Judge’s directive a major court blow for RAF claimants

14 July 2019 – By Karabo Ngoepe on iol.co.za

July 14 – One man was killed and three other people were seriously injured when the car they were travelling in left the M13 freeway while going up Fields Hill in Pinetown in Durban and crashed into a tree in the early hours of Sunday morning. Photo: Rescue Care

Johannesburg – Claimants suing the Road Accident Fund, MEC of Health in Gauteng and the Passenger Rail Agency of SA (Prasa) have been dealt a blow following a court directive to scrap court dates granted beyond March 31, 2020.

The directive from Judge President Dunstan Mlambo to regulate the case management, trial allocation and enrolment of trial matters came into effect from July 1, 2019, in the Gauteng Division in Pretoria and the Johannesburg Local Division.

“All trial matters which prior to July 1, 2019, had been allocated a trial date and that trial date falls into the period up to March 31, 2020 shall retain those trial date allocations and shall require certification in terms of the practice and directives in force as at June 30 2019.

“All trial matters which, prior to July 1m 2019, have been allocated trial dates which fall after March 31 2020, shall hereby forfeit those trial dates and shall require certification, as provided in paragraphs 6-14 of this directive,” Mlambo said.

It stated that as from July 1, 2019, the registrar would not allocate a trial date unless a certificate of trial readiness was issued in accordance with the provisions of the directive.

It said “Category Y” matters would require a certificate of trial readiness to be issued by a judge, and all other categories would require a certificate to be issued by the registrar.

All trial matters in which the defendant is the Road Accident Fund (RAF) or the MEC Health, Gauteng, or Prasa are regarded as Category Y.

The directive has been slammed by lawyers, who believe people who have been waiting for years to get a court date would now be prejudiced and then forced to endure another long waiting period to be in court.

Leigh de Souza-Spagnoletti from Edeling Van Niekerk Inc is challenging the directive. In her 25-page submission, she questioned the time frame that was given for submission. She said the directive came to their attention on June 11 and comment had to be submitted by June 19.

“Bearing in mind the catastrophic and far-reaching consequences for what we estimate to be at least 80% of plaintiffs in the Gauteng courts, we find both the directive as well as the exceedingly brief time period allowed for comment to be impractical and patently prejudicial to all such plaintiffs.”

De Souza-Spagnoletti said that they questioned whether the directive was not aimed specifically at slowing the litigation process down to the financial benefit of the defendants so as to assist the transport and health portfolios. Between 2017 and 2018, the Gauteng department of health was sued for R22billion in 1800 cases while the RAF had to pay R29.8bn in claims in 2017.

De Souza-Spagnoletti added that since the Gazette of 2014, which placed an obligation on courts to implement case management protocols, it had become difficult for plaintiffs, particularly those who fell into the “Y” category of the directive, to achieve reasonable access to the courts.

“The reasons for this include, inter alia: the implementation of case management protocols which do nothing but obstruct and prolong an already long and arduous journey to the steps of court, an ongoing and long-standing lack of judge availability, resulting in repeated postponement of matters, an ongoing and long-standing trend to allow postponement applications of defendants in circumstances where they have, whether by design or merely by incompetence, failed to prepare adequately or at all for trial,an ongoing and long-standing trend to make illogical, prejudicial, biased and often contradictory orders in relation to the certification process of trials, a complete and utter lack of consistency within the judiciary as regards the above, and a complete lack of insight on the part of the courts as regards what the litigation and trial preparation process entails beyond what is set out in the court rules,” said De Souza-Spagnoletti.

She added that plaintiffs had been severely prejudiced by the courts’ delayed allocation of trial dates and said the forfeiture of trial dates allocated after March 2020 would now constitute a clear and solid denial of access to court.

“Victims who have already been denied access to the court, many for years, are now expected to start the process afresh.

“We have little doubt that this will be met with legal action to invalidate the directive and to declare the same unconstitutional.

“We point out that thousands of these matters constitute actions which were previously postponed at the whim of errant defendants who, despite having brazenly failed to prepare for the trial, were readily granted postponements with nothing more than a party and party costs order,” she said.

De Souza-Spagnoletti said it was clear that the court sought to encumber plaintiffs with a “policing” obligation to chase after defendants to conduct their defence. She added that what the court sought to facilitate was a system where plaintiffs were required to conduct and prove their own cases and to then “babysit” and police defendants in the conduct of their defence.

“Rather than apply the court rules consistently and without fear or favour, it seeks to toss the ball to the plaintiff who, with all the other hoops he is being made to jump through on his epic journey to the steps of the court, will now have to launch countless interlocutory applications to prove his trial readiness – and to assist the defendant in preparing his case,” De Souza-Spagnoletti said.

