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Legislation

  1. Draft Road Accident Benefit Scheme Bill(GN337 published for comment in GG37612). Please click here to view.

This replaces the draft RABS Bill published on 8 February 2013

The aims and objectives of the proposed Act are stated to be inter alia, to;

  1. provide a social security benefit scheme for victims of road accidents
  2. exclude drivers responsible for the road accidents at common law from civil liability (or their employers);
  3. provide a set of defined benefits on a no-fault basis
  4. establish the RABS administrator and procedures for assessment and determination of claims and disputes;
  5. provide for transitional arrangements in respect of the Road Accident Fund.

Some of the relevant provisions are as follows

  • If the injured/deceased person was not legally present in the Republic at the time of the road accident, compensation is limited to payment for emergency health services only. (No other damages can be recovered).
  • Benefits include certain health care services, income support benefits, family support benefits and funeral benefits. No provision whatsoever is made for compensation for general damages or cost contributions to claimants.
  • The health care services must be reasonably required and a reasonable tariff must be prescribed. Reasonableness to be determined by the Administrator. Prior approval must be obtained from the Administrator for non-emergency health care services. He may provide for an individual treatment/rehabilitation plan and payment for health care services will be limited to those in the plan.
  • Temporary and long term income support benefits are catered for.
    • Payment may not exceed the pre-accident cap and may not be less than the average annual national income. Interestingly, in the absence of proof of income or of economically inactive persons, the injured person must be deemed to earn the average annual national income.
    • Periods excluded: the first 60 days after the accident, any period commencing two years after the date of accident, before the injured person reached the age of 18 or after the age of 60.
    • Long term – board may make rules for assessment of post-accident vocational ability, training and accreditation criteria for assessors and can make continuing benefits conditional upon the claimant’s participation.
    • Family support benefits are only payable where the dependant is ordinarily resident in the Republic.

Time periods

  • Claim to be submitted within three years from date claim arose. (Claim arises when qualifying person has knowledge of facts from which claim arose – deemed to have knowledge if could have acquired it by exercising reasonable care.)
  • People with the usual impediments – minor, insane, under curatorship, deceased – three-year period deemed not to be completed before one year after impediment ceases.
  • Claim to be accepted/rejected within 180 days after submission – failing which deemed to be rejected. If accepted – payment within 30 days. If rejected claimant has right of appeal. Must be done within 30 days of notification of rejection or expiry of the 180 day period. Appeals dealt with by officers employed by Administrator. Appeal to be determined within 180 days.
  • The RAF Act 56 of 1996 (RAF Act) continues to apply to all claims where cause of action arose prior to commencement of this Act. Administrator must ring-fence the administration of the system of compensation provided for in the RAF Act.
  1. The Road Accident Fund (Transitional Provisions) Act 15 of 2012 (TPA) came into operation on 13 February 2013.
  • Please Click here to view the TPA.
  • Please Click here to view the TPA Regulations. Download File: Road Accident Fund Transitional Provisions Regulations
  • Please see summary below.

Summary of some of the essentials of the Road Accident Fund (Transitional Provisions) Act 15 of 2012

  • President assented to the Bill on 10 December 2012 (GG 35979)
  • Act came into operation on 13 February 2013 (GG3614 – no3/2013)
  1. Claimant who had a limited passengers claim under the old Act (and that claim has not prescribed or been finalised by settlement or judgment) must:
  • expressly and unconditionally
  • on the prescribed form
  • within 1 year of Act coming into effect (13 02 13) i.e. by midnight on 12 02 14
  • elect to have claim remain subject to the old Act. (s2(1))
  1. NB: If not the claim will be subject to the new Act
  • But the claimant will have the right to claim a maximum amount of R25 000 for general damages (non-pecuniary loss) (s 2.(1)(b) UNLESS a RAF 4 form is submitted within two years from 13 02 13 i.e. by midnight on 12 02 15 (s2.(1) (b) (i)
  • Claimant must make written declaration under oath on prescribed form regarding compensation already recovered (from driver etc., interim payments, COID (s2.(1)(d)
  • Claim will be reduced by these amounts (s2.(1)(c)
  • Action instituted in Magistrate’s Court prior to 13 02 13 can be withdrawn and instituted in High Court within 60 days from withdrawal without prescription being raised during that period. (section 2.(1)(e)(ii))
  1. The Road Accident Fund Act Amendment Regulations, 2013 GG 36452, 15 May 2013. (Came into operation on 15 May 2013 and are not retrospective)
  • Please click here to view these regulations Download file: Government Notice 15 May 2013 Amendment Regulations
  • Please see summary below.

Summary of some of the provisions of the new regulations:

  • Definition of “complications”;
  • A list of injuries that may not be regarded as serious;
  • A cap to the RAF’s liability for serious injury assessment costs;
  • A request for assistance to have the injury assessed must be in writing and must be determined within 60 days;
  • The serious injury must be assessed, accepted/rejected or third party must be referred for a further assessment within 90 days;
  • The Registrar must refer disputes to the Appeal Tribunal, within 60 days. A written request may be made by the third party for the RF to pay for a statutory medical report.
  • The request must be determined within 60 days.
  1. Road Accident Fund Amendment Act 19 Of 2005

This came into effect on 1 August 2008. The amendment introduced far-reaching changes to the Road Accident Fund Act of 1996.

