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Cope, the United Democratic Movement, the FFPlus and the ACDP all called for the bill to be withdrawn.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

Bid to put the brakes on ‘immoral’ new road accident bill

04 December 2018 – 08:36BY DAN MEYER

The Road Accident Benefit Scheme Bill will be tabled before the National Assembly on Tuesday, with advocacy groups and opposition parties rallying at the eleventh hour to park it for further consultation.

new road accident bill

Critics of the bill claim that it is being used as a vehicle for the ANC to obtain voter support ahead of the 2019 elections.

The Road Accident Benefit Scheme (RABS), set to replace the existing Road Accident Fund (RAF) structure, has been strongly criticised by the Association for the Protection of Road Accident Victims (APRAV) and opposition parties for its seemingly unconstitutional exclusion of the claims made by minors and the elderly, as well as its denial of access to common law.

The new scheme will offer no cover for victims who earn more than the national average income of R219,820 per year.

“There is a myriad of unconstitutional issues,” said APRAV chairman Pieter de Bruyn, who claimed that authorities “are lying to parliament and the public” about the cost of running both the RAF and RABS concurrently, as there remains a backlog of claims outstanding that will first need to be resolved.

“There are very sinister political motives behind this. Keep in mind the fuel levies that will become income to the fiscus,” he said.

He called public consultations on the matter an “absolute farce”, claiming that this “doesn’t just break the rules of parliament, it’s unconstitutional”.

“They are just going to force this through with a show of hands. There is no budget, no consideration of the fuel levy – it’s an empty shell.”

Along with the DA and other opposition parties, De Bruyn said APRAV would table a motion to suspend the vote and return the matter to the portfolio committee for transport, where he hoped robust debate could take place to fix issues with the bill.

“We say that the current system has severe flaws, but that they need to go back and try and fix those issues, rather than try and reinvent this …  unconstitutional, immoral bill.”

New crash fund

New crash fund – a ‘drunk-driving’ bill that runs over rights?

Johannesburg – The Road Accident Fund is dead. Long live the Road Accident Benefit Scheme.

If the ANC and Transport Department have their way – which is likely – the RABS bill will be replacing the RAF by the 2019 general elections, if not sooner.

On Tuesday, there’s likely to be heated debate in Parliament, because the major opposition parties – including the DA, IFP, ACDP and EFF – are united against the RABS, but the ANC appears hell-bent on pushing it through.

It’s not good news for motorists, or crash victims.

New crash fundIn May, Professor Hennie Klopper, who leads the Association of the Protection of Road Accident Victims, told the parliamentary committee on transport that South Africa’s road death statistics make us seem like a war zone.

He said that in March 1241 people died in the Syrian war. In South Africa, 1200 died on the roads. “We have too many accidents. It’s already costing the country the equivalent of about three SAA bailouts every year.”

Klopper and others observe that instead of changing the law, there should be better enforcement on our roads to prevent crashes.

On November 8, the DA released a scathing minority report, saying the RABS is bad for the country and terrible for crash victims and their families.

It’s the most extensive change to social security policy since Sassa and yet it’s based on one actuarial report that’s not peer-reviewed; the costs are uncertain; and it’s being rushed through the National Assembly.

Opponents argue why replace it when you can fix it? But the Transport Committee claims the RABS will be cheaper, more efficient and will cut out personal injury lawyers, who milk the system.

And yet the DA and lobby groups – including the Quadriplegic Association of SA, private hospital groups and insurance houses – believe the no-fault system gives permission for drunk driving as drivers are not required to prove whose fault an accident is; both the guilty and innocent parties can claim.

No general damages claims

Opponents are concerned that the RABS will abolish the right to general damages claims; limit claims for children, victims older than 60 and foreigners to emergency medical care; cap funeral expenses at R10 000; terminate benefits on the death of the beneficiary (leaving the defendants destitute); cap claims for loss of income support; offer no cover for victims whose annual income exceeds R219 820; cease paying support benefits after 15 years; and exclude foster children from benefiting.

The DA report says regulating the current exploitation of victims within the RAF can be done, with minor amendments to the current act.

