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EDITOR’S LETTER


Dear Reader

As the purple of the Jacaranda trees grace us with October in Pretoria, we are also reminded of how little time is left of the year.

A lot has happened this year in South Africa and in Pretoria, the Capital City that we love.

May the changing of the season be the beacon for change in our hearts to embrace the possibility of achieving what we have been striving for, for many years.

Enjoy the read!

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OUR CAPITAL … IS BLUE … IS RED … IS BLACK, GREEN AND GOLD


– Melcom Oosthuizen

2016… a major turning point in South Africa’s short democracy.  The elections turned out a major surprise where no single party was able to capture an outright majority in some of the country’s largest metros.  Coalitions were agreed upon and the City of Tshwane along with the other metros voted on their respective mayoral candidates.  But what exactly does this mean?

Those who are not familiar with politics were left scratching their heads with the announcement that the EFF would neither enter into a coalition with the ANC nor with the DA. Other smaller parties, such as the AIC and the IFP entered into formal coalitions with the ANC and the DA respectively.

On the outset a brief explanation on what a coalition entails is essential.  A coalition is an agreement between parties to join forces, generally based on a common political agenda. The agreement usually mutually benefits both parties, often voting particular persons into certain positions, and further assists minority parties in reaching a majority.  The parties are bound by their coalition agreements and these agreements make for a stable political situation.

The EFF’s decision not to form a coalition with any party within these hung councils resulted in the formation of minority governments for some of these metros. No more forcing through of by-laws, and budgets by parties exercising majority rule.  Each decision/issue would be debated, scrutinised and put to a vote.  This would create situational alliances depending on arrangements and trade-offs between the parties.

Section 30 of the Local Government: Municipal Structures Act, 117 of 1998, deals with quorums and decisions of councillors.  Section 30(2) states that concerning (i) the passing of by-laws; (ii) the approval of budgets; (iii) the imposition of rates and other taxes, levies and duties; and (iv) the raising of loans, a majority vote of all councillors is required.  A simple majority of councillors present at a meeting (complying with the necessary quorum) will not suffice to pass any of these measures.  All remaining measures may be passed with a simple majority present at a meeting complying with the necessary quorum.

In a perfect world, a minority government would be the epitome of a well working democracy.  With the social injustices faced by our country and the vast conflicting ideals of our political parties the question arises whether South Africa and its capital, would be mature enough to agree on most issues.  

If the relationship between parties breaks down and councils become dysfunctional, parties could vote in favour of a vote of no confidence in a current mayor and a new mayor could be elected.  No political party is safe as decisions and agreements could change within a heartbeat.  What the future holds for our vibrant country, only time will reveal. The pros and cons of minority governments will become evident for all to see.   With all parties eyeing the 2019 National Elections, political parties will utilise these local minority governments to their benefit and build upon their support base from the residents of the Republic of South Africa.

ROAD ACCIDENT FUND
Twists and Turns in the Road to Success


– Jacques Brits

South Africa can be described as one of the most dangerous places in the world to be for a motorist, as 32 accidents occur per 100,000 people per year.1 This means that 17 600 accidents take place on the roads of South Africa per year. Taking the aforementioned fact into account, it is of vital importance that every citizen of South Africa familiarises themselves with the Road accident Fund (hereafter referred to as “RAF”) and its operations.

The basis of the RAF’s obligation to compensate motorists

Section 17 of the RAF act stipulates that the fund is obliged to compensate any person for any loss or damage in which the 3rd party has suffered (as a result of any bodily injury to him/herself or the bodily injury to any other person) caused by or arising from the driving of a motor vehicle by any person at any place within the republic, if the injury or death is due to the negligence or other wrongful act of the driver or of the owner of the vehicle or of his or her employee in the performance of the employee’s duties.2

A motor vehicle in terms of the RAF act

The act specifies that a motor car consists of a vehicle with no more than 10 persons inside the car, including the driver.3 If the aforementioned hurdle is crossed, the next point of consideration is that of a motor vehicle which can be defined as any vehicle designed or adapted to be propelled or hauled on a road by means of fuel, gas or electricity, including a trailer, caravan, an agricultural or any other implement designated or adapted to be drawn by said motor vehicle.4

What is a road in terms of the RAF act?

If it has been established that you are indeed driving a motor car and/or a motor vehicle, let’s have a look at the normal meaning of a road. In Chauke v Santam Limited5 the court relied upon the definition used in Prinsloo v Santam Insurance Ltd6 which stated that it is “a line of communication, especially a specially prepared track between places for use by pedestrians, riders and vehicles”.  Lewis JA extended the meaning of a road in Road Accident Fund v Mbendera7 where he stated that it should not be narrowly defined to only include a public road. Subsequent hereto, Mokgoatlheng J in Jeffrey v Road Accident Fund8 came to the conclusion that a footpath on a public park can be construed as a road for the purposes of the RAF act.

