By Barbara Whittle

The Law Society of South Africa (LSSA) was invited to make oral submissions to the Portfolio Committee on Transport on the Road Accident Fund (Transitional Provisions) Bill (B22 of 2012) last month on the basis of written submissions it made to the committee in July.

The LSSA acknowledged that some of the proposals it made on the previous version of the Bill had been addressed in the current version of the Bill.

However, the LSSA pointed out that the fundamental issue that it had raised remained unresolved, namely that the Bill – as with the previous version – perpetuated discrimination against a certain class of passengers by retaining the cap of R 25 000 for non-pecuniary loss (general damages) unless the claimant could meet the very stringent threshold imposed by reg 3 of the Road Accident Fund (RAF) Regulations, 2008.

The LSSA pointed out that the Constitutional Court in Mvumvu and Others v Minister of Transport and Another 2011 (2) SA 473 (CC) had already found that capping the claims of a certain class of passengers was inconsistent with s 9(3) of the Constitution and, when considering whether the impugned provisions offended either s 9(1) or (3) of the Constitution (the equality clause), the Constitutional Court found that, to the extent that the impugned provisions overwhelmingly affected black people, they created indirect discrimination that was presumptively unfair. Although this class of claimant now also had a claim for special damages over and above the capped claim, the reality was that many would not be able to prove claims for loss of income. Most would have received treatment at provincial hospitals. Therefore, the lifting of the overall cap was, according to the LSSA, more apparent than real.

In addition, those that had incurred medical and hospital costs and could prove loss of income were further discriminated against in comparison to other passengers and claimants in that their claims would be subject to caps for loss of income and reduced tariffs for emergency treatment as at 1 August 2008.

The Constitutional Court had already found that discriminating against this class of passengers was unfair and was not justified, but the real issue was that of an appropriate remedy.

The LSSA indicated that the question remained as to whether the proposed Bill would ‘fix the problem’ and ‘provide relief for the inequality which the old scheme continues to cause’ and whether the continued inequality between this class of passengers and other classes of passengers claiming under the old Act was justified in the light of the ‘serious budgetary implications of removing the limitations unconditionally’.

In the LSSA’s opinion, the imposition of a threshold on general damages, which the RAF anticipates will exclude approximately 92% of claimants from receiving compensation for general damages, in legislation ostensibly aimed at providing ‘relief for the inequality which the old scheme continues to cause’ was hardly a viable solution that would meet the above inquiry. This is more so as the major constituent of the affected class of third party would have no other viable claim for compensation against the RAF if they were denied general damages. The current version of the Bill went some way towards providing ‘relief’ by allowing capped compensation of R 25 000 for all affected passengers, including those who would not have qualified for any compensation for general damages at all under the old Act (inter alia so-called social passengers and passengers in unregistered taxis). However, they are still being discriminated against when compared to other classes of passengers whose claims for general damages are not capped.

The LSSA remained of the view that, if it was necessary to impose some kind of limit on the compensation ‘in the interests of good government’, the proposed cap on loss of income and support would be sufficient and appropriate.

As regards the transitional arrangements for certain third parties, applying the provisions of the Road Accident Fund Amendment Act 19 of 2005 retrospectively to a certain class of passengers would be subjecting those passengers to yet a further differentiation.

Many of those claimants would have had their cases in limbo for two years, since the decision of the court a quo in the Mvumvu matter in June 2010. Now they would face a further delay by having to obtain a serious injury assessment report from a medical practitioner and might face a special plea from the RAF to the effect that the jurisdiction of the court in which their cases were proceeding had been ousted, at least in relation general damages. This would have particular relevance where claimants had sued both in terms of the RAF legislation and in terms of the common law and/or where there was a dispute as to which driver was to blame.

The LSSA noted that, in terms of the current Bill, the RAF could still, from a practical point of view, avoid liability in relation to a claim from a passenger by contending that the accident was as a result of the sole negligence of the driver of the vehicle in which the claimant was being conveyed. This would serve only to encourage litigation on merits rather than resolving claims.

Compiled by Barbara Whittle, communication manager, Law Society of South Africa, barbara@lssa.org.za

This article was first published in De Rebus in 2012 (Sept) DR 13.