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Leonard Ramatlakane speech during the debate of RABS Bill - National Parliament SA

4 December 2018

Chairperson

RABS goal- is ensure sustainable social benefit scheme and protect the income on victims’ households

I rise on behalf of the ANC to support the Road Accident Benefit Scheme.

We know that the anti-transformation DA, with its coalition partner EFF do not support this bill for express reason of being anti–poor victims of road crashes.

DA want to see the legal profession to continue to be the principal beneficiary at the expense of the poor voiceless, unemployed victims of the road accidents. What a shameful Act.

The FACTS

Motor Vehicle Accident legislation has been in place for over 70 years and has been the subject of numerous commissions of enquiry looking into the flaws inherent in a fault-based system. Essentially  as an attempt address the weakness presented by RAF which never benefitted the poor victims.

A Commission of Inquiry under the chairmanship Justice Satchwell was appointed on 1 June 1999 “…to inquire into and make recommendations regarding a reasonable, equitable, affordable and sustainable system for the payment by the Road Accident Fund of compensation or benefits, or a combination of compensation and benefits, in the event of the injury or death of persons in road accidents in the Republic.”

The Commission, inter alia, recommended a "no-fault" system that provides benefits in the form of periodic payments governed by an approved tariff, subject to thresholds and monetary caps and paid directly to claimants.

This review must be conducted in-line with the provision of Constitution of the Republic of South Africa of 1996, taking into account the desirability of providing the solvency of the Road Accident Fund. 

In conducting the Inquiry, the Commission ascribed the following meaning to the 4 criteria: -

Reasonable

Proposed system of compensation should acknowledge the symbiotic relationship of road accident compensation with the broader system of social security and its objectives;

System should be reflective of the needs and resources of South Africa.

Equitable

There must be proportionality between the funding of the system and demands made thereon

Impartial and unbiased treatment of road accidents victims and their families. There should be balance of benefits across all the South African society who are in need.

Affordable

System of compensation must be within the financial means of road users and South African society as a whole. (including the state)

Sustainable

It must be efficient, accessible easy administration process;

Facilitate health care and rehabilitation and alleviate financial hardship;

Reinforce the broader system of social security;

Must be a long lasting in its availability to road accident victims;

ANC has ensured that we follow Judged Satchwell Commission

Advantages and the desirability of the bill:

  • Long term medical benefit, incorruptible, low litigation, long and short-term social benefit.

Periodical payments, free rehabilitation and increased number of victims to benefit

Recommendations that guided ANC from Satchwell Commission - provided the benefit of the RABS inter allia;

The ANC agreed with Commission conclusion

  • Measures to promote road safety and accident prevention;
  • Eliminate fault as a criterion of entitlement of benefits
  • Periodic payment for loss of income and loss of earning
  • Maximum incentives and aids to rehabilitation;
  • Adequate benefits to non-earners sustaining long term loss of earning capacity;
  • Benefits for victims who sustained serious and long term disability and incapacity;
  • Provision of quality medical care, rehabilitation and life care to accidents victims;
  • Scheme should be reasonable, affordable, equitable and sustainable;
  • Proper administration;
  • An independent review and appeal system retaining access to courts.

Some of the Challenges with the common law systemaddressed by RABS

  • Barriers to Access
    • Proving fault excludes many people-
      • Those who are unable to prove that someone else contributed to the accident have no claim
      • The injured claimant and dependents of a deceased breadwinner are excluded from claiming
    • Proving a loss excludes many -
      • Those who are unemployed find it difficult to prove a loss of income and thereby right to claim.

Solutions to the challenges with the delictual common law system addressed by RABS

  • Provides for an arrangement that is reasonable, affordable and sustainable
  • Move away from delictual principles to social security principles
  • Expand access and proactively assist claimants
  • Recognize need as opposed to loss
  • Provide pre-defined benefits
  • Pay benefits in a structured manner
  • Emphasize rehabilitation and return to work
  • Provide for benefit review
  • Simplify claim procedures
  • Provide for expeditious dispute resolutions

Constitutionality

The Law Society of South Africa (LSSA) had issued court papers to be served 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.

ALL of the challenges to sections in the Act and regulations were unsuccessful in the court of first instance - Law Society of SA and Others v Minister of Transport and Another 2010 (11) BCLR 1140 (GNP).

Would it not be unconstitutional to exclude the claims of illegal foreigners?

Mokgoro J in Khosa & others v Minister, Social Development & others; Mahlaule & another v Minister, Social Development & others [2005] JOL 12540 (CC) stated that: “I accept that the concern that non-citizens may become a financial burden on the country is a legitimate one and I accept that there are compelling reasons why social benefits should not be made available to all who are in South Africa irrespective of their immigration status”
Emergency Medical treatment will still be provided.

The Constitutional Court in Law Society of South Africa and Others v Minister for Transport and Another 2011 (2) BCLR 150 (CC) held that:

THE ABOLITION OF THE CLAIMANT’S COMMON-LAW RIGHT TO SUE THE WRONGDOER FOR DAMAGES NOT RECOVERED FROM THE RAF PASSESS CONSTITUTIONAL MUSTER, as does the statutory caps placed on claims for loss of income and loss of support

Section 28 of the bill

The comment by the BLA that the limitation of rights by section 28 of the Bill would not be assisted by the limitation clause in section 36 of the Constitution, on the basis that the Bill is not of “general application”, is not supported by: (a) the fact that the Bill has general application; (b) the fact that an equivalent clause to section 28 in the Bill is in force, in the form of section 21 of the RAF Act, and (c) the fact that the current clause already passed constitutional muster

Common Law Right

“It cannot be denied that the abolition of the residual common law claim does not worsen or improve the financial standing of the Fund. The damages recoverable through the residual common law claim and the cost of pursuing it are entirely outside the funding remit of the Fund. The party at risk is not the Fund but the negligent motorist or his or her employer. Thus on the face of it, it would not be sufficient to put up the need to reduce the ever growing deficit of the Fund as the object for abolishing the common law claim.”

In our view the omission of general damages from the Compensation Scheme will not render it vulnerable to constitutional attack”, and

“...it seems clear that the abolition of the common law claim will survive scrutiny if coupled with the introduction of the no-fault RABS” (Mbuyiseli Madlanga S.C. and H J de Waal)

DA agenda has been defeated and the attempt to mobilise COPE and FFPlus is cheap political fiasco. Absolutely insane.

     
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