LSSA concerned that RAF is short changing road accident victims through hasty direct settlements

‘Accident victims who are seriously injured and who make hasty settlements with the Road Accident Fund (RAF) for what might appear to them to be a significant sum without independent legal advice or before their claims are properly quantified, will have their whole lives to regret this,’ warn Law Society of South Africa (LSSA) Co-Chairpersons Mvuzo Notyesi and Jan van Rensburg.

The LSSA has noted, with considerable concern the recent unwarranted attacks by the RAF on the role played by the legal profession in ensuring that claimants receive fair compensation and in particular the recent characterisation of attorneys as mere ‘intermediaries’ in the claims process. Attorneys are never ‘intermediaries’. They do not mediate between the victim and the RAF. They represent the victim, who is their client, to ensure the most just and fair outcome for their clients.

‘Attorneys and other professionals play a vital role in investigating, processing and, if necessary, litigating claims arising from car accidents, as well as in quantifying and advising victims on the actual value of their claims, particularly those who sustain serious injuries that will have a lifelong impact on their quality of life and their ability to earn an income.’ say Mr Notyesi and Mr Van Rensburg.

They add: ‘Not only is the claims process highly technical, complicated and difficult for a lay person to follow, it also requires that the claimant produce medical and police records and expert reports that many claimants are not able to access or cannot afford.’

The LSSA has also noted that the RAF continues to advertise and lobby aggressively for accident victims to claim direct from the RAF in press releases, print and online advertisements, on its website, at road shows and outreach programmes. In a recent media statement journalists were told that, in many cases, claimants are better off approaching the RAF direct because their claims are settled quickly – in around four months – and they get their full pay out without having to surrender a big chunk to an attorney.

While that might hold good for minor injuries, it certainly cannot be good for seriously injured victims where it can take as long as two years for injuries to stabilise. It is only at that stage that a proper assessment can take place of the quantum, both with regard to general damages for pain and suffering and for special damages for loss of income, past and future as well as medical and other costs. It may only then become apparent that the claimant’s earning capacity has been compromised or destroyed. If the claim was settled within four months it is very unlikely that any amount will be included for future loss of income or that the essential medical and other expert opinion was obtained necessary to quantify the claim properly. Once the claim is settled, then depending on the circumstances, it might not be possible to rectify the under settlement,’ explain Mr Notyesi and Mr Van Rensburg.

Importantly, the LSSA is of the view that the RAF has a conflict of interest when it seeks to act as both a ‘functionary’ as per the Road Accident Fund Act and to prosecute, advise and process claims on behalf of direct claimants.

This has resulted in cases where claimants have had to challenge the RAF in court for under settlement.

The RAF continues to lay the blame for significant delivery costs solely at the door of the legal profession. The reality is that many claims in which the victims are represented by attorneys, should be settled long before the cases reach the court, by which time significant costs have been incurred which could have been avoided. In these matters, the RAF is, in fact, solely to blame as it does not instruct its attorneys in time so they can use the rules of court to limit costs. The RAF also, in many instances, does not respond to settlement approaches made to them early on in the prosecution of the claim.

‘The RAF has repeatedly said that it supports fair and equitable compensation for claimants. It should, therefore, welcome the contribution that the legal profession can and does make to achieve this. The RAF should focus on its core function, being the administration of claims in terms of the Road Accident Fund Act, and work with the profession in order to curtail costs and expedite finalisation of claims, rather than seeking to compete for direct claimants. In this process, the RAF risks the possibility to face claims and to incur unnecessary costs for under-settlement or for prescribed claims’ say Mr Notyesi and Mr Van Rensburg.

 

ISSUED ON BEHALF OF THE CO-CHAIRPERSONS OF THE LAW SOCIETY OF SOUTH AFRICA, MVUZO NOTYESI AND JAN VAN RENSBURG
by the Law Society of South Africa Communication Department
Tel: (012) 366 8800 or website: www.LSSA.org.za
Contact:
Barbara Whittle, Communication Manager, (012) 366 8800 or 083 380 1307; barbara@LSSA.org.za
Nomfundo Manyathi-Jele, Communications Officer, (012) 366 8800 or 072 402 6344; nomfundom@LSSA.org.za

 

LSSA welcomes withdrawal of charges against Finance Minister; gravely disappointed that a matter of this magnitude and implications was decided clearly without first obtaining all the necessary information and that the charges were instituted in the first place

