Johannesburg - With just two months before the summer holidays and when South Africa usually suffer the most road accidents, legal experts are urging the country to take a stand against government’s new proposed Draft Road Accident Fund Amendment Bill.
South Africans have until Sunday to voice their comments on the new bill, which many have described as a travesty of justice.
“Now is the time for South Africans to stand up for their constitutional rights,” said Advocate Justin Erasmus, Chairperson of the Personal Injury Plaintiff Lawyers Association (PIPLA).
“A draft Bill of this nature with such far-reaching implications, not only for the victims of motor accidents but also on the livelihoods of all South Africans, particularly the poor and marginalised, has been given grossly insufficient time for proper and meaningful public participation.”
The draft amendment bill was gazetted earlier this month and proposes major changes to how the fund operates and how it will pay claims.
The bill proposes significant changes to the existing law, including removing the rights of drivers, passengers, and pedestrians to claim compensation for injuries they have suffered.
Instead, it proposes that the fund will only provide significantly reduced “social benefits”.
Innocent injured parties also would still be denied the common law claim against the guilty party for the balance of his or her loss.
Yet, all road users contribute directly or indirectly to the fund through the fuel levy, estimated to be about R45 billion a year.
Erasmus has urged all South Africans to lodge their complaints by this weekend.
A number of sites have been set up to assist citizens in understanding the implications of the changes.
Concerned citizens can visit any of the sites, including www.roadsafetyrights.org; https://medicalschemes-raf-act.co.za; https://dearsouthafrica.co.za/road-accident-fund, to name a few.
Erasmus says the proposed bill comes with several consequences for South Africans.
At present, injuries sustained in a motor car accident anywhere in South Africa by any person are covered by the fund.
The Bill now excludes injuries suffered in motor vehicle accidents in parking areas, sports fields, farm roads, driveways, private estates, game reserves or any other private road.
People who are not citizens or permanent residents are also not covered.
Persons crossing a highway are not covered. Persons injured in a hit and run are not covered. Pedestrians, drivers and cyclist who may test over the legal limit for alcohol and their dependants are not covered.
The Bill also proposes doing away with payments for pain and suffering, loss of amenities of life, disability, disfigurement or shock.
It also does away with lump sum payments for loss of earnings or support, replacing them with monthly payments and giving the fund the right to continually reassess its liability to continue to pay.
“The new system proposes that claimants will receive annuity (partial) payments that will eventually equal the lump sum. There is also the qualification that the amount payable is subject to periodic review of the Fund’s liabilities,” said Erasmus.
“This is unfair as the claimant was injured in a single event and should receive compensation for that event as a single payment.
“The payment of annuities is in conflict with the well-established legal “once and for all” rule.”
Erasmus added that imposing annuity payments, in effect, reduces claimants to the status of pensioners who must wait hat in hand until their next payment.
“The RAF currently has serious administrative difficulties and battles to administer obligations, such as Section 17 Undertakings for Future Medical Expenses.”
“I do not believe that the RAF will have the administrative capacity to administer the process. The qualification that awards will be subject to periodic review is unacceptable and leaves the door open to later reductions in payment. This cannot be allowed, and claimants should receive full compensation for what they lost.”
He added that annuity payments will not only increase administrative costs, but the RAF will lose the benefits of the capitalisation of claims and will have to also pay interest. “This will increase the amounts payable over time and will burden the system unnecessarily.”
Erasmus said it was also unfair and irrational that claimants will no longer receive compensation for pain, suffering, disfigurement, and shock, as this category of damage will be totally abolished.
“Claims in this category are already restricted to serious injuries, and payment abuse of this type of compensation is therefore already protected against. The only rationale for the prohibition on this category of payment is that it is simply a money saving exercise for the RAF at the expenses of the injured, poor and vulnerable.”
Currently, a claimant is covered for the negligent driving of a motor vehicle, irrespective of where it is driven.
“Under the new system, the accident must have taken place on a public road. Injuries suffered in motor vehicle accidents in private parking areas, sports fields, farm roads, driveways, private estates, and game reserves or any other private road will not be covered. Pedestrians on a highway are also specifically excluded. The restrictions apply even when the claimant was not at fault.
