AUTHENTICATION OF DOCUMENTS FOR USE IN AND OUTSIDE SOUTH AFRICA

Introduction

Have you ever had to legalise documents within South Africa for use abroad or vice versa?

If you have, then you have no doubt experienced the frustration of having same signed/executed only to find out later that the documents are not legally valid or acceptable

Herewith a brief summary of the requirements for authentication

  1. Documents must be properly authenticated to ensure that they are legally valid for use either within South Africa or abroad.
  2. The country in which the documents will be used will determine the authentication process required.
  3. The process of authentication is simplified where the country is a party to The Hague Convention of 5 October 1961 (which abolishes the requirement of diplomatic and consular legalization for public documents originating in one Convention country for use in another). Documents issued in a Convention country which have been certified by a Convention Apostille are entitled to recognition in any other Convention country without any further authentication. Such recognition is an obligation on the part of the United States to the other countries party to the Convention and the federal courts and state authorities have been alerted to this obligation. Consular officers in Convention countries are prohibited from placing a certification over the Convention Apostille.
    Public documents include:
    • Documents emanating from an authority or an official connected with the courts or tribunals of the state, including those emanating from a public prosecutor, a clerk or a process server;

    • Administrative and notarial documents; and

    • Official certificates which are placed on documents signed by persons in their private capacity, such as official certificates recording the registration of a document or the fact that it was in existence on a certain date and official; and notarial authentications of signatures.

    If you have a document which you want legalized for use in another Convention country, the Convention certification called an Apostille must be affixed to the document by a competent authority. The Apostille is a pre-printed form prescribed by the Convention.

  4. Documents are authenticated with a Certificate of Authentication and/or an Apostille Certificate.
  5. Rule 63 of The Rules of the High Court of South Africa regulates the requirements for authentication where documents are signed / executed outside South Africa for use within South Africa.

To ensure that your documents are legally valid the following is required

SIGNING / EXECUTING OF DOCUMENTS WITHIN SOUTH AFRICA FOR USE OUTSIDE OF SOUTH AFRICA.

  1. Where countries are party to The Hague Convention:
    Currently 77 states including most European countries, the United Kingdom, The United States of America and South Africa1.1 Documents are signed and/or executed in the presence of a Notary Public. The Notary Public will attach his Certificate of Authentication to the documents which must bear his signature, stamp and seal.
    1.2 Documents are then forwarded by the Notary Public to The High Court in the area in which the Notary Public practices. The Court will then attach an Apostille Certificate authenticating the Notary Public’s signature; or-
  2. Where countries are not party to The Hague Convention:2.1 Documents are signed and/or executed in the presence of a Notary Public. The Notary Public will attach his Certificate of Authentication to the documents which must bear his signature, stamp and seal.
    2.2 Documents are then forwarded by the Notary Public to The High Court in the area in which the Notary Public practices. The Court will then attach an Apostille Certificate authenticating the Notary Public’s signature.
    2.3 Documents are then submitted to the Legalisation Section at DIRCO (The Department of International Relations and Co-operation) based in Pretoria to be legalised.
    2.4 Once legalised by DIRCO the documents are then forwarded to the Embassy/Consulate of the country in which they are intended to be used for further authentication.

SIGNING / EXECUTING OF DOCUMENTS OUTSIDE SOUTH AFRICA FOR USE WITHIN SOUTH AFRICA.

Rule 63 of the Uniform Rules of the High Court regulates the requirements for authentication.

In terms of Rule 63 a document is sufficiently authenticated by means of a Certificate of Authentication which bears the signature and seal of office of:

  1. a head of a South African diplomatic or consular mission or a person in the administrative or professional division of the public service serving at a South African diplomatic, consular or trade office abroad; or
  2. a consul-general, consul, vice-consul or consular agent of the United Kingdom or any person acting in any of the aforementioned capacities or a pro-consul of the United Kingdom; or
  3. any Government authority of such foreign place charged with the authentication of documents under the law of that foreign country; or
  4. any person in such foreign place who shall be shown by a certificate of any person referred to in paragraph (i), (ii) or (iii) or of any diplomatic or consular officer of such foreign country in the Republic to be duly authorised to authenticate such document under the law of that foreign country; or
  5. a Notary Public in the:- United Kingdom of Great Britain and Northern Ireland (England or Ireland);
    – Zimbabwe;
    – Lesotho;
    – Botswana;
    – Swaziland; or
  6. a Commissioner Officer of the South African Defence Force as defined in section 1 of the Defence Act, 1957 (Act 4 of 1957) in the case of a document executed by any person on active service.