LSSA welcomes withdrawal of charges against Finance Minister;…

Seventh plenary meeting of the National Forum on the Legal Profession

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LSSA recognises service to the profession by former Council members

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Advisory: LSSA to oppose Proxi Smart proposed conveyancing-related business model

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Law Society welcomes release of State of Capture report and also that NDPP is to brief Justice Portfolio Committee on withdrawal of charges against Finance Minister

The Law Society of South Arica (LSSA) welcomes the order by the Gauteng High Court this morning that the Public Protector’s report on the ‘State of Capture’ had to be released by the Office of the Public Protector this afternoon. ‘We urge the court to consider punitive costs against the President for bringing what was patently an unfounded application to interdict the release of the report and then withdrawing it. The cost of all the teams of counsel should not be borne by the taxpayer,’ say LSSA Co-Chairpersons Mvuzo Notyesi and Jan van Rensburg.

The LSSA also welcomes the remedial action by the Public Protector that the President is to appoint a commission of inquiry within 30 days headed by a judge solely selected by Chief Justice Mogoeng Mogoeng, who must provide the name of the judge to the President for this purpose. The commission must be properly resourced and it must present the report with findings and recommendations to the President within 180 days. The President must then submit a copy with an indication of his intentions regarding the implementation to Parliament within 14 days of releasing the report.

In addition, the LSSA welcomes the fact that the Portfolio Committee on Justice and Correctional Services has called National Director of Public Prosecutions, Adv Shaun Abrahams, to brief it on Friday on the recent developments in the National Prosecuting Authority and specifically the withdrawal of charges against Finance Minister Pravin Gordhan. ‘We trust that the portfolio committee will, after the briefing on Friday, also consider recommending an investigation into the Directorate for Priority Crime Investigation – The Hawks,’ say Mr Notyesi and Mr Van Rensburg.


ISSUED ON BEHALF OF THE CO-CHAIRPERSONS OF THE LAW SOCIETY OF SOUTH AFRICA, MVUSO NOTYESI AND JAN VAN RENSBURG
by the Law Society of South Africa Communication Department Tel: (012) 366 8800
Contact: Barbara Whittle, Communication Manager, barbara@LSSA.org.za 083 380 1307
Nomfundo Manyathi-Jele, Communications Officer, nomfundom@LSSA.org.za 072 402 6344.

 

LSSA welcomes release of State of Capture report

LSSA welcomes release of State of Capture report. Read press…

LSSA welcomes withdrawal of charges against Finance Minister

The Law Society of South Africa (LSSA) welcomes the rather belated decision by the National Director of Public Prosecutions (NDPP), Adv Shaun Abrahams, to withdraw charges against Finance Minister Pravin Gordhan, Oupa Magashula and Ivan Pillay. ‘The LSSA, however, remains gravely disappointed that a matter of this magnitude and implications was decided clearly without first obtaining all the necessary information and that the charges were instituted in the first place. The action of bringing the charges and then dropping them appears to be consistent with the public perception that there is a politically motivated link,’ say LSSA Co-Chairpersons Mvuzo Notyesi and Jan van Rensburg.

‘The LSSA urges Mr Abrahams to consider his position in the light of the severe consequences his actions had on our economy,’ say Mr Notyesi and Mr Van Rensburg.

They add: ‘Furthermore, Mr Abrahams seems oblivious to and unrepentant for the damage – both at home and internationally – caused by the unsubstantiated charge of fraud brought against the country’s sitting Minister of Finance by the country’s prosecution services. Mr Abrahams himself announced the intention to institute charges at a public press conference. It would be fair to assume that the NDPP would have gone out of his way in this matter, but also in all matters - be they high profile or routine matters -- to ensure that all relevant information had been reviewed and that criminal intent had been established. However, when the charges relate to fraud or theft by a high profile individual such as the Minister of Finance, the NDPP should have made doubly certain of the facts before inflicting the trauma he has on the economy, the image of the country as well as on the public. Mr Abrahams made the public announcement, he should take responsibility for bringing the National Prosecuting Authority, the criminal justice system and the country into disrepute.’

The LSSA also calls on Parliament to initiate an investigation into the actions of the Directorate for Priority Crime Investigation – The Hawks – in this matter as well as in other cases involving high-profile persons. Alternatively the President should consider a judicial commission of inquiry into the actions of the Hawks. Failing that, and as it stands, it is doubtful whether the Hawks, as an institution, have the public trust.

