Leseding legal protection

Leseding legal protection We provide legal services at an affordable rate. Capital from RAF paid directly to you).

RAF direct claims assist (claimants who lodge their claims directly with the fund without assistance of an attorney to avoid costs.

03/04/2023

I am back on help desk, you can any legal questions and i will try to answer them

Law on ethics states that it is the duty of an attorney to serve and carry out the mandate of a client in a professional...
03/04/2023

Law on ethics states that it is the duty of an attorney to serve and carry out the mandate of a client in a professional, ethical and diligent manner. It is also the duty of the attorney to communicate from time to time with a client about the matter he is handling on behalf of the client. In other words , the attorney must keep client posted of developments in the clients matter either through correspondence , emails , telephone calls , text messages and/or through consultations. Further , it is also the duty of an attorney to account fully to a client upon finalization of the matter. The attorney must draw attorney and client bill of cost based on the fee agreement entered into between an attorney and client. Clients often complain that attorneys are not accounting to them in third party claims. It is also the attitude of the RAF that clients capital received from the RAF are embezzled by attorneys and that attorneys are disclosing and accounting to client about the monies received from the RAF . This brings the profession to disrepute and most of the clients no longer trust attorneys. The RAF and the High Court always need the contingency fee agreement from attorneys. In other words , the attorney must prepare an affidavit to the effect that there is a contingency agreement or not between the parties and simultaneously prepare the confirmatory affidavit of the client supporting his version. The court will never grant an order on settlement of the matter without having looked at the contingency fee agreement and the RAF will never make a payment of the capital and the cost without having received the contingency fee agreement. More often , the High Court is not in favor of the contingency fee agreement. The High Court often insists that the attorney should prepare his bill of cost . The preparation of the bill of cost will be in line with the fee agreement entered into between attorney and client when instructions were received to institute a third party claim or a power of attorney on fees signed when instructions were received. Therefore , the client must be careful when signing the fee agreement and/or the power of attorney on the date when giving instructions to an attorney. I personally do not agree with the contingency fee agreement but i believe that the attorney must prepare an itemized bill of cost showing the fees and disbursements incurred during the prosecution of the third party claim. When accounting to client after the matter is finalized ,the attorney must disclose the capital received and the party and party cost. He must prepare a reconciliation statement of the payments received from the RAF. Recently a friend who is a colleague of mine, and who had the matter in the High Court had a problem with a judge who refused to grant an order in a matter which was not even opposed by the RAF. The judge insisted that the interest of the client must be protected on the issue of fees and rejected the contingency fee agreement. Then i personally told him that the judge was correct and he wants a affidavit from the attorney about the fees and the disbursement issue. I further told him that the interest of the client must be protected by the judge. Furthermore i advised him, to prepare an affidavit that will tell the judge about the drawing of the attorney and client bill of cost and that the party and party cost will be disclosed to the client, proper accounting will be done , and the reconciliation statement will be drawn. The judge accepted the affidavit and granted the final order. Therefore the interest of the client should be protected when it comes to money, and the manner in which the matter was handled by an attorney