DOCUMENTS EXECUTED IN NAMIBIA

Documents executed in Namibia cannot be authenticated before a Notary Public.

However, Namibia is a party to The Hague Convention and the documents can thus be authenticated via these formalities.

POWER OF ATTORNEY EXECUTED IN LESOTHO, BOTSWANA OR SWAZILAND

A Power of Attorney which is executed in these countries and which gives authority to a person to take, defend or intervene in any legal proceedings in a Magistrate’s Court within The Republic of South Africa shall not require authentication. However the Power of Attorney must be duly signed and the signature must have been attested by two competent witnesses.

THE LIABILITY OF THE ARCHITECT IN THE SOUTH AFRICAN LAW

THE LIABILITY OF THE ARCHITECT IN THE SOUTH AFRICAN LAW

 

McKenzie’s “Law of Building and Engineering Contract and Arbitration 7th Edition, p 129” defines an architect as “a duly qualified professional person whose function it is to design and supervise the erection of buildings.” In the Shorter Oxford English Dictionary an architect is described as “One whose profession it is to prepare plans of edifices and exercise a general superintendence over their erection.” One may only practise as an architect in South Africa if you are registered as such in terms of the Architectural Profession Act No 44 of 2000. Section 27 of this Act provides that the South African Council for the Architectural Profession must compile a code of conduct for all registered persons. Such registered persons must adhere to the terms as included in this code and failure to do so will constitute improper conduct.

 

The preamble of the Code of Professional Conduct, issued under BN 154 of 2007, Government Gazette 32731, 27 November 2009, provides that “it is an overriding obligation under the rules that, in carrying out professional work, a registered person is expected to act with due skill, competency and integrity”. Once an architect is appointed by the employer, a binding contract comes into existence between the parties. This means that a claim for negligence could be instituted against the architect in terms of the contract, or based on delict. Tacitly included in the terms of the agreement is that the architect does in fact have the required skills and ability to be reasonably proficient in his/her calling.

 

It is trite law in South Africa that a person who does not practice with the due skill and diligence will be regarded as negligent. In the Supreme Court of Appeal matter, Goliath v MEC for Health, Eastern Cape 2015 (2) SA 97 (SCA), the Court referred to the matter of Van Wyk v Lewis 1924 A.D 438 in which the test for negligence has been defined as “the failure of a professional person to adhere to the general level of skill and diligence possessed and exercised at the same time by the members of the branch of the profession to which he or she belongs would normally constitute negligence.” In the English matter of Nye Sanders & Partners v Alan E Bristow (1987) 37 BLR 92 (CA) the Court held the following with reference to the position of an architect: “Where there is a conflict as to whether he has discharged that duty [to use reasonable skill and care], the courts approach the matter upon the basis of considering whether there was evidence that at the time a responsible body of architects would have taken the view that the way in which the subject of enquiry had carried out his duties was an appropriate way of carrying out the duty, and would not hold him guilty of professional negligence merely because there was a body of competent professional opinion which held that he was at fault.”

 

Should it therefore be found that an architect’s conduct falls short of the conduct that would have been reasonable exercised by another person of the same profession, the architect will be held liable for damages to his/her employer.

 

In the recent matter of Bentel Associate International (Pty) Ltd v Loch Logan Waterfront (Pty) Ltd 2015 JDR 0323 (FB) the Court had to decide inter alia as to whether the defendant’s claim in reconvention, alleging that it has suffered damages as a result of the plaintiff’s failure to perform its obligations in a professional and workmanlike manner and without negligence, should be upheld. The Court held that “the architect’s liability is not absolute in the sense of being liable for whatever occurs. The architect is liable for substantial negligence (Dodd v Estate Cloete and Another 1971 (1) SA 376 (ECD)).” It further alluded to the matter of De Wet v Steynsrust Municipality 1925 OPD 151 where it was held that “an architect must exercise the general level of skill and diligence exercised by other persons exercising the same profession, being skilled and experienced persons.” The learned Judge referred with approval to the position in international law pertaining to the liability of the architect and quoted John R. Heisse from his article “The Measure of Malpractice” Journal of the American College of Construction Lawyers Vol 5, Nr 2, 2011: “Noting that architects and engineers deal in somewhat inexact sciences and are continually called upon to exercise their skilled judgment in order to anticipate and provide for random factors which are incapable of precise measurement the courts have reasoned that the indeterminate nature of these factors makes it impossible for professional service people to gauge them with complete accuracy in every instance.”

