Month: June 2014

Consider your claim carefully: Some of the need to know facts in the event of a third party claim against the RAF (Road Accident Fund)

A1blThe Road Accident Fund (hereinafter referred to as the RAF) has over the years created the assurance that public road users will be covered in the event of any motor vehicle accident which caused either injuries or death, and for the losses suffered thereby, such as medical expenses, loss of earnings and even general damages (damages for pain and suffering).

Before the Road Accident Fund Amendment Act 19 of 2005, which came into operation on 1 August 2008, this had the effect of any person simply being able to institute a claim against the RAF in any event of an accident which amounted to damages suffered as a result of injury or death, or even a claim based on pain and suffering. This sounded simple enough, that is until the Road Accident Fund Amendment Act 19 of 2005 came into operation, placing two very important limitations on claims from the RAF.

The first limitation relates to claiming from the RAF and/or the wrongdoer. In respect of the old Road Accident Fund Act 56 of 1996, the victim who had a limited claim against the RAF, still had a common law claim against the wrongdoer in respect of the excess amount not compensated for by the RAF. This meant that should the road accident victim only be compensated by the RAF for a portion of the damages suffered during the accident, the remaining portion could still be claimed from the wrongdoer in his personal capacity. For example, if victim X suffered damages in the amount of R200 000 and the RAF only compensated the victim in the amount of R150 000, the remaining R50 000 could still be recovered from the wrongdoer in person. This would have the effect of two separate claims. However, should the victim have received full compensation in terms of Section 17 of Act 56 of 1996 for the amount of R200 000, such victim would not have another claim against the wrongdoer.

In terms of the new Road Accident Fund Amendment Act this common law right has been abolished by the institution of Section 21 of the Road Accident Fund Amendment Act. The victim will currently only be able to claim/recover losses or damages suffered as a result of a motor vehicle accident from the RAF. There can be no more separate claims in respect of one cause of action.

The second important amendment is a part of Section 21 which places a cap on the amount of loss of earnings claimed and the amount of general damages claimed, i.e. damages claimed for pain and suffering.

With regard to the capped amount allowed to claim for loss of earnings, a victim is only allowed to claim damages up to the amount of R160 000, but this amount changes quarterly according to the fluctuation in interest rates and currently it stands at R201 337 per annum as from October 2012. Should the victim earn a salary of more than the said amount per annum, he or she will be unable to institute such a claim against the RAF. / Should the victim earn a salary of more than the said amount per annum, his or her claim will be limited to the amount dictated by the Law.

Furthermore, with regard to a claim for damages based on injuries suffered, the claim will only succeed if the victim can prove that he/she has suffered “serious injuries” as defined in the Act. This would amount to injuries sustained which has ultimately rendered such victim at least 30% disabled in his or her everyday life. This limitation does not take into consideration any personal circumstances. Similarly, no common law right exists to institute a second claim against the wrongdoer in the event of failure against the RAF.

Also important to remember is the fact that when consideration is given to medical expenses suffered, the amount is calculated according to the rate charged at a public level (public hospital rates) and not at a private level (private hospital rates).

In conclusion, it is important to remember that the RAF takes over the liability of the wrongdoer in such accidents, meaning that actions must be instituted against the RAF and not the wrongdoer in the first instance. The exception is where the RAF is unable to pay compensation or where emotional shock is suffered. In such a case, the action may be instituted against the wrongdoer in person. Any action instituted against the RAF is a time-consuming process and requires due consideration before proceeding. Section 21 of the Road Accident Fund Amendment Act has definitely placed limitations on claims that need to be borne in mind.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.

Does the service of a notice of joinder interrupt prescription?

A2blIn the recent judgment of Peter Taylor & Associates v Bell Real Estates and Renasa Insurance Company the Supreme Court of Appeal was requested to decide whether the court of first instance was correct in deciding that the service of a notice of joinder interrupted prescription.

