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Letters to the Editor

• PO Box 36626, Menlo Park 0102

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• E-mail: derebus@derebus.org.za

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Letters are not published under noms de plume. However, letters from practising attorneys who make their identities and addresses known to the editor may be considered for publication anonymously.

BProc degree can set standard

I am replying to the letter ‘A poor man’s perspective on the LLB’ by Senzo Lawrence Buthelezi in the August issue of De Rebus (2013 (Aug) DR 5). I am of the opinion that it is not a question of rich or poor, but of the standard of the degree course offered by universities. I am in possession of a BProc degree, which was preceded by a DipIur. In the curriculum of my BProc degree, Latin and accountancy were compulsory subjects. Students also had other compulsory subjects, which were not offered by other universities, such as professional practice for attorneys and notaries and professional practice for conveyancers, which were prescribed as annual subjects for the fourth year of study.

In addition to the official languages, there were compulsory subjects such as constitutional and administrative law and political science, which were prescribed for the second and third year of the degree. Apart from these subjects, the majority of subjects prescribed for the BIur and LLB degrees were also compulsory and prescribed for the BProc degree. The BProc remained a four-year degree, irrespective of whether you obtained any other degree, for example, a BSc, BA or BCom, provided that the BA or BCom were not taken with law subjects. On the other hand, with these degrees as predecessors, an LLB degree could be obtained within three years.

I fully agree with Mr Buthelezi that there has never been an outcry about the quality of the graduates in possession of a BProc degree. I submit that the decision to do away with the BProc degree as an entry to the attorneys profession, marked a sad day in our legal history. This degree was introduced by way of legislation in 1971 after certain three-year courses like the DipProc, DipIur and BIur, for which three years of clerkship were required, became obsolete.

Rather upgrade the LLB degree to the standard of the BProc degree, with the inclusion of Latin and accountancy in the curriculum.

André Muller, attorney, notary and conveyancer, Bellville

Road Accident Fund Act: Are its objectives promoted?

The Road Accident Fund (RAF) is a juristic person established by an Act of parliament, namely, the Road Accident Fund Act 56 of 1996 as amended (RAF Act). The RAF is responsible –

• for providing compulsory social insurance cover to all users of South African roads;

• to rehabilitate and compensate persons injured as a result of the negligent driving of motor vehicles in a timely and caring manner; and

• to promote the safe use of all South African roads actively.

The vision of the RAF is ‘to provide the highest standard of care to road accident victims to restore balance in the social system’ (www.raf.co.za/about-us/pages/profile.aspx, accessed 9-9-2013). To restore this balance, especially in loss of support claims where claimants have suffered immensely as a result of losing a loved one who was also the bread winner, claimants need to be compensated as soon as practically possible. Speedy compensation is important in order to put the claimants in the position they would have been in had the breadwinner not passed on.

I am of the opinion that the aforementioned vision is not promoted by the RAF and/or its panel of attorneys. I have recently represented clients in a loss of support claim where the mother and the two daughters claimed support resulting from the death of her husband and their father. A claim was lodged and since there was no offer made, I proceeded to issue and serve summons, which was defended. I then went through the entire litigation process and applied for a trial date that was nine months away.

Merits were not in dispute and only the issue of quantum had to be agreed on. I provided the RAF with all the required documentation, including the actuarial report and when I requested to be provided with an offer, I was told that my clients’ claim would not be entertained as the trial date is only next year. My clients could not request an interim payment as the merits of this matter were not settled. The RAF did not take into account that my clients had, since the deceased’s death on 10 September 2009 to date, suffered loss of support and that the deceased’s eldest daughter could not complete her studies as a result of the financial challenges they were facing due to her father’s death.

A further delay in settling the matter was not benefiting my clients or the RAF as the legal costs were escalating and some financial adjustments would have to be made to the actuarial calculations, which would result in a higher amount than what was initially claimed.

In an attempt to resolve these issues and since I was not receiving any cooperation from its panel attorneys, I contacted the RAF directly and highlighted the fact that a speedy settlement would curb unnecessary escalating costs. More importantly, it would be beneficial to my clients, thereby promoting the vision of the RAF Act. In response, the RAF informed me that it would contact its panel attorneys in order to hear what their views on a possible out of court settlement were. The question that I want to raise is: Shouldn’t the RAF, as the client in this case, give its panel attorneys instructions to assist in settling the matter sooner?

I have come to the realisation that the objective and mission of the RAF Act are not promoted by the RAF as an institution or by its panel of attorneys. It is the responsibility and duty of the RAF to promote and implement this objective and mission. Should claims be entertained only when the trial date is close? In recent years this has created a situation where the RAF ended up paying more than what it was supposed to on claims, which could lead to a depletion of funds as was the case in August 2006.

An effective way of guarding against this is to simply attend to matters that are amenable to settlement out of court. The failure to settle claims speedily is, in a way, hampering the objective of the RAF Act in that it ends up not restoring the required balance in the social system. For example, in my clients’ case, the daughter will not be able to complete her studies on time or will have to drop out of college/university due to the unnecessary delay on the part of the RAF and its attorneys. This may lead to a situation where she might not find suitable work, taking into account her level of education.

I therefore urge the RAF and all its stakeholders to take the objective and mission of the RAF into account when assessing claims; more importantly, they must put the claimants’ interests first in promoting its vision and mission statements.

Bogosibotsile Mogajane, attorney, Pretoria

What are funeral expenses according to RAF?

In the Xhosa community, and most South African indigenous communities, whenever a member of the family dies, the remaining members, regardless of their financial status, have to incur funeral expenses. The expenses will be incurred before the funeral takes place, on the day of the funeral and after the funeral. These expenses are also linked to customs and rituals that have to be performed during the mourning period.

Before the funeral takes place, meals have to be prepared for family members, friends, community members and church members who visit the family to comfort them until the day of funeral. This period usually lasts a week or more. Also, a sheep has to be slaughtered in preparation for the people who come to dig the grave and for those who help with the preparation of the food.

On the funeral day, an ox has to be slaughtered in order to accompany the deceased into his or her ancestral home as well as to cleanse the remaining family members. If the deceased is a man, the widow has to wear certain mourning clothing, called izila, before and after the funeral, which is sewn at a price.

After the funeral, traditional beer has to be brewed in order to cleanse the picks and spades that were used to dig the grave. If the deceased is a man, another ox has to be slaughtered after 12 months, for a ritual called ukuzila (pleading with the ancestors to accept his arrival in their land). After 12 months the mourning clothes will be removed by another ritual called ukukhulula izila (wherein new clothes should be bought, sheep slaughtered, and traditional beer brewed).

The Road Accident Fund (RAF) only pays for the mortuary costs and the above expenses are not covered.

But for the death of the deceased in a road accident, these families would not have incurred all these funeral expenses. There is no way that a grieving family can bypass these above expenses. Why does the RAF think these are not necessary funeral expenses? Is it disrespectful of other people’s culture?

South Africa is a sovereign and democratic state founded on human dignity, the achievement of equality and the advancement of human rights and freedoms. The Bill of Rights applies to all law, and binds the legislature, the executive, the judiciary and all organs of state. The Constitution recognises cultural, religious and linguistic communities, therefore they may not be denied the right to enjoy their culture or to practise their religion.

Further, the Constitution provides that everyone has inherent dignity and the right to have his or her dignity respected and protected. My question is: Does the RAF’s non-payment of the above-mentioned funeral expenses symbolise the RAF’s failure to respect and recognise these rights?

Cebo Chaza, attorney, Pretoria

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