The Sunday Independent

Road Accident Fund insolvent

The Road Accident Fund disaster

20 March 2019 – BY ADRIAAN KRUGER ON MONEYWEB.CO.ZA

Victims could be left destitute, despite the high fuel levy we pay for accident insurance.
Road Accident Fund insolvent

The shortage of cash to pay claims that have been agreed to or settled in court has led to lawyers taking legal steps against the RAF. Picture: Supplied

Both the chairman and the chief executive officer of the Road Accident Fund (RAF) admitted in the latest annual report that the fund is insolvent, with liabilities exceeding assets by more than R206 billion at the end of March 2018. The annual report states that the fund “has been insolvent since 1981”.

The total liabilities with regards to claims agreed to during the reporting period, but not paid at the end of the year, amounted to R38.3 billion. Outstanding claims liabilities – claims settled in previous years that still need to be paid – exceed R177 billion.

The auditor-general’s report to the financial statements concludes that there is “significant doubt on the public entity’s ability to continue as a going concern”.

RAF chairman Peter Mathebula says these figures explain clearly that the current compensation system is totally unsustainable: “The RAF only has five cents’ worth of assets for every R1 of its liabilities.”

Lindelwa Xingwana-Jabavu, in her report as acting CEO of the RAF in the 2018 financial year, said that, on average, the fund was R9 billion in arrears per month with finalised claims that could not be paid due to insufficient cash resources.

The shortage of cash to pay claims that have been agreed to or settled in court has led to lawyers taking legal steps against the RAF for payment by securing attachment orders against the fund’s bank accounts. The RAF says that this has had a further effect on the fund’s ability to operate properly.

Meanwhile, motorists and motoring organisations call for a reduction in taxes and levies on fuel whenever petrol and diesel prices increase. This includes the levy to fund the RAF, which will increase to R1.98c per litre in April when this year’s increase in the RAF levy comes into effect.

At current prices, the levy represents some 13.5% of the cost of fuel and would probably increase the RAF’s revenue this year to more than R44 billion (maybe as high as R48 billion) depending on the effect of higher fuel prices on consumers’ demand for fuel.

Push to replace the system

Given this difficult situation, several government departments are pushing to replace the current RAF system with what they see to be a more affordable system under the new Road Accident Benefit Scheme (Rabs) bill. The new act to legalise the Rabs might be tabled in parliament again during the next few weeks, following an unsuccessful attempt to pass the bill last year.

In simple terms, Rabs is basically a defined benefit scheme that will offer compensation to accident victims and do away with long legal processes where every case is determined on its individual merit. The idea is that the Rabs is a more reasonable, equitable, affordable and sustainable system, according to the RAF and other government departments such as the department of transport and National Treasury.

The legal profession disagrees with this, claiming that the new scheme will be a total disaster and does not adhere to the most basic common law principles. Several lawyers say it would not pass scrutiny in terms of the Constitution.

Victims will lose the right to argue their case in court

The most common response from the legal fraternity is that the new Rabs Act infringes on the individual’s rights to argue their case in court. Nevertheless, the RAF confirmed to Moneyweb that the bill is currently on the National Assembly’s list to receive attention.

The Rabs seeks to curtail the legal process significantly. Firstly, it will be based on a no-fault basis, meaning that it will remove the court procedure to determine who is to blame for an accident or injury, and to what extent. Secondly, the new law will remove the victim’s right to legal action against the party that caused the accident.

The new Rabs makes provision for the appointment of an administrator that will consider claims and determine the amount of compensation. Medical costs will be paid on a predetermined scale and would probably only make provision for treatment in state hospitals.

The most significant difference between the current RAF system and the Rabs that seeks to replace it is the way in which the systems calculate compensation for future loss of income of an accident victim.

Future loss of income a bone of contention

Jean-Paul Rudd, personal injury attorney at Adams & Adams Attorneys, says that of great significance is that children who are permanently injured in motor vehicle collisions will only have limited claims for loss of income under the new Rabs. “The claims will be calculated based on the national average income, completely disregarding the child’s academic potential.

“To add insult to injury, the bill takes away a victim’s right to sue the common law wrongdoer,” says Rudd.

“By way of an analogy, a child intending to study medicine, but who is permanently injured in their final year of schooling, will receive compensation based on the average national income, as opposed to what they could have earned from a career in medicine. The same holds true for students who have completed their studies but have not yet entered the labour market.”

Payments to victims have stalled

DSC Attorneys, apecialist personal injury law firm, says the RAF has been in financial difficulty for some time and the situation has come to a head. “RAF assets were seized by sheriffs of the court towards settlement of the fund’s outstanding debts, and payments to accident victims all but ground to a halt.”

DSC director Kirstie Haslam has been studying the new Rabs bill in detail. She has followed its progress since its beginning and has been participating in the parliamentary debate about its structure and implementation. The firm voiced its concerns about the Rabs in a series of articles and has highlighted its shortcomings.