“The purpose of the RAF is to compensate (or in the language of the proposed amendments to provide a social benefit) to victims of motor vehicle accidents. The proposed exclusion will result in thousands of innocent victims of motor vehicle accidents being deprived of their benefits.”
The proposed changes also specifically exclude compensation to any driver, pedestrian or cyclist over the legally prescribed alcohol limit, regardless of who was at fault, as well as their dependants should they be killed, according to Erasmus.
“This is completely irrational; the effect of the exclusion is that a person who may be slightly over the alcohol limit for driving could be sitting on a pavement on a bench waiting for a taxi when struck by a motor vehicle. Such a person would be totally innocent of wrongdoing but will be excluded from any benefit.
“It is also unfair that the RAF will be able to recover expenditure from persons who have drunk alcohol, even if they did not cause the accident that they were involved in. This restriction will also result in an increase in insurance premiums as it has the effect of shifting liability to private insurers.”
Other exclusions from compensation include, for example, cases where there may be a product liability claim, persons injured whilst filming a movie or advertisement and passengers who may be covered by the operator’s passenger liability insurance – despite the fact that that cover may be very limited.
“This is unfair and discriminates against claimants in these categories. These exclusions also attempt to limit the RAF’s expenditure by shifting the burden onto private insurers. This prejudices both the victim and the insurers,” said Erasmus.
The Law Society of South Africa (LSSA) has also urged members of the public and civic associations to formally object to proposed amendments to the Road Accident Fund Act.
“The poor and dis-empowered, who make up the vast majority of claimants and who are compelled to use public transport, will bear the brunt of the consequences of these amendments. They will be forced into the public health system, as the prescribed tariffs will not cover the actual costs incurred at a private hospital. Under the present system, many receive treatment at dedicated private healthcare facilities,” the LSSA said in a statement.
Claimants will also not receive any lump sum payments, and if they are not able to produce a payslip, it was unlikely that they would receive compensation for loss of earnings.
The LSSA said those who can afford it will be compelled to take out private accident cover for medical and other expenses as well as accident benefits.
“This is likely to be very costly, as there will be no reimbursement of expenses covered from the fund. Medical aids will more than likely exclude cover, or the cost thereof will have to materially increase to preserve the funds in the pool for all members.”
The LSSA said road accident victims will be uniquely discriminated against by the proposed legislation.
“Their rights to be compensated for harm suffered by the fault of another, will be taken away. Persons who suffer harm from medical negligence or are injured in train or plane, or boat accidents or in shopping centres, hotels, construction sites, holiday resorts, private homes or by electrocution or pollution and by a host of other causes have unfettered rights to seek compensation from the person or entity who caused them harm.
“Innocent motor vehicle accident victims, alone, do not have this right, despite the fact that they pay premiums to the fund.”
At present, injuries sustained in a motor car accident anywhere in South Africa by any person are covered by the fund.
The LSSA said the Bill also largely ousts the role of the courts in determining contested claims, establishing instead alternative dispute resolution procedures followed by referral to be a yet-to-be established Road Accident Fund Adjudicator.
Co-chair of the KZN Personal Injury Lawyers Association, Anthony De Sousa, said the biggest issues around the Bill was what was not known, such as what “social benefits” were and what the treatment tariffs would be.
“We don’t know what we are signing up for. What also worries me is the people it excludes, such as pedestrians crossing highways. They don’t do that for fun. They do it because they have no choice and are trying to get to work or home. They are poor people, and if they are knocked down, they really need help. To exclude them is just weird.”
He said while there may be a case not to cover motorists who don’t have licences or who are over the legal alcohol limit, the Bill also proposed that their dependants are not covered, such as a child who is injured.
“The kids are not at fault, but suddenly, they have no claim.”
He said the approach seemed to be: “Let’s try and save some money”.
“We pay a lot of money to the fund in terms of the levy. If you were to take that money and take up an insurance policy, you would probably get better cover and better value for money.
“I don’t think, no matter how they change it, it won’t work until they sort out the dysfunctionality, the administrative inefficiencies in the fund. You can change it to whatever system. They cannot properly administer it and run it.
“If they did their jobs properly, the fund would be saving itself a bucket load of money.”
De Sousa said the association was presently putting together its formal response to the proposals.
Collen Msibi, spokesperson for the Department of Transport, said, “The bill is out for comments. The department will welcome all views and suggestions for its consideration.”