Case law relating to the aforementioned information:

In Chauke v Santam Limited9 the court had to decide whether a forklift was designed, adapted or modified in such a way that it would be suitable for a claim in terms of the RAF act. After considering the normal everyday use of the forklift as a forward propelled vehicle, the court came to the conclusion that it should not be construed as a vehicle solely based on the fact that it is used on a road. The court further stated that an objective, common sense meaning should be followed when interpreting the definition of a vehicle.10 In terms hereof the court explained that a forklift would not fit the description of a motor vehicle in terms of the RAF act as it would not be equipped with indicators and headlights, drive extremely slow and could be hazardous in some instances.11

The definition of a road was challenged and developed in Bell v Road Accident Fund12 where it had to be determined whether an airside (operational area) on an airport could be considered a road for the purposes of the RAF act. The airside in question had a two way road with a demarcated middle line, traffic control signs and could be utilised by licensed vehicles, including bakkies, trucks, tractors, transporters and passenger busses, as well as pedestrians.13 The court found that the legislator had no intention to limit the definition of road to only public roads and found that the road on an airside could be interpreted as a road in terms of the RAF act.14

The objective and common sense approach were again used in Berry v SPE Security Patrol Experts and Others15 where it had to be decided whether a six-seater golf cart shuttle service would be interpreted as a motor vehicle in terms of the RAF act. The vehicle in question was petrol driven with a steering wheel, lights, hooter, parking brakes, gears and more.16 The court came to the conclusion that the golf cart could be interpreted as a motor vehicle in terms of the act, as it was used in increasing numbers by shuttle services, while also performing the same tasks as normal vehicles in the parking lots of hospitals.17

Do you have a claim against the Road Accident Fund? Our team of experts is ready to assist you with your claim against the Road Accident Fund. Call JJR Inc Attorneys today and arrange a consultation.

1 Anon May 2015 http://businesstech.co.za/news/mobile/86756/shocking-number-of-sa-accidents-caused-by-mobile-phone-use/ (visited on 14 July 2016)

2 Section 17 of the Road Accident Fund act 56 of 1996

3 Section 1 of the Road Accident Fund act 56 of 1996

4 Section 1 of the Road Accident Fund act 56 of 1996

5 Chauke v Santam Ltd. (710/1994) [1996] ZASCA 120; 1997 (1) SA 178 (SCA); [1997] 4 All SA 59 (A); (27 September 1996)

6 Prinsloo v Santam Insurance Ltd [1996] 3 All SA 221 (E) at 224 j – 225 d)

7 Road Accident Fund v Mbendera (2004 4 All SA 25 (SCA) par 9)

8 2012 4 SA 475 (GSJ)

9 Chauke v Santam Limited 1997 (1) SA 178 (A)

10 Chauke v Santam Ltd. (710/1994) [1996] ZASCA 120; 1997 (1) SA 178 (SCA); [1997] 4 All SA 59 (A) par 11

11 Chauke v Santam Ltd. (710/1994) [1996] ZASCA 120; 1997 (1) SA 178 (SCA); [1997] 4 All SA 59 (A) par 14

12 Bell v The Road Accident Fund [2007] SCA 83 (RSA)

13 Bell v The Road Accident Fund [2007] SCA 83 (RSA) par 7

14 Bell v The Road Accident Fund [2007] SCA 83 (RSA) par 10

15 (2011 (4) SA 520 (GNP)) [2010] ZAGPPHC 260; 3211/10

16 Berry and Another v SPE Security Patrol Experts and Another (2011 (4) SA 520 (GNP)) [2010] ZAGPPHC 260; 3211/10 par 5

17 Berry and Another v SPE Security Patrol Experts and Another (2011 (4) SA 520 (GNP)) [2010] ZAGPPHC 260; 3211/10 par 10.3.4

IS THE BOOTING OUT OF THE ROAD ACCIDENT FUND (RAF) A CURSE OR BLESSING?


– HJD Robertson

The Road Accident Beneficiary Scheme (RABS) Bill was introduced in parliament and later opened for public comment in the latter part of 2015.  This Bill, when enacted, will replace the RAF with a new system of compensation called RABS.

The new scheme moves away from the insurance based system of compensation, which has been largely unchanged in South-Africa since 1946.   The new system is based on defined and structured benefits.  Government regards this as a reasonable, equitable, affordable and sustainable system, which entitles beneficiaries to medical services and income benefits.

RABS differs from RAF in that both victim and the person who caused the accident now have an equal claim, as opposed to the latter not having a claim under the RAF regime.  Furthermore, claims will no longer be paid out in a lump sum, but rather a monthly installment, during the time period directly following the injury suffered.

The main difference between the two systems would be that RABS does not require fault, in the form of negligence, to be proven before a claim may be considered.  This change makes obtaining benefits for the scheme much easier than it would have been under the RAF system.  The current infrastructure, employees and pending litigation of the RAF will be transferred to the RABS.

The rationale behind the change is that a lump sum does not have the effect of rehabilitation, as intended, but is rather spent on luxuries, which leaves the claimant penniless and possibly disabled or unable to earn a living.  Thus the new dispensation provides for monthly instalments calculated at a maximum and minimum cap, according to the national income average.   Payment shall persist until the claimant reaches the age of 60 or 15 years after the accident, which ever event takes place first.

The RABS Bill provides that children may only claim after their eighteenth birthday, leading to the conclusion that the three year prescription period only starts on the date the minor becomes a major. Previously, under the RAF, a claim would be submitted by the child’s parents on behalf of the child.  All other claims are subject to the three year prescription period, commencing from the date of the accident.  

The Act further stipulates that persons over the age of 60 may not lodge a claim for loss of income.  It is not explained if this provision includes both future and past income, causing some eye brows to be raised.

The important factor to keep in mind is that the planned changes have not been effected yet, thus the public still has the opportunity to raise their concerns.  Ultimately the majority of legal minds think that the proposed changes are for the better and will lead to long lasting rehabilitation, instead of exorbitant spending and finally added liability on an already thinly-stretched state budget.  The RABS might just be regarded as a mixed blessing.

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This newsletter 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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