The two aspects that seem the most serious are compensation for medical costs and loss of earnings. Under the current system, the RAF pays a lump sum for past medical expenses and gives an undertaking to cover future medical expenses. The Rabs will pay medical costs at contracted healthcare providers, directly to the supplier, which limits accident victims’ choice of doctors and facilities.

The RAF also pays a lump sum by way of compensation for loss of income as calculated taking into account individual circumstances. The new Rabs wants to replace this with a limited monthly income grant, which will be cut off after 15 years or at the age of 60.

Lawyers up in arms 

Some lawyers are up in arms that RAF lump sum payments will be cancelled as it (the fund) provides for claims on a contingency basis, where people who cannot afford legal fees can still negotiate presentation on a basis of ‘no win, no fee’.

This opportunity to get legal representation on a contingency basis has a downside and has been open to abuse by expensive lawyers and equally expensive medical experts who brag on their websites how they “vanquished” and “defeated” the RAF in glorious courtroom battles.

The RAF complains that the legal process of submitting legal bills to the fund, and the time constraints with regards to the process of taxation and payment of legal and other fees, put them at a disadvantage in that they need to carefully check claims for legal costs when attorneys ‘overreach’ on their bills to recover legal fees.

The RAF annual report states that more than R3 billion was saved in the last financial year by scrutinising legal bills through the process of taxation.

Gregory Whittaker, principal actuary at Algorithm Consultants & Actuaries, a consultancy firm that specialises in the quantification of damages in personal injury and accident cases, says there are several reasons why the RAF is in a critical state.

Attorneys aggressively pursue claims

“Claims for loss of income now form the largest category of claims against the RAF because attorneys aggressively pursue [these] claims for even the most minor of injuries, resulting in significant fees to call experts to justify these claims. Claims are poorly defended by the RAF, resulting in overinflated claims,” says Whittaker.

Moneyweb asked Algorithm Consultants whether SA can afford an insurance system that covers 100% of victims’ losses.

“The problem is that the RAF is not compensating for actual loss, but for hypothetical loss and a large volume of claims are settled on a so-called ‘differential contingency’ basis. This is merely speculation and results in inflated claims values,” says Whittaker.

Funding mechanism ‘completely wrong’

He says the funding mechanism of the RAF is completely wrong. At the moment the poor subsidise the rich in that a poor cleaner who travels far to work contributes more to the RAF than a rich lawyer who travels less than 100km per week. However, the benefits are income-based and the lawyer would receive substantially more compensation than the cleaner for the same injuries.

An income tax surcharge instead of a fuel levy will align benefits to contributions, says Whittaker. “Look at the UIF and Workmen’s Compensation schemes, where contributions and benefits are earnings-based. The RAF is the odd one out – contributions are not earnings-related, but benefits are.”

Government pushes for RABS to become law

Government Pushes For Obscene Road Accident Benefit Scheme To Become Law

5 March 2019 – BY JASON SNYMAN ON COMPAREGURU.CO.ZA

Government pushes for RABS to become lawDespite universal opposition to the Road Accident Benefit Scheme – which has been labelled as controversial, criminal, obscene, abhorrent, unconstitutional and appalling – the South African government is pushing to get this monstrous scheme passed into law. This article is not for the faint hearted.

The Road Accident Benefit Scheme – which has been variously labelled as controversial, criminal, obscene, abhorrent, unconstitutional and appalling – has been reintroduced to Parliament. Because, of course it has.

Despite near-universal opposition to the bill – that could see drunk drivers rewarded for causing accidents – the ANC government has forgone all logic and rational thinking in favour of forging ahead, regardless. Because, of course it has.

The bill, previously put to vote before the National Assembly in December of last year, was postponed, pending an independent review, after opposition parties (IFP, DA, EFF, UDM, COPE, ACDP and FF+) staged a walk-out in protest, leaving the ANC as the bill’s only advocates.

Opposition parties, advocacy groups and spokespersons for the legal profession all claimed that the bill was being used as a mechanism for the ANC to garner voter support ahead of the 2019 elections. Yet another political ploy.

Chair of the Association for the Protection of Road Accident Victims, Pieter de Bruyn, said:

“The ANC constantly stuck to ignoring the constitution, misleading the public, prejudicing the poor and putting party politics before the best interest of the people of SA.”

