Your rights and obligations after a collision

1.                If you are involved in a motor accident, in terms of the Road Traffic Ordinances, there are clear duties imposed on you if you are involved in or contribute to an accident on a public road, in which another  person is killed or injured or suffers damages in respect of any property or animal.  Here is what you should do :

*                  Stop your vehicle immediately.  Of course, you do not need to stop at an accident if, for example, you hit a tree and only damage your own car or injure yourself.  There is a legal and, indeed, a moral obligation on you to report a collision to your nearest police station if you hit a lamp standard or say a stationary vehicle and the accident is not witnessed.

*                  Check the nature and extent of any injury to another person.

*                  If the person has been hurt, do all you can to help by administering first aid, (if you know how), summons the police and, if necessary, an ambulance.  If you know nothing about first aid, please do not try to render assistance as this may do more harm than good!

*                  Determine the nature and extent of any damage suffered.

*                  If you are required to do so by any person entitled to such information, provide and obtain the following information :

+                 name, address and telephone number of both drivers name, address and telephone number of the owners of the vehicles

+                 registration numbers of both vehicles

+                 names of the driver’s / owner’s insurance company / insurance broker

+                 full details of the place and time of the collision and the road conditions and visibility at the time

+                 a short note (to jog your memory) of what you recall occurred immediately before and at the time of the collision (including a description of what happened, the speed at which the vehicles were travelling, whether the lights were on or off, whether the other driver was indicating etc.,)

+                 if you are fortunate enough to have a camera or cellphone with you at the time of the collision, take photographs of the scene of the collision from various angles. If not, it is always a good idea to return  to the scene as soon as possible thereafter, to take the necessary photographs

+                 measure distances from the point of the collision to identifiable landmarks such as traffic lights, lamp standards, stop signs and the like and make a rough sketch showing the position of the vehicles immediately before and after the collision

+                 if you are fortunate enough to have witnesses, make sure to take down their full names, addresses and telephone numbers

+                 do not admit liability for the collision, whether to the driver of the other car, a bystander or  to the Police, as this may prejudice any claim that you may have either against the other driver or in respect of your policy of insurance .  On the other hand, if the other driver apologizes for the collision and admits liability, do not hesitate to have him sign a written admission of liability there and then and, if possible, have that statement witnessed.  On the other hand, if he is not prepared to commit his apology to writing, endeavour to persuade him to make his admission in the presence of a responsible official, such as a police officer

+                 if a person or animal has been injured, you are not allowed to move the vehicles, even if they obstruct the traffic until you are given permission to do so by a traffic officer or unless either vehicle completely obstructs the road.  However, if you do move either vehicle, it is important to chalk out its position before doing so.  On the other hand, if no-one has been injured, it would be important to move the vehicles out of the road to prevent a further collision with oncoming traffic

+                 if you are obliged to have your car towed away, agree the charges in advance, otherwise you could be in for a nasty shock when presented with the bill later.  Similarly, if you are a member of the Automobile Association (AA), make sure that only an approved tow-in service is utilised, as the AA will not pay for such service otherwise and you could be substantially out of pocket

+                 if there is a traffic officer at the scene of the collision, you are obliged to provide him with such information as he may require.  If you do not give this information to such official, you must within 24 hours of the accident, report  it at a police station or at an authorised office of a traffic officer (unless you are injured and cannot do so timeously, in which event you must report the accident as soon as is reasonably practicable thereafter).  When you report the accident, give only the bare essentials and do not commit yourself  to a written statement before consulting your insurance company or attorney.

+                 as soon as possible, advise your broker of the accident (even if you do not intend to claim), as the other driver may lay a claim at a later stage

2.                Keeping the above in mind, it would be advisable to carry in your car a pen, paper, a first aid kit, torch and red reflective triangles

Who may make a will and what are the requirements?

Formalities in terms of the Wills Act (7 of 1953)

Every person of the age of sixteen years or more may make a will unless at the time of making the will he is mentally incapable of appreciating the nature and effect of his act, and the burden of proof that he was mentally incapable at that time shall rest on the person alleging this.

Who may be disqualified from inheriting?

Subject to certain exceptions, the following persons shall be disqualified from receiving any benefit from that will:

·         Any person who signs a will as a witness, or who signs a will in the presence and by direction of the testator, or who writes out the will or any part thereof in his own handwriting, and the person who is the spouse of such person at the time of the execution of the will.

·         There are people who are unworthy to benefit, the most obvious being a person who murders the testator. He or she is precluded from deriving any benefit from the testator’s will.  Also, people who use fraud or duress to prevent a testator from changing a will, or force him to make a will, are disqualified from benefiting.

Signature of will:

In this article, I deal only with the normal signature of a will and not with the instances where someone is illiterate and makes a mark (such as an ‘X”) or where the testator is incompetent and cannot sign (e.g. he has had a stroke).

In terms of the Wills Act, for a will to be valid it must be signed at the end thereof by the testator and in the presence of two or more competent witnesses present at the same time and such witnesses attest and sign the will in the presence of the testator and of each other.

If the will consists of more than one page, each page other than the page on which it ends, is also so signed by the testator.

