I am very impressed with the growth of my legal newsletter over the years, which took over the Road Accident Fund newsletter which I used to write for the Johannesburg Attorneys Association. Moving it to legal newsletter allowed me to control when the newsletter was sent out, although it was largely autonomous when I was with the Johannesburg Attorneys Association in any event. The growth initially was of course quite high, and then it steadied off, but the membership has now just gone over 500 active registered users, which is not bad considering that I have removed a number of non-attorneys from the list. Attorneys who are interested in personal injury work can always join up at www.legalnewsletter.co.za.

I came across an article with some horror from a tax partner of Grant Thornton on the Moneyweb tax site. The article, written by Neville Sweidan, can be read here, but essentially he advises attorneys that there are important amendment proposals coming in the Income Tax Act, with effect from 1 March 2012. The National Treasury proposes that compensation currently paid as a lump sum by the Road Accident Fund to victims should where possible be paid in periodic amounts spread out over several payments. I have drawn the attention of the LSSA to this and various other organisations and hopefully it will be put forward. In some blurb, they are trying to make it sound exciting, saying that in future the Road Accident Fund payments will be tax free and, “this periodic method of payment over an extended period spares victims from the risk of mismanagement of lump sum payments so as to cover victims and their families over long periods of hardship.”

The October De Rebus has a very interesting article by Professor Hennie Klopper on the issue of serious injuries. Professor Klopper argues in his article that you do not have to lodge the serious injury form, within the same time frame as you have to lodge a claim. He says that prescription of claims against the Road Accident Fund is governed solely by section 23 for identified claims and regulation 2 for hit and run claims. Section 23(3) and regulation 2(1)(c) do not mention any other forms – such as the serious injury form as having to be lodged within the time frame. He says that regulation 3(3)(b)(ii) is in conflict with sections 23 and 24 as the (ii) regulation implies that one would have to lodge it within the normal time frames, whereas regulation 3(3)(b)(i) implies that it can be lodged at any time before a claim has prescribed as provided for in the RAF Act which would then get to the longer time frame that one gets after having successfully lodged the initial claim. He says that the apparent conflict has to be interpreted in the least onerous effect which would then allow for lodgement of the RAF Form 4 before the extended prescription periods of five years from the date of the accident. Essentially he is saying that the required lodgement of an RAF Form 4 is not a new claim, called a “serious injury” but it just amends the original claim if it did not contain general damages. In other words, if you put an amount in your original claim for general damages, his argument is that the lodging of the RAF Form 4 merely constitutes substantiation of the claim in a similar manner to lodging medico legal reports in a case later. He does say that one should be cautious and adopt the approach of the Attorneys Fidelity Fund and the Attorneys Insurance Indemnity Fund and lodge within the three-year period (or two years for hit and runs) just to be careful but if you are out of time, you should nevertheless proceed to lodge a claim, because the points he makes may well be upheld by a Court later. 

As an aside, I noted that in one of my own matters, where we lodged the serious injury form with only one month to go, in terms of the normal period, that the Road Accident Fund raised an objection that MMI had not been reached and the form had been prematurely obtained. In other words, some 35 months after the accident, they are saying that we are lodging the form too early, and one must assume that standard letters of theirs in this regard could also be put before a Court as it may well indicate, to some extent, that they also support this view of Professor Klopper. Obviously, until there is some certainty on this issue, it would be prudent, as the Law Society recommends, to still try and lodge within the normal time frame.
 

As I reported in my legal newsletter, which you can sign up for at www.legalnewsletter.co.za, Jacob Modise left the Road Accident Fund rather suddenly, some 5 months ahead of when his contract expired. There is still no word on why he left and what possible disagreement, at the very least, took place, but when somebody leaves essentially immediately, and the communications manager is instantly appointed as the CEO, you can rest assured that there is a lot more to the story. Hopefully, in time it will come out and we will all be able to know what exactly lies behind the board publicly announcing, some 5 months before it was time to renew the contract, that they were not doing so and that the next day would be his very last at work.

The second there is any lack of competition, services drop. You can see it with Embassies, who have to grant visas, and have a could not care attitude, you can see it with state run entities such as Telkom, who repeatedly mess up my ADSL lines and could not be bothered to fix them up straightaway. Recently, I have discovered, for example with the Sheriffs, who have sole franchises essentially for each area, that when you give then a warrant of execution, in some cases they serve it two months later with the Road Accident Fund and still charge for it – even though they cannot collect any money because the Road Accident Fund rightfully say they have paid us in those intervening two months. It is astounding that somebody can try and charge for a service that they have rendered so late, that it no longer serves a purpose and it only happens when there is no competition and no alternative or choice for an attorney. It is about time that perhaps we have competing Sheriffs in different areas so that if the service of one is terrible, you can choose another.

An interesting judgment was given out by the Supreme Court of Appeal recently that ultimately confirms that it is the Court’s duty to decide whether or not a practitioner is issued with a Fidelity Fund Certificate. A copy of the judgment is available here.

In December, I lost a friend, Charlie Mnisi. Charlie was a former President of the Law Society of the Northern Provinces and very involved in the legal profession. We sat next to each at the Law Society for about 3 years and he was always my partner at the Law Society golf days, except last year November, when I could not make the event, and a month later he fell down some stairs and died two days later.