Road Accident Benefit Scheme – What You Need To Know

For those who aren’t familiar with the Road Accident Fund fiasco – or its proposed replacement, the looming Road Accident Benefit Scheme – here are the key points you need to know. Under the RABS:

  • You’ll have no right to approach a court, should you be unsatisfied with the benefits on offer.
  • The RABS will pay medical and healthcare service providers directly. This means that, should you be injured, you no longer have a choice in which medical practitioners or caregivers you want to use.
  • The RABS will take over all existing and future RAF claims, as well as the current RAF staff.
  • Under the current RAF, in severe cases you may have an attorney champion your cause for you. This right falls away under the RABS. You will have no right to legal representation.
  • And of course, human rights will be blatantly violated as well; with child victims of road accidents no longer being able to launch any claims until they are 18 years old, no matter the severity of their injuries.
  • No more lump sum payment settlements will be made to those who have experienced severe injuries or damages. The RABS will make monthly payments, with a maximum pay out of R44 000, annually. Consider the fact that you may lose a limb or the ability to work, and R44 000 makes for poor compensation.
  • The RABS will offer no cover for any victims who earn more than the national average income of R219 820 per year.
  • These payments will not increase in line with inflation. They will also stop the moment you die, leaving your dependants vulnerable and possibly doomed to live in a refrigerator box under a bridge somewhere.
  • The RAF takes about 120 days to settle your claims. The RABS will take double the time, and even then, benefits aren’t a sure thing.
  • The RAF and RABS will have to run concurrently for at least twenty years, due to a huge backlog of unresolved claims, which could result in the fuel levy doubling. If the government wants two systems, guess who’s going to be paying for them? That’s right. The taxpayer.
  • The RABS, which is supposedly meant to reduce the financial burden of the RAF, could actually become more expensive. This is owing to the fact that administrator, funeral and an increase to minimum national income have reportedly not been costed, according to an independent audit of the bill by True South actuaries.
  • Under the proposed RABS, accidents will be treated on a no-fault basis. A no-fault scheme means that any drivers who can prove they have been in a motor vehicle accident will be able to submit a claim to RABS. What this means, essentially, is that all road accident victims will be able to receive benefits, even if you’re a drunken lunatic and the accident was your entire fault.

Few bills have ever been so relentlessly horrific.

Problems, Problems Everywhere

These concerns are echoed by DSC Attorneys – a Cape Town based firm specialising in road accident claims, personal injury claims and medical malpractice. On the RABS bill showing up on the Order Paper in the National Assembly again last week, partner at DSC Attorneys, Kirstie Haslam, said:

This is despite universal opposition to its introduction in the National Assembly last year, when it could not be voted on at least twice due to a mass walk-out by every single opposition party, and further in light of the public outcry surrounding the moral obscenity of rewarding drunk and reckless drivers for their conduct.

According to Haslam – and anybody else with a functioning brain, really – the RABS is simply unaffordable, and it’s a classic case of the government trying to squeeze blood from a stone.

By its own admission, the Department of Transport acknowledges that the estimated 75% increase to the RAF fuel levy (needed to fund the new scheme) will only be the starting point, and additional taxes will have to be introduced to fund it, offering little in return.

Haslam goes on to beg the question; how does the government plan on financing this monstrous scheme, when the tax-payer is already so grossly over-burdened?

How indeed? As we ourselves recently reported, South Africans have just been laden with yet another shameless cash-grab of a tax – the Carbon Tax – as well as increases on the general fuel levy and the Road Accident Fund levy.

With the Road Accident Benefit Scheme circling like a filthy, gluttonous vulture, road users and taxpayers will likely be beaten over the back with taxes and levies until they’re dead. The Eskom, SABC, SAA, PRASA horrorshow will pale in comparison. They’re coming for all of your money – all of it – and they’re no longer afraid to run roughshod over your constitutional rights to accomplish it.

South Africa has one of the highest road-fatality rates in the world – ranking 38th globally – and the proposal of a no-fault based system being introduced here is criminally insane.

There are numerous examples of where no-fault systems have been introduced and have failed – including in first world countries with significantly lower road death tolls – with those countries reverting to a fault-based system.

The RABS proponents will, in all likelihood, seek to pass the bill in the next week.

Part of the reason why the RAF levy is consistently raised, year after year, is due to the fact that there are so many uninsured drivers behind the wheel in South Africa. Their vehicles aren’t covered, and neither are they for medical or consequent damages. This leads to more and more RAF claims, which the government will avoid paying at all costs, and in turn, leads to consecutive hikes in the levy.

With the RABS darkening our doorstep, though, submitting any claims without the help of specialised firms, such as DSC Attorneys, could soon become next to impossible.

ANC trying to rush through new road accident scheme that could reward drunk drivers

Business Tech: Staff Writer

25 February 2019

 

ANC trying to rush through new road accident scheme that could reward drunk driversThe controversial Road Accident Benefit Scheme Bill (RABS) has been reintroduced to Parliament – despite near-universal opposition to a clause in the bill that could reward drunk drivers who cause accidents on South Africa’s roads.

