Thomson Reuters Foundation: Risks for South Africa’s food couriers surge during the pandemic
More than a year after Malawian driver Matthew was hit by a car while delivering food on his motorbike in South Africa, he lives with shooting pain in his foot and fears for his life every time he hits the road.
His injuries, including a broken toe and various cuts, left him unable to work for a month, but the company he was riding for – Uber Eats – told him he did not qualify for compensation as he was in hospital for less than 48 hours.
Daily Maverick: Unemployment crisis: South Africa must ease restrictive labour laws and focus on job creation
Daily Maverick: Proceed with caution: Employers have a right to insist that employees be vaccinated against Covid-19
With South Africa now fully immersed in a third wave of the Covid-19 pandemic and back in alert Level 4, only a small percentage of the population has been vaccinated and, of even greater concern, many continue to refuse the potentially life-saving medical intervention.
Daily Maverick: Road Accident Fund: High court ruling may be the lifeline unpaid victims need
The maladministration, corruption and sheer recalcitrance on the part of the Road Accident Fund to compensate the very victims it was established to assist is a bitter pill to swallow. Hopefully, a recent high court order will provide the fund’s administrators with the lifeline they need to get their house in order.
Daily Maverick: Turning a blind eye: Court-ordered ‘golden tickets’ for victims of state healthcare negligence are a cop-out
The way to tackle medical negligence and harm caused at state institutions is not to try to restrict a plaintiff’s rights to access to justice or compensation, but rather to ensure that the quality of service that is provided at public facilities protects patients who in many instances cannot elect private care and are often voiceless within society.
Daily Maverick: It’s time to bridge the alarming CCMA service delivery gap
As the CCMA backlog continues to grow, part-time commissioners have been told they may represent private clients but need to choose between doing so and potentially returning to work as part-timers for a six-month period. This is mystifying. Surely the CCMA needs all the experienced part-time commissioners possible to clear the backlog of cases?
Daily Maverick: Impending chaos: Far too many unanswered questions around the extension of Temporary Employment Relief Scheme benefits
With backlogs in both the Temporary Employment Relief Scheme and UIF payouts, and the inevitable need for UIF claim withdrawals to qualify for extended Temporary Employment Relief Scheme benefits, is this beyond the capacity of the Department of Labour to handle? How can we avoid the impending chaos?
CCMA Budget cuts will bring organisations to complete standstill, warns lawyer
R600 million in budget cuts could have serious repercussions for the CCMA that was established to ensure the protection and promotion of fair labour rights.
Daily Maverick: We need to talk about what is happening at the CCMA – it’s a mess
In November 2020, part-time commissioners, who hear the bulk of CCMA cases, were advised that budget cuts would result in a significant reduction of their numbers and the number of matters allocated to them. No new cases would be set down for hearing by part-time commissioners until March 2021.
Daily Maverick: Criminal justice system not the only option for survivors of gender-based violence
Survivors of gender-based violence have the option of pursuing civil action against perpetrators – and it is also possible for a civil case to follow an unsuccessful criminal case. That an accused has been found ‘not guilty’ by a criminal court does not mean that they are in fact innocent.
Probationary contracts
A probationary employee is one who has a provisional employment contract. That is, the continuation of the contract is conditional on whether the employee’s work performance during the probationary period shows that he/she is capable to carry out the work properly.
Why Should I Instruct an Attorney in a Motor Vehicle Accident Claim
Should you be involved in a motor vehicle collision in South Africa you would have a claim against a statutory body known as the Road Accident Fund. The Road Accident Fund is an institution created by legislation which provides compensation to any victim be it a passenger, driver or pedestrian, depending on the circumstances, of the accident
What Are Damages And How Are They Calculated
When you are injured in either an accident or by a doctor during the course of a surgical procedure or as a result of the doctor’s failure to act either promptly or at all you suffer harm.