15/12/2021

Last week I explained the application of the pre-trial conference and the necessity of holding a pre-trial conference in preparation for trial. Today I am dealing with the pre-trial conference in terms of rule 37(8)(a) which is a pre-trial conference held before the judge in terms of the said rule. Once you have held a pre-trial conference with another attorney, a pre-trial minutes is prepared by one of the attorneys. That pre-trial minutes is forwarded to the attorney you held a pre-trial conference with for his consideration and signature. The pre-trial minutes signed by both parties must be registered with the registrar’s office in court. Let me deal in detail with the pre-trial conference before the judge in terms of the rule 37(8)(a). The application for the judicial case management conference is completed by an attorney. The date for a pre-trial conference will be allocated by the registrar and the attorney and/or advocate will appear before the judge in an open court wherein the judge will either issue the certificate of readiness for trial when the matter is well prepared for trial or remove the matter from the roll. The advocate or the attorney will address the judge as to why he must issue the certificate of readiness for trial. If the judge is satisfied after having perused the file that the matter is ready for trial issue the certificate of readiness for trial. The judges are tied of the matters being removed from the roll by attorneys or advocates on the date of hearing or few days before the trial date. Some attorneys had the tendency of applying for trial date, not preparing for trial very well and remove the matter from the roll, whereas other attorneys are waiting for trial dates and the dates are allocated to attorneys who are not serious in running the trial and thus prejudicing the attorneys who are serious about their matters. Therefore, judges are tied of these shenanigans. Now, the directive of the judge president the files must be paginated before the trial date can be allocated on a matter. This simply means that the pleadings must be closed and all the medico-legal reports of the plaintiff’s attorneys and the defendant’s attorneys must be indexed and paginated in the file. Before you hold a pre-trial conference before the judge your court file must be in order, that is all the medico-legal reports must be paginated and the pre-trial minutes signed by both parties must be included in the index to pleadings, and the bundle of documents must be indexed and paginated. The judge will peruse the file and satisfy himself that the case is ready for trial and issue the certificate of readiness. That is how things are done, and those attorneys who are malingering and wasting the court time are left in the cold. It is difficult for attorneys to run the matter these days because you must have all the medico-legal reports prepared by experts relating to the injury litigated on. Medico-legal reports are expensive and the experts are not prepared to work on the contingency because of the bad experiences they had with other firms of attorneys. Previously, experts worked on a contingency trusting other firms of attorneys that they will receive their payment on settlement of the claim but they were let down by dishonest attorneys who pocketed the money and forgot about the experts. The cost of the medico-legal reports are recovered from the Road Accident Fund (RAF) upon taxation/settlement of the party and party bill of cost but some attorneys pocketed that money and failed to pay the experts. Doctors don’t trust attorneys anymore and they want money on collection of the medico-legal report. Some doctors want a deposit before consulting with the claimant on medico-legal examination. Therefore it is difficult for attorneys to run third-party claims, medical negligence claims and personal injury claims because you must take out money out of your pocket or have the reserves for the cost of your practice. When you settle claims you must put part of the money in your reserve to enable you to finance other claims. Otherwise you will keep on lying to clients that you are busy arranging appointments for medico-legal examination whereas you are not, in fact you are waiting for other cases to settle to finance the others. When you run the law firm you must have the reserves for bad days and not spend all the moneys you make on fees. Otherwise, you will find yourself taking money from Peter’s settlement to finance John’s matter and the problem will start in your bookkeeping, in fact you are stealing Peter’s money to finance john’s file then that hole you are creating will never be covered. It is like opening a hole in a sand it will never be covered. A clever attorney after having received money from RAF draws his bill immediately and pays his client and tell client to wait for party and party cost. Then the money is out of your trust account and you are safe. Once the money stays long in the trust account problems will start and one of the problems is borrowing from that money and that is illegal and contrary to the rules of the law society. Once your books of accounts are audited and they find that you have created that hole then you are suspended from the practice. Trust monies must always be respected because it is not your money, you must debit your fees and transfer your fees into the business account then you can enjoy your money. Therefore matters are not ready for trial in most cases because people don’t have all the medico-legal reports. Therefore, judges are reluctant to issue the certificate of readiness for trial. Then the client becomes angry with you that you are delaying the case and this results in termination of mandate. Therefore, you must manage your files properly in order to run other cases quickly. If you finalise cases quickly you get referrals then you forget about ambulance chasing and touts.

