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The Road Accident Fund Part 2

In our previous article we touched on stages of prescription but only focused on one stage which is a period for lodgement of a claim from date of accident/death. In this article we are going to take an impeccable look at other two stages of prescription, namely period after date of lodgement and period after issue of summons. 

Image Source: Berezko

Below we are going to discuss what is of paramount importance to note to help you understand what is meant by lodgement of a claim. Please take further note on these two following terms:

·         Issuing of summons

 

·         Serving of summons

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After a valid claim has been lodged the above must be taken into consideration when calculating prescription.

The issuing of summons relates to opening of a Court file and a case number being allocated to the matter. This will be done by the Clerk of the Magistrate Court or the Registrar of the High Court depending on the quantum claimed which is a matter for another day. The Court will stamp original summons as well as copies of the summons which stamp must reflect a date on which the summons were issued.

Serving of summons can only occur after the summons have been issued as stated above. This must be done by fixing original summons as well as copies to the Sheriff having jurisdiction in that area for service at the Road Accident Fund offices. It is always advisable to obtain Return of Service from the Sheriff who was serving the summons to avoid any uncertainty as to the date of service that may arise.

Let’s take a look at prescription period for unidentified claims or Hit and Run claims as many would refer, take note that this is dealt with by the regulations contained in both the RAF Act of 1996 as well as the RAF Amendment Act of 2005. In terms of Regulation 2 a claim has to be lodged with the RAF within two years from the date of accident in personal injury claims, and within two years from the date of death in loss of support and funeral claims.

The two-year calculation of prescription period for lodgement of claims lodged both under the RAF Act of 1996 and the Amendment Act is calculated in accordance with the civil method of calculation. The first day must be included and the last day excluded.

The five-year calculation of prescription period for summons of claims lodged under both the RAF Act and the Amendment Act is also calculated in accordance with the civil method of calculation discussed above. 

In conclusion, for the lodgement of a claim to interrupt prescription the said claim must be valid, meaning it must substantially comply with the Act. The service of an invalid claim does not interrupt prescription. In terms of Section 26(6) of the Act no claim is enforceable by legal proceedings commenced by a summons served at the Road Accident Fund before the expiry of a period of 120 days as from the date on which a valid claim is lodged. However, should the claim be repudiated in writing before the expiry of this period, a summons may be issued immediately thereafter.

Article by: Thobekani Khanyile (Candidate Attorney)

Mogotsi Attorneys 

Bail Applications

Closeup of gavel judgement concept

At Mogotsi Attorneys we understand the need for legal representation during a bail application and it is for this reason amongst others that we have a criminal law department which takes great pride in representing criminal offenders in a variety of complex cases and bail applications.

When a person has committed a criminal offence it is imperative to consult with an Attorney. Pending the trial and/or finalization thereof of the criminal offence to which a person has been charged with, the Constitution of South Africa affords criminal offenders a right to apply for bail.

Depending on the charge that led to a person’s arrest, the constitutional right of a person to be released on bail can either be a run of the mill or frustrating task for both the legal representative and the accused, depending on the nature of the crime which the accused is charged with.

 

Bail serves mainly three purposes: First, the liberty interest of the accused, second the public interest (by reducing the high number of awaiting trial prisoners clogging our already overcrowded correctional system) and lastly by reducing the number of families deprived of a breadwinner.

The underlying factor here is that as much a person have a right to be released from detention pending the trial of the matter but there are also emerging factors which must be taken into consideration, these factors are as follows:

·         The Interest of justice;

·         Whether the accused person is a flight risk;

·         The probability of the accused making it to court appearances; and

·         The likelihood of community outrage should the accused be released on bail.

It is therefore of paramount importance to have a legal representative to convince the Presiding Officer on behalf of the accused person of the reasons they should be released on bail.

The Road Accident Fund

You have been involved in a car accident, you do not know who to approach for help nor how to claim from the Road Accident Fund, well the good news are we are here to assist you and we are committed in assisting you throughout your journey in claiming your monies from the RAF.

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The Road Accident Fund Act 56 of 1996 came into operation on the 01 May 1997, which currently governs the RAF in conjunction with the RAF Amendment Act 19 of 2005.

There are six elements that must be present in each and every claim in order for the RAF to be liable.