 

The benchmark regarding the standard of care that should be applied by an architect in the law of the United States has been defined in the Maine Supreme Court matter of Coombs v Beede 89 Me. 187 A 104 (1896). The Court held that the responsibility of the architect is the same as a doctor to patient or lawyer to client, in that the architect has “some skill and ability in some special employment and offers his services to the public on account of his fitness to act in the line of business for which he may be employed.” The Court further held that the undertaking of the architect implies that he/she consequently possesses the “skill and ability, including taste, sufficient to enable him to perform the required services at least ordinarily and reasonably well; and that he will exercise and apply, in the given case, his skill, ability, judgment and taste, reasonably and without neglect.” The Court then attempted to define the exclusions from the architect’s duty of care, submitting that “the undertaking does not imply or warrant a satisfactory result. It will be enough that any failure shall not be the fault of the architect. There is no implied promise that miscalculations may not occur. An error in judgment is not necessarily evidence of want of skill or care, for mistakes and miscalculations are incidents to all business of life.” Negligence should therefore be evident from the conduct of the architect and it will not suffice to simply state that a mistake was made by the architect.

 

In the matter of Bloomsbug Mills, Inc, v Sordoni Construction Co 401 Pa. 358 (1960), the Pennsylvanian Court confirmed that “an architect is bound to perform with reasonable care the duties for which he contracts. His client has the right to regard him as skilled in the science of the construction of buildings and to expect that he will use reasonable and ordinary care and diligence in the application of his professional knowledge to accomplish the purpose for which he is retained. While he does not guarantee a perfect plan or a satisfactorily result, he does by his contract imply that he enjoys ordinary skill and ability in his profession and that he will exercise these attributes without neglect and with a certain exactness of performance to effectuate work properly done. While an architect is not an absolute insurer of perfect plans, he is called upon to prepare plans and specifications which will give the structure so designed a reasonable fitness for its intended use, and he impliedly warrants their sufficiency for that purpose.”

 

CONCLUSION

 

When the architect thus enters into an agreement, it is implied that he/she is able to perform the work with reasonable skill and diligence. It does, however, not warrant that the result will be without fault and the architect therefore will not be held liable for the fault arising from defects in the plans because he/she does not imply or warrant a satisfactory result.    

Construction Law – Labour unrest in construction – who bears the risk?

The Medupi power station project will no doubt see claims for an extension of time for completion and claims for additional payment following recent reports of labour unrest on the construction site in Lephalale.

Construction at the multi-billion power plant was temporarily suspended on 16 January 2013 for more than a week as a result of what is being referred to as an “illegal strike” by Hitachi Kaefer and Alstom Kentz workers affiliated with the National Union of Metalworkers of SA. The workers are claiming that they have not received sufficient December bonuses and are also “not being paid double” on weekends.  This follows a similar strike in September 2012 when evacuation was ordered at the Medupi site because of violent strikes by workers.

Eskom is scheduled to start supplying power to the national grid from the first unit of the Medupi power plant by the end of this year.  Eskom’s Hilary Joffe has, however, confirmed that labour unrest threatens the completion milestones set out in the current project programme. 

Eskom will ultimately face the risks associated with the delays as contractors are likely to claim extensions of time for completion of certain portions of the project. Eskom may also face claims for additional payment as a result of the delay to contract works and disruption of project schedules. 

Numsa’s Irvin Jim has been reported as stating that the consistent frustration of construction is a deliberate act from contractors in an effort to delay the project in order to claim benefits from Eskom.

Eskom may have to review its current project labour agreement in order to avoid further delays and associated claims caused by the labour unrest.

Claims on these types of major projects involving numerous contractors’ and sub-contractors’ agreements (which are often linked to one another) require analysis of the various parties’ contractual rights and obligations.   Markram Incorporated specialises in construction law.