15/12/2021

Many people keep on asking me questions with regard to the pre-trial conference and its purpose. The pre-trial conference if often held by the plaintiff’s attorneys and the defendant’s attorneys after the close of the pleadings. By the close of the pleadings I mean when the defendant’s attorneys have served the plea on the plaintiff. If the plea is accompanied by the special plea by the defendant then the plaintiff must serve and file the replication to the defendant’s special plea. The special plea is often raised by the defendant that the plaintiff has failed to prove non-pecuniary damages in terms of the regulations of the RAF Act. Now, once the defendant has pleaded and the plaintiff has replicated to the special pleas then the parties may call for the pre-trial conference in terms of the rules of the court. The pre-trial conference must be held six weeks before the trial. The purpose of the pre-trial conference are the following:
1. The parties must decide on the separation of issues in terms of rule 33(4). The separation of issues we are referring to the general damages, future loss of earnings and/or earning capacity and the merits. The parties may decide to deal with the merits first, as the merits are in dispute. The merits mean the manner in which the accident occurred. When the merits are in dispute by the defendant it will not be prudent to deal with both merits and quantum at the same time. It is prudent for an attorney to finalize the merits before you deal with quantum. You must know your case first and that it will be successful on the merits before you deal with the quantum because if you deal with the quantum the experts get involved in the matter. The experts must prepare the medico-legal reports which are costly and also be instructed to prepare the joint minutes if the defendant has also appointed the experts. The experts have to be reserved for the trial. Reservation of experts for the trial if costly because whether the matter is settled or not the cost of reservation of the experts must be paid by the either party. If the plaintiff is successful with claim then the defendant will be liable for the cost of the reservation of experts, medico-legal reports and the joint minutes. Therefore, the parties may agree during the pre-trial conference to separate the merits from quantum in terms of rule 33(4) if the merits are in dispute.
2. The parties will discuss the issue of settling the merits or merits jointly with the quantum during the pre-trial conference. Make no mistake the matter may be settled during the pre-trial conference. If you run your matter from the beginning professionally and diligently you can settle it during the pre-trial conference. Why should you drag the matter to the door step of the court when you have done your work? When you get instructions from the claimant, you investigate the merits of the matter. You obtain all statements of the witnesses, insured driver, contents of the docket, records of the proceedings if there was a criminal trial of the insured driver, copy of the charge sheet, letter indicating the outcome of the criminal prosecution, photographs of the scene of the accident and rough sketch, plan and key by the claimant and the witnesses. Then you prepare the merits assessment reports and prepare the bundle of photographs and its narration. These documents must be served on the RAF. The RAF will assess the merits and give you an offer of settlement. In other words you make their work easier by preparing those documents. Once you are satisfied with the merits then you can refer the claimant to the experts because you have a solid case. It is like when you are building a house you must have a solid foundation otherwise your building will collapse. Settlement proposal must be discussed during the pre-trial conference and the defendant must react thereto
3. The other purpose of the pre-trial conference is that the parties will discuss which documents will be used at the trial without any proof thereof to narrow issues at the trial. Those documents can be handed to the court as evidence without proof thereof if the parties have agreed during a pre-trial conference. The parties can also agree on preparation of bundles of documents and the documents to be included in the bundles for use by the parties and court. Those bundle of documents will be paginated by the plaintiff’s attorneys/RAF. The RAF may supplement the bundle of documents. In other words, the RAF can prepare the supplementary bundle of documents.
4. The other aspect to be decided during the pre-trial conference is whether either party has suffered prejudice for non-compliance of the rules of the court by either party during litigation. For an example, you are served with the notice to discover in terms of rule 35(1)(6)(8)(10) and you fail to discover in terms of the rules, the other party will suffer prejudice in his preparation for trial. The documents included in the first schedule to the discovery affidavit are important for the other party to know. Those documents are going to be used during the trial and if the discovery affidavit is served then the party served with the discovery affidavit may request the documents set out on first schedule to discovery affidavit in order to prepare for trial. He may not be aware of other documents and he will be aware of them once the discovery affidavit is served. The parties may agree on a period within which the discovery affidavit will be served during the pre-trial conference. Now, the non-compliance of the rules of the court can be remedied during the pre-trial conference.
5. During the pre-trial conference the parties may agree on experts to be called during the trial. You need not call all experts during the trial to curtail the cost of litigation. You may also agree on the issue of joint minutes to be prepared by the experts. You must agree which experts must prepare the joint minutes if you want to verify certain things in order to settle the matter. In most cases, the issue of future loss of earnings is a problem and therefore an issue of future employability of the plaintiff is a problem. Therefore joint minutes of experts such as Industrial psychologist and the actuaries are important for the purpose of the trial. The parties may also agree during the pre-trial conference for either party to obtain an addendum to a certain medico-legal report or obtain an updated medico-legal report in order to assess whether the parties can settle the quantum.
6. The parties will deal with questions prepared by both parties in terms of rule 37(4) – pre-trial conference agenda/questions or the list of questions for the purpose of the pre-trial conference in terms of rule 37(4). If there are other outstanding medico-legal reports by either party then the parties my agree on a date of service and filing of those medico-legal reports or documents.
7. The parties may agree on having a second pre-trial conference before the trial in order to settle the matter.
8. The duration of the trial must be agreed upon by the parties during the pre-trial conference. Once the pre-trial conference is held, a pre-trial minutes must be prepared for the court and the parties must sign the pre-trial minutes.
9. Once such a pre-trial minutes is registered in court the parties may apply for the judicial pre-trial conference before the Judge in terms of rule 37(8)(a).
10. The matter can be settled and finalised during a pre-trial conference and that will save the costs of the trial.