“As such, the DA is convinced that the current financial constraints experienced in the fund can/should be addressed by amendments to the RAF Act and by introducing management corrections and financial discipline rather than replacement by the RABS.”

It has called for a review of the claims process and identified poor management as the cause of the RAF’s demise, such as the appointment of over 500 staff in one financial year.

“Staff appointments should coincide with training and capacity-building support. Elements which come into question when one discovers that, despite huge employment expansion, claim processing is being subcontracted to service providers like Med-Scheme and Forbes.”

The party said it objected to the RABS in its current form, based on the narrowing down of benefits and the objective to save money in the wrong place.

Unproven financials

In particular, it’s raised concern about the constitutionality of the bill because it’s not an improved social security scheme for crash victims; the financials of the RABS are not proven, affordable, sustainable or workable; the proposed dual-system of the RABS and the RAF is not explained or fiscally possible (the two schemes would have to operate simultaneously for at least two decades and require at least a doubling of the fuel levy); and that public health care, on which the bill will be solely reliant, is already over-burdened.

It also believes that the “no fault” system, which is being punted as fairer, “serves an obvious role of lowering the fund’s liability to compensate victims”.

In addition, it says the bill’s requirement that the administrator – the scheme – will be able to insist where the victim will receive medical treatment. “Given the personal nature of medical treatment, having an unwanted, or even unchosen, practitioner forced upon a victim would clearly amount to an impairment of their dignity.”

During the public participation process in nine provinces undertaken in the middle of 2018, only 981 people attended and 242 submitted verbal input. Of those, 33 were in favour of the RABS, 81 were not, and 26 called for the RAF to be amended.

The 2002 Satchwell Commission was scathing about the RAF’s management in its report, saying: “Since the establishment of the RAF the stewardship of the scheme of road accident compensation has left much to be desired: there has been a passive board uncritical of the management and administration of the scheme; an arrogant management unresponsive to concerns and criticisms of the road- using public; and an ignorant and apathetic consumer base which (failed) to hold government, the board and the RAF management accountable.

“The RAF has ‘functioned’ for many years without attempting to identify and acknowledge the people it is supposed to serve, with the result that there has been no appreciation of the need for the concept of service to be at the core of (its) operations.”

Increasing efficiencies at the RAF is a no-brainer: the system’s clearly not working. That doesn’t mean we need new legislation, or to double the fuel levy. And saddling the country with additional social and financial burdens for decades to come is likely to harm, not help, an already weak economy.

Cape Argus

RABS

Committee on transport adopts report that paves way for replacement Of Road Accident Fund (RAF)

The Portfolio Committee on Transport has today adopted the final report on the benefit scheme, paving the way for an introduction of the Road Accident Benefit Scheme (RABS).

The Chairperson of the Committee, Ms Dikeledi Magadzi, said the committee was satisfied with the amount of hard work that members of the committee had put into the pending benefit scheme.

“We are satisfied that the new scheme is desirable to all South Africans. Through this bill, road accident victims will be able to receive more benefits than previously was the case in the old regime of the Road Accident Fund (RAF)” said Ms Magdzi.

Furthermore, Ms Magadzi said: “The committee legislate in order to benefit poor South Africans, and the quality of input that the committee received from South Africans will ensure that this law achieves that.”

Since May of 2018 the committee had been seized with the RABS Bill, and has travelled the length and breadth of South Africa soliciting input from South Africans. The committee also hosted public hearings in Parliament where various stakeholders came to make input.

The Bill is intended to, among other things, ensure that benefits are skewed towards the victim than sharing them with legal representatives that help with claims applications. But also it will ensure comprehensive medical benefits, timeous processing of claims, and also introduce a no-fault system.

Ms Magadzi said no person is opposed to road accident victims benefiting from the scheme. “This has to be the basis from which we move, otherwise what claim would we have to the status of being called public representatives” asked Ms Magadzi.

The Democratic Alliance and the Economic Freedom Fighters are opposed to the bill, but the majority of members of the committee accepted the adoption of the report.

Distributed by APO Group on behalf of Republic of South Africa: The Parliament.

