April newsletter-01

EDITOR’S LETTER

Editor’s Letter

Welcome back! We hope you feel rested after the (brief) holidays.

For those of you who had some hardship without the luxury of a cruise ship, we will explore a few avenues to ensure that your next trip will be smooth sailing.

If you were in an accident or your car broke down over the holidays, this issue might be the roadside assistance you’ve been waiting for. Take a look at our article on insurance claims and repairs of your motor vehicle, as well as the article regarding your basic right to health care in crisis situations like these.

On a lighter note, why not surprise your significant other with a mystery trip to a country that does not require a visa? Have a look at our article: “Planning a surprise getaway? Holiday destinations without the hassle of paperwork” and broaden your horizons.

Bon voyage!

JJR Inc. Team

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INSURANCE COMPANY OR REPAIRER: WHO TO BLAME FOR YOUR HOLIDAY BLUES

– Alicea van der Ryst

We all know how frustrating it can be to sort out the logistics when your car breaks down or when you have been in an accident, especially when you are on your way to enjoy a supposedly blissful and carefree holiday.

Luckily, at last your expensive monthly premiums for car insurance will come in handy and with just one phone call to your Insurer everything will be sorted out for you and a towing truck and assessor are on their way.

However, on arriving at the Repairer’s workshop with the courtesy car from your Insurer on the last day of your holiday, you see the once metallic silver car now sports a dull grey bonnet. You cannot stay another day or leave your car with this incompetent Repairer. Your once helpful Insurer has gone cold on you and is not in the slightest way as helpful as two weeks before. What do you do now?

It is important to determine who has locus standi to take a Repairer to task for faulty repairs as well as who is liable to pay the Repairer.1

•    Most comprehensive policies provide that the Insurer has a choice: the Insurer can either pay for the Insured’s loss or damage, which will be the reasonable costs to repair; or at the Insurer’s expense reinstate the vehicle to its pre-accident condition.

•    If the Insurer elects to pay for the Insured’s loss, the legal position is that the Insured may appoint the Repairer and will consequently be responsible for paying the repair costs. In terms of the Consumer Protection Act, you (the Insured) will have in your personal capacity the right to take action against the Repairer if you are not satisfied with the repair. Your Insurer has no part in the dispute, and its only obligation is to pay you the costs of repairing the car. This payment will be made either directly to you or directly to the Repairer depending on the terms and conditions of your policy.

•    If the Insurer decides to reinstate your vehicle to its pre-accident condition the legal position is quite different. In this case the Insurer will appoint the Repairer and consequently be liable to pay the Repairer’s bill without creating an obligation between you and the Repairer apart from providing you with your vehicle once the repairs are done. In this scenario you will be able to seek remedy against your Insurer. It must however be pointed out that an assessor must do a competent check on your vehicle to prove that your vehicle’s condition is not what it used to be or ought to be. Therefore, in the absence of an agreement between an Insured and a Repairer, the Insured’s first port of call is to institute action against the Insurer, either by issuing a summons or by making use of alternative dispute resolution mechanisms such as the Ombudsman for Short-Term Insurance.

•    Some Insurers may mix-up the above two scenarios to create a ‘hybrid form’ of insurance. For instance, your Insurer may choose the Repairer, but doing so without reinstating your vehicle and consequently side-stepping any legal obligations towards the Repairer. In such a scenario, it can get quite tricky and for this reason, JJR Inc. recommends you seek expert advice with our team to assist you in making the best, informed decision.

•    Another gimmick you should be aware of is to sign a ‘Discharge Form’ when you take delivery of the vehicle. There is no legal obligation on you to sign a form that discharges the Insurer, or the Repairer, from all liability before you had reasonable opportunity to check the quality of the repairs. Should the Repairer refuse to hand over your vehicle unless you sign the ‘Discharge Form’ write next to your signature ‘UNDER PROTEST’. This will support an argument later that the only reason you signed was due to the refusal of giving back your property unless you did.