04/08/2020

The bills of costs. There is party and party bill of costs and the attorney and client bill of costs. The successful party in a civil claim or delictual claim like third party claim is entitled to the party and party costs. If the RAF makes an offer of settlement in a tender it always gives the party and party costs. Every offer made by the RAF entails the party and party costs. That simply means after acceptance of an offer of settlement by your attorney, your attorney must draw a party and party bill of costs which must be served on the RAF or the attorneys on their panel who were handling the matter until its finality. That party and party bill of costs will be set down for taxation by the plaintiff's attorneys ie. your attorneys. The RAF's attorneys will then instruct their cost consultant to serve the notice of intention to oppose the bill. The parties may settle the bill before taxation or attend taxation before the taxing master on the date of taxation. Certain items in the bill cannot form part of the party and party bill of costs and they are not allowed on taxation. Those items which are not allowed on taxation can be included in the attorney and client bill of costs. Such as a consultation between counsel and the attorney cannot be included and allowed in the party and party bill of costs. A client must be present when counsel consults with an attorney in order for the item to be included in the party and party bill of cost. Once the party and party bill of costs is finalised and/or taxed the RAF will pay those costs into your attorneys trust account. That simply means the capital and the party and party costs are paid into the trust account of your attorney. Those costs must be disclosed to you when payment is made to you by your attorney. Your attorney must prepare a reconciliation statement showing all the money received from the RAF and what he has debited as his fees and disbursements after drawing the attorney and client bill of costs. The disbursements incurred by your attorney are recovered in the party and party bill of costs. By disbursements I'm referring to payments to specialist for preparation of the medico-legal report etc. The disbursements recovered by your attorney on the party and party bill of costs cannot be deducted from the capital received from the RAF. Even if you have entered into a contingency fee agreement with your attorney, the disbursements recovered on party and party bill of costs cannot be deducted from your capital. Therefor it is important for the claimant to know about the party and party bill of costs and the money paid by the RAF on those costs. In a party and party bill of cost, certain fees are recovered for the work done by your attorney but the fees recovered depends on the scale on those years the matter was litigated by your attorney. Then we come to attorney and client bill of costs. The attorney and client bill of costs is the account of your attorney for fees and disbursements. These fees and disbursements after taxation of the bill will be debited by your attorney and paid into his business account. That money belongs to your attorney and the attorney can pay all the disbursements which he did not pay and retain the rest as his money. The attorney and client bill of costs depends on the power of attorney you signed about fees. The attorney and client will be drawn according to the contents of the power of attorney relating to the charges. For instance, you must be careful when signing the power of attorney on fees because he can exhaust your capital. The power of attorney on fees is drawn in accordance with the seniority of an attorney. A junior attorney cannot charge R2500 per hour and if he does, he will be overreaching the client. All the fees which were not recovered in the party and party can be recovered in the attorney and client bill of costs. The attorney and client bill of costs, once drawn by an attorney will be served on client and the client can oppose any item which he/she does not agree on. It is the right of a client to instruct his/her cost consultants to oppose the attorney and client bill of costs. The attorney and client bill of costs will be set down for taxation and be taxed before the taxing master who will decide as to whether all items included in the attorney and client bill of cost are fair and reasonable and also that an attorney is entitled to those fees. It is difficult for a client to oppose the bill if you do not keep the records of what you were doing with your attorney. It is my honest opinion that if you instruct an attorney on any third party claim and/or civil matter you must buy a diary specifically for that matter and record all the consultations and other relevant opinion you get from your attorney. You must write in detail in your diary the discussions you had with your attorney or consultations you had with your attorney. In a third party claim, the diary will also assist you in diarising the pains and sufferings and the medical costs incurred relating to the injuries supported by vouchers. When you attend medico-legal examination with the medical experts you can open your diary and tell the specialist with specific reference to the dates your pain and suffering and also your ordeal. It will help the specialist to write a good medico-legal report which will help you to quantify the claim properly. The diary is also important because you can dispute items in the bill which you feel you do not agree on. Further, you must consult with your attorney when it is necessary to do so. Attorneys sell time and they charge on the time spent on your matter including the letters, notices and the pleadings. Never, ever go to your attorneys offices regularly as if you are going for shopping because you will regret it. Consult with him when you want him to clarify relevant issues about your matter and the injuries because when you walk out of his offices he writes consultation notes in his file. Some attorneys use dicta machines and he dictates everything you discuss in that dicta machine and takes it to his typist to type the recordings. Those typed recordings are kept in the arch lever file which keeps the file notes. When he draw his bill he looks at his file notes. Some attorneys, you consult with them and as soon as you leave his office then sends you a pro-forma account for that consultation which will be emailed or posted to you. So do not escalate the fees of your attorneys unnecessary by your actions.