[Africanews provides content from APO Group as a service to its readers, but does not edit the articles it publishes.]
RAF Direct Claim

Road Accident Fund ‘direct claims’ versus public interest

August 1st, 2018 – De Rebus in 2018 (Aug) DR 26.

By Gert Nel

RAF Direct Claim

The Road Accident Fund (RAF) proudly runs a campaign called ‘RAF on the Road’, which forms part of the RAF’s marketing campaign and is aimed at encouraging the public to claim directly from the RAF.

The programme has won a number of accolades, including the Department of Public Service and Administration’s Batho Pele Excellence Award.

In a media statement issued by the RAF on 22 April 2015, the RAF stated: ‘The RAF has never precluded claimants or motor vehicle accident victims from approaching the courts or seeking legal representation as is their constitutional right to do so. However, we encourage claimants to come directly to the RAF through our regional or hospital-based offices as it is the most quickest and cost effective way to register and settle claims.’

Basis for the RAF ‘direct claim’ strategy

A ‘direct claim’ refers to a claim that is lodged directly with the RAF without the assistance of a legal representative.

With a direct claim, the RAF effectively steps into the shoes of the legal representative taking over the role of due professional care.

In the ‘Responses from the Department on written submissions and input at public hearings’ document handed to the Portfolio Committee on Transport (PCOT) in June 2018, the Department of Transport (DOT) offered the following explanation to justify the RAF’s direct claim strategy.

‘The RAF’s core mandate to compensate accident victims is contained in the RAF Act [56 of 1996].

The modalities of how the RAF must go about delivering on the core mandate is contained in the Constitution, which provides that:

  1. The RAF is an organ of state, as defined in section 239.
  2. Section 195 provides for principles that govern public administration by organs of state, such as the RAF.
  3. These principles include, amongst others, that organs of state must: Promote efficient, economic and effective use of resources; must be development-oriented; and, must respond to people’s needs.

The RAF’s assistance to direct claimants achieves these principles.

A claimant may lawfully elect not to utilise the services of an attorney. In exercising this election a need for assistance from elsewhere may arise. The RAF responds to this need by providing such assistance, at no cost to the claimant. This assistance will also be provided under the Bill.’

The RAF is an ‘organ of state’

In the judgment of Road Accident Fund v Duma and Three Similar Cases 2013 (6) SA 9 (SCA), Brand JA (Mhlantla, Leach JJA, Plasket and Saldulker AJJA) states: ‘[T]he Fund is an organ of state as defined in s 239 of the Constitution,’ created by s 2(1) of the RAF Act. In Mlatsheni v Road Accident Fund 2009 (2) SA 401 (E) at para 14, Plasket J states:

‘That being so, it is bound by the Bill of Rights and is under an express constitutional duty to “respect, protect, promote and fulfil the rights in the Bill of Rights.” This means not only that it must refrain from interfering with the fundamental rights of people but also that it is under a positive duty to act in such a way that their fundamental rights are realised.’ In para 16 the court states: ‘The Constitution has subordinated them to what Cameron J in Van Niekerk v Pretoria City Council 1997

(3) SA 839 (T) at 850B – C called “a new regimen of openness and fair dealing with the public”. The very purpose of their existence is to further the public interest, and their decisions must be aimed at doing just that. The power they exercise has been entrusted to them and they are accountable for how they fulfil their trust.

It is expected of organs of state that they behave honourably – that they treat the members of the public with whom they deal with dignity, honestly, openly and fairly.

This is particularly so in the case of the defendant: It is mandated to compensate with public funds those who have suffered violations of their fundamental rights to dignity, freedom and security of the person, and bodily integrity, as a result of road accidents. The very mission of the defendant is to rectify those violations, to the extent that monetary compensation and compensation in kind are able to. That places the defendant in a position of great responsibility: Its control of the purse strings places it in a position of immense power in relation to the victims of road accidents, many of whom, it is well known, are poor and “lacking in protective assertive armour.”’

