1. Personal Injury Law - Introduction

Personal Injury Law - if you have suffered injury, loss or damage as a result of someone else’s action or failure to act, you can claim damages or compensation from that person.

Many Law Firms and Attorneys will consider instituting lawsuits on your behalf on a contingency fee basis in terms of The Contingency Fees Act 1997 (Act No.66 of 1997) ie a ‘no success – no fee’ arrangement. This can be for personal injury claims as well as other claims for damages, or even recoveries of monies. What this means that in certain cases attorneys may agree with their client that if the client looses the case, the attorney will not charge a fee at all, but if the client wins his case, either an additional fee will become payable or the attorney will be entitled to a percentage of the money that has been recovered for the client in the lawsuit.

If the success fee is higher than the Attorneys’ normal fees, such fee may-

  • Not exceed the Attorneys’ normal fee by more than 100 per cent, and
  • In the case of a claim sounding in money, not exceed 25 per cent of the total amount awarded or any amount obtained by the client in consequence of the proceedings.

Claims could be against:

  • The SAPS.
  • The Department of Correctional Services
  • Doctors and hospitals for medical malpractice,
  • The Road Accident Fund (RAF) for vehicle accident claims.
  • Metrorail for rail accident claims.
  • Professional Malpractice claims
  • Insurance Companies or government bodies.
  • Owners of pets for dog-bite claims.
  • Injuries sustained during slips and falls
  • Claims for assault.

Bodily injuries can have long term consequences and you have a right to claim compensation for these injuries as well as for the costs of any medical treatment which you have received or may undergo in future.

The Road Accident Benefit Scheme Bill, which is expected to become law sometime in 2015, is intended to replace the fault based system administered by the Road Accident Fund - you can read more here.

Do not try and bring or defend an action for damages without the help of an attorney. Many claims fail for lack of expert help – and even if you win without the help of an attorney, there is a danger that you end up accepting a settlement which is smaller than the one to which you were entitled. Therefore please consult an attorney.

Litigation funding - in 2004 champerty ( the term that recognized litigation funding as illegal) was now declared legal when the Supreme Court of Appeal allowed for external funding in legal disputes. While lawyers are not allowed to take more than 25% of the total settlement, there is no law in South Africa that stipulates how the money awarded should be split between the financial backer and the plaintiff. There are now a few private entities in South Africa who invest in legal disputes, purchasing claims or judgements, 'co-investing' with the creditor or claimant or funding the litigation, negotiation and settlement of a claim. The firm financing the litigation should not also be the attorney of record, as this situation could create a conflict of interests. It could be in the attorney's interest to settle a case where there was little chance of winning, whereas an early settlement may not be to the greatest advantage of the plaintiff.

Christopher Consulting offers a comprehensive range of litigation (funding) solutions and you can read an overview of their services here.

2. What must my lawyer prove to win my case?

For a delictual claim to succeed the person making the claim (the claimant) or attorney must prove that:

  • The action of the other person was wrongful because it caused harm to the claimant or their property.
  • The person performing the action was negligent (was at fault) or acted intentionally.
  • The claimant suffered loss which can be given a monetary value (such losses are called damages)
  • The monetary loss (damages) was suffered as a result of the action of the negligent person ie the action of the negligent person caused the monetary loss.

3. When do I have a claim against the police?

A growing number of people are now suing the police for damages in court instead of making a complaint against the police. Reasons for this include:

  • If you are successful you get compensation (cash)
  • It can sometimes deter the police from doing the same thing again, and
  • People are realizing that taking a complaint against the police seldom works.

Shockingly, in October 2012 it emerged in Parliament, through questioning on the SAPS annual report, that their contingent liability (a liability the entity may have to pay, depending on the outcome of a future event, such as a court case) had quadrupled to R20bn, and that the bulk of this amount is made up of civil claims. Although the amount finally paid out could be far less, many have suggested that the police are ‘defending cases they cannot win and contesting cases that should be settled out of court’

4. What can my lawyer sue for?

Wrongful Arrest-unlawful arrest and detention is called false imprisonment. The police must justify any arrest and detention, so if you think that the police have acted outside their powers it is worthwhile getting further advice from an attorney. False imprisonment can happen on the street, in your home, in a police vehicle and of course at the police station.


