High Court ruling provides relief for RAF

High Court ruling provides relief for RAF

Transport Minister Fikile Mbalula has welcomed the Pretoria High Court judgment suspending warrants of execution and attachments against the Road Accident Fund (RAF).

In a statement on Monday, the Minister said the judgment is a step in the right direction in government’s efforts to ensure that those who fall victim to accidents on the roads continue to benefit from the social security net RAF provides.

On Friday, the court ruled in favour of the RAF, granting suspension of warrants of execution and attachments, whether writs and attachments.

In handing down its judgment, the court ruled that, amongst others:

  • All writs of execution and attachments against the RAF based on court orders already granted or settlements already reached in terms of the Road Accident Fund Act, 56 of 1996 are suspended until 30 April 2021.
  • Those that are not older than 180 days as from the date of the court order or date of the settlement reached, are suspended from 1 May 2021 until 12 September 2021.

“This is an important step in placing the RAF on a sustainable path and ensure that it is able to provide the much-needed relief, to those who need such relief as a consequence of the position they find themselves in due to road accidents.

“It also gives impetus to our interventions, which started with the appointment of a new board in 2019, followed by the appointment of a CEO in 2020, who will then drive the implementation of a new operating model for RAF,” the Minister said.

He said the dire financial situation of the RAF, exacerbated by the disruptive effect of the Covid-19 pandemic, requires creative ways to ensure the taxpayer receives the value on the investment it makes through the fuel levy, without government abdicating the responsibility to provide a social security net to those affected by road accidents.

“We are confident that this judgment enables us to implement those measures in a sustainable way,” the Minister said.

RAF Claim

Do I qualify to claim from the Road Accident Fund?

By: Derek Irvine

Anyone who has been involved in an accident on a South African road may be able to claim for damages against the Road Accident Fund (RAF). The first step in the process is to be able to assess the answer to the question “Do I qualify to claim from the Road Accident Fund?”

This article attempts to help anyone facing this question with some guidelines in order to better understand what constitutes a valid claim.

In terms of the current Road Accident Fund Act of 1996, a person may only qualify for a claim against the Road Accident Fund if they meet the following two requirements:

  1. You were injured in an accident, and;
  2. You did not cause the accident you were involved in.

Let’s look at these in a bit more detail:

Proof of injury

When stating that you have been injured in an accident, the long-term and short-term result of the accident will be determined by way of medical expert reports provided after consultation and evaluation, and the initial evaluation thereof is determined in the medical treatment received by the patient after the accident happened by any doctor, hospital or clinic, recorded in medical records.

Understanding ‘fault’

The second requirement as listed above may be a contentious one. If you are slightly at fault with regards to causing the accident then that does not mean you do not have a claim. In South Africa our law makes recognition of the sublime principle of apportionment which states that should it be found that you are equally at fault for the causing of the accident as the other vehicle then your claim may still proceed, however, you will only receive half of your claim amount as you were half at fault for the causing of the accident and cannot claim your half of the fault.

Conclusion

If you have had the misfortune of being involved in an accident on a South African road and you meet or fulfil the 2 requirements mentioned above, you are able to either submit a claim yourself or you can contact your nearest third part claim Attorney and get professional help to guide you along the way in order to get the best possible outcome for your claim.

If you’re thinking of going direct, you may want to read: Thinking of claiming from the RAF without an attorney? Think again

Gert Nel Attorneys obtains settlement worth more than R10 million for client

2 April 2019

Pretoria – Gert Nel Attorneys, recently obtained judgement for a Road Accident Claim, worth more than R10 million.

The judgement was obtained for a client who was involved in a motor vehicle accident when the insured driver skipped a red traffic light and collided with our client.

Merits was settled 100% in favour of our client.

The client sustained injuries to his neck and back including a fracture of the odontoid process at C2 level in his neck.  He sustained several rib fractures and soft tissue injuries to his hip and right arm. As a result of the injuries he had a fusion done on C1 – C3 levels in his neck. He however remained symptomatic after the neck operation, in respect of pain in his neck.

