Already over 5 000 strong objections have been raised to a new draft of the Road Accident Fund Amendment Bill 2023, which if becomes law, will negatively impact the rights of all drivers, passengers and pedestrians to claim compensation for injuries they suffer in a motor vehicle accident.
The Amendment Bill, which was published by the Department of Transport on 8 September 2023, allows less than a month for public comment, and proposes a complete restructuring of the RAF, moving away from a “compensation” to a “social benefits” structure.
Advocate Justin Erasmus, Chairperson of the Personal Injury Plaintiff Lawyers Association (PIPLA), an association representing approximately 300 Personal Injury lawyers, is working collaboratively with a number of different law societies including the Law Society of South Africa (LSSA), National Association of Democratic Lawyers (NADEL) , Black Lawyers Association (BLA), Gauteng Attorneys Association (GAA), South African Women’s Lawyers Association (SAWLA), Johannesburg Attorneys Association (JAA), South African Medico-Legal Association (SAMLA), Westrand Legal Practitioners Association (WLPA) and the Pretoria Attorneys Association (PAA) to raise objections to the proposed amendments. Erasmus says these changes offer very limited benefits and amount to a drastic restriction of existing rights which will affect all South Africans, especially the poor and marginalised. “This is particularly concerning at a time when the country is reeling from high levels of unemployment and suffering from one of the highest motor accident rates in the world,” he says.
Highlighting some of the more important restrictions on existing rights South Africans should be aware of, Erasmus says one of the biggest concerns is loss of earnings. “Currently, a claim for loss of income is paid out in a lump sum, Under the new system 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 and if a claimant dies before the full annuities are received the payments will stop and their heirs will inherit nothing.
The next exclusion refers to pain and suffering. Claimants will no longer receive compensation for pain, suffering, disfigurement and shock as this category of damage will be totally abolished.
This is very concerning when one considers the RAF has a well-documented history of non or late payment as well as a history of mismanaged funds. “We believe this is another ploy to reduce the amount that is paid out to victims by government, rather than pay victims what is rightfully and legally due to them,” he says.
Commenting from a medical perspective, Dr Herman Edeling, Chairperson of SAMLA shares a similar concern. “I believe it is a tremendous shame if poor people are deprived of general damages compensation which is separate to loss of earnings and medical expenses. In principal victims can get compensation for medical expenses under section 17, however the RAF does not pay upfront. So to put this in perspective if you are unemployed and have no money, or your life is devastated from the injury, you now cannot pay for treatment. You will be expected to pay for all your medical needs upfront and then claim back from RAF, so in essence the annuity payments are worthless. The general damages claim is what people use to get treatment and survive in the event of a life changing event. With the new bill, people will get nothing. As a medical practitioner I believe this is immoral and professionally I believe it is unethical,” says Edeling.
Further exclusions worth noting around drivers and claimants include:
• Currently a victim is covered if injured by a negligent driver, irrespective of where the accident happens. Under the new system the accident must have taken place on a public road. Injuries suffered in motor vehicle accidents in parking areas, sports fields, farm roads, driveways, private estates, game reserves or any other private road will not be covered. Pedestrians crossing a highway are also specifically excluded.
Layton Beard, spokesperson for the Automobile Association of South Africa (AA) says statistics from the Road Traffic Management Corporation (RTMC) indicate that pedestrians are the most at-risk road user group in the country. In 2022, 42% of the 12436 deaths on the country’s roads were pedestrians; in 2021 41% of all road deaths were pedestrians. The RTMC’s report also notes that children are seriously affected by road crashes in South Africa and are particularly vulnerable as pedestrians.
• Claimants will not be covered if hit by an unidentified vehicle. Under the present system, so-called “hit and run” incidents are compensated.
• Presently anyone, regardless of nationality, who is injured by a motor vehicle in South Africa is covered. The proposed amendments don’t allow for compensation for any person who is not a South African citizen or direct permanent resident.
• The proposed changes also specifically exclude from compensation any driver, pedestrian or cyclist over the legally prescribed alcohol limit, regardless of who was at fault, as well as their dependents should they be killed. Erasmus says it is also probable that this section will be interpreted to mean that passengers of persons who have drunk alcohol will also be excluded from any compensation. “Importantly, 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,” he notes.
Finally, the implication for medical aid schemes and medical aid members is also huge. Erasmus says there will be no reimbursement of expenses covered by medical aid/insurance. “We predict this will drastically increase premiums with dire consequences for all medical aid members.”
And then unlike the current dispensation, all future medical claims will have to be pre-authorised by the RAF or they will not be paid. “We predict this will create serious time lags for victims who urgently require care,” he says.
Finally the clause relating to claims against the person who caused the accident needs to be reviewed. Erasmus says since 2008 l innocent victims have not been entitled to sue the wrongdoer for damages not recovered from the RAF. “We believe that if we are moving away from compensation this clause definitely needs to be restored so victims have the right to sue the wrongdoer,” notes Erasmus.
“This amendment affects each and every South African and cannot be allowed to go forward in its current format. As concerned citizens you can lodge your complaint before 6 October on the following site https://dearsouthafrica.co.za/road-accident-fund/. A separate information site Road Accident Rights has also been set up,” concludes Erasmus.