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Media
Advisory
25
February 2010
Law
Society challenge to constitutionality of Road
Accident Fund Amendment Act to be heard in the
North Gauteng High Court : Pretoria on 1 to 3 March 2010
The
matter between the Law
Society of
South Africa
and 10 others v the Minister of Transport and the Road
Accident Fund (Case no: 10654/09) will be heard in
the North Gauteng High Court :
Pretoria
on 1 to 3 March 2010
by Acting Judge Fabricius.
The
Law Society of South Africa (LSSA) is joined in the matter
by the South African Association of Personal Injury
Lawyers, the Quadpara Association of
South Africa
, the National Council for Persons with Physical
Disabilities, as well as seven road accident victims –
Montle Jennica Willem, Brenda Flanagan, Lisha Govender,
John Qondile Ntshiza, Mcedisi Dakela, Jeronico Mervyn
Jansen and Divan Gerber – who were all injured in
road accidents after the Road Accident Fund Amendment Act
and Regulations came into effect on 1 August 2008.
The
respondents in the matter are the Minister of Transport
and the Road Accident Fund.
On
Monday, 1 March 2010, the court will first hear
applications by the Minister of Health and the Minister of
Finance to intervene as parties on the side of the
Respondents.
The
following documents are available on the LSSA website via
the link below :
-
Applicant's (Law Society of South Africa and Others) Heads
of Argument
-
First Respondent's (Minister of Transport) Heads of
Argument
-
Second Respondent's RAF) Heads of Argument
http://raf.lssa.org.za/Documents/RAFAmendmentAct/tabid/58/Default.aspx
Background
to the matter
In
February 2009, the Law Society of South Africa (LSSA)
served court papers on the Minister of Transport and the
Road Accident Fund (RAF), challenging the
constitutionality and legality of the Road Accident Fund
Amendment Act 19 or 2005 and some of its regulations,
which came into effect in August 2008.
Every
year between 166 000 and 267 000 claims are lodged with
the RAF in which victims or their dependants – often
widows and orphans – seek compensation for loss as a
result of injury or deaths caused by road accidents.
According to the LSSA, the amendments to the compensation
system which came into effect in August 2008 severely
curtail the rights of many thousands of accident victims
and their dependants in the case of death. This is made
worse by the fact that, for the first time in our legal
history, victims can no longer claim compensation for
damages not covered by the Act, from the wrongdoers who
cause their injury.
The
LSSA contends that the Amendment Act promulgated by the
Minister will have the effect of
-
denying the many badly injured road accident victims of
compensation from the RAF ; and
-
entitling those who are able to claim to less compensation
and lower levels of medical and hospital treatment than
under the previous Act; while at the same time depriving
them of their fundamental common-law rights to claim
compensation for substantial damages now no longer covered
by the Act from the wrongdoer.
The
Amendment Act abolishes victims' common-law rights while
at the same time reducing their compensation. This
unreasonably and irrationally deprives victims of their
right to obtain effective relief and violates section 38
of the Constitution. The LSSA has submitted in its
founding papers that it is inexplicable and unjustifiable
that, at the very time that the legislature has
substantially reduced (and in some instances entirely
removed) the right to statutory compensation, it has also
deprived injured parties of the right which they have
always had to seek compensation from the wrongdoer for any
damages not covered by the Act.
According
to the LSSA, it is unconstitutional for the Amendment Act
to remove a road accident victim's common-law right to
claim for fair compensation from the wrongdoer; and, at
the same time
-
to provide that only
persons who suffer ‘serious’ injuries are entitled to
claim general damages from the RAF ;
-
by definition (of 'serious' injury) exclude many claimants
who may, in fact, have suffered severely
debilitating injures from qualifying in terms of the
definition and thus the right to claim from the RAF any
compensation for pain and suffering, disfigurement and
loss of the amenities of life ;
-
capping a claimant's claim against the RAF for past and future
loss of income or support to R160 000 per year ;
-
restricting compensation for emergency treatment to a
reduced tariff which will be insufficient reasonably to
ensure that accident victims will obtain emergency medical
care where they need it ; and
-
limiting claims for past and future hospital and medical
care to provincial hospital tariffs.
This
breaches road accident victims' right to security of their
person, the right to an appropriate and effective remedy
for breaches of that right, as well as the obligation of
the State to respect, protect, promote and fulfill those
rights. The LSSA submits that this is a violation of
section 38 of the Constitution.
No justification has been given for the deprivation or
limitation of these rights and this is accordingly not
justifiable in an open and democratic society based on
human dignity, equality and freedom.
Also,
the LSSA points out that a number of the RAF regulations
are inconsistent with the RAF Act and also deprive
accident victims of their rights :
-
The Minister has purported to define what a 'serious
injury' is in the regulations, when he is not authorised
to do so by the RAF Act. In fact, the definition of
'serious injury' is not a reasonable definition as it
excludes many serious injuries. This deprives many victims
of compensation.
-
The method of
assessment of a 'serious injury' prescribed in the
regulations does not comply with the Act because it does
not ensure that the assessment takes into account the
circumstances of the victim.
-
The system prescribed for lodging claims cannot reasonably
be implemented under the current circumstances in
South Africa
. For example, the medical assessment in terms of the Am
erica
n Medical Association (AMA) Guides prescribed by the RAF
is highly complex and costly. Very few medical
practitioners have attended courses to assess serious
injuries in terms of the AMA Guides and the assessment can
cost between R6 000 and R20 000.
-
The regulations create an administrative tribunal to which
victims who are dissatisfied with the compensation from
the RAF can appeal. This tribunal's decisions are 'final
and binding'. However, the tribunal is not impartial or
independent from the RAF. This deprives victims of the
right to have their dispute settled by a court of law and
to a fair trial in terms of s 34 of the Constitution.
-
The tariff for emergency medical care and the state
hospital tariff for other hospital and medical treatment
decided by the Minister deprives poor victims of the
proper access to healthcare that they enjoyed under the
previous Act. They will be able to receive treatment only
at State hospitals where treatment is either not
available, or of an unacceptably low standard.
In
terms of its constitution, the LSSA strives towards the
achievement of a system of law that is fair, equitable,
certain and free from unfair discrimination. For this
reason, among others, the LSSA brings the matter in the
Pretoria High Court on behalf of the tens of thousands of
road accident victims whose rights to obtain damages from
the RAF have been severely prejudiced by the RAF Amendment
Act. According to the LSSA, many of these victims cannot
themselves challenge the rights removed by the amendment
Act because they are too badly disabled, live in remote
areas or are disadvantaged by poverty.
Issued
on behalf of the co-Chairpersons of the Law Society of
South Africa, Thoba Poyo-Dlawti and Henri
van Rooyen
Barbara Whittle
Communication Manager, Law Society of South Africa
Telephone : 012-366 8800 or 083-380 1307
E-mail : barbara@lssa.org.za
Website: www.lssa.org.za |