This led to him not being able to function in the open labour market and as a result could not continue with his employment.

During the assessments done by our Medico Legal team he was diagnosed with a chronic pain syndrome (CPS).

Chronic Pain is often defined as any pain lasting more than 12 weeks. Whereas acute pain is a normal sensation that alerts us to possible injury, chronic pain is very different. Chronic pain persists often for months or even longer.

Chronic pain syndrome (CPS) is a common problem that presents a major challenge to health-care providers because of its complex natural history, unclear aetiology, and poor response to therapy.

Most authors consider ongoing pain lasting longer than 6 months as diagnostic, and others have used 3 months as the minimum criteria. In chronic pain, the duration parameter is used arbitrarily.

Some authors suggest that any pain that persists longer than the reasonably expected healing time for the involved tissues should be considered chronic pain.(https://emedicine.medscape.com/article/310834-overview)

Iwan Martens, Attorney at Gert Nel Attorneys commented that:

“Chronic Pain Syndrome is a condition which is relatively new in the South African judicial system, it is only until recently that this is condition is recognised in personal injury cases”.

“This was the first time that a Court in South Africa awarded damages of this magnitude for this specific condition and are naturally proud of the work that have been done in ensuring our client received just compensation for a very complex injury.”

The team at Gert Nel Incorporated pride ourselves as leaders in the field of personal injury law always striving to ensure that all our clients’ needs are met, we don’t merely submit claims and settle, we strive to be part of the innovation of the South African legal landscape.

The Road Accident Fund South Africa (RAF)

What is the Road Accident Fund (RAF) of South Africa?

Road Accident Fund South AfricaThe Road Accident Fund of South Africa, or RAF, is a Government compensation fund, financed by the South African public via a fuel levy.  The objective of the RAF is to provide the widest possible cover for injured road accident victims and/or their families in case of death.

The RAF provides indemnity insurance to the negligent “insured driver” and ensures that the injured victim and or families of fatally injured victims are not left with having to run the risk of having to sue a “man of straw” not receiving any compensation in case of serious injury or death.

The RAF Act 96 of 1996 (as ammended) ensures full compensation for accident-related injury or loss to victims of motor vehicle accidents and their families.

The Fuel Levy

The primary source of income for the RAF is the fuel levy.

Currently with every litre of fuel or petrol bought R 1,94 is contributed to the RAF to ensure financial viability.

How do you qualify to claim from the Road Accident Fund?

If you are a driver, passenger, pedestrian, cyclist or motorcyclist involved in an accident which was not entirely your fault, you can claim from the RAF provided that you qualify as being “seriously injured” as required in terms of the Act.

The RAF caters for the following categories of road users / ralatives of road users:

  • If you were injured as the driver of a vehicle and were not solely responsible for the accident (there has to be another party “insured driver/owner” involved);
  • According to recent case law if you were the driver of a vehicle but not the owner of the vehicle, and the accident was a result of the owner’s negligence (such as not replacing the worn brake pads) the owner could be regarded as an “insured owner” for failure of duty of care;
  • If you were a pedestrian, cyclist or motorcyclist and not the sole cause of the accident;
  • If you are a child or spouse who was dependent on the income of the person killed in an accident;
  • If you are a close relative of the deceased and paid for the funeral.

Find out more about the RAF claim process: https://www.gertnelincattorneys.co.za/raf-claim-process/

Different heads of damages that you can claim from the RAF

You can claim for the following from the RAF:

  • medical expenses that result from a motor vehicle accident
  • funeral expenses in the case of a death caused by an accident
  • general damages for pain and suffering as a result of a serious injury, have lost an unborn child or have sustained serious disfigurement, mental impairment or the loss of a bodily function
  • lost earnings, if you were unable to work as a result of an accident
  • loss of support, if a household’s main income provider was killed in a road accident caused by someone else.