Some of the more controversial amendments were, inter alia:

  • The exclusion of claims for general damages save for “serious injuries”.
  • The capping of loss of income/support at R234,366.00 with effect from 31 July 2015.
  • The exclusion of damages arising from emotional shock which may be experienced by secondary victims.
  • The abolition of the common law right to claim damages, not recoverable from the Fund, from the driver or owner of the vehicle which caused the accident. (Emotional shock may be claimed by secondary victims.)
  • The tariff to be applied for future medical expenses.

The LSSA and three others launched an application challenging the constitutionality and validity of the Act and the Regulations. The Honourable Fabricius AJ dismissed the whole of the application on 31 March 2010.

An application for leave to appeal directly to the Constitutional Court against certain parts of the judgment was granted by the Constitutional Court on 12 August 2010 and immediately thereafter the appeal was argued. Judgment was handed down by the Constitutional Court on 25 November 2010.

The Court upheld the provisions of section 21 which abolishes the injured motor accident victim’s common law right to claim compensation from the wrongdoer, for damages not covered by the RAF in terms of the Amendment Act.

It also upheld section 17 (4) (c) which provides for limitations on the amount of compensation that the RAF is obliged to pay in respect of claims for loss of income or loss of support.

The Court did, however, strike down the tariff under Regulation 5(1) as being inconsistent with the Constitution. The Minister will now have to make a new determination, but in the interim full compensation for hospital and medical costs has been restored. This applies retrospectively to the date on which the Regulation took effect.

Claims for general damages for serious injuries under the amended Act

NB: Please read the updated article which appears in our February 2013 Risk Alert Bulletin click here where Rene Makue discusses how to approach these claims in the light of the SCA judgment in Road Accident Fund v Duma and three related cases (HPCSA as Amicus Curiae) 2012 ZASCA (27 November 2012)  click here

Case law on serious injury claims.

Road Accident Fund v Duma and three related cases (HPCSA as Amicus Curiae) 2012 ZASCA (27 November 2012) click here

Practitioners please take careful note of the above judgment on the procedures to be followed when claiming for general damages under the Amended RAF Act. NB where the RAF has disputed or rejected the RAF 4 report and a period of 90 days has elapsed, it is essential that you promptly bring an application for condonation (even if no reasons have been given by RAF).

Van Zyl, M M v Road Accident Fund, Case no 34299/2009. South Gauteng High Court (judgment handed down on 11 June 2012). Click here

NNB: Please see a discussion of this IMPORTANT judgment on prescription and the RAF 4 form, in the August Risk Alert Bulletin no. 4/2012 Click here

NB The RAF commenced with appeal proceedings which they subsequently abandoned.

Daniels & 2 Others v RAF, Cape of Good Hope Provincial Division, Case No: 8853/10. Serious Injuries – The Interrelationship between the AMA Guides and the Narrative Test.

Click here

This decision was made in relation to the application of the third respondent in this matter, one Ntombiko Priscilla Sunduzwayo. She was injured in a motor vehicle accident on 9 April 2009. At the time, she was working at a bus terminal in Philippi, Cape Town, as a passenger-tout for long distance buses and taxis to the Eastern Cape. She was struck down by a motor vehicle while crossing a road and sustained severe injuries to her lower leg. As a result, she is unable to resume her work as a tout, an occupation which requires her to run about physically in search of potential passengers.

She contended that the consequences of her injuries on her quality of life renders it appropriate to characterise the injuries as ‘serious’ within the meaning of the proviso to section 17(1) of the Act and she proposed to claim compensation for general damages. As she could not LPFFord to pay the R 7 000.00 required for a serious injury assessment report she submitted a request to the Fund for financial assistance in respect of the required serious injury assessment on 4 September 2009. On 19 April 2010, after her attorney had made various follow up inquiries, the Fund refused the request for financial assistance. The Fund contended that it was liable to pay the costs of a serious injury assessment only in the event that the claimant had sustained serious injuries that resulted in not less than ‘30% permanent body impairment’. A telephonic enquiry by the applicant’s attorney obtained confirmation from the relevant functionary at the Fund who had been dealing with the matter that he had not considered the narrative test to ascertain the seriousness, or lack thereof, of the injury.

In the court papers the Fund stated that if a request for financial assistance in respect of a serious injury assessment is not sufficiently substantiated to establish a prima facie indication of a serious injury it will not fund further investigation into the seriousness of the injury or its consequences. It further stated that the so-called narrative test is there to cover those isolated and rare cases where the objective criteria of the AMA6 are not met. It is a fall-back position.

The court stated that the narrative test falls to be applied as an integral part of any serious injury assessment and this is indeed confirmed by the content of part 5 of the RAF4 form, which gives effect to regulation 3(1)(b)(iii) of Road Accident Fund Regulations (2008). There is nothing in regulation 3(1)(b) which suggests that the narrative test should be applied only in ‘rare and isolated cases’. The functionary of the Fund who declined the third applicant’s request in terms of regulation 3(2)(b) gave no consideration whatsoever to the possible effect of the application of the narrative test and plainly did not consider that the narrative test fell to be applied together with AMA Guides as ‘a collective’ and not as a fall-back procedure when the AMA guidelines had not been met.

The decision by the Fund to decline the third applicant’s request in terms of regulation 3(2)(b) of the Road Accident Fund Regulations (2008) was set aside.

PLEASE NOTE: This decision was not a direction by the court that the applicant’s request for financial assistance should be granted. Her application was, in effect, simply referred back to the RAF for proper consideration. The court emphasised that its finding went only to the manner in which the applicant’s request had been dealt with by the Fund and did not suggest what the result should be after proper consideration of the request.

Ann Bertelsmann.

Important news:

Adjustment of statutory limit in respect of loss of income and loss of support, to read more click here

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