I will always remember Charlie as a smiling, happy man who always had his copy of the Mail & Guardian close to him on a Friday and did not take things too seriously. At the halfway house at Country Club Johannesburg, while the marshall chased the rest of us off to the tee to carry on with our round of golf, saying our breakfast break was over, Charlie continued to finish his breakfast and then ambled down to the tee, a smile on his face and not a concern in the world, after the rest of us had already played off. He was very relaxed and none of the pressure of the marshall or anybody else affected him and that was his nature. Another tragic loss and another family robbed of a father and a husband, and just a reminder to all of us that you really don’t know how long, at any given time, you have left on this earth.
 

There are many businesses out there, and sometimes we forget that education and selling degrees is also a business field and it will continue whether attorneys are getting paid well or not, or whether they find jobs or not, as long as there is a demand by people to become attorneys. I read an excellent article in the New York Times, headlined, “Is Law School a Losing Game?” recently and it basically had professors of the various Law Schools admitting that the figures are manipulated.

Those figures are the most important ones – how many of their students find jobs afterwards, and what their average earnings are. For example, they admitted that as long as a law student found a job waiting tables, that counted as a job and they would then indicate to all potential law students that that is one of the people who successfully found a job after going through Law School. Of course, you can quite easily become a waiter, as I was when I was a student, without studying in the first place. On this basis they manage to now indicate that 93% of all American law graduates are working, but they are not necessarily working as lawyers. To quote the article, “Number–fudging games are pandemic, Professors and Deans say, because the fortunes of Law Schools rise and fall on rankings, with reputations and huge sums of money hanging in the balance. You may think as Law Schools as training grounds for new lawyers, but that is just part of it. They are also cash cows … So much money flows into Law Schools, that Law Professors are among the highest paid in academia, and Law Schools that are part of Universities often subsidise the money-losing fields of higher education.” It never ceases to amaze me, while one in South Africa witnesses, on a yearly basis, the legal profession come under more and more threat, how the number of people studying for legal degrees only increases.

In a few years’ time, there will be a record number of lawyers chasing what is probably the smallest amount of work ever available for lawyers in this country. In England, they have now allowed supermarkets to hire lawyers and to have, if they want, a lawyer sitting in the entrance of the shop dishing out general advice, and I will not be surprised if that is the way that many, who actually get jobs in law, will work in a decade or so in South Africa also. The system is simply feeding too many lawyers into an economy and field with reducing work and at least one lawyer, who I knew who could not find sufficient work to make it in private practice, has now become a lecturer at a Law School.
 

 I must say I was quite surprised to see how popular my law blog remains, despite the fact that I really have not updated it very often.  Perhaps because it has been around for quite some time, or perhaps it is read by far more attorneys than I thought possible, but it still gets a few thousand reads a month, and is more popular than my official blog site, which I do update all the time, namely www.debroglio.co.za.  

Attorneys will recall that the Law Society of South Africa sent out a circular advising that it was negotiating with the Competition Commission on the Rules in as much as the Competition Commission had found that quite a number of the Rules of the various Law Societies were anti-competitive.  The various Law Councils are currently considering their draft Rules, and then submitting those through to the Law Society of South Africa, which will have, as I understand it, the final vetting process. 

In other words, one Law Society cannot simply go ahead and make its own rules on advertising, for example, if those rules are in conflict with the Competition Act, and without the Law Society of South Africa first approving them.  That is somewhat of a complex situation, particularly bearing in mind that the Law Societies are the regulatory bodies, and not the Law Society of South Africa, but all of the Law Societies are represented on the Law Society of South Africa and it is through that body that they have approached the Competition Commission, and the LSSA has given certain undertakings in this regard to the Competition Commission.  The LSSA did advise the Competition Commission that we would have a national set of rules, for all attorneys, by early 2011 and I wait to see those with some interest. 

 My most recent survey of attorneys, with regard to what they expected the Constitutional Court to find to be in the challenge on the new Road Accident Fund Act, was interesting as always.  95% of attorneys think the Law Society of SA will win the common law aspect of the challenge while only 23% believe that we will win all the other aspects of the challenge.  77% indicated that they did not know, until the hearing, that the general damages aspect of the challenge was not proceeded with before the Constitutional Court.  That will obviously have to be saved for another day, either by the Law Society or an attorney.  62% think that the judgment will take about three months to be delivered, while 33% went for one month and only 3% said in two weeks’ time. 

What was interesting however is that only 5% of attorneys on my newsletter list actually attended the Constitutional Court hearing and of that 5%, 50% feel that we will win the common law challenge and 50% believe that we will not.  In other words, those who did attend the hearing, are not as optimistic as those who did not attend the hearing.

The proverbial man in the street is forever complaining to the media that there is never any justice, or that only the wealthy get justice.  Subpoena that man in the street to court, as a witness in a case, and he will howl and protest and make every story under the sun to avoid giving his testimony.  Too many people don’t realise that the justice system depends on all of them and they prefer to listen to the radio, or watch TV (nobody seems to read anymore) and then call in to talk shows and mouth off about the justice system. 

I must say I’ve had my fair share of abusive witnesses who have been subpoenaed to court in various clients’ cases, and who always say, even if they got the subpoena three months before the trial date, that they just cannot be there and in any event, they decide themselves that they are not needed for the trial.  Making the courts work starts with everyone of us and it starts with doing your duty when you are called upon to testify.