de Broglio on Saturday 04-Jul-09   |  Permalink   |  2 Comments  Comments
Jacqui Sohn on alleged August setdown

Michael: As I understand it, the respondents in the matter, including the Road Accident Fund, will only reply to our case, once we amend our papers following our receipt of thousands of pages of documents from them, and further documents which we still await.  That does mean then that there is still some time to go before they have to reply in the first place?  There are a lot of attorneys who seem to believe that the matter is set down and is going to be heard in August?

Jacqui: Correct. We first amend our Notice of Motion and file supplementary affidavits in terms of Rule 53 (once the record is produced in its entirety) and then the Respondents have to reply. Thereafter we answer.

The August 2009 date comes from a note in De Rebus which reported that the Amendment Act Application would be heard in August 2009. This was an error.

Posted by Michael de Broglio on Monday 06-Jul-09   |  Permalink   |  6 Comments  Comments
Michael interviews Jacqui Sohn - rumours not true

Another rumour reaching us, from a number of attorneys is that they have heard that the Road Accident Fund is not opposing the application of the Law Society to have the Act and the Regulations declared unconstitutional.  Once assumes that they are confusing the fact that the Road Accident Fund does not have to reply to the application as yet, with not opposing same?

Both the Minister of Transport and the Road Accident Fund have filed notices of opposition and both have produced records. The confusion probably relates to the Direct Payment Application (DPS) where the Road Accident Fund did not file opposing affidavits in the main application.  

Posted by Michael de Broglio on Tuesday 07-Jul-09   |  Permalink   |  4 Comments  Comments
No suspension of any part of the Act

Michael: Another rumour that we are receiving in e-mail queries is that the new Act is currently stayed by the challenge that the Law Society has brought, or will be stayed shortly.  Can you dispel that?

 Jacqui: The Amendment Act and new Regulations came into effect as from 1 August 2008. There is no procedure for a litigant to obtain a “suspension” of promulgated legislation pending a constitutional challenge. As with the challenge to the old Regulation 2 (14 days affidavit in “hit and run” cases) the law remains effective until it is successfully impugned.

Members should also bear in mind that in the Engelbrecht case the Constitutional Court ruled that the declaration of invalidity could only be relied on in claims that had not yet been finally disposed of (at the time of the judgment). So caution should be exercised when considering settling any claim prior to the Constitutional Court challenge.  

Posted by Michael de Broglio on Wednesday 08-Jul-09   |  Permalink   |  5 Comments  Comments
General damages in the new Road Accident Fund Act

Michael de Broglio: In terms of the new law, would claimants who for example suffer a fractured leg, have a valid claim against the Road Accident Fund for general damages?

Jacqui: The AMA Guides 6th Edition would have to be applied to determine whole person impairment in order to answer this. We have pointed out in our founding papers that a below knee amputation (more than x cms below the knee) is assessed as 28% WPI and thus does not qualify for general damages in terms of the 30% WPI threshold. It depends on any permanent complications that there may be. 

Posted by Michael de Broglio on Thursday 09-Jul-09   |  Permalink   |  2 Comments  Comments
June 2011 at the earliest say some

Michael: Some Counsel have indicated that it is unlikely that we will get a trial date until about June 2010, and that is at the earliest, and after that one assumes that the losing party will appeal to the Constitutional Court.  The current waiting list there, for dates, is about six months and it often takes them about three to six months for judgment.  What would you say to the following statement, “It is unlikely that we will be receiving any final judgment in this matter until June 2011 at the earliest.”?

Jacqui: I really cannot say. One would hope that some priority would be afforded to this matter in the North Gauteng High Court and thereafter the Constitutional Court once the papers are finalised as it is of considerable public interest.

Posted by Michael de Broglio on Friday 10-Jul-09   |  Permalink   |  3 Comments  Comments
Jacob Modise to try again on direct payments

The Star has an article this morning headlined "Good news for accident victims" which goes on to detail that Jacob Modise, who reporter Helen Grange describes as a modern day "Robin Hood" is going to restart the direct payment system.