24/07/2020

Let us close the Friday well. Let us talk about debt collection and blacklisting by a debt collector. You know this exercise by debt collectors blacklisting the people is incorrect and unconstitutional. I wish somebody can take Blacklisting to the constitutional court for decision by eleven judges of the constitutional court. Eleven brains will decide better. This thing of blacklisting people is rubbish because certain procedures must be followed before blacklisting. The debt collectors are not attorneys and they blacklist people breaking the peoples hearts. I have been trained in blacklisting and I did it for three years spending time in the civil court. The debt collectors blacklist you without telling you and this thing breaks many families. If you blacklist a person, the way I know it, you must issue summons against that person and take judgement against that person, then you can blacklist that person. If a person surfaces after having received the summons, you must follow Section 65 proceedings of the Magistrate Court Act. That person will appear in court and an enquiry will be held and the court will want to find out whether he agrees to the debt and how much can he pay then a form will be completed and signed by the debtor and be made an order of court. This blacklisting story is very detrimental to the consumer and in some instance it breaks the marriages and families for instance a newly wed couple applies for a bond for a house, the other party qualifies and the other party does not qualify because of the blacklisting which will be removed after some time. The clean party more often thinks the other party did not disclose other things to him/her before the marriage and it breaks the moral of the other party and then the love dissipates into thin air and results in divorce. Openness to married parties is very important. This blacklisting is a killing to people, some people cannot get jobs in banks and government posts because of debt collectors who are qualified attorneys, they work with call centres and employ lots of women and men to make calls and earn on commission. The only thing they write is a letter to people who owe and after that its blacklisting without judgement and that is absolute rubbish. They don't have a court order to blacklist you. They collect dead files from the companies and tell them they will collect money for them at a certain percentage and when the file is dead you respond positively and you're cooperative, they call you to their office and you sign an acknowledgement of debt and that is su***de. If you sign an acknowledgement of debt that is the novation of the debt, that is you resuscitate the debt and the debt becomes fresh. By dead file I mean the claim has prescribed (three years has passed) and you cannot even issue summons, it's a dead matter. So don't agree to that exercise. If judgement is granted in a civil court and you want your name to be clean, so that you can get credit, you have to apply for rescission of judgement and you have to have consent of the attorneys who blacklisted you that they won't oppose the application in court because you have satisfied the judgement debt by paying or agreeing to pay installment and they trust you after some payments made. That letter they sent you of not opposing the application forms part of your application for rescission of judgement as you mention in your affidavit as an annexure. In most instances when there is such a letter in the application, the court grants the rescission judgement. The magistrate can unilaterally refuse to grant the rescission judgement depending on other things mentioned in the application but it doesn't happen in most cases. Once the application for rescission is granted by the court the file goes to the typing clerk who types the court order, then you uplift the court order and go to places like transunion where you are blacklisted, give them the court order and they remove your name. This debt collection companies, I don't know how they blacklist you because they destroy some people's lives. Number two. let us talk about abbreviated summons in a divorce case. Parties must be very careful of their partners in the marriage. Some other parties in a marriage are dishonest taking advantage that the other party are not learned