The bill was previously introduced to the National Assembly in December 2018, but failed to pass after all opposition parties staged a walkout, leaving the ANC unable to push it through.

While the portfolio committee on transport adopted the bill, and the NA majority agreed to debate it, after discussion in the house, the IFP, DA, EFF, UDM, COPE, ACDP and FF+ all rejected the bill, leaving the ANC as its only proponents.

The main sticking point with the bill is that it provides for a system of ‘no-fault compensation’ for road accident victims – which could in theory allow for drunk drivers and other negligent drivers to benefit from the system.

The bill has also been criticised for removing motorists’ ability to make claims from the road accident fund through independent lawyers, effectively limiting options to claim money back.

Opposition parties said that the bill was being pushed through as a political ploy ahead of the 2019 elections, and called for an independent review of the bill. The passing of the bill was then delayed to 2019.

According to Kirstie Haslam, partner at DSC Attorneys, the bill is now once again on the Order Paper in the National Assembly, and its proponents will in all probability seek to pass it this week.

“This is despite universal opposition to its introduction in the National Assembly last year, when it could not be voted on at least twice due to a mass walk-out by every single opposition party, and further in light of the public outcry surrounding the moral obscenity of rewarding drunk and reckless drivers for their conduct,” she said.

Unaffordable

Haslam stressed that the intended scheme is also unaffordable.

“By its own admission the Department of Transport acknowledges that the estimated 75% increase to the RAF fuel levy (needed to fund the new scheme) will only be the starting point, and additional taxes will have to be introduced to fund it, offering little in return.”

“How on earth does government plan to finance this monstrous scheme, when the taxpayer is already grossly over-burdened?”

According to Haslam, the government is trying “to get blood from a stone” with the imposition of seemingly limitless levies and taxes on road users and taxpayers, “to no good end”.

In his budget speech, finance minister Tito Mboweni announced an imminent increase in the RAF fuel levy of 5c/litre, noting that this was “not enough to match the fund’s R215 billion liability” and urged the prompt reintroduction of the RABS Bill in order to “help stabilise fuel prices.”

Haslam said that this is an alarming statement.

Notably, the oft-quoted R200 billion+ “liability” of the RAF has been used to mislead the public at large as well as Parliament, she said, adding that the RAF is a pay-as-you-go system, not a fully funded one.

“As such, it is inappropriate to refer to accumulated liability in this context,” she said.

“The fact is that since the introduction of the 2008 amendments to the RAF Act, the RAF has been cash flow positive in a number of years, including the last 2 reported years.”

Additionally, Haslam said that the department’s own conservative calculations are outdated, and that a minimum 75% increase in the RAF fuel levy will be only the starting point in terms of funding RABS.

“This cannot by any imaginable means suggest stability,” she said.

Other ramifications of the bill include:

  • There will overall be a drastic reduction in benefits payable to road accident victims, who will be required to negotiate a cumbersome and complex administrative process on their own.
  • The RABS seeks to exclude road accident victims’ rights and access to legal representation, as not only are victims not permitted to recover legal costs arising as a result of seeking legal assistance, but there are limited grounds upon which a victim may approach the Court for relief.

With one of the highest road fatality  counts in the world – ranking 38th internationally – it is highly inappropriate for South Africa to even contemplate the introduction of a no-fault system, Haslam said.

“There are numerous examples of where no-fault systems have been introduced and have failed – including in first world countries with significantly lower road death tolls – with those countries reverting to a fault-based system.”

“I would strongly urge Minister Mboweni to closely scrutinise the proposed financing model for RABS and consider the impact on the man-in-the-street,” she said.

“There is every danger the introduction of RABS will make the horror stories of Eskom and other SOE’s pale into insignificance.”

What the bill will change 

The RABS is set to replace the current Road Accident Fund and will act as a social security scheme for the victims of road accidents.

Some of the major changes introduced by the bill include:

  • Payments for loss of income will no longer be made in lump sums – instead, they’re to be paid monthly, will be capped, and in some cases limited to the national average salary (approximately R3,500 per month);
  • Regardless of whether an individual has been fully rehabilitated, payments will automatically cease after 15 years; when the injured party returns to work; or when the injured party reaches the age of 60;
  • Minors will qualify for compensation for lost earning potential – again capped at the national average – only when they turn 18, regardless of how serious their injuries are;
  • Claims must be paid through an administrator instead of a private attorney;
  • All claims will need to be submitted electronically;
  • Claimants will have to cover the costs of obtaining medical and police reports, with limited potential for reimbursement through the fund.
Road Accident Benefit Scheme Bill ‘revived’

Legislation: Road Accident Benefit Scheme Bill ‘revived’