Prescription and direct claims

The prescription of an RAF claim is subject to s 23(3) of the Act (as amended):

‘23(3) Notwithstanding subsection (1), no claim which has been lodged in terms of section 17(4)(a) or 24 shall prescribe before the expiry of a period of five years from the date on which the cause of action arose.’

The RAF’s approach of ‘stepping into the shoes of the legal representative taking over the role of due professional care’ left the RAF with the predicament of having to sue themselves in order to interrupt prescription (s 23(3)).

The RAF had no process of dealing with direct claims about to prescribe and made the decision to summons themselves, in the absence of any other legal option.

A practice of self-summonsing ensued on a large scale, at tremendous expense to the taxpayer, in an effort to prevent direct claims from prescribing in the hands of the RAF.

The CEO of the RAF tasked an internal audit in June of 2015 to review the ‘summons experience in direct claims’.

The following observations were made:

  • Direct claimants were not informed of the summonses.
  • On some matters claims handlers only became aware of the fact that the claimant was deceased after the summons was served.
  • Some summonses were issued on claims that were later repudiated indicating that no work was done on the claim before prescription resulting in fruitless and wasteful expenditure.
  • Most files showed no progress after the summons was issued to interrupt prescription resulting in poor service delivery.
  • Some claim files had already prescribed when summons was issued resulting in fruitless and wasteful expenditure.
  • It was indicated that the legal team of the RAF, advised the Fund that they could not issue summons against themselves.

However, this practice was exposed after formal charges were laid against the RAF when evidence of the modus operandi of the RAF on direct claims about to prescribe, came to light.

To add insult to injury, the RAF then decided to stop the self-summons campaign and deal with prescribed  direct claims by referring these matters to the CEO to waive prescription on these matters.

A RAF Executive Summary published in December 2015 stated: ‘In the last two years, over 9 000 direct claims were referred to the CEO in order for him to waiver prescription’.

As a result of the public wising up to the fact that the RAF cannot own up to the promises made under the ‘RAF on the Road’ banner, many direct claims are converted to represented claims and there are thousands of documented cases of attorneys successfully suing the RAF for the under-settlement and/or prescription of these matters.

Discussion

The RAF cannot, by its very nature, reasonably act as ‘judge and jury’ – procedural fairness demands a fair hearing by an impartial decision-maker, perceivable that in view of the fact that the employees of the Fund are not trained in the evaluation or procedural aspects of preparing and obtaining the necessary documentation in order to properly evaluate and quantify a potential claim.

In the RAF Commission Report 2002: Findings and recommendations of the Interdepartmental Committee of the DOT, the following remark was made on p 1328 thereof:

‘The theme has emerged throughout this report that the claimant and the disburser of benefits are in grossly unequal bargaining positions.’

Having regard the thousands of direct claims prescribing in the hands of the RAF and many more being adjudicated in court due to under-settlement there can be no doubt that the RAF is failing dismally in their obligation to ensure that the fundamental rights of the direct claimants are realised.

Section 237 of the Constitution requires that all of its constitutional obligations must be performed diligently and without delay.

In the 2015/2016 RAF Direct Claim strategy the following comment is made on p 4: ‘We only settle specific direct claims quicker and leave the rest unattended that also means that eventually we will have more direct claims sitting waiting to be processed’ (my italics).

By frustrating the legitimate claims of direct claimants and by failing to protect, promote and allow the direct claimant to fulfil their right to human dignity, falls short of what is expected of public administrators like the RAF as directed in s 195 of the Constitution.

Conclusion

Contrary to the submissions by the DOT, direct claims can in no way be associated with the constitutional requirements to treat members of the public with dignity, honesty, openness and fairness nor is the RAF capable of delivering the service required.

The drastic measures being taken by the RAF to manoeuvre themselves out of harm’s way when it comes to direct claims should be an indication to the DOT that the process is fatally flawed, does not enjoy the protection of the Constitution and should, in the interests of the poor, who are most lacking in protective and assertive armour, be stopped immediately (see Ngxuza case at para 12).

