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The article below is extracted from my newsletter, for those who do not receive it:
The question everyone wants to know, and I am no different, is when are we going to hear more about the regulations, or for that matter, direct payments. The reality is that it is clear that what is holding the Road Accident Fund back at the moment is the Constitutional Case of Kruger v President of the Republic of South Africa & others, which is to be heard by the Constitutional Court on 19 February 2008. This is the case brought by Attorney Marius Kruger, from the Cape, in which he sought to set aside the initial promulgation, by the President, of the wrong sections of the Road Accident Fund Amendment Act – or, at least, the sections he did not intend putting into effect at that time! They then corrected that by simply issuing another Notice saying that that was a mistake and what was intended to be legislated. You will recall at that time, he issued a newsletter saying that our counsel advised us that this could not be done and so too agreed the Pretoria High Court whereafter the matter ultimately found its way to the Constitutional Court. It appears that the Department of Transport and Kruger are in agreement on one thing, and that that is that the first announcement was not valid. What made the second aspect of the case quite interesting, is that if one assumes that by simply publishing a correction Notice, as it were, that that would not be the proper way to enact legislation, then essentially one would be left in a possession that the appointment of the CEO himself, and every decision he has taken since that Notice, would be a legal nullity.
While it is essentially guaranteed that Kruger will succeed on the first point, it does not appear that he will on the second as one would imagine that the Constitutional Court is going to bend over backwards so as not to place the Road Accident Fund in that position. We have been told, that the Road Accident Fund then intervened in the matter, although that would normally be the roll of the Minister of Transport, who is the Second Respondent in this particular matter. In fact, Kruger himself says that he has not raised the question of whether the Second Proclamation, standing by itself, is valid and in his paper says “the result is that I am now being drawn into a new issue which was not raised in my Application”. He does, subsequent to the Road Accident Fund’s Application for direct access to the Constitutional Court and he has requested the Court to ask of the Fund to explain it’s failure to participate at an earlier stage and it would seem clear from his papers, although he does not oppose the Fund engaging on the case, that he does not believe they should be admitted as a party to the case at this late stage. Strangely, the Road Accident Fund has applied to be admitted to the case as an amicus curiae, which as you know, are not ordinarily liable for the costs incurred by parties to the litigation. In his affidavit, Jacob Modise, advises the Court that it was only at the end of October 2007 that he became aware of the Application to have the First Proclamation declared invalid, and off course, as you will recall from our Newsletter on 17 October 2007, Mr Modise led a delegation to Parliament, in respect of which we provided a link to the audio, where at that time, the legal adviser to the Department of Transport, presumably in Mr Modise’s presence, stated that not only had the first Proclamation been declared invalid, but that the affect of this was that the second Proclamation fell away. Kruger in his affidavit says, “it is difficult to believe that this was the first Mr Modise had heard of the matter.”
Mr Modise, in his Application, apologizes for the Fund arriving late on the stage as it were, and points out that one of the consequences of the Application may be that the members of the Board of the Road Accident Fund would appear unlawfully appointed and that any decisions that they took subsequent to 31 July 2006 may well have been invalid. He points out that the Board has taken no fewer than 93 Resolutions since that date. The Application of the Road Accident Fund is available on the site noting that you would have to use your log in details to obtain access. Visit the site at www.legalnewsletter.co.za and log in to see the Documents.
So, in short, that answers all of your queries about what is happening. The bottom line is that the Fund are obviously scared to act until the Constitutional Court makes a decision and they will have wait for the Hearing and thereafter Judgment, presumably a month or so later. One must not think however, that they have shelved any of their plans. There is no doubt, they will see the light of day as soon as the Constitutional Court has ruled in this matter presuming, that the Court does not Rule against the Fund on the issue of the Second Proclamation, something which we doubt it will, and something that not even Kruger is himself opposing.
Personally, I expect speedy action sometime after judgment - late March/early April perhaps?
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