Company Law – Winding-up of a Close Corporation – The New Companies Act

LAWS REGULATING WINDING-UP PROCEEDINGS

The winding-up of a Close Corporation (“CC”) is regulated by sections 66 to 81 of the Close Corporation Act 69 of 1984 (“The CC Act”).   This Act, however, does not specifically regulate winding-up proceedings of a CC, but instead incorporates the applicable sections of the Companies Act dealing with winding-up proceedings by reference.  The applicable sections of the Companies Act should therefore be read as if it prescribes the proceedings for both Companies and Close Corporations.

The Companies Act 61 of 1973 (“the old Act”) used to regulate winding-up proceedings of a company (and therefore the winding-up of a CC) under sections 337 to 348 thereof.  In terms of section 344 of the old Act, read with section 68 of the CC Act, a CC could be wound-up, inter alia:
•    if the CC is unable to pay its debts as described in section 345 of the old Act; and
•    if the Court is satisfied that it is just and equitable that the CC should be wound up.

In terms of section 345 of the old Act, read with section 69 of the CC Act, a CC is deemed unable to pay its debts when:
•    a creditor to whom the CC is indebted in a sum of not less than R 100 has served on the CC, at its registered office, a demand requiring the CC to pay the sum due and the CC has for 21 days thereafter neglected to pay the sum or secure or compound for it to the reasonable satisfaction of the creditor; or
•    the sheriff has issued a return of service against the CC stating that it does not own sufficient disposable property to satisfy a judgment in favour of a creditor; or
•    it is proved to the satisfaction of the Court that the CC is unable to pay its debts, taking into account the contingent and prospective liabilities of the CC.

In terms of the provisions of the old Act a Court could therefore order that a CC be wound-up if a creditor could prove that the CC was indebted to it and was unable to pay such debt.

The old Act has recently, however, been wholly replaced with the Companies Act 71 of 2008 (“the new Act”), save for sections 337 to 348.  These sections of the old Act have been incorporated into item 9 of Schedule 5 of the new Act, subject to a limitation on the applicability thereof.  The applicability of sections 343, 344, 346 and 348 to 353 of the old Act has been limited to apply only in circumstances where a winding-up order is sought against an insolvent CC and shall therefore not apply to solvent CC’s.  As a result hereof, section 68 of the CC Act (the counterpart of section 344 of the old Act, dealing with circumstances under which a CC may be wound up) has also been repealed.  The effect of the aforementioned is that a solvent CC may now only be wound-up by Court order under the circumstances set out in section 81 of the new Act and no longer under the circumstances set out in section 344 of the old Act, read with section 68 of the CC Act.  

Section 81 of the new Act provides that a solvent CC may be wound-up by Court order if, inter alia:
•    one or more of the CC’s creditors have applied to the Court for an order to wind up the CC on the grounds that the CC’s business rescue proceedings have ended in accordance with section 132(b) or (c)(i) and it appears to the Court that it is just and equitable in the circumstances for the CC to be wound up; or
•    it is otherwise just and equitable for the CC to be wound up.

In light of the recent change in legislation a solvent CC may therefore no longer be wound-up purely because of the fact that it is indebted to a creditor and it is unable to pay its debts.  

This has been confirmed in the Free State division in the recent unreported judgments of Daffue J in Herman v Set-Mak Civils (5495/2011) [2012] ZAFSHC 58 (5 April 2012) and Zietsman AJ in HBT Construction and Plant Hire CC v Uniplant Hire CC 2012 JDR 0334 (FB).  In these judgments it is confirmed that a solvent CC can only be wound up by the Court on application of a creditor thereof if business rescue proceedings have ended and it is just and equitable that the CC be wound-up, alternatively if it is otherwise just and equitable for the CC to be wound up.  The mere fact that a CC is not paying the creditor’s debt is, however, not ground which makes it just and equitable for a CC to be wound-up and a creditor will have to prove factual insolvency of the CC before section 344 of the old Act, read with section 68 of the CC Act, will become applicable.  

PRACTICAL CONSIDERATION

In accordance with section 69 of the CC Act, a creditor shall send to the CC, at its registered office, a demand requiring the CC to pay the sum due within 21 days of receipt thereof prior to initiating winding up proceedings.  “Days” are defined as work days excluding the day on which the first event occurs (service of the letter of demand) and including the day on which the second event is to occur (the last day of the 21 day period).