Assault-this is much wider than people think. You are assaulted as soon as someone touches you without having a lawful reason to do so, and when they put you in fear of violence. Of course it includes being punched and kicked and includes illegal body searches. If you have been assaulted or injured by the police it is important to see a doctor straight away and have your injuries noted. You should also take photos of any injuries if possible.


Malicious prosecution-this is when you have been prosecuted for something that you did not do. You have to prove that the police had no reasonable cause to prosecute you and that they had a ‘wrongful motive’ in doing so. You also have to win your case which means that the charges were either dropped before the case went to court or you were acquitted (found innocent) in court.


You can also sue the police for negligence, wrongful death, misfeasance in public office, (abuse of power) breach of human rights, shooting incidents, vehicle accidents, damage to property and legal expenses.

Between April 2015 and December 2015, there were 6133 claims were registered against the Minister of Police - and in the last 10 years R417 629 905 has been paid out.

5. When do I have a claim against the Department of Correctional Services?

There are about 170 000 prisoners in South African prisons, consisting of both sentenced and trial awaiting prisoners. The prisons are only designed to accommodate 130 000 inmates which leads to overcrowding and difficult conditions.

In November 2012, in response to a question in Parliament, the Minister of Correctional Services stated that the Department paid out R27, 7 million in the past year for claims against the department.

Some claims against the department included:

  • General damages
  • bodily injuries
  • defamation
  • deaths and injuries in detention
  • breach of contract and motor vehicle accidents
  • assault – which included a claim of R2,5 million which the Department had to pay

According to the Minister many of the claims were cancelled because the Plaintiffs failed to issue summonses in their matters. These included a claim for R1, 8 million for damages, R3 million for a claim by an inmate who alleged that he was infected with the HIV virus, and a R9 million claim for assault. Consult with an attorney if you feel you may have a claim against the Department, as they can make a realistic assessment of the nature and size of your possible claim, remembering that judges are hard on lawyers who bring exorbitant sized claims to court.

6. When do I have a claim for medical malpractice?

If the doctor did not obtain the consent from a parent or guardian the doctor will have acted unlawfully. In such a case you will have a claim, irrespective of the outcome of the operation or treatment-unless, of course, if the doctrine of necessity can be invoked.

If the doctor operates or gives other treatment with your consent, but does not take reasonable care in carrying out the operation, allowing you to claim for damages incurred as a result of lack of care. For such a claim to succeed, you must show that you suffered harm through the doctor’s failure to exercise the necessary care that should have been exercised in the circumstances.

Damages claims are not always successful as not every mistake amounts to negligence. The law recognizes that even a reasonable careful doctor will sometimes make an error of judgement, administer the wrong treatment or perform the wrong operation with dire results of the patient. In these circumstances the patient has no remedy against the doctor.

You may claim damages from a doctor or member of the hospital staff if you suffer injury through negligence. Hospitals are liable for the wrongs committed by doctors or nurses employed by them and actions can be instituted against them. Before taking any action against the hospital, make sure that the doctor or nurse was acting within the scope of his or her employment at the hospital at the time the wrong was committed. Most doctors insure themselves against possible malpractice suits.

7. When can I claim damages for slip and fall accidents

Slipping occurs when the friction between foot and the floor is insufficient to prevent movement between the two surfaces, but is less of a problem - when detected by the individual, he/she is likely to maintain his/her balance. Slides, however, may become unrecoverable, leading to body impact and possible injury. Tripping is less common than slipping (when a foot catches on an obstacle or object), but may also lead to body impact and possible injury.

In the workplace:

A significant number of injuries in the workplace is attributable to slipping, sliding, tripping and/or falling, e.g. on ramps, steps, stairs etc. Over the period 1999 to 2002 alone, according to a survey done by the Safety in Mines Research Advisory Committee, 1585 people slipped or tripped over objects and sustained injuries.

Section 35 of Act 130 of 1993 prohibits employees or their dependants to litigate against the employer in such instances, but makes provision for certain benefits to be claimed if injured, for example medical treatment for a maximum period of 24 months – the cost of which is to be paid by the Provision fund .

