Our members in action: Noteworthy recent judgements

1. Van Niekerk v Kruger

SCA judgment dealing with retrospective determination, after death, of whether deceased had testamentary capacity to execute a will. Also evaluating expert evidence – court must be satisfied with the reasoning which led to conclusion by expert witness.

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2. Els vs MEC - Evaluating Expert Opinion

Commentary by Judge Claassen:

This an excellent case to demonstrate:

1. The independent role of expert witnesses in court; 
2. The logic that must form the basis of an expert's opinion;
3. The effect on the value of an expert's testimony who is unwilling to make any concessions in the face of counter facts or arguments;
4. The appreciation that generally held views by experts need not necessarily be regarded as correct.

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3. SCA-MEC v Zulu

This is an important SCA judgment for members practicing in the areas of medical negligence and personal injury claims. It deals with two contentious issues, (a) once and for all rule, and (b) contingency fee agreements.

The summary of the judgment reads “Delictual damages – ‘once and for all’ common law rule – future medical expenses – lump sum award – section 39(2) of the Constitution – development of common law – payment of future medical expenses as and when required – no proof that access to healthcare services in terms of s 27(1) or s 28(1)(c) of the Constitution compromised by common law rule – law reform more appropriately dealt with by legislature. Contingency Fees Act 66 of 1997 – exclusion of award for future medical expenses from agreement – not permitted.”

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