Is the Road Accident Fund an inheritas damnosa?

July 1st, 2023
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Picture source: Gallo Images/Getty

The Report of the Road Accident Fund Commission, 2002 commented on the Road Accident Fund (RAF) as follows: ‘39.1.1.7 … The RAF continues to experience difficulty with its restructuring as a modern corporate entity, its restyling as a service-oriented provider of benefits, the remoulding of attitudes to employees within the organisation and to consumers outside the organisation and its embrace of diversity.

39.1.1.8 These challenges have been compounded by a dearth of appropriate skills … at all levels of the RAF organisation. The result has been that the organisation has floundered in the quicksand of its own inertia or has succumbed to an epidemic of consultants’.

Damning judicial criticism of the RAF since 2002 was frequent and commonplace. To date the RAF’s delinquency featured in 34 cases. In some instances, the protection of s 15(3) of the Road Accident Fund Act 56 of 1996 (RAF Act), protecting officials against personal liability, was forfeited – recently in Hlatshwayo and Another v Road Accident Fund (MM) (unreported case no 3242/2019, 24-1-2023) (Legodi JP (Mphahlele DJP and Mashile J concurring). Bertelsmann J in Ketsekele v Road Accident Fund 2015 (4) SA 178 (GP) remarked that whomsoever should manage the RAF is: ‘Saddled with an inheritas damnosa, a cursed inheritance that would doom it to fail virtually immediately. The compensation of road accident victims requires a radical change that should be free of the shackles of an institution that complies with neither its duty to uphold the fundamental rights enshrined in the Constitution nor the duties imposed upon it by its statute.’ The question may be asked whether and why this assessment may be true.

On reflection the following aspects influence the fortunes of the RAF –

    • external environment in which the RAF functions and funding; and
    • past management decisions and legislation.
External environment: Sources of RAF liability
  • RAF Act

The RAF exists as a road crash victim (RCV) social security compensation fund for the personal consequences of road traffic crashes (RTCs). The mechanism employed, is the suspension of delictual liability of the wrongdoing driver of a motor vehicle and the transferral thereof to the RAF. Motor vehicle drivers/owners contribute to the RAF through the payment of a fuel levy. The sole beneficiary of the system is the third party (RCV) (see Smith v Road Accident Fund 2006 (4) SA 590 (SCA)) who is afforded the greatest possible protection against the possibility that he would, in the absence of the RAF Act, be unable to recover his damages personally from the wrongdoing driver (see ss 19(a), 21 and 22 of the RAF Act and Aetna Insurance Co v Minister of Justice 1960 (3) SA 273 (A) at 285).

  • RTCs, fatalities, injuries and resulting claims

RTCs and their frequency and consequences for RCVs are indisputably pivotal to the RAF’s fortunes. Internationally road fatalities are used to indicate road safety. Table 1 is a comparative road fatality table comparing South Africa (SA) to international World Health Organisation (WHO) statistics (WHO ‘Road safety’ (www.who.int, accessed 10-5-2023); Lee Rondganger ‘South Africa’s roads deaths are a “national crisis”’ (www.iol.co.za, accessed 10-5-2023); F Labuschagne, E de Beer, D Roux and K Venter ‘The cost of crashes in South Africa 2016’ (www.satc.org.za, accessed 10-5-2023); Lancet Global Burden of Disease Study (chief contributors Christopher JL Murray, Alan D Lopez, Mohsen Naghavi, and Haidong Wang) (www.thelancet.com, accessed 10-5-2023); Worldometer (www.worldometers.info, accessed 22-3-2023)).

Besides fatalities, RTC injuries impact road users. Table 2 shows the number of serious and non-serious RTC injuries both established and probable (based on public hospital trauma admissions) (see Labuschagne (op cit) report table 6 at p 32; RG Matzopoulos, M Prinsloo, A Butchart, MM Peden and CJ Lombard ‘Estimating the South African trauma caseload’ (2006) 13 International Journal of Injury Control and Safety Promotion 49; Amy Williams Investigation into the factors contributing to malpractice litigation in nursing practice within the private healthcare sector of Gauteng (MNurs, Stellenbosch University, 2018).

The current probable RTC trauma count could be considerably more (SA population has grown by 24% in 2006 to 60 million in 2022 (see Worldometer (op cit)).

The primary source of RAF liability is death and injury caused by unlawful and negligent driving of a motor vehicle. The state of SA road safety for the past ten years and resultant RAF personal claims, is reflected in Table 3 (see Road Traffic Management Corporation (RTMC) Road Traffic Reports 2010 – 2020 and RAF Annual Reports 2010 – 2020).

  • Governance

Over the past 13 years, there have been seven Ministers of Transport. The RAF’s chief executive officer (CEO) is appointed for five years. During this period, there were three and two acting RAF CEOs.

  • Funding

The RAF is currently funded by a fuel levy of R 2,18 per litre. Table 4 shows 2010-2020 funding, claims payments and administration costs of the RAF (see RAF Annual Reports 2010-2020).

