In April 2017 the Minister of Transport gave notice in the Government Gazette of the intention to introduce the Road Accident Benefit Scheme Bill 2017 (“RABS bill”) into parliament. The new proposed RABS bill will replace the current Road accident fund act (“RAF act”).
The cover provided by the Road accident fund for all users of South African roads provides protection against injuries sustained or death arising from road accidents.
Based on the perception that the current compensation system currently regulated by the RAF act is inequitable and unsustainable, the new RABS bill is aimed to ensure a reasonable, equitable, affordable and sustainable system of structured benefits.
The main purpose of the transformation of the RAF act into the RABS bill is to change the current system that is based on indemnity and insurance, into a more effective system that is based on a social benefit scheme which benefits a larger section of the population.
1. What will be the impact of the RABS bill on road accident fund Victims?
Presently victims are excluded from claiming from the Road accident fund if they are the sole cause of a motor vehicle accident, therefore victims needs to prove fault on the part of another driver of a motor vehicle if they want to qualify for a claim against the RAF.
Proving fault on the part of another driver delays the delivery of compensation to the innocent victim. In terms of the RABS bill everyone will be able to claim, even if the victim was the sole cause of the accident, however the proposed benefits claimable (provided for by the RABS bill) will be decreased and structured. There will furthermore also be no lump sum benefits for the serious injured road accident fund victims.
The RAF act indemnifies the seriously injured victim by allowing claims for general damages.
2. How will payments be made?
The aim of the RABS bill is to support victims in their rehabilitation process all the way, rather than paying a lump sum to victims. Income support will be capped and paid to the victim in monthly instalments.
Medical support benefits will be paid for directly by the Road accident Benefit Scheme Administrator to the provider of medical services in accordance with the treatment plan for each victim, there will be no payment responsibility for the victim. No service level agreements have however been secured with Private Health services as yet.
Funeral benefit will be a fixed amount that will be paid to the dependants or relatives without any cultural prejudice.
3. Why does the RABS bill not offer full compensation for my damages?
The purpose of the proposed structured payments is to encourage an injured victim to rather return to their workplace as to curb the culture of dependency.
Victims are expected to undergo treatment during the rehabilitation process and thereafter it is presumed that he or she would then secure and sustain employment. Considering that most seriously injured individuals will still have residual difficulties even after a lengthy and intensive period of rehabilitation and training, prospective employers will have to be sympathetic in order to accommodate the difficulties in the workplace
Critics however believe that victims that fall under the RABS Administration would be running the risk of being liable to pay the excess on medical and related accounts not covered by the yet to be published medical tariff.
4. Can motor vehicle accident victims claim from the RABS administrator and the person who caused the accident to ensure that they are fully compensated for their damages?
The RAF act indemnifies the wrongdoer of liability as the constitutional court approved the abolition of the wrongdoer’s liability (except where the Fund is unable to pay and where it is a claim for emotional shock) by the RAF amendment act 19 of 2005. The amendment therefore ensured the protection of society against the social-economic consequences of road accidents by providing full compensation for injury and loss caused by or arising from a motor vehicle accident.
The RABS act will continue to provide the indemnity already provided under the RAF scheme to owners and drivers who would otherwise be liable at common law for bodily injuries or death caused by a road accident. However the compensation payable to victims will be capped and the victim will still not be able to claim any compensation from the wrongdoer that is not covered by the administrator.
It is also important to note that this indemnity does not extend to criminal conduct, for which the wrongdoer will continue to be liable in accordance with the applicable law that regulates criminal conduct.
The proposed RABS Bill was criticized on various aspects by Nedlac (National Economic Development and Labour Council). The main issues that were raised were the Appeal process which does not offer the victim any objective chance of successfully claiming from the RABS Administrator should they feel aggrieved by any actions taken or not taken by the RABS administrator.
Some of the other issues that were raised dealt with the fact that the ‘no fault’ system will be unaffordable as it would just about double the government’s compensation bill. Furthermore the question should also be asked if the ‘no fault’ system would be appropriate for South African circumstances.
During April 2016 the Department of Transport confirmed that Treasury are still considering funding models to ensure the longevity of the Proposed Bill. The Department further also have to reconsider and change the bill to accommodate the proposals of Nedlac and therefore has amended its program to only provide for the implementation of the Bill only by 2019/2020.
Written by : Andri de Jager (LL.B., Dipl. Adv. Est. & Trust Admin)