Monthly Archives: November 2020

Hit and run motor vehicle accidents

B2The reality of motor vehicles accidents is that parties to the accident sometimes flee the scene of the accident without identifying themselves or their vehicles. Arguably, negligent drivers escape the scene in order to avoid liability for the ensuing damages.

The injured third party is, however, not left without recourse.  A third party that has suffered damages as a result of any bodily injuries to himself or herself, caused by the negligent driving of an unknown motor vehicle and unknown driver, can claim damages from the Road Accident Fund (“RAF”).

As a point of departure, it is important to classify a claimant’s claim as either a “hit and run” or an “an identifiable accident”, in which the driver or the owner of the vehicle was identified (, since there are procedural differences between the two cases.

A claimant will be entitled to claim special damages and general damages (in the case of serious injury) from the RAF, only if they are able to meet the special requirements applicable to “hit and run” claims.

In a “hit and run” scenario, the third party must lodge their claim against the RAF within two years of the date on which the cause of action arose. This is significant to note, since a third party ordinarily has a period of three years to submit their claim, with the possibility of this period being further extended in certain circumstances. In the case of minors, for example, prescription only starts running upon their attainment of majority age, and the three-year period therefore only starts once they reach the age of 18. This is, however, not the case in a “hit and run” case – prescription starts running on the date of the cause of action and cannot be interrupted. The constitutionality of this differentiation has not, as of yet, been tested by the courts.

A claimant must furnish the RAF with proof that the injury arose from the negligent driving of the driver of the unidentified motor vehicle and not from their own sole negligence. Furthermore, the claimant must take reasonable steps to identify the identity of the insured driver. It is not sufficient for the claimant to simply report the matter to the police (although the claimant must report the matter to the police as soon as possible). In order to meet this requirement, a claimant can, for example, return to the scene of the accident and obtain the statements of eyewitnesses.

The claimant must also lodge a certificate probabilis causa litigandi. This certificate must be issued by an independent advocate or attorney, with at least ten years’ experience, after considering all the evidence available to both parties regarding the cause of the accident and the liability of the RAF. The certificate must state that there is a reasonable prospect of success on the side of the claimant.

A claimant may lodge their claim with the RAF by using the RAF1 Form. The claimant must submit the details of the accident, police report or case number, relevant medical and financial statements and all other relevant documents to the RAF.

The RAF has 120 days from the date of lodgement to investigate the claim. After this time period has lapsed, the claimant can institute legal proceedings against the RAF for recovery of the damages they suffered as a result of the motor vehicle accident.

The fact that a third party was injured by the negligent driving of an anonymous driver should, therefore, not bar the third party from recovering their damages. A third party must, however, act swiftly by approaching a lawyer timeously to assist them with their claim against the RAF.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Buying and selling: Avoid the potential nightmare

B1Buying a new home is always an adventure – but what if you’re still trying to bring a previous adventure to a close? Facilitating the transition of homeownership comes with an array of concerns that are unavoidable when the purchase of a new home and the sale of an old one occur simultaneously.

The two primary concerns for buyers who are sellers at the same time are finances and logistics. If the transition is to be facilitated successfully, these two concerns must be taken into consideration from the start.

Financing Your Future

Finding funding for a real estate purchase is not a simple process, and it is even more complicated when you are already attached to a home loan or mortgage plan. When this is the case, your options vary:

  • Equity from your Current Home

When your current home is put up as equity in a new home loan, a suspensive condition can be added to your Offer to Purchase, clearly stating that your purchase relies on the sale of your existing property. However, such a suspensive condition will always contain a deadline by which the sale of the existing property needs to occur. If it doesn’t, your dream home will become fair game on the market again.

  • Securing Bridging Finance

Another option is to obtain bridging finance, where you take out a new loan that enables you to cover the essential costs of the new property purchase while you await the sale of your current property. This is an expensive option, as it comes with additional administrative costs and conditions. It will, however, enable you to purchase your dream home without the threat of it going back onto the market.

  • Cash Purchase

While not common, cash purchases are possible. The most common scenario in which a cash purchase becomes possible is where a homeowner uses the funds from a successful property sale to fund the purchase of another property when no existing home loans still needed to be settled or were close to being paid off. With a cash purchase, the buyer removes much of the pressure – but this not something that is realised often.

Considering the Logistics

With all three of these financing options another conundrum enters the picture: Where are you going to stay if the sale and purchase times do not overlap? When one home is being traded for another, the possibility always exists that one contract will have ended before the next has begun.

  • Occupational Rent

The first option is to pay occupational rent in order to continue living in your old property after it has been sold. With occupational residency, you will unfortunately also be inhibiting the new owners of the sold home from moving in, making this an arrangement that must take both parties into consideration. This option does, however, allow you to move directly from your old home into your new home in one go, saving on transport and storage costs.

  • Short-term Rent

Finding a short-term rental is the next best way to go. It may be more expensive, but you will most likely be allowed to stay on as long as you need, as long as you pay your rent. The only downside is that you may need to rent storage space for your possessions as well, depending on the size of the short-term pitstop.

  • Bumming on the Couch

This is the cheapest of all the options. Family and friends who live close by will undoubtedly be willing to offer you and your family the spare room, the couch, or at least a tent in the backyard if there are no other options left to you. Unfortunately, this option also requires the renting of storage space, or family and friends who are willing to have you park your furniture-filled trailer in the driveway.

To ensure that your move from one adventure to another is not a financial and logistical nightmare, it is vital that you obtain the necessary guidance to get things done right the first time.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)