20 February 2019 – BY PAM SAXBY OBO POLICYWATCH

‘B’ version of the Road Accident Benefit Scheme Bill was reinstated on Tuesday and is now back on the National Assembly order paper for a second reading debate – probably next week, reports Pam Saxby for Legalbrief. It featured in a long list of items identified by ANC Chief Whip Jackson Mthembu for ‘revival’, not having been considered during the last sitting of the House for 2018. Because amendments to the Bill tabled by the DA’s Chris Hunsinger were ‘negatived’ at the sitting, opposition parties walked out – rendering the House inquorate and unable to vote on its second reading. The Bill lapsed as a result. The DA has since approached the courts to challenge a decision to exclude the ‘dissenting views’ of opposition parties from a National Assembly Transport Committee report on the Bill. Describing the ‘attitude’ of ANC members of the committee as ‘roughshod’, a media statement announcing the move last week quoted National Assembly Rules 166 and 288 – which the DA’s Manny de Freitas believes are ‘unambiguous’ on the matter.

In his Budget speech on Wednesday, Minister Tito Mboweni called on Parliament to complete its work on this controversial piece of proposed new legislation as a matter of urgency. In the Minister’s view, once in force it will ‘help stabilise fuel prices’. He made this remark in the context of an increase of 5c/l in the Road Accident Fund levy from 1 April, conceding that this is nevertheless ‘not enough to match the fund’s R215bn liability’. Last August, National Treasury chief director for urban development and infrastructure, Ulrike Britton, told committee members that the three separate accounts introduced in the Bill (benefit, transition and operations) are expected to create sufficient ‘flexibility’ for government to ‘manage’ any funding ‘uncertainties’ that may arise. While the fuel levy ‘is ‘not a buoyant revenue stream’ and is likely to become even less so given ongoing technological developments, at the time Britton considered it the most ‘appropriate’ source of funding in the ‘medium term’. Government has yet to seriously consider ‘alternative’ tax measures for ensuring that, ‘longer term’, ‘all road users’ contribute towards financing the new scheme. Hunsinger’s proposals were included in an order paper for the National Assembly’s 6 December sitting. Summarising them in last week’s statement announcing the DA’s decision to take the matter to court, De Freitas said that, ‘in its minority report’, his party ‘objected to … (a) motion of desirability pertaining to the inclusion of no fault and the exclusion of the use of common law within the … Bill’. This is noting that, ‘if passed, the Bill will permit anyone to claim after (an) accident even if it is that party’s fault’. In the DA’s view, the Bill ‘also circumvents legal processes that are constitutionally available’.

The Democratic Alliance has approached the courts

DA approaches Courts to fight for Parliamentary Opposition Party Right

15 February 2019 – ISSUED BY MANNY DE FREITAS – DA SHADOW MINISTER OF TRANSPORT

The Democratic Alliance has approached the courts Yesterday to fight the ANC’s roughshod attitude towards opposition parties.  During the preparation of the Transport Portfolio Committee report on the Road Accident Benefit Scheme (RABS) Bill, opposition parties requested that their dissenting views on this bill be recorded.   The DA tabled a minority report at 8 November 2018 Portfolio Committee Meeting. According to the rules of Parliament, (National Assembly rule 166 and 288) opposition parties may table minority reports in such instances.

Despite these unambiguous rules which permits minority views to be tabled officially, the ANC refused a minority report.  Instead, it chose to include their own interpretation of a minority report. The DA has therefore approached the court to fight for the right of all opposition parties.

In its minority report, the DA objected to the Motion of Desirability pertaining to the inclusion of no fault and the exclusion of the use of common law within the RABS Bill. If passed, the RABS bill will permit anyone to claim after accidents even if it is that party’s fault. The bill also circumvents legal processes that are constitutionally available.

This is simply a violation of the rules and an abuse of power. This case will strengthen parliamentary participatory democracy and the right of all parties in parliament to be heard. This will ensure that the ANC’s such strong-arm tactics do not reoccur in future.

RAF amendment bill could boost loss of support claim expenditure by 70%

28 January 2019 – BY JACQUES COETZEE

The Road Accident Fund (RAF) is already in a shambles. But the proposed alternative, the Road Accident Benefit Scheme (Rabs) could make it worse, especially because it would also allow drivers at fault in an accident to lodge claims. This will have serious consequences.

The Road Accident Fund’s net deficit could expand from the R206.3-billion recorded in the 2017-2018 financial year to at least R225-billion should the planned changes go ahead.

If drivers at fault are to be included in claims, the implementation of Rabs is estimated to cause the expenditure of loss of support claims to jump from R3-billion to R21.6-billion, according to Professor Hennie Klopper from the University of South Africa, who heads of non-profit group Protection of Road Accident Victims (Aprav).

He says that this alone equates to an increase of at least R1 a litre on the fuel levy.

Klopper adds that the loss of support claims is only one example of what would drive up costs.