Other places:

Should you suffer harm (injuries or damage) due to slipping, sliding or tripping, you can claim damages against the person or entity responsible. Responsibility / accountability would normally be due to negligence on the part of such a person or entity - in his / her failure to prevent such an occurrence from happening. Note that ‘the mere fact of a slip is no evidence of negligence on the part of the person upon whose property the slip took place’ – Koenig v Hotel Rio Grande (Pty) Ltd 1900 CPD.

The test for negligence was set out in Kruger v Coetzee 1966 (2) SA 428(AD) – liability for culpa arises if the reasonable man in the position of the defendant would foresee a reasonable possibility that his conduct may cause harm to another person, and would take reasonable steps to guard against such occurrence. What such steps would entail will depend on the particular circumstances of every case.

8. On whom lies the onus to establish negligence on the part of the defendant?

The plaintiff has a duty to prove negligence on a balance of probabilities, but sometimes, however, is not in a position to produce evidence on a particular aspect, such as where the matter is peculiarly in the knowledge of the defendant – less evidence will then suffice to establish a prima facie case.


In these types of cases the law place an evidentiary burden on the defendant to show what steps he took to comply with the standards to be expected.


A fundamental aspect of the onus which the plaintiff bears is the obligation to shown what the cause was for such a ‘slip and fall’ on the date of the incident – if the plaintiff cannot show that, the claim must fail.

In Christine Camilleri v Old Mutual Investment Group Investments, SA WCHC, 2007 – the plaintiff had to prove that there was enough dust on the floor to cause her to slip. This case was heard in December 2011 – plaintiff, 51 years old, slipped and fell in a shopping centre and sustained injuries. The premises were under the control of the defendant as property manager. The plaintiff claimed damages arising from her injuries. The plaintiff’s case was that the defendant was negligent, because he breached his duty of care in respect to the premises. She was unaware of what made her fall, though, and thus negligence on the part of the defendant could not be proved – the case was dismissed with costs.

9. When do I have a claim against the Road Accident Fund?

The Road Accident Fund (RAF) is a fund that has been established by the Road Accident Fund Act and the main purpose is to limit the liability of the negligent driver of a motor vehicle. A third party claim is a claim by a person, or a dependant of that person, who received a bodily injury or who died as a result of a motor vehicle accident caused by the negligent driver of a motor vehicle. Third party claims are made to the RAF.

Road accidents in all vehicles and motorcycles are automatically covered in terms of the Act, but the Fund does not cover damage to vehicles or things inside the vehicle which damages must be claimed from the person who caused the accident or their insurance company.

A claim can only be made against the Fund if:

  • The person who caused the accident was negligent and at fault. Therefore if a person is injured and they are not to blame for the accident, (in other words, the person injured was not the negligent driver) then they can claim compensation from the RAF.
  • You will only get money from the fund if you did not cause the accident. This will include where you were the only person and vehicle involved.
  • You are the dependant of a person (the breadwinner) who was injured or died in a motor vehicle accident caused by the negligent driving of a motor vehicle by another person.
  • You are a close relative of the deceased in respect of funeral expenses.
  • You are under 21 years but you must have the support of a parent or legal guardian.

You can claim if you were involved in an accident as a driver or a passenger in a motor vehicle or a motorcycle, or if you were a pedestrian.

10. What if I was not injured in an accident but my vehicle was badly damaged?

  • Drivers, passengers and pedestrians who were injured in the motor vehicle accident caused by someone’s negligence can claim damages from the Road Accident Fund in terms of the Road Accident Fund Act.
  • The Road Accident Fund does not cover damage to vehicles or things inside the vehicle, such as watch or clothes.
  • If a person has suffered damage to their property (to the vehicle or things inside the vehicle) as a result of a motor vehicle accident, must claim from the driver whose negligence caused the accident or from the driver’s private insurance (or from the driver’s insurance if he was insured – research has shown that only about half the vehicles on our roads are insured).
  • Insurance that you buy from a private insurance company is therefore not automatic. You choose whether you want to pay for extra insurance, for example, fire and theft insurance, balance of third party and comprehensive insurance.

  • You can then claim from your own insurance company for your own losses, if somebody else caused the accident. If you cause an accident and have insurance you can ask the insurance company to someone else for the loss that you have caused to them.