Consumer Rights – The Legal Process
No Court can restore your health, but an attorney who specialises in the field of personal injury can recover money from the wrongdoer to provide for future medical care and to make up any lost income, says Tzvi Brivik, director and senior partner at law firm Malcolm Lyons & Brivik.
Medical Litigation
Law suits against the medical profession are on the increase. A number of factors have contributed to this. Developments in medical science and medical technology have assisted the medical practitioner in diagnosing, detecting, preventing, curing and treating diseases and abnormalities in the human body.
Joint Minute Article
In order to save the Court time and to clarify medical issues at hand, experts come together to compile a report otherwise known as a “joint minute”. These reports consist of the issues agreed between the experts, resulting in a speedier resolution of the matter
Joint Minute Article : Obligations of Medical Practitioners
Great care must be taken in compiling a Joint Minute. The Minute is used as evidence and is interpreted by the Courts. An expert has the duty to not tailor his/her medical opinion in order to suit a particular party. Furthermore, the medical practitioner has a duty to provide honest, substantiated expert views on matters that relate to their field of expertise.
The Possibility of Decreasing Medical Malpractice Claims
The Health Professional Council of South Africa has recorded a constant increase in medical malpractice claims in the country every year. However, this increase can be prevented by practitioners by constantly considering what is known as the six Cs: consent, competence, compassion, consultation, communication and clinical records.
Consumer Rights, Indemnity Clauses and Prescribed Rate of Interest
Sexual Harassment
Sexual harassment is unwanted conduct of a sexual nature. This involves direct or indirect conduct such as following, watching, or pursuing the claimant.
Principles of Medical Law
In order to save the Court time and to clarify medical issues at hand, experts come together to compile a report otherwise known as a “joint minute”. These reports consist of the issues agreed between the experts, resulting in a speedier resolution of the matter
PEOPIL Conference 2013 in Lisbon
Cape Town Attorney Tzvi Brivik recently returned from Lisbon, Portugal where he addressed the Pan European Organization of Personal Injury Lawyers (PEOPIL) annual medical negligence and tourism conference.
Code of Good Practice on Sexual Harassment
1.Introduction
(1) The objective of this code is to eliminate sexual harassment in the workplace.
(2) This code provides appropriate procedures to deal with the problem and prevent its recurrence.
(3) This code encourages and promotes the development and implementation of policies and procedures that will lead to the creation of workplaces that are free of sexual harassment, where employers and employees respect one another’s integrity and dignity, their privacy, and their right to equity in the workplace.
Employers and Independent Contractors
No vicarious liability of employer for wrongdoing of his independent contractor particularly in building accidents, electrocutions and the like.
Factual Causation and Omissions
In order to save the Court time and to clarify medical issues at hand, experts come together to compile a report otherwise known as a “joint minute”. These reports consist of the issues agreed between the experts, resulting in a speedier resolution of the matter
Wrongfulness Of Omissions
The test for factual causation is the sine qua non ( or “but for” ) test. It entails the hypothetical “thinking away” of a particular alleged cause of a result and asking whether, absent that cause, the offending result would nonetheless have occurred.
Personal Liability of Employer for Wrongdoing When Personal Injury Alleged of His Independent Contractor
The exclusion of an employer’s vicarious liability for the wrongdoing of his independent contractor underscores the parallel, yet distinct, rule that an employer may, in appropriate circumstances, be personally liable for the wrongdoing his independent contractor on the basis of his ( the employer’s ) own fault in relation thereto, ie, as a matter of ordinary delictual liability.
The Salient Principles of Medical Law
Medical law is a species of healthcare law. It main objectives are to regulate the Medical profession and to protect, promote and above all to support the relationship between the doctor/ hospital and the patient….
Medical Negligence – Nature of Causation, Damages and Compensation
Great care must be taken in compiling a Joint Minute. The Minute is used as evidence and is interpreted by the Courts. An expert has the duty to not tailor his/her medical opinion in order to suit a particular party. Furthermore, the medical practitioner has a duty to provide honest, substantiated expert views on matters that relate to their field of expertise.