An application for winding up of a CC shall be accompanied by a certificate by the Master, issued not more than ten days before the date of the application, to the effect that sufficient security has been given for the payment of all fees and charges necessary for the prosecution of all winding up proceedings and of all costs of administering the CC in liquidation until a provisional liquidator had been appointed.

A copy of the application for winding up a CC together with the supporting affidavits must be served on the Master prior to filing same with the Court in order for the Master to consider whether it should apply to Court for postponement of the hearing of the matter.  The application and affidavits should thereafter also be served on:
•    any registered trade union of the employees of the CC;
•    the employees of the CC (by affixing a copy to any notice board to which the applicant and the employees have access inside the premises of the CC or by affixing a copy to the front gate or door of the premises where the applicant has no access to the premises);
•    SARS; and
•    the CC at its registered address.

The applicant must then, prior to or during the hearing of the matter, file an affidavit which sets out the manner in which the above service requirements have been complied with and which is deposed of by the person who furnished a copy of the application to the said entities / persons (in practice service is done by the sheriff and the return of service constitutes an affidavit as aforementioned).

The general Rules of Application, as set out in Rule 6 of the Uniform Rules of Court, apply to winding up proceedings.

Engineering News – The Future of the Engineering Sector Seems Bleak

Engineering News recently reported that only 105 000 out of 496 000 of last year’s matriculants are able to pursue studies in engineering due to poor results in their final examinations.

Marna Thompson from the Department of Basic Education confirmed that the number of matriculants who have written and passed mathematics have declined steadily since 2008.  This leaves South Africa, each year, with an even greater shortfall on skills development opportunities for companies looking to fill learnership programmes and apprenticeships.

The Engineering Council of South Africa recently launched a national initiative to improve the current skills shortage in engineering, in line with the government’s plan to develop 30 000 engineers by 2014.  South Africa has a considerable deficiency of trained engineers, each engineer serving around 3 000 people, as opposed to 227 in Brazil and 543 in Malaysia.

According to the North West University, however, South Africa needs at least 25 000 engineering graduates per year in order for the country to be economically competitive.   These alarming figures of skills shortages in our country have moved the North West University to open a new engineering faculty of 18 000m² which can host 1 200 students in an attempt to produce a larger number of engineering graduates each year.  In light of the poor matric results, this initiative may be in vain as there are fewer students demonstrating a capacity to qualify for engineering studies each year.

Skills shortages do not only hamper South Africa’s infrastructure capacities and other developments, but also poses an increased risk to insurance companies providing professional indemnity insurance to the engineering industry.  Insurance companies may see an increase in liability claims against professional engineers in the years to come if more is not done to promote the engineering profession under young South Africans.

Markram Incorporated specialises in the fields of Insurance- and Engineering Law and keeps up to date with the latest developments.

Medical News – The effect of the Consumer Protection Act on Medical Professionals

According to a Business LIVE report dated 01 May 2012, a 2011 study by the Professional Provident Society (PPS) shows that professionals such as doctors, pharmacists and dentists are experiencing higher levels of confidence that the Consumer Protection Act (“CPA”) would add value to their clients, suggesting that medical professionals are beginning to accept the value of the legislation.

Dr Dominique Stott, an executive at PPS, is quoted as saying that the CPA is applicable to almost all services provided within South Africa, and since medical practitioners and hospital clinics provide medical services to the public, their services will also be impacted by the CPA.

Dr Stott states that if any member of the public is unhappy with the provision of medical services, they can approach the consumer commission and lodge a complaint against either a doctor or a hospital.

According to Dr Stott medical professionals will now have to ensure that communication documents are in plain English, and in language that consumers can understand. In addition, practitioners have to ensure that their contracts with the public do not contain terms that are unreasonable or unjust, and further have to ensure that their services are not directly marketed to consumers who have previously registered pre-emptive blocks for such marketing.

Dr Stott added that no negative option marketing will be allowed, so consumers cannot be sent messages suggesting that if a consumer does not opt out, they will automatically be opted in.

Dr Stott states that “all these factors mean service providers will now need to tread carefully when dealing with consumers, to avoid being brought in front of the commission. Consumers also now have a well-defined process that they can follow when their rights have been tampered with.”