To get more information on how Gert Nel Incorporated Attorneys can help you, read: https://www.gertnelincattorneys.co.za/services/road-accident-fund-claims/

Related posts:

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

Use and attorney to help claim from RAF

Thinking of claiming from the RAF without an attorney? Think again

Recent publications may have you thinking about claiming from the RAF without an attorney, but direct claims may not be the answer for you.

  • Do you need to claim from the Road Accident Fund (RAF)?
  • Do you have an attorney?
  • Should you go the direct route and have the RAF assist you?

RAF ClaimTo aid you in making the right decision consider the following.

You may argue that it is costly to use an attorney to assist you with a claim against the RAF and that you can do better by going the direct route as per the RAF’s website.

However, it could just cost you more by not making use of the services of a reputable attorney, both in time and in money.

Claiming direct from the RAF

Section 19(c) of the Road Accident Fund Act 56 of 1996 (as amended) stipulates that a claim may be lodged by the injured party or by –

(i) Any person entitled to practice as an attorney;

(ii) Any person in the service of or a representative of the state or government or provincial, territorial or local authority.

The RAF does not qualify nor does it having the locus standi to claim on behalf of a victim in terms of the said Act.

Yet the RAF invites unsuspecting victims to engage them directly in Government hospitals and via their so called “RAF on the Road” campaigns.

“The RAF continues to implement various initiatives to meet the faces behind our files, as well as the families who have been adversely affected by motor vehicle accidents. Our objectives include, among others, to educate communities about the RAF, to make settlement offers, to assist with the status of claims, to issue medical undertaking certificates and to invite eligible community members to lodge claims directly with the RAF”

The Funds approach is to administrate the claim on behalf of the victim, effectively stepping into the shoes of the victim and/or attorney.

None of the people representing the RAF at these initiatives are medically trained and few are legally trained, yet they decide who is “eligible” or not to claim.

Having the RAF play judge and jury was never the intention of the legislature and these actions by the RAF smells foul of a prejudice, prejudice to the victim and prejudice to the taxpayer who contributes to the Fund and who expects to receive the widest possible cover should he or she ever have to experience the trauma of a life altering road traffic accident.

The RAF simply cannot attend to these claims on behalf of the victims. One of the administrative issues that will arise is prescription. Should prescription become a problem on these “direct” claims, they will be faced with the absurd situation of having to summons themselves in order to interrupt prescription.

Thousands of these claims have prescribed (fallen away) in the hands of the RAF, and those unsuspecting victims should engage an attorney on an urgent basis to investigate and advise on a course of action.

Further, even if the victims of direct claims are fortunate enough to receive an offer these offers are usually far from the true value of the claim, in fact in most instances does not even equate to 25% of what the claim should have been.

The RAF is quite happy to advertise that going to an attorney could cost you 25% of the value of your claim – doing the math it becomes evident that 75% of the true value is better than 25% of what the claim should have been.

Case in point are the following articles that illustrate that “going direct” definitely is the worst option you can take.

These headlines have appeared in the media:

Stories of victims waiting for their payout only to realize their claims had prescribed and others suffering in pain while waiting, should make you think twice about going direct.

Why you shouldn’t claim direct from the RAF

According to the Law Society of South Africa (LSSA), victims claiming directly from the RAF are being short changed with hasty settlements.  Many of these accident victims consider the settlement amount they are receiving to be a significant one, but it just might not be that significant without getting a second opinion, get legal advice.

In addition to not being compensated sufficiently, if the RAF doesn’t consider your case serious enough, they can reject your claim.  Not having the necessary experience and expertise armed with an agenda not to compensate more often than not victims that would otherwise have been able to claim are turned away.

The RAF actively advertises for claimants to go directly through them, and they say that direct claims are settled quicker than if represented by an attorney.

And, according to the RAF, direct claims grew from 15% of new claims in 2011/12 to 35% in 2015/16.

The LSSA says that claims should be assessed individually, because unrepresented claims are processed quickly and without due diligence victims may find that some long-term injuries may be overlooked.