The Road Accident Benefit Scheme (RABS) Administrator is said to absorb the current RAF Administration, which should sound a clear alarm bell to the PCOT that victims under the proposed RABS Bill will suffer the same fate – if not worse – at the hands of an administrator that is not liable in respect of anything done or omitted in the exercise of any power or performance of any duty under the RABS Bill.

Gert Nel BProc LLB (UP) is an attorney at Gert Nel Attorneys in Pretoria.

This article was first published in De Rebus in 2018 (Aug) DR 26.

Road Accident Benefit Scheme a setback for crash victims?

Road Accident Benefit Scheme a setback for crash victimsJohannesburg – Picture the scenario: a drunk, unemployed driver skips a traffic light, smashes into a car, kills the breadwinner and severely injures the family. Under the current Road Accident Fund, only the crash victims are able to lodge a claim against the scheme. They are likely to receive lump sum compensation, factoring in career path and inflation, will be paid out for lost earnings, medical costs, funeral expenses, general damages and more.Under the proposed, no-fault Road Accident Benefit Scheme, it doesn’t matter who caused the crash because anybody can claim, say critics. So, the victims might receive little or no payout, while the drunk driver immediately qualifies for medical treatment, rehabilitation and an income based on the average annual national income. The breadwinner, who might earn above the statutory cap of about R248 000 a year and has medical aid cover for the family, will receive no benefits, despite fuel tax contributions, and the family has no legal recourse.

That could be me. Or you.

The DA, academics and lawyers have called RABS a setback for crash victims, which will double the administrative load, cost significantly more and could incentivise desperate people to be injured so they can claim from the fund. And consumers need to pay attention because the bill is being fast-tracked through Parliament, where it’s been debated over the past four weeks.

Non-employment benefits  

Democratic Alliance shadow minister of transport Manny de Freitas feels strongly about RABS in its current form because it doesn’t matter who’s at fault, meaning drunk and reckless drivers will get away with breaking the law. But if medical costs, loss of support, loss of income, funeral expenses and legal costs are added, the RABS benefits will exceed the current budget of R30 billion annually by a “very large margin”.

“Because of the high unemployment rate, we estimate the non-employment benefit in terms of RABS alone to be in the order of R20 billion a year,” said De Freitas. “Our concern is, due to the limited budget, the only way that RABS will be able to function will be through the limitation of rights and benefits We are deeply concerned the introduction of RABS means further erosion and worsening of the position of the road accident victim in South Africa – especially for the more productive tax-paying section of this constituency.”

De Freitas says not only is RABS unaffordable to implement, but it isn’t aligned to the needs of the average crash victim. It abolishes victims’ constitutionally-enshrined common law rights to access to the courts. The party has called for more consultation with stakeholders and that those consultations be factored into decisions.

Moral hazard

Gert Nel, of Gert Nel Attorneys, which is representing the Law Society of the Northern Provinces in the matter and attended the presentations, says the RAF is a good system but its administration is problematic, which doesn’t justify changing the law.

“If it did, we wouldn’t have these issues,” he said. “Rather than make our roads safer and employing more traffic officers, they want to introduce new laws.”

Kirstie Haslam, of DSC attorneys, who also attended the presentations, says as much as 65 percent of crashes are caused by drunk drivers but since that isn’t a Schedule 1 offence, such drivers could end up being compensated. Then there’s the moral hazard risk: “There’s provision for unemployed people to get the monthly benefit based on the AANI. That temptation will be significant.”

Nel agrees: “It incentivises being in an accident – a beggar on the street corner, who is desperate, might get somebody to drive over their foot. They would immediately qualify for an annual national income of about R44 000 a year.”

‘Highly speculative’ statistics

Haslam says the Transport Department based its statistics on a single actuarial study, which is “highly speculative”.

“All actuaries who came to Parliament said that study should be subject to peer review, she pointed out. “The DoT’s own study showed huge variance – if you adjust one aspect, it could have huge impact.”

The DoT, which wasn’t able to comment on this by deadline, has also not ironed out its tariffs, Nel said. “But how do you know the system is cheaper if you don’t know at what rate you’re going to pay? You can’t rely on public health, and it’s a constitutional issue to have access to private health.”