Public Sector Employees Absconding
Abscondment or desertion refers to cases where an employee stays away from work for a longer period, with the clear intention of not returning to employment.
To Err is Human, but….
THE LEGAL PRINCIPLES:
When a patient approaches a Doctor, he does so with a certain expectation. The patient believes that the doctor will provide the medical relief sought with the proper skill and proficiency.
Is it More Difficult to Succeed with a Defence…
We recently argued a matter in the Eastern Cape High Court, Mthatha, where our clients had sustained severe brain and orthopaedic injuries as a result of a single vehicle accident that took place near Beaufort West on 22 December 2007, when the bus driver lost control of his bus following a deflated tyre.
Legal Implications – if a Party fails to Call a Witness
On frequent occasions, our courts have furnished guidelines regarding the conclusion(s) that can be reached and the inferences that stand to be drawn where a party fails to call a particular witness to testify.
The Evaluation of Expert Opinion and Testimony
A proper and appropriate approach to be taken by our courts in the evaluation of expert opinionand testimony in medical cases (particularly when opposing and conflicting expert views are presented), the leading authority is the case of Michael v Linksfield Park Clinic (Pty) Ltd & Anor 2001 (3) SA 1188 (SCA).
The Evaluation of Conflicting Versions of Evidence
By the very nature of litigation, in the majority of civil and criminal trials, conflicting, irreconcilable versions are frequently presented by opposing parties that need to be compared, weighed up against each other, assessed and evaluated.
Consent in South African Medical Law
Consent in South African medical law is regarded as a justification ground negativing wrongfulness in respect of delictual claims. The consent must be informed.
In the absence of properly informed consent any medical procedure is prima facie wrongful. Performing a medical procedure in the absence of properly informed consent also constitutes a violation of a patient’s constitutional right to bodily integrity in terms of section 12(2)(b) of the Constitution.
General Duty of Care
In Minister of Safety and Security and Another v Carmichele 2004(3) SA 305 (SCA) it was held as follows ad paragraphs [43] and [44];
“[43] Did the State owe a duty to the plaintiff? The answer lies in the recognition of the general norm of accountability: the State is liable for the failure to perform the duties imposed upon it by the Constitution unless it can be shown that there is compelling reason to deviate from that norm.
Statutory Immunity to Government Organizations
1.The issue of statutory immunity was dealt with in Simon’s Town Municipality v Dews and Another 1993(1) SA 199 (A); particularly in what circumstances the state will be held to be negligent despite the usual immunity provision.
Negligence in Train Accidents
1.In Ngubane v The South African Transport Services 1991(1) SA 756(A) the Appellate Division was called upon to determine the issue of negligence where a passenger fell out of a moving train and sustained injury. Kumleben J A restated the well known principles applicable to liability in delict in the following terms (at p 776-778):(1)
Medical Negligence – Laparoscopic Repairs
An inguinal hernia is a defect in the inguinal canal that allows intra abdominal content to herniate (or protrude) through the canal outside of the abdomen (and into the scrotum, in the case of a man).
What a lot of Humbug
SIR-the allegations in your news item (New accident fund “to end lawyer’s greed”, September), referring to criticism of “lawyers greed” by Jacob Modise, CEO of the Road Accident Fund, are an attempt to deflect the responsibility for enormous wasting of legal costs by the fund onto lawyers, and are proven humbug. Mr Modise’s refrain was considered and rejected by the Cape High Court twice recently.
Aviation
1. The Aviation Act No. 74 of 1962 (now repealed and replaced by the Civil Aviation Act. No. 13 of 2009) applies to all aircraft whilst in or over any part of the Republic. “Aircraft” means any machine that can derive support in the atmosphere from the reactions of the air other than the reactions of the air against the earth’s surface.