Management and legislation

Faced with the RAF problem, successive RAF managements made and instigated some decisions, legislation and measures thought to be solutions and/or RAF service delivery enhancements. From own experience and discussions with RAF staff, examples since 2002 are:

  • Adjustment of the staff structure by the introduction of more claims handlers and fewer claims’ assistants, having a negative effect on productivity and resulting in increased in litigation.
  • Acceptance and payment of suppliers claims without corresponding personal claims being lodged (see HB Klopper ‘Supplier’s claims in terms of section 17(5) of the Road Accident Fund Act 56 of 1996’ 2007 (70) THRHR 469). Apart from the possible unlawful expenditure, this policy exposes the RAF to liability where the supplier claim is admitted but, when a personal claim is subsequently lodged, it is established that admission of the suppliers claim was erroneous (see Daniels and Others v Road Accident Fund and Others (WCC) (unreported case no 8853/2010, 28-4-2011) (Binns-Ward J)).
  • The withdrawal and suspension during 2004 of all existing settlement offers resulting in a flood of summonses.
  • The unilateral implementation of payment in instalments of compensation for loss of income and maintenance without the RAF Act authorising such instalments and without the RAF having the administrative capacity to properly administer deferred payments, resulting in unnecessary legal costs.
  • Unofficial capping of claims for non-patrimonial loss by introducing an arbitrary internal injury quantum list not based on legal principle or precedent, and informing staff that deviation will result in disciplinary steps.
  • Exclusively issuing only undertakings for future medical expenses without adequate administrative resources.
  • In order to manage cash-flow, an instruction to enter an appearance to defend all summonses, whether defence is justified or not (see Daniels) ending in a R 10 billion legal bill in 2020 (see Hennie Klopper ‘Is the Road Accident Fund’s litigation in urgent need of review?’ 2019 (March) DR 10). It also resulted in the loss of efficacy of the anti-litigation measure contained in s 17(3)(b).
  • Amendment of s 17(1) in 2008 introducing a serious injury threshold for non-patrimonial loss substantially increasing administrative and legal costs and causing further delays. Also abolishing the right to recover pre-summons costs by repealing s 17(2).
  • Proposing and expending considerable resources on the formulation and promotion of the Road Accident Benefit Scheme (RABS), which was rejected by Parliament.
  • An attempt to side-line attorneys (in the belief that attorneys were the source of the RAF’s problems) by the introduction of a direct payments scheme (see Law Society of SA and Others v Road Accident Fund and Another 2009 (1) SA 206 (C)).
  • To save costs, the attempted exclusion of attorneys by the introduction and active propagation of ‘direct claims’ where the RAF acts on behalf of a claimant. Many direct claimants have been prejudiced by the RAF either allowing their claims to prescribe or be under settled (see Gert Nel ‘Road Accident Fund “direct claims” versus public interest’ 2018 (Aug) DR Also see Tosholo v Road Accident Fund (WCC) (unreported case no 449/2018, 4-5-2023) (Wathen-Falken AJ)) causing more litigation. Ostensibly direct claims, ‘serious injury’ assessments/disputes and the promotion of RABS may have contributed to a virtual doubling of administrative costs for 2011 – 2014 (RAF Annual Report 2015/16).
  • Termination of RAF panel attorney contracts in 2019/2020 (ostensibly in response to Klopper ‘Is the Road Accident Fund’s litigation in urgent need of review?’ (op cit)) and cf Road Accident Fund and Others v Mabunda Incorporated and Others and a related matter [2023] 1 All SA 595 (SCA)) affecting some 300 High Court defended cases without any effective strategy to deal with claims of affected plaintiffs after termination (see Hlatshwayo). The current stopgap of appointing the State Attorney seems to be unsatisfactory (see eg, Tshabalala v Road Accident Fund (GJ) (unreported case no 12133/2018, 23-3-2023) (Gilbert AJ); Zulu v Road Accident Fund (GP) (unreported case no 89670/18, 1-3-2023) (Mogotsi AJ).
  • Recent attempts to amend the RAF claims regulations by internal decree (see Nel v Road Accident Fund (GP) (unreported case 22142/2021, 7-5-2021) (Neukircher J) and Mautla and Others v Road Accident (GP) (unreported case no 29459/2021)). Also, efforts to amend the RAF Act and common law by rejecting and litigating claims by foreigners and claims for medical expenses paid by a medical aid (see Mudawo v Minister of Transport and Road Accident Fund (GP) (unreported case no 11795/2022); Discovery Health (Pty) Limited v Road Accident Fund and Another (GP) (unreported case no 2022/016179, 26-10-2022) (Mbongwe J); Van Heerden v Road Accident Fund (ECGq) (unreported case no 845/2021, 4-10-202) (Rugunanan J); Mawila v Road Accident Fund (15105/2022, 28-11-2022); Malgas v Road Accident Fund (ECGq) (unreported case no 126/2020, 1-12-2022) (Van Zyl DJP); SJJW v Road Accident Fund (WCC) (unreported case no 19574/2017, 8-2-2023) (Van Zyl AJ)).

 

 

Discussion and conclusion

Much of the RAF malaise is attributable to mainly four factors –

  • abnormally high incidence of RTCs and resultant flood of claims;
  • lack of adequate funding;
  • no political and managerial continuity; and
  • exacerbation by futile and costly managerial decisions and/or legislative attempts to solve a misidentified RAF problem.

Despite the perceived delinquency of the RAF, an analysis of 13 years of RAF claims completion performance shows that it completes an average of 94% of the number of claims annually lodged and spends an average of 106% of income on settlement of claims (RAF Annual Reports 2006 – 2020). The high claims volumes resulting from abnormally high RTC incidence and underfunding over decades has caused a current accumulated backlog of 359 190 claims. This represents a contingent RAF liability of some R 50 billion (calculated using the 2020 average personal claim payment of R 279 950).

The government has a constitutional duty to ensure road safety (see Klopper Hennie ‘The right to road safety’ 2018 (June) DR 20). The government’s failure to effectively comply with this duty (as expressed by SA’s unacceptably high road fatality rate) is the main, real, and actual basic root cause of the RAF problem.

All of the above considerations, make the RAF an inheritas damnosa. Ultimately, it is the unfortunate third party as sole beneficiary of RAF social security, who is the only and hapless victim of such a damned inheritance.

Professor Hennie Klopper BA LLD (UFS) is an Emeritus Professor at the University of Pretoria and legal practitioner at HB Klopper in Pretoria.

This article was first published in De Rebus in 2023 (July) DR 14.

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