Nel said a no-fault system wouldn’t work because it would be too expensive. “To justify why no-fault will work here, they compared us to Namibia – with a much smaller population and not a third of the vehicles or accident rate. It’s going to cost a vast amount of money to fund this.””

Buried in the report, Haslam noted a section speaking about funding requirements that mentions doubling the fuel levy to subsidise it. The public consultation process, De Freitas said, was likely to take place from July until September, but Haslam believes it’s “paying lip service” to the process.

“At the end of the parliamentary hearings,” he said, “they passed a motion of desirability, which is a very important step in this process.”

‘Vested interest’

But the RAF says the legal profession and intermediaries have the most to lose if RABS is passed.

“They have a significant vested financial interest in, and financial dependence on, retaining the status quo,” it said. “In the past financial year the RAF paid R8.3 billion (unaudited figure) in intermediary costs. In addition to the aforementioned figure, these intermediaries also retain a substantial further amount as contingency fees recovered from the compensation paid by the RAF to the claimant. In a report prepared for the RAF in 2009 by a professor at the University of Pretoria, a view was expressed that as much as 70 pecent of the fuel levy collected to pay claims does not reach its intended beneficiary, the road accident victim.”

The RAF has denied the DoT tagged the bill to bypass muster. It says consultation’s been thorough and inclusive, starting with a commission of inquiry appointed in 1999, headed by Justice Kathy Satchwell. There were also “widespread” stakeholder consultations over the years with industry groupings from commuter groups, the insurance, funeral, medical and legal industries as well as disability groups.

“Parliament has tagged the bill as a section 75 bill,” it insisted. “Contrary to what the Law Society states, section 75 bills do go to the National Council of Provinces. At no point was the process of consultation rushed and claims of this nature are irrational. There has been extensive consultation to date, with further consultation still to take place.”

Benefits capped 

The fund says RABS does provide for earning thresholds.

“If you earn above the earning threshold you are not excluded from claiming a benefit, as alleged by the Law Society, but the benefit you are able to claim is then capped at the upper threshold. This is also the position under the current RAF dispensation and is therefore not new. As regards those who do not earn, or earn below the average annual national income, their benefits are based on a deemed income equal to the average annual national income.”

As regards so-called lifestyle benefits (or general damages), the proposed RABS scheme “prioritises need over loss, and expands access to 40 percent more claimants, especially the poor, who will gain access to benefits they do not have at present. The Law Society has in the past, and will likely continue, to publicly criticise the bill, but this is to be expected from an industry that stands to lose billions if the bill comes to fruition.”

The Star

RABS Bill certainly no better than RAF

RABS Bill certainly no better than RAF

Pretoria News · 18 Jun 2018 · Gert Nel

THE Parliamentary Committee on Transport (PCOT) recently passed a motion in support of the Road Accident Benefit Scheme (RABS) Bill after three weeks of public submissions by various stakeholders.

The object of the RABS Bill is to provide an effective benefit scheme in respect of bodily injury or death caused by or arising from road accidents, which benefit scheme is reasonable, equitable, affordable and sustainable, exclude from civil liability certain persons responsible for bodily injuries or death caused by or arising from road accidents (common law right abandoned) and the establishment of the Administrator.

The DoT responded that none of the comments made by various presenters, which included, among others, the Western Cape Department of Traffic and Public Works, APRAV (Association for the Protection of Road Accident Victims) the Medico Legal Society of South Africa, LSNP, LSSA and the Actuarial Society of South Africa will be taken into account.

The following major defects were pointed out in the proposed new RABS Bill by the presenters, which the DoT wilfully ignores, choosing rather to gamble and impose the bill in the face of certain failure: a key element of the bill is to address the victims’ need on a “no-fault” basis, as opposed to full compensation under the current Road Accident Fund (RAF) dispensation.

In order to achieve this goal all benefits are drastically reduced and general damages are abandoned (saving of 25%) in order to make the system affordable.

RABS is said to provide medical care to all road accident victims and provide instant income to the unemployed and in so doing effectively “incentivising” being involved in an accident.