“The claims multiplier effect also applies to loss of income, medical and funeral costs,” he says. “The increased number of claims and the periodical payment of benefits is set to drastically escalate Rabs administration costs. No estimates have been given by government.”

The introduction of Rabs as a replacement for the RAF failed late last year when too few members of Parliament attended the sitting on the matter. Parliamentary records show that the Rabs Bill lapsed on January 9. According to the rules of the National Assembly, if a Bill has lapsed, the process has to start again from scratch, which according to Aprav could take up to two years.

Deidre Carter from the Congress of the People (Cope), who used to sit on the portfolio committee on transport ,which debated the bill last year, says there’s been very little support for the controversial Bill.

“Even though the ANC tried to push it through a second time, they failed. Every single political party, with the exception of the ANC, felt that it is not in the best interest of the people.”

The Bill includes a controversial amendment to the current accident compensation scheme referred to as the no-fault based system. According to the RAF, this amendment would remove the requirement to establish fault as a determinant to qualify for benefits.

The chairperson of the portfolio committee on transport, ANC member Dikiledi Magadzi, hopes that the Bill will be brought before Parliament again.

“I [can] still confirm that the Bill has not lapsed. That can be so if we fail to process it before the rise of the fifth Parliament. For now, I [the portfolio committee] shall wait for the Parliament programming committee to reschedule when we resume during February,” Magadzi says.

She adds that the biggest overhaul of the Act is the addition of the no-fault system. “We are saying, let’s enable the issue of who’s at fault of the accident to be dealt with by law enforcement, so we can focus on the accident itself.”

According to opposition parties who voted against the Rabs Bill and Aprav, the Bill is not in the interest of the South African people and is completely unaffordable.

“With the no-fault system, even a drunk driver causing an accident will be able to claim,” says Carter.

The RAF argues that the no-fault clause is meant to simplify the tedious and expensive current bureaucratic system and make available timeous and appropriate healthcare based on a reasonable tariff.

According to an analysis of RAF claim applications between 2013 and 2017 conducted by the Mail & Guardian, it takes an average of 972 days to finalise a claim that requires medical certification. In addition, the RAF spent R8.8-billion on legal and other expert costs in the 2017 to 2018 reporting period.

Magadzi says that there’s a slim chance of the Bill being put forward to Parliament within the next few months, if not within the next year or two. “The debates have been done,” she says. “The only thing that is needed is to curate it, then it goes to the National Council of Provinces.”

Pieter de Bruyn from Aprav says the organisation will take all the steps required to prevent this Bill, in its current form, from being passed, even if it needs to approach the courts.

“For reasons not known to Aprav, the department of transport is hellbent on getting Rabs through, with no adequate research, planning, consultation or consideration of the complicated realities of South Africa,” he says.

Rewarding drunk drivers is absurd

19 January 2019 – BY THE CITIZEN

Photo: Netcare 911

Common sense tells you, instinctively, that someone who causes a negative outcome because of his or her reckless action should be held accountable.

This country can surprise even the most cynical with the level of absurdity it can produce … and the Road Accident Benefits Scheme Bill is another good example of that.

The proposed legislation, which is before parliament and which will replace the current Road Accident Fund (RAF), introduces a radical “no fault” system for compensating road crash victims. This overturns the current process, which pays out those who have been seriously injured in accidents they were not fully responsible for causing.

In future, drunken and reckless drivers who are responsible for crashes in which there are serious injuries and in which they are also hurt, will be entitled to compensation.

As a consequence, says lawyer Kirstie Haslam, there will be less money available to pay out the innocent victims of criminal actions by other road users. That is not fair for someone whose life may have been dramatically changed by a drunk or reckless driver.

This new law will remove one of the societal punishments meted out to those reckless and drunken motorists who cause accidents – and says they won’t pay for their own injuries. That goes against common sense – which tells you, instinctively, that someone who causes a negative outcome because of his or her reckless action should be held accountable. It is also the opposite view of the insurance industry, which won’t honour policies where recklessness is proven.

The RAF’s Phumelela Dhlomo seemed unperturbed by the radically altered road accident playing field, saying that drunken and reckless drivers could still be prosecuted.

This also comes as recklessness and drunken driving have, yet again, been identified as the main killers on SA roads by Minister of Transport Blade Nzimande.

The minister needs to seriously consider whether lessening the overall pain of these offences is going to help change road behaviour.

RABS Decision Postponed

Decision on replacing Road Accident Fund postponed to 2019

05 December 2018 – BY DAN MEYER

The decision on whether the Road Accident Benefit Scheme (RABS) will replace the Road Accident Fund (RAF) in 2019 has been pushed to next year, after the National Assembly put the bill to a vote on Tuesday.