However, Dr Stott believes that there are also benefits for the medical profession in that “often doctors are faced with a situation where patients book appointments and either cancel them at the last minute or simply don’t turn up. In these cases, doctors will still be entitled to levy a cancellation charge, though this must be reasonable and in line with general practice in the industry”.

To ensure compliance, Dr Stott advises that medical professionals should familiarise themselves with the Act and the workings of the National Consumer Commission.
  

Construction – New Dam Construction in the Eastern Cape

EngineeringNews reports that the construction of the R200-million Ludeke dam, which formed part of the first phase of Umgeni Water’s R830-million Greater Mbizana regional bulk water supply scheme in the Eastern Cape, started last week with the closure of the Ludeke river. 

In its totality, Greater Mbizana regional bulk water supply scheme would provide 20-million litres of safe drinking water to 266 000 people daily.

Ludeke dam was expected to hold 14.5-billion litres of water and cater for existing water demand, as well as any estimated increases over the next 30 years.

The construction of the dam, which was located about 60 km north-west from Port Alfred, was expected to start as soon as the bed of the Ludeke river was completely dry.  The dam comprised two embankments, one of which was 40 m, as well as a 17-m-high saddle embankment, which closes off a neck in the basin. An established and effective method of building embankments – with a clay core supported by a rockfill shell – was being employed.

The Greater Mbizana regional bulk water supply scheme comprised the new Ludeke dam, a pumped raw water supply system to the existing Nomlacu water treatment works, which was to be upgraded in two phases to 20 000 m3/d, and a bulk treated water supply system within the Mbizana local municipality.

Markram Inc Attorneys are specialists in Construction and Engineering Law and are in touch with the latest developments in the industry.

Medical Law – Risks associated with practising Obstetrics

Doctors are reluctant to specialise in Obstetrics due to the constant threat of being sued and the exorbitant cost of insurance premiums for medical malpractice cover.

Professional Indemnity Insurers indemnifying obstetricians in private practice should take note that the Sunday Times reports that these risks are regarded as falling in the “super high risk” category and pay the highest insurance premiums of the medical fraternity.

According to Health Minister Aaron Motsoaledi the problem has become so serious that he has commissioned a study to investigate reasons for this spike in litigation, which he hopes will report by the end of the year. Motsoaledi told the Sunday Times that while doctors should not be exempt from litigation “the manner in which it is happening is unacceptable”.

He is further quoted as saying “it’s overburdening gynaecologists more than any other profession … Why will you go and specialise in a profession where everybody is targeting you?”

Obstetricians who are members of the Medical Protection Society (MPS) – a non-profit organisation offering indemnity to nearly 30 000 health professionals in the country – pay an annual subscription fee of R220 700 while gynaecologists pay R111 130. In contrast, their counterparts in public hospitals who are members of MPS pay only R7020 because the State is liable to pay out negligence claims.

Professor Bhaskar Goolab, the president of the South African Society of Obstetrics and Gynaecology is quoted as saying that the average gynaecologist is “significantly fearful of litigation and it is something that affects his quality of practice”.  According to Professor Goolab the profession is being tainted by the legal profession as a “profession that is out there to harm mothers”.

Dr Chris Archer, an obstetrician in private practice, says that some of his colleagues are considering giving up their practice because of the steep cost of malpractice insurance. Dr Archer himself is reportedly paying just under R250 000 a year for cover through a commercial insurer. Dr Archer states that this amount is “enormous, especially when you consider that, 15 years ago, we were paying about R3000. Each time one reads of being sued, it makes us think that we are actually in a very dangerous profession and we wonder whether it’s worth it to carry on doing this”.

According to Dr Archer a possible reason for the increase in legal action against medical specialists could be the demise of the Road Accident Fund. He states that “it has forced a lot of lawyers who did this sort of work to look at the medical profession as a source of income because we are the only insured party”.

Dr Graham Howarth, MPS’s head of medical services for Africa, said in a statement that the organisation is aware of the issue. He is quoted as saying that “anecdotally, we are aware that some obstetrician members who have considered making the move into private obstetric practice have been apprehensive given the adverse claims environment”.

Although he refused to divulge the amount paid out by the MPS in claims in the past year, he said it had seen an increasing number of multi-million rand clinical negligence claims.

Markram Inc have developed a specialist Medical Law defence practice focussed on assisting Insurers of Medical Malpractice claims.