John is the driver of a vehicle and travels with his wife and two children to their home. A drunk, unemployed driver called Fred skips a red light and collides with John’s vehicle, killing John and seriously injuring his wife and two children. John earned above the statutory “cap” of plus/minus R248 000.00 a year and has medical aid covering himself and his family.

Under RABS, John’s family will receive no benefits from the RABS Administrator in spite of having contributed R1.94c for each litre of petrol.

Fred, who caused the accident, immediately qualifies for an income based upon the Average Annual National Income (AANI) and will receive medical treatment and rehabilitation at a contracted service provider (or so it is said).

The RABS bill represents a sensitive balance between affordability and addressing the needs of the road accident victim.

In fact the scale is so sensitive that the bill does not allow for any inflationary adjustments and benefits will be under constant review to allow for affordability, not affording any financial security nor financial rehabilitation in the form of life-enhancing benefits to the injured victim.

The provision of quality healthcare is a primary function of RABS, and as such, a single medical tariff is such an integral part of the RABS bill, the RABS cannot, reasonably function and/ or deliver the medical benefits offered in terms of the bill without the tariff having been secured.

To date no medical tariff had been secured nor has the DoT made any effort to secure its own national contracted healthcare service provider network.

In the absence of a medical tariff it is impossible to place a price tag on RABS, yet the DoT is adamant that their actuarial calculations, which are not subject to peer review, shows a saving of only 20% on their best case scenario;

Based upon the actuaries’ worst case scenario RABS can be 146% more expensive than the RAF system.

The PCOT is seemingly oblivious to the fact that if the bill is challenged and general damages is retained RABS will immediately cost 25% more, 5% more than the current system. RABS would be required to administrate a no-fault based medical aid on top of the already strained RAF administration.

The DoT failed to explain how many additional personnel they would have to employ or how RABS would be able to cope with a work load of up to three times more than the present system.

In fact the DoT is confident the administration of RABS will not cost a cent more than the current system which is quite suspect having regard to the additional workload, under no-fault, which if it is to be done right, will require an extraordinary administrative effort, something the taxpayer or road crash victim had not seen nor experienced under the RAF.

The PCOT will soon be embarking on a series of provincial “consultations” and members of the public are invited to add their voices and opinions at these meetings.

Gert Nel is a legal expert on Road Accident Fund cases.

Oral Submissions Team

Gert Nel’s Oral Submissions Regarding Proposed New RABS Bill

Gert Nel recently made oral submissions regarding the proposed new RABS bill, on behalf of the LSNP on invitation of the PCOT (Parliamentary Committee on Transport).

Mr. Nel explained to the honorable members that the proposed Scheme represents a very sensitive balancing act between affordability, the rights of the poor and the creation of a “good law”.

Oral Submissions TeamMr. Nel requested Advocate Carel van Jaarsveld (an expert on Constitutional issues); Kobus Pretorius (Actuary); Mrs. Elzeth Jacobz (Occupational Therapist) and Mr. Abel Lebereko to accompany him to Parliament.

Mr. Nel laid the basis of the LSNP’s Comments that were submitted in November 2017 and requested his panel of experts and Mr. Libereko to address the following contentious issues in the Bill:

  1. Adv Carel van JaarsveldConstitutional challenges will include but not be limited to the abolition of a victim’s common law right to sue the wrongdoer and the abolition of general damages;Thorough discussion on the victim’s limited rights of recourse under the RABS Administrator and comparative analysis of recommendations made by the Satchwell Commission and the RABS Bill.
  2. Kobus PretoriusA comparative study between the damages claimable under the current RAF dispensation and the proposed RABS Bill.The importance of securing a medical tariff: to gain certainty on the quality of service on offer by the RABS Administrator and to be able to qualify the affordability of the proposed Scheme.
  3. Elzeth JacobzHaving regard to one of the primary objectives of the RABS Administrator which is to provide rehabilitation to qualifying victims;The lack of infrastructure and the practical application of the Bill was demonstrated by way of a relevant case study.
  4. Mr. Abel Lebereko –  Featured in the Newspaper Article in the Pta News in 2017Oral Submissions Gert NelA victim of the RAF’s direct claim approach (used as comparison with the RABS Bill which excludes and/or limit the victim from engaging a legal representative;Mr. Lebereko’s experience was explained to the honorable members who apologized to Mr. Lebereko and confirmed that he matter will be addressed by the Department of Transport.