Just some of the documents you need to include with the RAF claim form are:

  • An affidavit by the claimant
  • An affidavit explaining how the accident took place
  • An Officers Accident Report (OAR) including a police sketch plan and a witness statement
  • Documents to prove loss of earnings e.g. salary advice slip
  • Documentation to prove medical expenses
  • Copies of hospital records
  • Proof of marriage (if claim by spouse)
  • Proof of earnings of all parties involved

In addition to these documents (but not limited to this list), you will also need to get and pay for the following information (if going the direct route):

  • medical reports (a doctor will need to complete forms RAF1 and RAF4) to claim general damages for pain and suffering, loss of amenities of life, disability, disfigurement and shock you need to lodge a serious injury assessment report (RAF 4) from a suitably qualified medical expert who has assessed your injury as ‘serious’ as provided for in the Act and Regulations
  • witness statements;
  • photographs of the accident and injuries;
  • medical records from the hospital and doctor;
  • the documents from the South African Policy Service;
  • all documents relating to income etc.;

These expenses may run into a few thousand rand, which expenses would be for the direct claimant.

The RAF will help you fill out the claim form, but you will have to find and pay for all the relevant documents and medical reports.

So it is a not as quick and easy as the RAF would have you believe, to lodge and settle a claim.

However, having an attorney to assist you will save you time and ensure a just settlement without the uncertainty on whether or not the RAF might have under settled your claim.

What does an attorney do for you that you can’t do yourself?

Attorneys have the expertise and know how to assist you with a personal injury claim.

An attorney will make sure that your claim is correctly documented and submitted to the RAF in accordance with the RAF Act and Regulations as to ensure substantial compliance (if not your claim will be rejected).

Road Accident Fund claims are complex, fraught with administrative pitfalls and are often a traumatic experience for anyone wanting to claim from the Road Accident Fund.

An attorney negotiates these administrative minefields on your behalf and ensures that the best possible outcome is obtained.

Having years of experience in the field of personal injury law, Gert Nel Incorporated Attorneys are compassionate and understand the fragile nature and circumstances of our clients.

Each individual client is assessed on instruction by Gert Nel Incorporated attorneys, by a panel of expert doctors, Occupational Therapists, Industrial psychologists etc. as to determine his or her specific needs.

The aim of any RAF claim is to secure the financial viability of a victim, to provide a financial and medical safety net, in the event of an accident having an adverse effect on the client’s life.

Gert Nel Incorporated Attorneys ensures that their clients have the peace of mind that once settled they would be financially independent and covered for any future accident related medical expenses.

It is crucial to start investigating a claim as soon as possible so that the attorney may thoroughly investigate the details and gather all the medical and related documentation required to comply with and lodge the claim.

Can you afford not to use an attorney with your RAF claim?

Use and attorney to help claim from RAFNo, you simply cannot.

Most attorneys work on contingency, in other words a fee is only levied once the claim becomes settled.

At Gert Nel Incorporated Attorneys the costs and risks are born by the attorney and a fee is retained in accordance with a written fee agreement as required in terms of the Contingency Fees Act, only if the claim is successful.

For top results and peace of mind long after your claim with the RAF has become settled, Gert Nel Incorporated Attorneys will assist you with your claim against the Road Accident Fund, each step of the way.

Achieving the best possible settlement

Remember, with the guidance and expertise of an experienced attorney, you will obtain a better settlement than without one, and certainly also by not going direct.

It is your right to choose your own attorney to represent your RAF claim.

Do proper research and ensure that the attorney is registered and in good standing with your local Provincial Law Society.

Make sure you understand and are happy with the fee structure of the attorney as it will be the best investment you can make.

Gert Nel Incorporated has a national footprint and is able to attend to victims anywhere in the Republic.

Call us today!

Sources

Steps to follow when involved in a car accident

Important steps to follow when involved in a car accident

An accident is an unplanned and uncontrolled event, and it isn’t something you really want to think about. Knowing a few important steps to follow when involved in a car accident makes the event easier to deal with.

