Road Accident Fund Benefit Scheme dismissed

The Star Early Edition 24 Aug 2020 WITH GEORGINA CROUTH

Parliament’s Transport Committee finally rejects bill in its entirety, saying it does not agree with it

SIX years after the Road Accident Benefit Scheme (Rabs) bill was first proposed to eventually replace the insolvent Road Accident Fund, the Portfolio Committee on Transport in Parliament dispensed with the bill.

The controversial – and unconstitutional – bill was first brought before the committee in 2017, which triggered an outcry from the medico-legal fraternity and opposition parties. Rabs would have run in parallel with the RAF.

On Friday, the committee announced that it did not agree with the bill. It rejected the bill “in its entirety” and said it was of the view that amendments to the RAF Act 56 of 1996 (as amended) may be more prudent at this time.

What these amendments would entail is unclear but it’s believed to include more cost-effective alternatives to dispute resolution, reducing lump sum payments to monthly instalments and a simplified claims process.

Under the RAF, crash victims enjoy the widest possible protection under the common law, but the no-fault Rabs system would have infringed on their rights to institute claims against wrongdoers, abolished general damages claims and infringed on various constitutional rights.

The RAF has been technically insolvent since the mid-1990s because it is inundated with claims. Seventy percent (around R5.86/litre) of the price of fuel goes towards the RAF.

The Association for the Protection of Road Accident Victims (Aprav), a non-profit formed to challenge Rabs, voiced concern recently because the bill was back on the Transport Committee’s agenda for “consideration and adoption”.

The committee was expected to deliberate on reviving the bill because it had lapsed in the fifth Parliament. Aprav comprises representatives from across the medico-legal spectrum.

During his announcement of the new RAF CEO’s appointment, Transport Minister Fikile Mbalula appeared to suggest that Rabs was a fait accompli.

“(Collins) Letsoalo joins the RAF at a time when it is facing daunting challenges and requires a steady hand to guide it through the change into the Road Accident Benefit Scheme once the enabling law has been passed by Parliament,” Mbalula said.

Aprav chairperson Pieter de Bruyn also recently told eNCA about how the backlog of a few hundred thousand RAF claims and the Covid-19 lockdown added more than 20 000 claimants to the five-year long queue to create “the perfect storm”.

De Bruyn said though, on the bright side, the Transport Committee’s chairperson, Mosebenzi Zwane, had issued an instruction to the fund’s leadership to “fix the RAF”.

Pretoria attorney Gert Nel, who was at the forefront of the fight against Rabs, alongside the DA’s Chris Hunsinger, Piet Mey of the Freedom Front Plus and Aprav, says sanity has prevailed. “It would have been irrational to introduce an unproven system that is unaffordable and out of touch in the SA context,” said Hunsinger.

The DA called the bill anti-poor, unaffordable and poses a major stumbling block for road accident victims.

A jubilant Nel said that Wednesday was the day when crash victims and the public at large were saved from certainly “one of the most prejudicial pieces of legislation in recent times”.

Some of the key changes proposed by the bill, he explained, was that benefits would only be limited to drastically reduced structured benefits to allow for affordability under a no-fault system. Claims against the wrongdoer and general damages would be abolished, so even drivers at fault would be able to claim for compensation.

Under Rabs, the administrator would have had wide discretion and not be accountable towards victims: they would determine which hospitals and medical professionals victims see, victims would be unable to claim after the age of 60 and payments would only be made for 15 years.

Aprav hailed the decision, saying it believes that in order for the personal injury attorneys and other members of their association to work towards fixing the multitude of problems in the RAF, the RABS bill needed to be “kicked to the kerb”.

“Aprav wants to congratulate the (committee) for demonstrating clear and constructive leadership in a time of turmoil and unprecedented pressure on the public of South Africa (and even more so for any road crash victim),” they said on Wednesday. “On the day, thorough analyses, research, facts and the Constitution carried the day.”

Legislation will not stop the carnage.

Mey told the committee that the root cause of the RAF’s funding crisis is the state of road safety in the country.

Mey said the Transport Department should rather focus on reducing the accident rate and promote traffic safety, because this will immediately reduce the demand for compensation and the RAF’s financial liability.

Professor Emeritus at the University of Pretoria, Hennie Klopper, who leads Aprav’s “Rescue RAF Initiative” says in a high-crash rate environment like SA, enforcement was the problem.

Klopper says the current fault system produces between 93000 and 113000 personal injury claims every year. About 522 000 people are injured every year, affecting 1.7million lives. The fund is only able to complete about 46% of those claims.

Averaging at around R112000 per claim, the fund pays R34billion every year, which is already unsustainable: Rabs would have cost a further R321bn to implement. “We only have 18000 full-time traffic officers, but we need 100000,” Klopper said.

The government is not enforcing existing laws and in most cases, drunk drivers are getting away with it. The WHO rates SA traffic law enforcement at 30% and blood alcohol testing 25%.

“Fifty percent of all serious crashes are head-on collisions, which is caused by not obeying the rules. If you don’t reduce the crashes, the compensation system’s problems will just continue and worsen because of the snowball of claims.”