ISSUED ON BEHALF OF THE CO-CHAIRPERSONS OF THE LAW SOCIETY OF SOUTH AFRICA, MVUZO NOTYESI AND JAN VAN RENSBURG
by the Law Society of South Africa Communication Department Tel: (012) 366 8800
Contact: Barbara Whittle, Communication Manager, barbara@LSSA.org.za (012) 366 8800 or 083 380 1307
Nomfundo Manyathi-Jele, Communications Officer, nomfundom@LSSA.org.za Tel: (012) 366 8800 or 072 402 6344.

 

Law Society urges South African Government to reconsider withdrawing from the International Criminal Court

The Law Society of South Africa (LSSA) adds its voice to those calling on the South African Government to reconsider its withdrawal from the International Criminal Court (ICC). The LSSA is gravely disappointed at the unilateral decision by the Government to initiate South Africa’s withdrawal process from the Rome Statute of the International Criminal Court by executive act. ‘This raises serious concerns about our Government’s interpretation of its commitment to fighting impunity and providing accessible forums for victims of crimes against humanity and human rights abuses by those in power,’ say LSSA Co-Chairpersons Jan van Rensburg and Mvuzo Notyesi.

They add: ‘As we have said previously, we are currently in the fortunate position of having a strong and independent judiciary and other institutions supporting democracy. We can turn to these to challenge abuses of power by the State. However, this may not always be the case in future. Our Government appears hell-bent on closing and impeding access to regional, continental and international courts should a time come when South Africans can no longer rely on domestic remedies.’

The LSSA aligns itself with the statement by the International Bar Association that, ‘South Africa was one of the leading African countries in establishing the permanent Court with a mandate to address atrocity crimes, yet it may be one of the earliest to walk away. If this decision holds, it would be an extraordinary and detrimental development for both international justice and for South Africa.'

Considering the preamble to our own Implementation of the Rome Statute of the International Criminal Court Act, 2002 -

‘MINDFUL that:
• throughout the history of human-kind. millions of children, women and men have suffered as a result of atrocities which constitute the crimes of genocide, crimes against humanity, war crimes and the crime of aggression in terms of international law:
• the Republic of South Africa. with its own history of atrocities, has, since 1991, become an integral and accepted member of the community of nations;

the Republic of South Africa is committed to -
• bringing persons who commit such atrocities to justice, either in a court of law of the Republic in terms of its domestic laws where possible, pursuant to its international obligations to do so when the Republic became party to the Rome Statute of the International Criminal Court, or in the event of the national prosecuting authority of the Republic declining or being unable to do so, in line with the principle of complementarity, as contemplated in the Statute, in the International Criminal Court.’

We ask what has changed in our commitment to the fight against impunity?

Mr Van Rensburg and Mr Notyesi point out that the withdrawal from the ICC follows our Government’s agreement to changes brought about in 2014 to the SADC Protocol. As it now stands, the SADC Protocol deprives citizens in the SADC region – including South Africans – of the right to refer a dispute between citizens and their government to the SADC Tribunal if they fail to find relief in their own courts. Only states can refer disputes to the SADC Tribunal. ‘The LSSA is challenging this in the Gauteng High Court,’ say Mr Van Rensburg and Mr Notyesi.

The LSSA also adds that the African Court on Human and Peoples' Rights (AfCHPR) has the potential to enforce human rights through proper judicial processes and has relative independence from political leaders. However, although South Africa ratified the Protocol to the African Charter on Human and Peoples' Rights on the Establishment of the African Court on Human and Peoples' Rights on 3 July 2002, it has yet to submit a declaration accepting the competence of the AfCHPR to receive cases under Article 5(3) of the protocol. At least two cases from South Africa have been brought before the AfCHPR, but the court had to dismiss these cases due to lack of jurisdiction in the absence of the declaration by our Government, as the AfCHPR may not receive any petition under Article 5(3) involving a state party which has not made such a declaration.

ISSUED ON BEHALF OF THE CO-CHAIRPERSONS OF THE LAW SOCIETY OF SOUTH AFRICA, MVUZO NOTYESI AND JAN VAN RENSBURG
by the Law Society of South Africa Communication Department Tel: (012) 366 8800
Contact: Barbara Whittle, Communication Manager, barbara@LSSA.org.za 083 380 1307
Nomfundo Manyathi-Jele, Communications Officer, nomfundom@LSSA.org.za 072 402 6344.