The article says that "...Modise is determined to pursue and have implemented as soon as possible..." the new direct payment system.  This time there will be more consultation etc.

Posted by Michael de Broglio on Monday 06-Jul-09   |  Permalink   |  16 Comments  Comments
Regional Courts Amendment Act

The Jurisdiction of Regional Courts Amendment Act extends civil jurisdiction to the Regional Courts, and the Act is intended to be put into operation in September 2009. 

It allows for matters involving amounts between R100 000,00 to R300 000,00, in various categories in terms of section 29 of the Magistrates’ Court Act to be heard in the Regional Court, to be held obviously at the Magistrates’ Court as we know them, and in this regard the seat of the Regional Court would be Johannesburg, with the place of sitting for Regional Courts including Kempton Park, Pretoria, Vanderbijlpark, Randburg, Vereeniging.

Posted by Michael de Broglio on Saturday 11-Jul-09   |  Permalink   |  0 Comments  Comments
Fairweather golfer

I did not really understand the expression “Fairweather Golfer”, until I played golf on Saturday.  The temperature was about 8° when we began at 8 am and I kept thinking that the sun would pop out of the clouds.   As you will know, it never came out and we really had a cold weekend, and I am told that we are going to have one of the coldest Julys in history this year.  Being outside in the cold for 5 hours, involved in a sport which requires you to at least have some warm muscles, is not a great combination, and I promptly shot my worst score in 4 months.  I now understand that I am a fair-weather golfer, and if I lived in Scotland or some other European country like that, I would probably never play the sport in the first place!

Posted by Michael de Broglio on Tuesday 07-Jul-09   |  Permalink   |  12 Comments  Comments
R5000 to fill in RAF Form 4

The new Act obviously provides that only certain doctors may complete the assessment form.  This is leading to those few doctors, who have the right to do so at the moment, charging absolutely outrageous fees to do so.  One of the attorneys who attended a recent seminar that the Road Accident Fund held on this subject, received a call from a doctor with regard to completing the RAF Form 4 who advised him that the Road Accident Fund had allegedly advised the doctor to charge an amount of R5 000,00 cash on delivery to complete the form, at the seminar he had attended for doctors, and that he would be working that way in future.  Prior to attending the Road Accident Fund seminar, the doctor had told this attorney that he had only been charging R800,00 to complete the form. So, the doctor’s new fee is now R5 000,00 cash on delivery.  This allegation is simply outrageous and we would like to hear from other attorneys who should  comment if they had similar experiences, as to what amounts they are being charged to complete the forms.

Posted by Michael de Broglio on Monday 13-Jul-09   |  Permalink   |  7 Comments  Comments
Survey results - who you would like to see interviewed

The respondents came back with a surprise choice as to the person they would most likely to see being interviewed.  Personally I thought they were going to pick an attorney and yet the same answer came up time and time again, and that is that attorneys want us to interview Jacob Modise, and asking questions such as, “What does he have against attorneys?  Others would like to know how many hours per week he is actually busy with the business of the Road Accident Fund itself and time and time again statements such as, “… I want him to come out straight with why he hates attorneys.  Other suggestions included that Jeremy Gauntlett as well as the Minister of Transport and two or three questions along similar lines either for a specialist, or the Law Society, to explain why they have not challenged the restriction to serious injuries or specialists who could comment on what serious injuries are. 