and are not reading the newspapers and they take advantage of that. People pretend as if the marriage is blissful whereas it is not, the other party is planning for you and you are sharing the same bed. This happens mostly, according to my experience, to people working for the government such as teachers, nurses etc. It is sad that I was involved in such divorce cases and I felt bad but I was acting on instructions and i had to carry out the mandate but I felt bad after the divorces were granted. These government employees they qualify for the bond alone and they want to get rid of the husband or the wife because the poor person can't afford the bond because he/she is unemployed or for some other reasons. They are still wearing the beautiful rings and pretend to be happy whereas the other party is no longer interested in the marriage because of the benefits he/she has or has another relationship elsewhere and is trying to get rid of the marriage, poor children who love both parents are affected. For instance the nurse will come to you with instructions to institute the divorce proceedings against the husband, she will state flimsy reasons such as he doesn't want to work, insubordinate, lack of communication and incompatibility etc. Once a person starts stating reasons like these you sit back and listen carefully because you can see there are no concrete reasons for the divorce. Then that person will tell you he is not sleeping at home, he has left the home and took his clothes. The next step you take is the service of the summons, then you instruct the sheriff to serve the summons on the poor husband and she knows that the husband is not always there. She knows that there is somebody in the house like a domestic worker and she's given specific instructions to tell the sheriff that this poor husband is no longer staying there, his whereabouts are unknown. First and second attempts by the sheriff are made to serve the summons on fake addresses. The sheriff sends you the return of none service meaning that the husband is untraceable whereas he is making love with the wife. The next step of your instructions is abbreviated summons. You prepare an application to court that the husband is untraceable, his whereabouts are are unknown whereas he is sleeping in that house, the wife signs an affidavit with false contents that the husband is unknown and by signing that affidavit you are committing a criminal offence of perjury. The court gives an order that you can serve summons by publication in the newspaper, the abbreviated summons is published in the newspapers like The Star and it is unlikely that the husband/family member can read the newspaper because they never went to school. That publication stays for a certain time or thirty days in the newspapers. Then after publication the Newspaper sends you abbreviated summons and you prepare a filing sheet and file them in court and apply for trial date. Whereas the poor husband does not know, date is given and the wife goes to court and lie under oath in the witness stand with the same set of facts because evidence must be led for the presiding officer who is the magistrate and divorce is granted. She applies for the bond and the bond is granted without your knowledge. She views the houses without your knowledge and signs the transfer documents in the transferring attorneys offices who are conveyancers and that false degree forms part of the transferring document bond is registered. When the bond is registered she starts a fight in the house and she leaves the house unceremoniously saying she got another place and that is the end of your marriage, she'll never come back to you. So be careful with your marriage, always check with the Home Affairs if you're still married but presently the magistrates are aware of these things and they want the tracers report in the file before they grant the application. Poor husband is left in the lurch by his beautiful wife and he can't apply for rescission of judgement because he does not have money and it is useless to do so because this person doesn't love you anymore. NEXT WEEK I WILL DISCUSS ABOUT THE ENDORSEMENT OF THE PENSION FUND, HOW IT WORKS AND WHEN IS IT APPLIED AND IT'S UNFAIRNESS. THAT IS THE END FOR THE WEEK.

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