The relevant sections of the Prescription Act provide as follows:

  • Section 15(1) – The running of prescription shall, subject to the provisions of subsection (2), be interrupted by the service on the debtor of any process whereby the creditor claims payment of debt.
  • Section 15(6) – For the purposes of this section, ”process” includes a petition, a notice of motion, a rule nisi, a pleading in reconvention, a third party notice referred to in any rule of court, and any document whereby legal proceedings are commenced.
  • Section 15(5) deals with the situation that is applicable where a person applies to be joined as a defendant in an action and provides as follows that if any person is joined as a defendant on his own application, the process whereby the creditor claims payment of the debt, shall be deemed to have been served on such person on the date of joinder.

In the Peter Taylor matter the Plaintiff was seeking to join a further defendant in terms of Rule 10(3) of the court rules. The court referred to various matters pointing out the opposing positions held by our courts. The crisp point on which the court relied for prescription to be interrupted was the question of whether the process served can be considered as a step in the enforcement of a claim for payment of a debt. The court held that it would be “stretching the interpretation of the Act a little too far to say that the application constitutes a ‘process’ whereby the creditor claims payment of the debt” and that its service thereof interrupted prescription.

The Court found that it could not be said that the joinder application finally disposed of some elements of the claim and also that cause of action in the joinder applications differed from the cause of action for damages that was initially pleaded.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.

Publication of untrue statements in the media

A4blDefamation law in South Africa is one of the most debated topics in our legal system, the reason being that South Africa is a democratic country founded on human dignity, equality and freedom of expression, to name just a few principles.

These founding provisions in our constitution, together with the relevant Human Rights provisions, make it difficult to find an equitable balance between these competing rights in defamation cases. We all agree that a free press is an important part of an open and democratic society but, at the same time, that false, unjustifiable attacks on an individual’s reputation are damaging and wrong. How do our courts find a balance between these competing rights?

First of all it is important to note that no right in the Constitution is an absolute right. The relevant section in the Constitution is Section 36, which provides for the limitation of rights in the following circumstances. The first requirement is that the law must be of general application. Secondly, the limitation must be reasonable and justifiable in an open democratic society. To determine when it will be reasonable the court will take certain factors into consideration, which is provided for in Section 36 of the Constitution. These factors include the nature of the right, the importance of the purpose of the limitation, the relationship between the limitation and its purpose, and whether less restrictive means were explored to achieve the purpose.

It is important to look at the relevant case law to understand how the courts interpret Section 36, as well as the balance problem between human dignity and freedom of expression, which are in direct conflict, especially when harmful, untrue statements are published in the media.

In the Supreme Court of Appeal case of National Media Ltd and Others v Bogoshi the court adopted the attitude that, although there is no constitutional value in false statements of fact, an erroneous statement of fact is nevertheless inevitable in free debate. The publication in the press of a false, defamatory allegation of fact will not be regarded as unlawful if, upon consideration of all the circumstances of the case, it is found to have been reasonable. When a court considers the reasonableness of the publication it will take into account the nature, extent and tone of the allegations, and “greater latitude” will usually be allowed in respect of political discussion. The Court held that the press should bear the onus of showing that the publication was reasonable under these circumstances.

The consequence of the Bogoshi judgement is that if a newspaper can show that a decision to publish was reasonable and justifiable, it will be able to avoid liability even in circumstances where the statements are false.

This reasoning was developed further in Sankie Mthembi-Mahanyele v Mail & Guardian Limited  where it was held that justifiability is to be determined by having regard for all relevant circumstances, including the interest of the public in being informed; the manner of publication; the tone of the material published; the extent of public concern about the information; the reliability of the source; the steps taken to verify the truth of the information (this factor would play an important role, too, in considering the distinct question whether there was negligence on the part of the press, assuming that the publication was found to be defamatory); and whether the person defamed has been given the opportunity to comment on the statement before publication. In cases where information is crucial to the public, and is urgent, it may be justifiable to publish without giving an opportunity to comment.

These judgements make it possible to strike a balance between the relevant conflicting rights contained in the Bill of Rights.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.

Step by step guide to easy UIF claims

A3blAlice recently lost her job. She is feeling very despondent since she has no income to provide for her family and cover her monthly expenses. She recalls that while she was employed she made monthly Unemployment Insurance Fund (UIF) contributions.

However, Alice has no idea how to claim from the UIF and whether she qualifies as a claimant.