Although being in an accident over the holidays is not ideal, know your rights and remedies, and do not hesitate to call JJR Inc. should you be in doubt. We are here to help you every step of the way.

1 In Sandberg Transport BK t/a Sandberg v African Truck Accident Repairs the court emphasised that the only way to determine what the exact relationship is between the three parties (the Insured, the Insurer and the Repairer) and how to deal with such a situation, is a question of fact and consideration of the intention of the parties and the agreements between them.

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ROAD ACCIDENTS AND OUR RIGHTS TO HEALTH CARE

– Tjaart de Beer

Road accidents are becoming a common occurrence. Heaven forbid that you are ever involved in a serious road accident, but if you are involved in even a light fender-bender you might have some comfort in at least knowing your rights to health care in such an unfortunate event.

Apart from the Constitution of the Republic of South Africa, 1996 (Act No. 109 of 1996), in Section 27 of same, guaranteeing our right of access to health care services, the Department of Health and the Health Professions Council of South Africa (HPCSA) are also achieving the realisation of this right through the National Patients’ Rights Charter. This Charter contains rules regarding professional conduct against which complaints of professional misconduct will be evaluated. It was launched by the Minister of Health and agreed to by the HPCSA in 2008.1

The Constitution guarantees our right to access to healthcare, but what is relevant and important to know under these circumstances?

1.        The National Patients’ Rights Charter sets out what is included in this right, which are (amongst other) the following:

1.1    Receiving of timely emergency care at any health care facility that is open, irrespective of one’s ability to pay2;

1.2    Explaining of the consequences of the treatment and/or rehabilitation to be administered3; and

1.3    Provision for special needs with relation to new-borns, children, pregnant women, the elderly, patients in pain, disabled persons, persons living with HIV or AIDS4.

1.4   The person providing the health care service and assistance must be clearly identifiable, because one has the right to know who the person attending to one`s health care needs is.5

1.5   You have the right to be given the complete and precise information concerning proposed treatment and costs involved, on which to base informed consent6. That is if you are not incapacitated due to a serious accident in which case the Emergency Medical Practitioner must make a judgment call based on the circumstances and act accordingly. So, if you are at your wits, it is good to know that you will not be forced into any treatment or ambulance for that matter.

1.6   You have the right to a second opinion7. This may be applicable where more than one ambulance arrive on the scene.

1.7   You may even refuse treatment, either verbally or in writing8. If you decide to refuse treatment at an accident scene, because you are sure all is well and you intend to undergo a check-up at the GP, it must be noted that the particular health care practitioner will then request a Refusal of Treatment form to be signed. This is purely to indemnify them for any claims afterwards.

1.8   Remember, you do not have to wait for the health care insurance or medical aid scheme’s (the Scheme) preferred Emergency Medical Response (EMR) to arrive before treatment may commence, but you always have the right to refuse treatment before treatment commences. However, if treatment has commenced, the responsibility remains with that EMR for the continuity of care9, and you will not be abandoned by that EMR without inter alia appropriate hand-over.

2.        From the above, this Charter clearly gives one a better understanding of one`s rights when not only emergency health care is required, but also any other health care. It must be noted that the Charter also places responsibilities10 upon one as the patient, like (but not limited to):-

2.1    Taking care of one`s own health;

2.2    Respecting the rights of other patients and health care providers;

2.3    Utilising the health care system properly and not to abuse it.

In general, by arming yourself with knowledge, it might be further beneficial, if a member of a Scheme, to enquire whether they have a preferential EMR company, like ER24 or NETCARE 911 and can provide any other tips to assist in emergencies, such as road accidents.

In addition to the aforementioned information, consider the following before taking on the long road these holidays:

•    Keep the EMR number always close at hand – on speed dial or as a sticker in your motor vehicle’s window;

•    Get a basic first aid kit for the car;

•    Have your vehicle undergo a quick safety check at your nearest roadworthy test centre – these checks are charged for, but can you really put a price on your or your family’s safety?

