The Road Accident Fund (RAF) is a public entity established in terms of the Road Accident Fund Act 56 of 1996 (the Act) as amended, to compensate victims of road accidents where serious injury or death arose as a consequence of wrongdoing or fault.
Central to the payment of a claim under the current legislative framework is the common law principle of delict where fault must be proven before a claimant is compensated. As a consequence, the historic trend has been to determine fault and the extent of compensation in the courts, through a highly litigious process, which has seen claimants appointing third party attorneys to claim against the RAF. The RAF in turn appoint legal representatives through a panel of attorneys to defend the matters over what is a considerably lengthy period of time.
This column discusses judgments as and when they are published in the South African Law Reports, the All South African Law Reports and the South African Criminal Law Reports. Readers should note that some reported judgments may have been overruled or overturned on appeal or have an appeal pending against them : Readers should not rely on a judgment discussed here without checking on that possibility - Editor.
This story is by no means unique: High School friends become lovers, get married, have children and portray the picturesque middle-class suburban family...until one spouse steps outside of the marriage and commits adultery. Such is the story of DE and RH. In this case the plaintiff's wife (Mrs H) moved out of the matrimonial home and instituted divorce proceedings against the plaintiff because the marriage had irretrievably broken down. The plaintiff alleged that the marriage had broken down because of an adulterous affair that Mrs H was having with the defendant. Mrs H alleged that her marriage had broken down prior to her relationship with the defendant and that she only became romantically involved with the defendant after she had left the marital home. The plaintiff sued the defendant in the Gauteng Division, Pretoria (GP) for injury and insult to self-esteem (contumelia) and loss of comfort and society (consortium) of his spouse. The High Court agreed and awarded the plaintiff R 75 000 for damages with interest and costs.
The Constitutional Court (CC) has restored the common law position that extra-curial statements against co-accused are in admissible. The court held that admitting extra-curial admissions against a co-accused unjustifiably offends against the right to equality before the law. The court further held that if the extra-curial statements were excluded, there is insufficient evidence to secure convictions against the applicants.
Prior to the court arriving at its decision, the court questioned what the remaining case against the applicants was. It was very clear that at the close of the state's case, the only evidence against the applicants was the extra-curial statements of the co-accused. If the trial court had correctly declared the evidence inadmissible, the applicants may have been entitled to be discharged at that stage. In any event, at the end of the trial, the evidence as a whole was insufficient to ground the applicants conviction.
This article, will consider the legal basis on which the South African Revenue Service (Sars) may declare an objection to be invalid and identify the remedies, which are available to an aggrieved taxpayer. In particular, it will consider the invalidity of an objection, where a taxpayer has allegedly failed to produce the necessary supporting documents. It will also consider the legislative requirements for a valid objection. In conclusion, the article will illustrate the law by means of a case study.
Much has been written in the press and elsewhere about the recent judgment of University of Stellenbosch Legal Aid Clinic and Others v Minister of Justice and Correctional Services and Others (WCC) (unreported case no 16703/14, 8-7-2015) (Desai J) - the highly publicised matter concerning the ostensible abuse of emolument attachment orders (EAOs) by micro-lenders and debt collectors. An in depth study about the morality and legality of the EAOs falls outside the ambit of this article. Rather, this article will evaluate the court's reasoning as to how it concluded that, in proceedings brought by a creditor for the enforcement of any credit agreement to which the National Credit Act 34 of 2005 (NCA) applies, s 45 of the Magistrate's Courts Act 32 of 1944 (MCA) does not permit a debtor to consent in writing to the jurisdiction of a magistrate's court other than that in which that debtor resides or is employed.
In the last years of the 20th century, as we took our first uncertain steps into the information society in which we live today, data protection legislation was the initial jurisprudential effort to address the potential abuses heralded by computers to the privacy of our information. Accelerated exponentially by the advent of the Internet and cellular technologies, the very rapidly developing jurisprudence facilitating the protection of the fundamental human right of privacy has been the cornerstone in shaping law relating to novel applications of technology in the 21st century. In South Africa, the recognition of privacy as a fundamental human right was enshrined in our Constitution in 1996. Regrettably, the mechanisms for the protection of this constitutional right would only become a reality 20 years thereafter, with the likely commencement of the Protection of Personal Information Act 4 of 2013 (POPI) in 2016. Consistent with the lamentable reticence to embrace technology as part of their daily lives and therefore our law, South African lawyers have generally taken the enactment of POPI extremely lightly. With very few exceptions,South African lawyers are not properly equipped to deal with the enormous impact that the Act will have on their own practices, let alone advice that they may be required to provide to clients. It is against this background that the publication of the first book on POPI is to be welcomed.