Mistakes Teach the Road Accident Fund little
Sir- As a personal injury lawyer handling victims accident claims in the high courts against the Road Accident Fund (RAF), I endorse the Eastern Cape judges criticism to which Carmel Richard refers (Fund is against victims, November 15) relating to the war that the RAF has been waging on accident victims, Jacob Modise, the RAF’s CEO, in his reply (RAF not waging war on accident victims, November 22), as usual blames the legal fraternity for the administrative morass in the RAF, for which its board and the CEO must take responsibility, Criticism by judges is not confined to Eastern Cape, as Modise seems to suggest.
Daily Maverick: Road Accident Fund: High court ruling may be the lifeline unpaid victims need
The maladministration, corruption and sheer recalcitrance on the part of the Road Accident Fund to compensate the very victims it was established to assist is a bitter pill to swallow. Hopefully, a recent high court order will provide the fund’s administrators with the lifeline they need to get their house in order.
Daily Maverick: Turning a blind eye: Court-ordered ‘golden tickets’ for victims of state healthcare negligence are a cop-out
The way to tackle medical negligence and harm caused at state institutions is not to try to restrict a plaintiff’s rights to access to justice or compensation, but rather to ensure that the quality of service that is provided at public facilities protects patients who in many instances cannot elect private care and are often voiceless within society.
Daily Maverick: It’s time to bridge the alarming CCMA service delivery gap
As the CCMA backlog continues to grow, part-time commissioners have been told they may represent private clients but need to choose between doing so and potentially returning to work as part-timers for a six-month period. This is mystifying. Surely the CCMA needs all the experienced part-time commissioners possible to clear the backlog of cases?
Daily Maverick: Impending chaos: Far too many unanswered questions around the extension of Temporary Employment Relief Scheme benefits
With backlogs in both the Temporary Employment Relief Scheme and UIF payouts, and the inevitable need for UIF claim withdrawals to qualify for extended Temporary Employment Relief Scheme benefits, is this beyond the capacity of the Department of Labour to handle? How can we avoid the impending chaos?
CCMA Budget cuts will bring organisations to complete standstill, warns lawyer
R600 million in budget cuts could have serious repercussions for the CCMA that was established to ensure the protection and promotion of fair labour rights.
Daily Maverick: We need to talk about what is happening at the CCMA – it’s a mess
In November 2020, part-time commissioners, who hear the bulk of CCMA cases, were advised that budget cuts would result in a significant reduction of their numbers and the number of matters allocated to them. No new cases would be set down for hearing by part-time commissioners until March 2021.
Daily Maverick: Criminal justice system not the only option for survivors of gender-based violence
Survivors of gender-based violence have the option of pursuing civil action against perpetrators – and it is also possible for a civil case to follow an unsuccessful criminal case. That an accused has been found ‘not guilty’ by a criminal court does not mean that they are in fact innocent.
Probationary contracts
A probationary employee is one who has a provisional employment contract. That is, the continuation of the contract is conditional on whether the employee’s work performance during the probationary period shows that he/she is capable to carry out the work properly.
Why Should I Instruct an Attorney in a Motor Vehicle Accident Claim
Should you be involved in a motor vehicle collision in South Africa you would have a claim against a statutory body known as the Road Accident Fund. The Road Accident Fund is an institution created by legislation which provides compensation to any victim be it a passenger, driver or pedestrian, depending on the circumstances, of the accident
What Are Damages And How Are They Calculated
When you are injured in either an accident or by a doctor during the course of a surgical procedure or as a result of the doctor’s failure to act either promptly or at all you suffer harm.
Consumer Rights – The Legal Process
No Court can restore your health, but an attorney who specialises in the field of personal injury can recover money from the wrongdoer to provide for future medical care and to make up any lost income, says Tzvi Brivik, director and senior partner at law firm Malcolm Lyons & Brivik.
Medical Litigation
Law suits against the medical profession are on the increase. A number of factors have contributed to this. Developments in medical science and medical technology have assisted the medical practitioner in diagnosing, detecting, preventing, curing and treating diseases and abnormalities in the human body.