Posted by Michael de Broglio on Sunday 12-Jul-09   |  Permalink   |  0 Comments  Comments
Survey results - new cases

As you will know, I again asked whether attorneys are taking on cases that do not qualify under the current Act, but on the basis that they think we will be successful in the constitutional challenge.  The percentage of attorneys indicating they were taking on cases was smaller than in the last survey where there was a 20% figure, but on this survey the figure thus far is 14% of attorneys taking on new cases and those that are taking on the cases say that they are telling clients that they don’t qualify under the new Act and they don’t have a claim for general damages but that “may change after the constitutional challenge”.  Others say that they are taking them on on the basis of serious injuries and they believe that it is likely that the “Minister of Transport is going to continue to stuff up the regulations even after the constitutional challenge”.   Interestingly enough, when it came to the question posed about whether somebody would qualify for general damages under the new Act, for fracturing a leg, and on the AMA tables they certainly would not, 69% of you agreed with me that they would not, whereas as 19% of you said you don’t know and another 11% said yes, the person would qualify for general damages, including some attorneys who indicated that they are continuing to take on smaller cases, despite the law changes.  It shows you how confusing the laws are, if this is the opinion of attorneys – one can only wonder how the man in the street can possibly make head or sense of anything!   

Posted by Michael de Broglio on Tuesday 14-Jul-09   |  Permalink   |  2 Comments  Comments
Law Society

The Law Society of South Africa has opposed the application by the Department of Justice for extension and the implementation of the State Liability Act.  This obviously follows the decision by the Constitutional Court on 2 June 2008 to declare section 3 of the State Liability Act to be inconsistent with the Constitution but it suspended the declaration of invalidity for a period of 12 months to allow Parliament to pass legislation that provides for the effective enforcement of court orders.  The legislation has still not been enacted by the Department who has now come up with some ridiculous Bill that does not really appear to achieve the purposes that the Constitutional Court Justices wanted, at all.  The Law Society will be opposing the application for an extension.

Posted by Michael de Broglio on Tuesday 07-Jul-09   |  Permalink   |  0 Comments  Comments
Payment issues

According to the survey I did recently, some of you don’t even have payment issues with the Road Accident Fund at all!  Some of you however said that you do have issues, but not with capital payments and only with bills of cost.  It would probably be fair to say that the majority of you seem to indicate that there is not a problem with capital payments, which is a problem that I certainly do have and that where you do have a problem is with the cost department of the Road Accident Fund and that they in particular are not making payments.  Amongst the tips that were suggested include, “… Calling the finance department all of the time.  Checking every week on whether the file has been sent to finance, if finance requested payment and then reminding finance to pay or failing which issuing summons and taking default judgment against the RAF.  Along a similar line another attorney said, “Wait patiently until the 28th of the month following the month in which the offer was accepted, then summons, when defended, summary judgment.  Others have said they use High Court mandamus applications with threats of contempt proceedings.  Here is a comment that sounds familiar to my staff, “Lots of phone calls and follow-ups.  Resending settlement documents over and over again and issuing writs.  Quite a few of you are issuing writs/warrants and specifying that you ensure that the 15,5% interest applies.  Another comment that I enjoyed was, “I am pestering the RAF, Johannesburg until they confirm that the payment request has been made then I start pestering Pretoria RAF until they pay.  (It doesn’t really help, but at least it keeps me sane). 

Posted by Michael de Broglio on Wednesday 15-Jul-09   |  Permalink   |  2 Comments  Comments
World Cup Strike

The New York Times today had, as one of its lead stories the World Cup strike.  Obviously, it is portrayed fairly negatively overseas, but I think a lot of people need to bear in mind that the only deadline we may be at risk of not making, is the FIFA handover of 15 October, some 9 months before the tournament actually kicks off.  In other words, they obviously set deadlines 9 months before to make sure that people are actually ready in time for the tournament and there is no doubt that the stadiums will be ready for the tournament itself.

Posted by Michael de Broglio on Thursday 09-Jul-09   |  Permalink   |  5 Comments  Comments
Tour de France

 If like me you enjoy the Tour de France - and are especially amazed to see 3 years later Lance Armstrong doing so well, a site you can find updates and statistics on can be found here.

