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