Joint Minute Article
In order to save the Court time and to clarify medical issues at hand, experts come together to compile a report otherwise known as a “joint minute”. These reports consist of the issues agreed between the experts, resulting in a speedier resolution of the matter
Joint Minute Article : Obligations of Medical Practitioners
Great care must be taken in compiling a Joint Minute. The Minute is used as evidence and is interpreted by the Courts. An expert has the duty to not tailor his/her medical opinion in order to suit a particular party. Furthermore, the medical practitioner has a duty to provide honest, substantiated expert views on matters that relate to their field of expertise.
The Possibility of Decreasing Medical Malpractice Claims
The Health Professional Council of South Africa has recorded a constant increase in medical malpractice claims in the country every year. However, this increase can be prevented by practitioners by constantly considering what is known as the six Cs: consent, competence, compassion, consultation, communication and clinical records.
Consumer Rights, Indemnity Clauses and Prescribed Rate of Interest
Sexual Harassment
Sexual harassment is unwanted conduct of a sexual nature. This involves direct or indirect conduct such as following, watching, or pursuing the claimant.
Principles of Medical Law
In order to save the Court time and to clarify medical issues at hand, experts come together to compile a report otherwise known as a “joint minute”. These reports consist of the issues agreed between the experts, resulting in a speedier resolution of the matter
PEOPIL Conference 2013 in Lisbon
Cape Town Attorney Tzvi Brivik recently returned from Lisbon, Portugal where he addressed the Pan European Organization of Personal Injury Lawyers (PEOPIL) annual medical negligence and tourism conference.
Code of Good Practice on Sexual Harassment
1.Introduction
(1) The objective of this code is to eliminate sexual harassment in the workplace.
(2) This code provides appropriate procedures to deal with the problem and prevent its recurrence.
(3) This code encourages and promotes the development and implementation of policies and procedures that will lead to the creation of workplaces that are free of sexual harassment, where employers and employees respect one another’s integrity and dignity, their privacy, and their right to equity in the workplace.
Employers and Independent Contractors
No vicarious liability of employer for wrongdoing of his independent contractor particularly in building accidents, electrocutions and the like.
Factual Causation and Omissions
In order to save the Court time and to clarify medical issues at hand, experts come together to compile a report otherwise known as a “joint minute”. These reports consist of the issues agreed between the experts, resulting in a speedier resolution of the matter
Wrongfulness Of Omissions
The test for factual causation is the sine qua non ( or “but for” ) test. It entails the hypothetical “thinking away” of a particular alleged cause of a result and asking whether, absent that cause, the offending result would nonetheless have occurred.
Personal Liability of Employer for Wrongdoing When Personal Injury Alleged of His Independent Contractor
The exclusion of an employer’s vicarious liability for the wrongdoing of his independent contractor underscores the parallel, yet distinct, rule that an employer may, in appropriate circumstances, be personally liable for the wrongdoing his independent contractor on the basis of his ( the employer’s ) own fault in relation thereto, ie, as a matter of ordinary delictual liability.
The Salient Principles of Medical Law
Medical law is a species of healthcare law. It main objectives are to regulate the Medical profession and to protect, promote and above all to support the relationship between the doctor/ hospital and the patient….
Medical Negligence – Nature of Causation, Damages and Compensation
Great care must be taken in compiling a Joint Minute. The Minute is used as evidence and is interpreted by the Courts. An expert has the duty to not tailor his/her medical opinion in order to suit a particular party. Furthermore, the medical practitioner has a duty to provide honest, substantiated expert views on matters that relate to their field of expertise.
Public Sector Employees Absconding
Abscondment or desertion refers to cases where an employee stays away from work for a longer period, with the clear intention of not returning to employment.
To Err is Human, but….
THE LEGAL PRINCIPLES:
When a patient approaches a Doctor, he does so with a certain expectation. The patient believes that the doctor will provide the medical relief sought with the proper skill and proficiency.