These elements are:

·         Third party

·         Damage or loss suffered

·         Caused by or arising from the driving

·         Negligence or wrongful act

·         Motor vehicle

·         Within the borders of the Republic of South Africa

The RAF Amendment Act added a seventh element to the liability description:

          It stipulates that a third party will only be compensated for non-pecuniary loss (general damages) for a serious injury. The experts shall be appointed to assess the seriousness of the injuries of which 30% must be proven for the injuries to be considered as serious injuries. This is only applicable to claims that fall under the Amendment Act- accidents that happened on or after the 01 August 2008.

The person that wishes to claim compensation from the RAF needs to qualify as a third party. Meaning third party claiming as a result of bodily injuries suffered and or third party claiming as a result of the death of someone.

However suppliers such as hospitals and ambulances, Compensation Fund or Employer individual Liable they all qualify to claim compensation from the RAF even though they are not third parties.

 

The following are heads of damages that can be claimed as compensation by third party in respect of damages suffered as the result of bodily injuries:

      ·         Past medical expenses

      ·         Future medical expenses

      ·         Past loss of earnings

      ·         Future loss of earnings

      ·         General damages

Prescription

Prescription periods of a claim can be divided into three stages but for the purposes of this article I will focus on stage one. It is also important to note that prescription periods also differs for identified and unidentified (Hit and Run) claims.

Section 23(1) of the Road Accident Act states that a claim will become prescribed upon the expiry of a period of three years from the date upon which the cause of action arose, either from date of accident or from the date of death when you are dealing with a loss of support/funeral expenses claim.

However prescription for minor persons is suspended until the minor becomes a major, i.e. reaches the age of 18 in terms of the new Act. A claim for a hit and run will become prescribed after a period of two years from the date a cause of action arose.

 

 About the author

Thobekani Khanyile is a candidate attorney at Mogotsi Attorneys.

 

 

 

INTRODUCTION INTO THE CONCEPT OF WILLS

Have you thought about life after death? Do you have an updated will?

If your answer is no then you need to read this article. 

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You have probably heard stories about families fighting over the assets of a late family member or a loved one. You probably think your family is unified by strong family bonds and would never fall victim to the same conflict.

You could be right but are you willing to take that risk?

 

An article written by IOL News in 2017 stated that 70% of the working class do not have a will. https://www.iol.co.za/business-report/70-of-south-african-working-population-dont-have-wills-do-you-really-need-one-11212995

What is a will?

According to De Groot,[1] a will is a “unilateral, voluntary expression of the wishes of the testator in legally prescribed ways that determine what must happen to his property after his death.” 

Simply put, a will is a document where a person expresses his wishes as to how his assets must be divided, identifying who must benefit in those assets after his death.

The concept of creating a will seems straight forward, however, like any formal and legal document, a will must comply with the formalities of a valid will otherwise it becomes defective. An invalid will is tantamount to a non-existent will. Yes, if your will is defective then legally, it never existed. Because it has become common practice to use the phrase “invalid will” we will follow suit.

There are various factors which can cause a will to become invalid such as:

a. The will was drafted involuntarily or with undue influence.

b. Witnesses do not have the capacity to attest.

 

Does a will exist forever?

Yes. Until such a time that the testator revokes the will. A will only takes effect upon the death of the testator and for that reason, it is possible to invalidate or amend it. Once a will is revoked, it loses its legal force. One would wonder, what happens if you accidentally revoke your will? As long as the will is not physically destroyed, it is possible to legally revive it.

 

Who can inherit?

a. Unborn children subject certain legal exceptions

b. Extra marital and adopted children

c. Spouses

d. Extended family

e. Parents and grand children

f. Any other person 

g. Statutory representation

 

The importance of attorneys when drafting a will.

In order for a will to become valid, it needs to comply with formalities. An attorney will assist you by ensuring compliance. At Mogotsi Attorneys we have a team of experts to assist you will all your will drafting needs.

National Wills Week (16-20 September 2019)

This week is dedicated to assisting lay people with creating wills and it is a chance for legal practitioners to donate pro bono services. Mogotsi Attorneys will be party to this eventful and fruitful week. It will take place on the 16 – 20 September 2019.

Which law governs the concept of wills?

The law of estate succession is the totality of legal rules governing the process of transferring the deceased’s assets which must be distributed amongst the beneficiaries.

 

Article written By: Boipelo Talakasi (Legal Assistant)


[1]  De Groot 2 14 4.