The response by the Portfolio members were very positive and requested all the participants who submitted oral comment to place their views in writing and also consider possible solutions.

It was clear that the Department of Transport still has a lot to do and there were calls from some of the Portfolio members to engage with the Department and work together in creating a Bill for the people.

Related Reading

 

RAF

RAF financial and administrative hurdles laid bare

Apr 19 2018 16:33 – Khulekani Magubane

RAFCape Town – The Road Accident Fund (RAF) told Parliament’s portfolio committee on transport on Wednesday that the organisation’s business had had to lease various items instead of buying them in order to prevent the sheriff of the court from attaching its office goods.

This drastic state of affairs signified the financial and administrative crisis the fund found itself in, as the yawning gap between claims lodged and claims turned around remains stubbornly high and accusations of fraud and bad spending persist.

Full Story on Fin24

Little Girl gets Big Court Payout

Little girl awarded big court payout

PRETORIA NEWS
13 MARCH 2018
ZELDA VENTER

Little Girl Awarded Big Court PayoutLITTLE Omphile Ngwenya will never be able to walk, talk or eat by herself – all due to the negligence of some doctors and nurses at the Pholosong Hospital in Brakpan.

The now 5-year-old was born in 2012 with brain damage after the medical staff at both this hospital and the KwaThema Clinic failed to act fast enough when it was realised the foetus was in distress.

It appeared that Omphile was too large for her mother Lindiwe Ngwenya’s pelvis. She urgently needed to have a Caesarian Section, but due to staff and doctors dragging their heels, this was done too late.

By the time she was eventually born in the early hours of March 24, 2012, Omphile suffered severe lack of oxygen, leaving her with permanent brain damage.

She now suffers from severe cerebral palsy.

Her mother instituted a damages claim against the MEC for Health, in which she claimed more than R34million.

The MEC yesterday agreed to settle the matter and pay an amount of nearly R19.2m to the child’s mother. The money will, however, be kept in a trust account and solely be used to make the little girl’s life a bit easier.

Her mother will receive a tiny portion – R135 907 – as compensation for her care-giving to date of the child.

Ngwenya endured severe hardships in taking care of her daughter up to now, without any compensation. Her only income was a child support grant of R380 per month, which she received for each of her four children.

The former domestic worker and cleaner had to give up her job to take care of the helpless child. It was said a doctor at Pholosong Hospital told the authorities she did not qualify for a care dependency grant.

She and Omphile also had to share a two-roomed RDP house in KwaThema near Brakpan with several other family members.

The court was told Ngwenya had a normal pregnancy, until she went to the clinic on March 23, 2012, with contractions. It was established that the foetus was in distress and she was transferred to the Pholosong Hospital.

But by the time the Caesarean Section was performed it was too late and child had already suffered brain damage due to a lack of oxygen. She was also born with a dislocated knee.

It was found that the staff at both the clinic and hospital were negligent. The clinic did not inform the hospital staff about the foetal distress and the latter did not monitor the mother sufficiently to realise that an emergency Caesarean Section had to be performed.

Apart from not being able to ever care for herself, Omphile also suffers from epilepsy.

Ngwenya and her four children share one bedroom in her RDP house.

Ngwenya has to feed Omphile puréed food using a syringe, as she cannot swallow properly.

She also has to turn the child every two to three hours a night. Omphile will moan so that her mother knows she is uncomfortable.

The family was up to now too poor to afford a wheelchair for the child and she was wheeled around the community in a small pram.

It is stated in expert reports before court that, notwithstanding her condition, Omphile loves being around people. She cries to communicate her needs, but is “otherwise a happy baby”.

Her lawyer Monica Janse van Rensburg of Gert Nel Inc Attorneys said they were happy with the settlement. “Little Omphile will now be able to receive the assistance she deserves.”