Happy travels and be safe during the holidays.

1 http://www.hpcsa.co.za/downloads/conduct_ethics/rules/generic_ethical_rules/booklet_3_patients_rights_charter.pdf viewed on 09 March 2016 at 12:28pm.
2 Para 2.3 (a), p. 1 supra
3 Para 2.3 (b), p. 2 supra
4 Para 2.3 (c), p. 2 supra
5 Para 2.6, p. 2 supra
6 Para 2.8, p. 2, National Patient’s Right Charter:
http://www.hpcsa.co.za/downloads/conduct_ethics/rules/generic_ethical_rules/booklet_3_patients_rights_charter.pdf viewed on 09 March 2016 at 12:28 pm.
7 Para 2.10, p. 3, supra
8 Para 2.9, p.2 supra
9 Para 2.11, p. 3 supra
10 Para 3, p. 3 supra

PLANNING A SURPRISE GETAWAY? HOLIDAY DESTINATIOS WITHOUT THE HASSLE OF PAPERWORK

– Chazanne Grobler

Every South African citizen is entitled to be issued with a South African passport in terms of the South African Passport and Travel Documents Act, 4 of 1994. Your passport allows you to travel to foreign destinations, but unfortunately your passport is not a golden access ticket to all countries across the world. Several countries require that visitors obtain visas before entering the country. There are no set requirements for visas, but each country differs with regard to the application process and requirements.

If you want to plan a surprise holiday for friends or family there are currently 97 countries or territories which are visa-free (or visa-on-arrival) destinations that South African citizens with a valid passport can enjoy. Most countries in Africa can be visited without a visa which include Benin, Botswana, Gabon, Kenya, Lesotho, Malawi, Mauritius, Mozambique, Namibia, Rwanda, Saint Helena, Senegal, Seychelles, Swaziland, Zambia and Zimbabwe. A few countries in Africa require a visa on arrival which include Cape Verde, Comoros, Egypt, Ethiopia, Madagascar, Tanzania, Togo, Tunisia and Uganda.

There are no countries in North America that can be visited without a visa but in Central and South America the list includes Antigua and Barbuda, Argentina, Bahamas, Barbados, Belize, Brazil, British Virgin Islands, Cayman Islands, Chile, Colombia, Costa Rica, Dominica, Ecuador, El Salvador, Falkland Islands, Grenada, Guatemala, Guyana, Haiti, Honduras, Jamaica, Montserrat, Nicaragua, Panama, Paraguay, Peru, Saint Lucia, Saint Vincent and Grenadines, Turks and Caicos Islands, Uruguay and Venezuela.

In Europe only Ireland, Kosovo and since 1 March 2014, South Africans no longer require visas to get into France’s Reunion Island. In Asia: Georgia, Hong Kong, Macau, Malaysia, Maldives, Philippines, Singapore, and Thailand can be visited without a visa whereas Armenia, Bangladesh, Bahrain, Cambodia, Indonesia, Laos, Nepal, Sri Lanka, South Korea, and Timor-Leste all require a visa on arrival.

Lastly Israel, Jordan Cook Islands, Fiji, Federated states of Micronesia, Nauru, New Zealand, Niue, Palau, Samoa, Tuvalu, Vanuatu are all visa free destinations whereas Oman and Turkey both require visas on entry.

Although these countries offer the experience of foreign travel without the hassle of paperwork of applying for a visa, ordinary legal requirements still remain in place. Passports must be valid for at least 30 days after the intended date of departure and should also have at least two blank pages for entry stamps. If you intend to travel with children it is important to remember that all minors under the age of 18 years are required to produce, in addition to their passports, an unabridged birth certificate (showing the particulars of both parents) when exiting and entering South Africa. The Department of Home Affairs has however indicated that this requirement will change and minor children will be issued with passports containing the particulars of the parents, replacing the need for unabridged birth certificates. There is uncertainty as to when this will come into effect, and for the time being the requirement remains in place.

Happy traveling!

April newsletter-02

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.