Amendments:

No amendment made in a will shall be valid unless the amendment is identified by the signature of the testator in the presence of two or more competent witnesses present at the same time and the amendment is further identified by the signatures of such witnesses made in the presence of the testator and of each other.

‘competent witness’ means a person of the age of fourteen years or over who at the time he witnesses a will is not incompetent to give evidence in a court of law;

‘will’ includes a codicil and any other testamentary writing.

I want to live with Dad, Mom

A client asked: At what age can the child legally decide for themselves whether they want to maintain contact with the other parent?

Answer: There is no set age in South African Law where a child under 18 can make a decision. The Children's Act 38 of 2005 states that if the court is convinced that the child is of sufficient maturity to make his own choice and not, for instance, be influenced by his parents in his choice, the court will take his choice into consideration.

In deciding whether to take the child’s wishes into account, the court looks at age, maturity and stage of development, gender, background and any other relevant characteristics of the child.

Section 10 of the Children's Act ([a38y2005s10] dealing with child participation) provides that: “Every child that is of such an age, maturity and stage of development as to be able to participate in any matter concerning that child has the right to participate in an appropriate way and views expressed by the child must be given due consideration”.

The factors taken into account include (but are not limited to):

·         The child’s age

·         The child’s sex

·         The amount of contact the child has had with each parent throughout their life.

·         The historical record of how each parent has fulfilled a parental role (the amount of love shown, as well as any history of cruelty or neglect on behalf of one of the parents).

·         The child’s own testimony.

·         The child’s sense of being wanted and being kept secure.

·         The emotional, physical, moral, and religious well-being of the child.

·         The accommodation and environment each parent is able to offer for the child, including the educational facilities available.

In special circumstances, a court may consider a child as young as 10 years old sufficiently mature enough to meaningfully contribute to decisions about her welfare. 

The over-riding factor is the best interests of the Child. NOT the child's decision.

The test is set out in section 9 of the Act (best interests of child paramount): “In all matters concerning the care, protection and well-being of a child the standard that the child's best interest is of paramount importance, must be applied”.

Here’s a very useful article on participation:

http://children.pan.org.za/sites/default/files/publicationdocuments/Children%27s%20participation%20Topical%20guide.pdf

Overseas assets and your will

If you have offshore assets, it’s a good idea to have separate wills, one for your assets in South Africa, and the other/s for assets in each country where you have assets overseas.

Your local will should provide something like ‘What follows applies to my South African assets only’ or ‘This will deals only with my South African assets.  Should I have any non-South African assets, these will be dealt with in a separate will’.

It’s unlikely that a local attorney will have the necessary expertise to advise you about the requirements of the every country where your foreign assets may be located, so always seek expert local advice regarding appropriate offshore tax and estate planning requirements and advantages.

For example, in some countries there are inheritance laws that override the intentions of the deceased – requiring that a certain part of the deceased’s estate be left to certain specified relatives.

The separate wills will be administered, simultaneously, in accordance with South African law and the appropriate law pertaining to your offshore will. The two wills work in parallel – one for the bulk of your estate in SA one for your foreign assets. 

How lawful was it for the State Security Agency to use a device that jammed mobile telecommunication signals in Parliament?

This interesting point was argued in Primedia Broadcasting, A Division of Primedia (Pty) Limited and others v Speaker of the National Assembly and others 

Events which occurred during the 2015 State of the Nation Address (“SONA”) were at the heart of the present matter. The State Security Agency employed a device that jams mobile telecommunication signals. Consequently journalists and MPs attending SONA were rendered unable to use their cellphones in order to inform members of the public not in attendance about the happenings in Parliament. It was also averred by the applicants in this matter that members of the public were denied the right to see for themselves events of national importance occurring on the floor of the Parliamentary Chamber when the following took place.

The applicants challenged the constitutional validity of paragraph 8.3.3.2 (a) of Parliament’s Policy on Filming and Broadcasting (“the Policy”) and raised the question of whether any order was to be made regarding the jamming incident that occurred shortly before the SONA. The premise of Primedia’s  case was that all South Africans have a right to know what happens in Parliament and that includes a right to see and hear for themselves disruptions by members of Parliament.

Held that the provisions of sections 57 (1) and 70 (1) of the Constitution of the Republic of South Africa, 1996, empower Parliament to make rules and orders concerning its business. The various rules and policies adopted and approved by Parliament are essential for its ordered operation. There is no obligation on Parliament to broadcast conduct that clearly obstructs or disrupts its proceedings and conduct that unreasonably impairs its ability to conduct its business in an orderly and regular manner acceptable in a democratic society because such conduct is not legitimate Parliamentary business. Thus, the challenge levelled against the policy had to fail.

The Court then considered the request for a declaration that the use of the jamming device at SONA was unlawful. Section 12 of the Intelligence Services Act 65 of 2002 provides the authority for the acquisition and use of signal disruptor devices by the State Security Agency. The Court could not deny the agency the use of the devices when circumstances demanded same to be used in order to counter any threat or potential threat to national security.

To succeed the applicants needed to show that Parliament’s determination regarding televising of gross disorder and unparliamentary conduct was unreasonable. They failed to do that. The majority of the court therefore dismissed the application.