Medical Law – Rapid Increase of Medical Lawsuits in Gauteng

According to a News24 report, dated 4 June 2012, the Gauteng Health Department (‘the Department’) has paid R11.6 million to the family of an 8-year-old boy who suffered cerebral palsy after treatment at the Far East Rand Hospital.  The payment was made after the Department was ordered to do so by the South Gauteng High Court in Johannesburg.

The latest medical negligence payment by the Department follows on a report by News24, dated 15 April 2012, in which the DA voiced its concerns that higher payouts for medical negligence cases will severely impact the Gauteng Health Department’s budget as courts are granting higher payouts for medical negligence cases. Every effort should be made to ensure that quality health care is provided.

These concerns were raised after the news broke that the Department had been ordered by a court to pay R12 million to a mother whose baby was born brain-damaged and permanently paralysed due to negligence of staff of a Edenvale hospital.

The Department had already paid R15. 5 million in two medical negligence cases during this year alone.  R9. 25 million was paid to the family of a baby who was brain damaged during birth at the Pholosong Hospital.  Another R 6. 25 million was paid to a patient whose leg was amputated after he was scheduled for heart surgery at Steve Biko Academic Hospital in Pretoria.

Gauteng Health spokesperson Simon Zwane was quoted as saying that the department was ‘making efforts’ to prevent further lawsuits and to ‘generally improve the quality of healthcare in the province’.

However, despite the Department’s efforts it would appear as if claims of this nature are still on the increase, to the detriment of the Gauteng Health budget.

Construction – The Current State of the Industry

The Building Research Strategy Consulting Unit of business consultancy BMI estimates that investment in construction and building in South Africa in 2011 was R320-billion. However, construction demand from both the public and private sectors has slumped, on the back of global and local economic uncertainty.

The construction boom that preceded the slump saw many new construction companies entering the market. This has resulted in a situation of overcapacity in the current environment of reduced demand for construction services. Further, with fewer major contracts on offer, competition in the construction sector has become increasingly intense. Aggressive pricing, in an effort to secure contracts, has resulted in pressure on company margins, with several of the major participants in the market reporting margin erosion.

However, the South African government’s strong policy focus on infrastructure is positive and should eventually begin translating into orders, as well as help rebalance many South African construction companies’ order books, which are currently heavily weighted towards private sector contracts, with many construction companies in fact seeking out business in markets beyond South Africa’s borders.

Construction – Medupi Unit 6 Pressure Test to Start

EngineeringNews reports that Hitachi Power Africa has confirmed that the hydrostatic pressure test of the Medupi power station’s Unit 6 boiler pressure parts should begin within the coming two months.

CEO Johannes Musel told EngineeringNews that the test will signal the start of the “cold commissioning” phase of the power station’s initial production unit, which Eskom indicated should be producing electricity by the second half of the 2013.

The schedule has been pushed back by more than a year, owing to construction delays experienced in the boiler area. These delays have been attributed to structural steelwork design, manufacturing, logistics and construction problems.

The Integrated Resource Plan 2010-2030 was assuming the introduction of the first Medupi capacity during the first half of 2013, but Eskom has indicated that the unit is only likely to be introduced during the second half of 2013.

In a response to a Parliamentary question relating to Medupi and released on Wednesday, Public Enterprises Minister Malusi Gigaba said significant efforts have been made by Eskom, Hitachi Power Africa, as well as Hitachi operations in Europe and Japan to resolve problems and that the project schedule remains under constant review.

It is currently anticipated that the R120-billion, six-unit power station, which is being developed near Lephalale, in the Limpopo province, will be fully ramped up to its nameplate capacity of 4,764 MW during Eskom’s 2017/18 financial year.

Musel says the construction of the unit’s boiler pressure components, which are critical to the production of the steam needed to drive the turbine and electric generator, is nearly complete and that the focus is shifting towards the commissioning of the plant.

The first phase of commissioning is the cold commissioning phase in which no combustion takes place in the furnaces and no electrical drives are energised,” Musel explains, adding that any problems encountered during this phase will be fixed in line with schedules agreed with Eskom.

Following the hydrostatic pressure test the next milestone will involve chemical cleaning, which takes place ahead of “hot commissioning” and the eventual ramp up of the unit.

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