Is it More Difficult to Succeed with a Defence…
We recently argued a matter in the Eastern Cape High Court, Mthatha, where our clients had sustained severe brain and orthopaedic injuries as a result of a single vehicle accident that took place near Beaufort West on 22 December 2007, when the bus driver lost control of his bus following a deflated tyre.
Legal Implications – if a Party fails to Call a Witness
On frequent occasions, our courts have furnished guidelines regarding the conclusion(s) that can be reached and the inferences that stand to be drawn where a party fails to call a particular witness to testify.
The Evaluation of Expert Opinion and Testimony
A proper and appropriate approach to be taken by our courts in the evaluation of expert opinionand testimony in medical cases (particularly when opposing and conflicting expert views are presented), the leading authority is the case of Michael v Linksfield Park Clinic (Pty) Ltd & Anor 2001 (3) SA 1188 (SCA).
The Evaluation of Conflicting Versions of Evidence
By the very nature of litigation, in the majority of civil and criminal trials, conflicting, irreconcilable versions are frequently presented by opposing parties that need to be compared, weighed up against each other, assessed and evaluated.
Consent in South African Medical Law
Consent in South African medical law is regarded as a justification ground negativing wrongfulness in respect of delictual claims. The consent must be informed.
In the absence of properly informed consent any medical procedure is prima facie wrongful. Performing a medical procedure in the absence of properly informed consent also constitutes a violation of a patient’s constitutional right to bodily integrity in terms of section 12(2)(b) of the Constitution.
General Duty of Care
In Minister of Safety and Security and Another v Carmichele 2004(3) SA 305 (SCA) it was held as follows ad paragraphs [43] and [44];
“[43] Did the State owe a duty to the plaintiff? The answer lies in the recognition of the general norm of accountability: the State is liable for the failure to perform the duties imposed upon it by the Constitution unless it can be shown that there is compelling reason to deviate from that norm.
Statutory Immunity to Government Organizations
1.The issue of statutory immunity was dealt with in Simon’s Town Municipality v Dews and Another 1993(1) SA 199 (A); particularly in what circumstances the state will be held to be negligent despite the usual immunity provision.
Negligence in Train Accidents
1.In Ngubane v The South African Transport Services 1991(1) SA 756(A) the Appellate Division was called upon to determine the issue of negligence where a passenger fell out of a moving train and sustained injury. Kumleben J A restated the well known principles applicable to liability in delict in the following terms (at p 776-778):(1)
Medical Negligence – Laparoscopic Repairs
An inguinal hernia is a defect in the inguinal canal that allows intra abdominal content to herniate (or protrude) through the canal outside of the abdomen (and into the scrotum, in the case of a man).
What a lot of Humbug
SIR-the allegations in your news item (New accident fund “to end lawyer’s greed”, September), referring to criticism of “lawyers greed” by Jacob Modise, CEO of the Road Accident Fund, are an attempt to deflect the responsibility for enormous wasting of legal costs by the fund onto lawyers, and are proven humbug. Mr Modise’s refrain was considered and rejected by the Cape High Court twice recently.
Aviation
1. The Aviation Act No. 74 of 1962 (now repealed and replaced by the Civil Aviation Act. No. 13 of 2009) applies to all aircraft whilst in or over any part of the Republic. “Aircraft” means any machine that can derive support in the atmosphere from the reactions of the air other than the reactions of the air against the earth’s surface.
Mistakes Teach the Road Accident Fund little
Sir- As a personal injury lawyer handling victims accident claims in the high courts against the Road Accident Fund (RAF), I endorse the Eastern Cape judges criticism to which Carmel Richard refers (Fund is against victims, November 15) relating to the war that the RAF has been waging on accident victims, Jacob Modise, the RAF’s CEO, in his reply (RAF not waging war on accident victims, November 22), as usual blames the legal fraternity for the administrative morass in the RAF, for which its board and the CEO must take responsibility, Criticism by judges is not confined to Eastern Cape, as Modise seems to suggest.