  1. WHO CAN CLAIM FROM THE UIF?

All workers who contributed to the UIF can claim if they have been fired, if their contract has come to an end, or if their employer is bankrupt. Domestic workers who have more than one employer can claim if they lose their job with one of their employers or if an employer dies.

  1. WHO CANNOT CLAIM?
  • Persons who resigned or quit their jobs
  • Persons who are suspended from claiming due to fraud
  • Persons who do not report at set dates and times
  • Persons who refuse training and advice that may be given by UIF staff
  • Persons who receive benefits from the Compensation Fund or from an Unemployment Fund established under the Labour Relations Act
  1. WHEN CAN I CLAIM FROM THE UIF?

You can start claiming from the last day of employment until your UIF benefits are used up or you started working again. Your current contract must have expired before registering for UIF. Furthermore, you must claim within six months after your last day of employment.

  1. HOW DO I REGISTER FOR UIF BENEFITS?

Unemployed workers must apply for UIF benefits in person at their nearest labour centre. 

Step 1: Documentation

This step is of utmost importance if you want to claim your UIF successfully for the first time. It is important to have all the necessary documentation in order to avoid repeated trips to the labour centre. The required forms are available as PDF downloads at ezuif.co.za/uif-forms.

You need:

  • Your 13-digit bar-coded ID or passport
  • UI-2.8 for banking details(Notethatthis needs to be signed by your bank and be accompanied by a stamped bank statement to confirm your bank account details.)
  • Form UI-19 to show employment history. This form is to be filled in by your previous employer. (Notethat the Labour Department will check your last four years of work history to calculate your UIF benefit amount. Make sure you have all necessary declarations from previous employers dating back four years. If an employer has failed to issue you with a declaration, he must also fill out a UI-19 form.)
  • A workseeker form
  • Last two pay slips 

Step 2: Go to the nearest labour centre

Once you have all the documents, go to the nearest labour centre. You can find the address and telephone number of your nearest centre at http://www.labour.gov.za/contacts/contacts. Note that the average waiting period at the labour centre can be anything from two to six hours, so make sure you have enough time. There is a slight chance that the staff at the labour centre may ask unemployed workers to go for training or advice – this is within their rights and you will have to take their advice.

  1. HOW WILL I BE PAID?

Once you have registered for UIF benefits the staff at the labour centre will issue you with a UIF checklist. On this checklist you will find the address of the venue where you must sign for payment, as well as the date and time for your attendance. 

Step 1: Go to the signing venue

You must appear at the designated venue on the date and time stipulated in order to sign for your first UIF payment. It is important to be on time. Take the UIF checklist and your ID document with you.

Step 2: Sign the unemployment register and receive UI-6A forms

If you have successfully registered for UIF, your name will be read out from a list. You will be required to sign a register to mark your attendance and confirm that you are still unemployed. Collect all the UI-6A forms (one for each future signing). Keep all these documents in a safe place as you will need them every time you are due for a UIF payment. This whole process can take up to three hours. Your first payment will be paid into your bank account within two to four days after you have signed the register.

Step 3: Note your next signing date

Make sure you are aware of your future signing dates – they are printed on your UI-6A forms. Signing dates will be approximately four weeks apart. You will have to hand in the relevant UI-6A form every time you attend, so make sure you have it with you. Note that your application may be delayed and not yet processed by the date of your first signing. It is recommended that you call the relevant labour centre the day before going to the signing venue to ensure that your application has been processed. If your application has not yet been processed you do not need to go to the signing. Ask for the date of the next signing.

  1. HOW MUCH WILL I BE PAID?

The amount that you will be paid will depend on the amount of your monthly salary when you were employed.

Workers who earned less than R12 478 per month will receive approximately 36-56% of their average monthly salary for the previous four years; the higher the salary, the lower the percentage.

Workers who earned more than R12 478 per month will receive a fixed monthly benefit of approximately R4250-R4550.

How long you will be eligible to receive UIF payments depends on the length of time that you have contributed to the fund. You are eligible to receive one day’s worth of benefits for every six days that you had worked and contributed to the UIF over the previous four years. The maximum number of days you can claim for is 238. 

Note: You can calculate your UIF monthly payments by using the EZUIF calculator provided at: http://ezuif.co.za/2012-uif-benefits-calculator/

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.

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