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Road Accident Fund

PERSONAL INJURY ARISING OUT OF A MOTOR VEHICLE ACCIDENT

YOU STILL HAVE A CLAIM


The Road Accident Fund is a statutory body established in terms of the Road Accident Fund Act with its sole purpose to compensate victims of road accidents who suffered damages arising out of personal injuries.

personal-injuryThe type of damages claimable can be divided into pecuniary damages and non-pecuniary damages.  Pecuniary damages implies all financial losses suffered as a result of the injury sustained.  Therefore the claimant would be entitled to repayment of all past medical expenses, payment of future medical expenses as well as all past and future losses of income or maintenance if applicable. Non-pecuniary damages is also known as general damages and is a lump sum payment for all non-financial damages such as pain, suffering, loss of amenities of life, shock, disfigurement, scarring etc.

Before November 2008 and on condition that the personal injury was the result of negligent driving of a motor vehicle by a third party, the claimant would have been entitled to be compensated on proven pecuniary and non-pecuniary losses.  Although this situation remains ideal it gave rise to abuse of the public fund in that any claimant claiming that it suffered a sprained muscle were in terms of the Act entitled to non-pecuniary damages.  Although forensic units were established by the Road Accident Fund, it remained hardly impossible to prove that a claimant did not suffer a damage if involved in a motor vehicle collision.  As a result, a flood of claims had a disastrous financial implication to the Road Accident Fund and therefore the Act was changed essentially to save the Fund in November 2008.  In terms of the new Act all claimants, provided that their losses are the result of the negligent driver of the motor vehicle, would be entitled to claim all pecuniary losses with the proviso that loss of income whether past now are capped.  It is important to understand, however, that it is

not a salary or income cap but a loss of salary or income cap which at present stands at R180,000.00 per year.  This cap is quarterly reviewed and adjusted.

The biggest change in terms of the new Act is that non-pecuniary losses may only be claimed if the claimant is found to be 30% whole person impaired or more.  This impairment refers to permanent impairment after the claimant has reached the stage of maximum medical recovery.  A 30% WPI rating is very high and by illustration would be for instance blindness in one eye or a below knee amputation.  But clearly claimants suffering a sprain or strain injury will no longer be allegeable for compensation.  It is for this reason that the general public believes that unless they have suffered a severe disabling injury they will not be able to compensate.  This is not true.

As pointed out irrespective of the nature of the injury all claimants are entitled to claim pecuniary losses.  The claimant should also be aware that a narrative test may also be applied if a rate of 30% WPI is not achieved.  In terms of the narrative test, if there is serious and long-term mental or behavioural disorders, for a loss of a foetus or serious  scarring and disfigurement, claimant must still be entitled to non-pecuniary damages.

It is therefore important that all claimants when considering a claim against the Road Accident Fund to consult a personal injury expert such as ourselves to ascertain whether the claimant will be eligible or not.  

WHY AN ATTORNEY?

The Road Accident Fund has gone on a drive of making the public aware that they can claim without the assistance of Attorneys.  They go further stating that they will assist a claimant in claiming from the Road Accident Fund!  This implies that the body who is obligated to pay the claim is going to assist that claimant in a claim.  It is not necessary to point out the obvious conflict of interest.  A claimant is not trained or experienced in knowing how to prove his case.  As the Road Accident Fund is only obligated to compensate proven damages one can hardly see the Road Accident Fund assisting a claimant via appointing applicable medical experts at an enormous cost to prove its case against itself.

In illustration of the point, our firm has on two occasions taken over matters where the claimant pursued their claims against the Road Accident Fund in their personal capacities.  

In the first matter the claimant was suffering a lower back injury.  He was a medical practitioner at the time specialising in surgery.  The Road Accident Fund's first offer and settlement to him was the amount of R174000.00.  After our services were engaged the matter went to trial and the claimant was awarded R2, 800 000.00 as compensation.

In the second matter the claimant, a senior programme producer was involved in a motor vehicle collision suffering a moderate brain injury leading mainly to behavioural changes.

The claimant was first offered the amount of R169 000.00 in settlement of the matter.  After engaging our services, the Fund was ordered to pay the amount of R2.7 million.