The initial vote on whether a report on the proposal should be debated was successful, where it scored 174 yes votes and 84 no’s, with seven abstentions.

Replacing Road Accident Fund postponed

DA chief whip John Steenhuisen said that by excluding the “minority report” delivered by his party in May, which strongly criticised the bill, the house had acted unconstitutionally, and said that the house was ill-advised by the portfolio committee.

But in a stunning turnaround, the IFP, DA, EFF, UDM, COPE, ACDP and FF+ all rejected the bill after it was debated in the house, with the ANC its only proponents.

Steenhuisen said that “irreparable harm” had been done by the matter having appeared in the house without his party being properly consulted, before verbal abuse was hurled between the opposition parties.

EFF members were asked to leave after the deputy speaker, Lechesa Tsenoli, took exception to comments made against him.

While opposition parties, advocacy groups and spokespersons for the legal profession claim that the highly scrutinised bill was merely a mechanism for the ANC to garner voter support ahead of the 2019 elections, their last-gasp motion to slam the brakes on the bill and have it returned to the portfolio committee for transport was rejected by the speaker.

“The ANC constantly stuck to ignoring the constitution, misleading the public, prejudicing the poor and putting party politics before the best interest of the people of SA,” said Pieter de Bruyn, chair of the Association for the Protection of Road Accident Victims.

“An independent review is the only way any form of fairness or sensibility will prevail. We will now focus our energy accordingly,” he said. “Passing the RABS bill is a sad day for democracy and the poor.”

The ANC believes that by cutting out access to common law and insisting that all claims be made directly through the RABS, that it will stop legal professionals from exacting unnecessary funds from settlements and prolonging claims processes.

Transport minister Blade Nzimande said that RABS would be “reasonable, equitable and affordable”.

“RABS will replace the fault-based system, which often results in extended and costly administration,” he said.

“Today we are closing the tap,” he had said before the rejection of the bill.

De Bruyn, as well as various opposition parties, have vehemently insisted that the bill was constitutionally unsuitable, specifically citing its restrictions of claims by minors and the elderly.

It is also proposed that RABS and the RAF would have to run concurrently for at least two decades, which would require at least a doubling of the fuel levy, according to an independent audit of the bill by True South actuaries.

Regarding this fuel hike, actuary Gregory Whitaker said that South Africans could expect to see prices go up by at least R1.44 as a result of this simultaneous funding initiative.

“If the government wants two systems, we’re going to have to pay for them,” he said.

While Nzimande said that it was not true that the ANC was “working with inaccurate actuarial facts”, Whitaker said that based on a second report — which was published based on new information gathered since the audit, including the cost of fuel levies —there was a great deal of uncertainty around the costing of the proposed system.

He said that RABS, which supposedly seeks to reduce the financial burden of RAF, could ultimately be more expensive, owing to the fact that administrator, funeral and an increase to minimum national income have not been costed.

“If cost is the only issue that they’re concerned with, then I’m very worried,” he said.

The ANC’s efforts to have the matter added to Wednesday’s agenda were ultimately futile, and it was struck from the roll before parliament opened.

Opposition Parties Sink Passing of New Law to Replace Road Accident Fund

Opposition Parties Sink Passing of New Law to Replace Road Accident Fund

Lindsay Dentlinger

Opposition parties are vehemently opposed to the no-fault system on which the new bill is premised, which will allow drunk and negligent drivers to claim for their injuries.

CAPE TOWN – The passing of a new law to replace the Road Accident Fund was scuppered in the National Assembly on Tuesday night after opposition parties cleared the House just before the vote, collapsing the quorum to get it through.

Opposition Parties Sink Passing of New Law to Replace Road Accident FundIt followed fierce objections from the opposition benches, who argued that the bill would lead to a hike in the fuel levy, cost the state billions it has not properly calculated or budgeted for, and prejudice young and elderly accident victims.

But Transport Minister Blade Nzimande says the Road Accident Benefit Scheme will provide an alternative to the fund which is being fleeced at their expense.

Opposition parties are vehemently opposed to the no-fault system on which the new bill is premised, which will allow drunk and negligent drivers to claim for their injuries.

MPs say that running two systems while the scheme is phased in, will place an undue burden on taxpayers.

The EFF’s Thilivhali Mulaudzi says the scheme’s funding model is flawed.

“We can’t afford RABS on a safety and financial basis. It will kill our people.”

The DA’s Chris Hunsinger: “Having to fund a dual system which would result in an increased fuel levy of up to 75%. This is unwarranted.”

Cope, the United Democratic Movement, the FFPlus and the ACDP all called for the bill to be withdrawn.

But the ANC says the new scheme will root out unscrupulous lawyers and doctors who have been benefiting from the Road Accident Fund at the expense of accident victims.

(Edited by Leeto M Khoza)