Steps to follow when involved in a car accidentNo-one wants to be involved in a motor vehicle accident. We all do our best to avoid them, but as just mentioned, it is an unplanned and uncontrolled event. You may not be able to control future events – you can, however drive safe, be alert and obey the laws, but you cannot predict what will happen. Being prepared for if you are ever involved in a car accident is the most you can do.

Motor vehicle accident statistics

Some terrible and sobering statistics from a press release by the Road Traffic Management Corporation (RTMC) in April 2017 stated that there were 235 deaths over the Easter period.

During this period 61 340 motorists were charged with various offences including failing to wear seatbelts, using their cellphones while driving, speeding and overloading. More than 2 800 motorists were arrested for drunken, inconsiderate, reckless and negligent driving, possession of false documentation and driving without licences and public driver’s permits.

These shocking statistics should inspire you to be alert and prepared on the roads.

Steps to follow when involved in a car accident

When involved in an accident, the most important thing to do is to try remain calm, and observe and collect as much information as you can.

Steps to follow when involved in a car accident

Regarding the above, read the following guidelines and steps to follow when involved in a car accident.

These guidelines will ensure your own safety, the safety of anyone else involved and that everything is properly documented for insurance and legal purposes.

  1. Stay put. Don’t leave the scene until you have done all of the crucial steps that follow this one.
    You will most probably be in shock and confused for a while. Try to remain calm, take a moment or two, and breathe.
  2. Ensure that everyone involved is ok, and call an ambulance if someone has been injured.
  3. Document the accident; take pictures before the vehicles are moved away. Take note of what happened just before and after the accident.
  4. Get the details of the other driver or drivers involved in the accident.
    You need the following information from them:

    • Full name and surname
    • Telephone number
    • ID number
    • Address
    • Email address
    • Vehicle registration
    • Details of the vehicle involved in the accident
    • Witness details
  1. Visit the closest police station to report the accident, unless this has occurred at the scene.
  2. Call your insurance company and let them know you have been in an accident.

It is important to note that Section 61 of the National Road Traffic Act 93 of 1996 (‘the Act’) requires a driver involved in an accident where a person or animal is killed or injured or any property (including another vehicle) is damaged, to take note of crucial steps to follow when involved in a car accident. Not following them could jeopardise your insurance claim.

Read on about an attorney you can contact for help with your claim when experiencing problems with your insurance claim.

Unfortunately injuries almost always follows the occurrence of an accident and so you night have a claim for personal injury.

Gert Nel Incorporated, Attorneys

Gert Nel Incorporated is a firm of specialised personal injury attorneys who are able to represent you with a claim against the Road Accident Fund.

Compensation is available from the Road Accident Fund for victims injured or to dependents of those killed in motor vehicle accidents within South Africa’s borders. You would benefit from using the services of a highly skilled attorney to assist you with your claim.

It is of the utmost importance to get started as soon as possible with the investigation of a claim to afford the attorney the best possible opportunity to investigate the merits of the matter and to obtain all the relevant medical documentation to comply with and lodge the claim.

Gert Nel Incorporated is known to the Road Accident Fund and their panel attorneys as formidable opponents who don’t back down and always ensure claims are settled, alternatively adjudicated to their clients’ utmost advantage.

When considering an attorney make sure you choose an attorney that will ensure that you will enjoy the widest possible cover offered by the Road Accident Fund.

Gert Nel Incorporated Attorneys is such an attorneys firm as they are committed to your peace of mind and providing excellent service with sterling results.

 Accidents do happen

It is an awful experience to have a car accident.

Memorising these important steps to follow when involved in a car accident will assist you in coping with the unfortunate event of being in an accident.

Gert Nel Incorporated strives to ensure that whatever happens after an accident is aimed at supporting the injured client, comforting them with the knowledge that they have a secure financial and medical safety net in their prospective claims

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A simplified guide to the RAF current issues