The LSSA would like to alert practitioners to the draft Road Accident Fund Amendment Bill, published for comment in GG49283 on 8 September 2023. The Bill contains a number of significant changes, which will have far-reaching implications if enacted. The deadline for comment is 8 October 2023
On 8 September 2023 the Department of Transport published a draft Road Accident Fund Amendment Bill 2023 for public comment to be made within 30 days.
It is of extreme importance that all practitioners, as well as the general public and the relevant civic associations, are made aware of the dire consequences that will follow the enactment of this Bill and that they voice their objections so that this Bill can be stopped in its tracks, or at least proceed to a full public participation process.
Funds are needed urgently in order to launch and maintain an effective awareness campaign and to rally opposition to the legislation, including litigation, if necessary. LSSA calls on all practitioners to contribute whatever they can to a dedicated fund for this purpose. Any contributions can be transferred into the following bank account: LAW SOCIETY OF SOUTH AFRICA | FNB | Account Type: Business Account | Account Number: 62009641029 | Branch Code 251445 | Reference: RAF
If the draft Bill becomes law the rights of all drivers, passengers and pedestrians to claim compensation for injuries they suffer in a motor vehicle accident will be taken away. In its place will be significantly reduced “social benefits”.
Despite the fact that only very limited social benefits will be paid –
- the innocent injured party is still denied a common law claim against the guilty party for the balance of his or her loss;
- all claimants will still have to prove that their injuries were suffered as a result of the negligence of the driver or owner of a motor vehicle;
- all those using the roads will nevertheless, either directly or indirectly, still have to contribute to the Road Accident Fund (the Fund) by way of the fuel levy which is currently R2.18 per litre.
The Fund receives more than R45 billion per year via the fuel levy.
The poor and disempowered 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. They will not receive any lumpsum payments and it is very likely that, if they are not able to produce a salary slip, they will receive no compensation for loss of earnings. In other words, they will receive no benefit at all, even though they may suffer devastating injuries and are the very people that the Fund should protect.
The proposed legislation also unfairly discriminates against the working classes who are dependent on public transport to get to work or who are conveyed in motor vehicles during the course of their employment.
Those that 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.
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 tune of R45 billion per year.
CURRENT COMPENSATION VS PROPOSED CHANGES
The Fund is a state backed insurer which steps into the shoes of the wrongdoer and compensates the innocent inured party subject to some caps in respect of loss of income.
The object of the Fund has been changed from the payment of compensation (as a statutory insurer) to the provision of social benefits (welfare) – this despite the fact that road users continue to pay a significant premium by way of the fuel levy.
Injuries sustained in a motor vehicle accident anywhere in the Republic of South Africa by any person are covered.
Only persons injured on a public road may claim – injuries suffered in motor vehicle accidents in parking areas, sports fields, farm roads, driveways, private estates, game reserves or any other private road are not covered. Persons who are not citizens or direct permanent residents are 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.
Uncapped compensation for general damages for pain and suffering, loss of amenities of life, disfigurement and shock paid to those who have suffered serious injuries.
No payment for pain and suffering, loss of amenities of life, disability, disfigurement or shock regardless of how catastrophic the injuries might be.
Loss of earnings and support, past and future, are paid by way of a lumpsum, affording the injured claimant or dependants the freedom and dignity to take charge of their own future.
No lumpsum payments for future loss of earnings or support. Future earnings or loss of support will be paid as an annuity (monthly payments). The Fund has the right to continually reassess its liability to continue to pay. If the injured claimant is a breadwinner and dies, the pension will cease, leaving dependants destitute.
All medical and other expenses reasonably incurred that arise directly from the accident are covered.
Medical and other expenses will be subject to a prescribed tariff, which will not cover the actual costs incurred. All future expenses to be pre-authorised in terms of a procedure to be prescribed and subject to restrictions and exclusions.
In terms of the common law, expenses covered by medical aids must be paid by the Fund and in terms of the rules of the medical scheme, re-imbursed to the medical aid to go back into the pool of funds available for the benefit of all members.
No cover for expenses covered by medical aid/insurance. This will have dire consequences for all medical aid members, not just road accident victims. Medical aids may be forced to exclude cover for motor vehicle accident expenses.
Costs incurred to inter the deceased in a grave are covered.
Fixed capped benefits for funeral expense.
Any person injured as a result of the negligence of a driver or owner may claim.
No compensation if there is a claim in terms of the Consumer Protection Act.
No compensation if injured whilst filming a movie or advertisement.
Claims for passengers who may be covered by the operator’s passenger liability insurance to be reduced by the extent of the cover.
Once a claimant has lodged a substantially compliant claim on the Fund and a period of 120 days has lapsed, the claimant is free to prosecute his or her claim in a court of law.
Jurisdiction of the courts largely ousted by the establishment of alternative dispute resolution procedures followed by referral to the office of the Road Accident Fund Adjudicator (yet to be established).
Once a valid claim has been lodged, the period to institute proceedings before the claim will prescribe and become unenforceable is extended from three years to five years from date of accident, allowing a claimant sufficient time for injuries to stabilize and to prepare a claim.
Lodgement of a claim no longer extends prescription from three to five years, meaning that many claims could prescribe whilst trapped in the internal resolution process.
Injured party can claim personally, or be represented by a practising attorney or an employee of the state.
Claimant can be represented by any person or functionary as prescribed in the regulations.
Road Accident Fund Campaign
Further to recent communications regarding the Draft Road Accident Fund Amendment Bill, 2023, we would like bring to your attention the fact that driven by PIPLA, we have launched a campaign to create public awareness of this Draft Amendment Bill. The ultimate goal of the campaign is to raise as many objections to the bill as possible.
It is of utmost importance that all firms including all individuals employed should submit their written comments and objections before the 6th October 2023 deadline.
Already over 11 700 strong objections have been raised. Should the draft of this bill become law, it will negatively impact the rights of all drivers, passengers and pedestrians to claim compensation for injuries they suffer in a motor vehicle accident. Furthermore, these changes offer very limited benefits and amount to a drastic restriction of existing rights.
For a detailed overview of the bill and it’s impact, please visit www.roadsafetyrights.org, the website we have launched to draw the public’s attention to the proposed changes. We encourage you to support us by following and commenting on our Facebook page
Nothwithstanding the latter, we further advise that the summary of the Draft Amendment Bill were sent to Dear South Africa and we kindly request that you and all you know comment at https://dearsouthafrica.co.za/road-accident-fund/
We will continue to provide you with updates in due course.