Posted by Michael de Broglio on Sunday 12-Jul-09   |  Permalink   |  1 Comment  Comments
Law enforcement versus revenue collection

I don’t know about other people, but I must get stopped in my car and have my driver’s licence, registration disc and outstanding fines checked at least once every 3 or 4 weeks.  You would think that South Africa is a law enforcement capital of the world and would have no crime.  It is such a pity that we devote such dedication, and massive resources, to setting up huge roadblocks, to effectively recover revenue, as opposed to enforcing the law.  Maybe we need to just accept the reality, and start giving the law enforcement agencies commission for arresting criminals, recovering stolen goods and taking drugs of the streets.  It might sound a bit odious, and I am saying this somewhat tongue in cheek, but if we gave them a commission each and every single time, placed perhaps on the street value of their drugs, maybe they would actually do something about it?  Our traffic enforcement and certainly in affluent areas, is world-class.  It is just a pity that the really important things are not.  

Posted by Michael de Broglio on Thursday 16-Jul-09   |  Permalink   |  3 Comments  Comments
Companies watching Internet media

I notice that more and more companies, especially the really big ones, are hiring staff to watch the social media and things like that.  A friend of mine recently wrote on Twitter about the fact that he felt that the Virgin Active branch at Old Eds was on a steady slide, and he was contacted within an hour or so by representatives of Virgin Active!  A staff member of mine assisted me in getting Vodacare to pay some attention to a complaint I had about a faulty iPhone, to get us some action.  Firstly, we placed a complaint on the Hello Peter site which resulted in a very quick response from them, but no actual action, and I followed that up with a two-page complaint letter to the managing director and when he failed to respond to correspondence, after a week, we then put a further complaint up on Hello Peter mentioning the fax and the managing director’s name, who had not responded to the complaint.  It is amazing then how quickly a phone was replaced.   It is somewhat sad, and one cannot wait for the Consumer Protection Act to become law, in some respects in about 16 months time, that so many people who are not illiterate or not technically illiterate, are not able to get the same levels of service and attention and are certainly not able, than we as attorneys are, to go and issue summonses, etc at no cost.  There are a whole host of companies who really are quite happy to take your money, but when something goes wrong, will make every excuse in the world to not try and repair the item or replace it.  Quite frankly, I had to put up a huge fuss, when we were not in the wrong in the first place, and I don’t imagine 98% of the population would even have succeeded in getting a replacement phone in the particular factual circumstances of the company I was dealing with.  The real problem appears to be that in fact while iPhones are sold in South Africa, there is no actual Apple representative who can repair phones, so you are getting to a situation where, if the button for example, is not working, they go out of their way to give you a quote for repair which very closely resembles the cost of a replacement phone – which is the option they ultimately chose in any event.   

Posted by Michael de Broglio on Friday 17-Jul-09   |  Permalink   |  3 Comments  Comments
Woodmead off-ramp - constant road blocks

The Metro Police certainly overdo their roadblocks in some areas.  Anybody who has ever taken the Woodmead off-ramp on a weekend, bearing in mind there are quite a few shopping facilities there, the World of Golf as well as Country Club Johannesburg, will note that there is hardly a Saturday or Sunday where you won’t find them blocking either the off-ramp, or a little bit further down, closer to the World of Golf.  I am all in favour of law enforcement, but it does astound me that they seem to concentrate on relatively affluent areas, over and over again, and yet I could point them in the direction of quite a few areas, desperately in need of traffic enforcement, which they never visit.  In other words, there seems to be much more emphasis on extracting payment of fines from people driving nice cars than simply removing unroadworthy vehicles off the roads, or tackling a lot of the much more serious issues that unfortunately afflict our roads.  I think in some ways, it is also most unfortunate for those businesses, because you become aware that if you want to go to any of the shops, such as the Pro Shop, off the Woodmead off-ramp, that if you do so on a weekend, there is probably a 30% chance that you are going to have a 25 minutes queue in the traffic, to get through a roadblock.  And that, I guess is my major complaint about the massive amount of time that they seem to take, channelling three busy lanes of traffic into one lane and then dealing with what appears to be one car every 20 seconds.

Posted by Michael de Broglio on Saturday 25-Jul-09   |  Permalink   |  0 Comments  Comments

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