In addition to the experience required to assess the risk regarding the merits of the matter as well as the risk regarding the presence or not of long-term impairment Attorneys are experienced in linking the claimants to the correct medical experts and in doing so carrying the financial burden brought about by litigation and costs of experts.

If our firm is satisfied with the offer, it is able to assess your claim and will accept instruction on the basis of only being entitled to fees on successful finalisation of a claim against the Road Accident Fund.

Ante Nuptial Contracts (ANC)

anteWhat is an Antenuptial Contract?
A contract entered into prior to marriage with the purpose of regulating the terms and conditions of the marriage. The parties to an antenuptial contract are the prospective spouses. Only prospective spouses that are free to marry each other or enter into a same-sex civil union may enter into an antenuptial contract


Why is an Antenuptial Contract important?
If your spouse becomes indebted, to protect yourself against your spouses' creditors, it is important that you have an antenuptial contract that is registered at the Deeds Registry.


When must an Antenuptial Contract be entered into?
The antenuptial contract must be signed prior to the marriage and registered within three months after signature.
There are 3 different matrimonial property regimes in South-Africa:

MARRIAGE IN COMMUNITY OF PROPERTY
This applies automatically where parties do not conclude an Antenuptual Contract. All assets and liabilities of spouses married in community, whether acquired before or during the marriage, fall within one joint estate.

Disadvantages of being married in community of property

  • if one of you goes into debt, creditors have claim to all of your assets – that’s your assets as well
  • if one of you has your own business and becomes insolvent, your home and all assets, in both of your names, becomes fodder for debt collectors
  • there is no financial independence, certain transactions, such the sale of shares, need the consent of both parties
  • if one partner should die, the estate of both the deceased and surviving partner will be wound up because it is a joint estate – not great for the surviving partner who will find themselves in legal limbo for a while

Advantages of a marriage in community of property

  • on death or divorce, the estate is divided equally

MARRIAGE OUT OF COMMUNITY OF PROPERTY

This is achieved by concluding an Ante Nuptial Contract. This furthermore entails that each party has, and maintains, a completely separate estate.
Each spouse retains absolute independence of contractual capacity, and each party’s assets are protected against claims by the other party’s creditors. Each is liable for his or her own debt. There is no provision for sharing.

Advantages of being married out of community of property without  the accrual system:

  • if one of you becomes insolvent, creditors may not attach the assets of the other
  • each of you is legally obliged to offer financial support to one another should one of you be unable to support himself/herself

Disadvantages of being married out of community of property without the accrual system:

  • in the case of death or divorce, you are entitled only to those assets you have accrued in your name – should one of you choose to stay at home to raise children, that partner would not be entitled to the assets accumulated by the other partner


MARRIAGE OUT OF COMMUNITY OF PROPERTY WITH INCLUSION OF THE ACCRUAL SYSTEM
Each spouse is the owner of their own estate which means that they may own property independently of each other and are liable for their own debt.
Inheritances, legacies and donations, including assets acquired by virtue of them are excluded from accrual, unless the spouses agree otherwise in their antenuptial contract or if the testator or donor stipulate otherwise.


How is the accrual calculated?

At dissolution of the marriage, each party’s estate is calculated by determining all assets, determining all liabilities, subtracting liabilities from assets and arriving at a nett asset value.

In simplistic terms the value of the smaller estate is subtracted from the value of the larger estate, the difference is split, and the party having the larger estate pays half of the difference between the two estates to the party with the smaller estate.

It is possible to provide for exclusions from this sharing. In the Antenuptial Contract the parties may exclude certain assets from the sharing. For an asset to be excluded it must be properly described.

Advantages of being married out of community of property with the accrual system:

  • both parties share in the wealth accumulated during marriage
  • if each of you owned property before the marriage, it remains in your     respective names
  • you each conduct your own independent financial affairs
  • if one of you goes into debt, it cannot be claimed from the estate of the other
  • in the case of divorce, any assets made whilst married are shared – it doesn’t matter who acquired them; each partner’s current net asset value is calculated by subtracting all liabilities from assets
  • the ANC can be tailored to suit your needs
  • it protects the partner who remains at home to care for the family

Sequestrations

Sequestration

When you owe money and the realisation that you are unable to pay your debt settles in, you would normally go through the following phases:

  • You try to raise additional finance.
  • You consider ways and means to increase your income.
  • You cut all luxuries from your budget and you eventually cut necessities from your budget.
  • You start to question your self-worth.
  • Many people consider suicide.
  • You find yourself in a state of self blame and depression. You start to regret financial decisions that you have made.
  • You become “shy”. Do not be shycontact us we understand exactly what you are going through.

Sequestration Definition:
Sequestration is a legal process by which you are declared insolvent by an Order in the High Court in terms whereof certain of your assets are handed over to a trustee, after which a Trustee (appointed by the Master of the High court) must according to the rules of the Insolvency Act, sell your assets. The proceeds of the sale of your assets are divided amongst creditors in a manner which is prescribed in the Insolvency Act.

Terminology:

What is the difference between “sequestration”, “bankruptcy”, “liquidation”, “insolvency” and “surrender of estate”?
“Sequestration”, “bankruptcy” “insolvency” and “liquidation” are all different terms, which in layman’s terms simply mean that a person or business is in such a bad financial state that creditors cannot get paid. The term “liquidation” refers to the bankruptcy of a company or close corporation and certain other legal entities. “The term “sequestration” refers to the bankruptcy of a natural person or a trust. “Surrender of estate” refers to the process where a natural person asks a court to declare him insolvent.

What is a: “Trustee”, “Liquidator” and “Curator”?
Once a natural person is sequestrated the Master of the High Court appoints a Trustee who must take control of the assets. In case a Company, Close Corporation or certain other legal entities are liquidated, the person appointed by the Master is referred to as a Liquidator. Curator can be either someone who is appointed to be guardian of the assets of an institution like for example an Art Gallery or Museum. A Curator is also the title used for a person appointed as guardian of someone who does not have the mental capacity to look after his own financial affairs. The name Curator is many times erroneously used when referring to a Trustee or Liquidator. Contrary to popular believe, Trustees and Liquidators do have feelings and their hearts are not made of stone (medically proven fact).

Who is “The Master of the High Court”?
The Master of the High Court is an institution which is the guardian of all insolvents, minor children and the estates of deceased persons. Guardians, trustees, Liquidators and Executors all report to the Master in the execution of their duties.

What is a Secured creditor?
A Secured Creditor is a creditor who holds security for the credit granted. Examples: bond over your property, motorcar/asset finance etc. He stands first in line when the asset is sold.

What is a “Preferent creditor”?
A preferent creditor is a creditor who holds security for his loans for example the creditor who has granted you a loan on your house or a hire purchase on your motor vehicle are examples of secured creditors. Apart from these creditors certain statutory creditors are preferent for example the taxman, employees, television licenses, costs owing to your doctor on your deathbed etc. The list is rather long and we will advise you on this.

What does the term “concurrent creditors” mean?
Concurrent creditors are those creditors who do not hold any security for the money you owe them. In practical and legal terms they stand at the very end of the cue when it comes to the hope or possibility of receiving anything from your Insolvent estate.

Civil Litigation

The Litigation Department serves as the backbone of the firm. Our Professional staff has extensive experience, in both Magistrate & High Court litigation and possesses the necessary knowledge and experience to adequately assess merits and quantum claims, to institute and defend actions, negotiate settlement of claims and oversee reporting to clients.

BBV’s experienced and dynamic team provide solutions in all areas of Litigation, but most notably in the following:


COMMERCIAL
MEDICAL MALPRACTICE
CONTRACT
PROPERTY DISPUTES
CORPORATE
LABOUR
DELICT
CRIMINAL
DEBT RECOVERY
RENT COLLECTIONS AND EVICTIONS
DIVORCE
INTERDICTS
INSOLVENCY
MOTOR VEHICLE ACCIDENTS
INSURANCE
THIRD PARTY CLAIMS
FAMILY AND MATRIMONIAL
RECISSION OF JUDGEMENTS

This department is headed up by Johan Vlok who is assisted by a team of experienced Attorneys.

Disclaimer

Whilst reasonable care was taken in capturing the data represented in these tables we cannot accept liability for mistakes which may be found herein.
This guide is subject to change without prior Notice.