NCOP Public Services
Road Accident Fund (Transitional Provisions) Bill [B22B-2012]: adoption
Chairperson: Mr M Sibande (ANC; Mpumalanga)
Date of Meeting: 30 October 2012
The Department of Transport addressed the Select Committee on specific concerns it had raised previously concerning the Road Accident Fund (Transitional Provisions) Bill. Members had asked about the transitional nature of the Bill, the Contingency Fees Agreement Act and the payment for the transfer of a matter to the High Court in terms of clause 2(1)(e)(ii). Welcome and Introductions
The Department explained that the bill was not an amendment to the Road Accident Fund Act but acted as standalone legislation and once it had achieved its goal it would fall into disuse. The bill applied to between 8,000-10,000 claimants who were passengers, injured before 1 August 2008 and injured in circumstances where their driver was the “sole cause” of collision.
The RAF had compelled compliance with the Contingency Fees Act. Only matters that would be transferred to the High Court included instances where the claim could not be settled with RAF, summons had already been issued in Magistrates Court and the amount of the claim exceeded R100,000. Only those who had consulted an attorney had to pay out of pocket.
Members expressed concern with the Department for not providing enough information, but nevertheless adopted the bill.
The Chairperson welcomed everyone and asked each person to introduce themselves.
Thereafter, he noted that the Department of Transport would address the Committee on concerns that Members had raised previously. This included the Committee’s insistence to see the original Bill as well as the amendments which the Portfolio Committee on Transport had made.
Briefing by Department of Transport (DoT) on the Road Accident Fund (Transitional Provisions) Bill
Adv Adam Masombuka, Acting Chief Director: Legal Services, DoT, explained that there were three aspects raised at the last Committee meeting held on 16 October 2012 and the Department wanted to revisit these. The three aspects were the transitional nature of the Bill, the Contingency Fees Agreement Act and the payment for the transfer of a matter to the High Court in terms of clause 2(1)(e)(ii).
Regarding the transitional nature, Adv Masombuka said that the Bill was not an amendment to the RAF Act. It was “stand alone” legislation and had a measured lifespan. This meant that once the Bill had fulfilled its function it would fall into disuse. The Bill only addressed some 8,000-10,000 claimants. The addressed claimants were passengers injured before 1 August 2008 and injured in circumstances where their driver was the “sole cause” of the collision. The targeted group included passengers whose claims had not been prescribed, settled or been finally determined by court.
It excluded all passengers with limited claims who were injured before 1 August 2008 and whose claims had become prescribed or have been settled or determined by a court. It also excluded all passengers who were injured before 1 August 2008 where there was contributory negligence on the part of another driver in the circumstance.
Mr Terence Gow, RAF Project Manager, DoT, explained that the Contingency Fees Act fell under the control of the Department of Justice and Constitutional Development. The RAF had taken various steps to enforce proper application of the law. There were specific provisions in the Act that the RAF was concerned with in order to address excessive charges and fees. The Contingency Fees Agreement Act governed matters where attorneys took claims on contingency and took a portion of the capital payment. They were only supposed to take the lesser of: 25% of capital or double the normal fee. The courts said there was no Common Law Contingency Agreement; there was only a contingency fee in terms of the Contingency Fees Act. There was a judgment that reinforced the position that the courts would now play a part and ensure compliance with the Contingency Fees Act.
The Road Accident Fund (RAF) was concerned about excessive fees and had addressed instances of overcharging. The RAF had compelled compliance with the Contingency Fees Act. The RAF had revised offers of settlement and had obtained court judgments compelling compliance.
Adv Masombuka said that a transfer to the High Court was a question that came from the Court and he explained that Clause 2(1)(e)(ii) facilitated access to increased compensation. It protected the rights of claimants by allowing transfer and preventing prescription. This was subject to the High Court Rules and Magistrates’ Court Act. Only matters that would be transferred to the High Court included instances where the claim could not be settled with RAF, summons had already been issued in Magistrates Court and the amount of the claim exceeded R100,000. Only claimants who were funding their own litigation, meaning they had consulted an attorney, would have had to pay the “out of pocket” expenses upfront. The RAF would ultimately be liable for the claimant’s party and party costs upon settlement.
Adv Masombuka said the Department wanted to clarify these issues with Members. There was a need to know the target groups. It was important for the Committee to understand that the Bill was not an amendment and that it was a standalone bill. Once it had achieved its goals then its lifespan would end.
The Chairperson opened up the discussion for questions.
Mr Z Mlenzana (COPE; Eastern Cape) said that the document was more of a summary today compared to the other one the chair revealed. The document covered all what the Committee had raised. He expressed his satisfaction and would further move that the Committee accepted it and adopt the Bill today.
The Chairperson asked to hear from other Members.
Ms M Themba (ANC; Mpumalanga) said that she expected more information from the Department when it appeared before the Committee again. Just because the Department had processed the bill with the Portfolio Committee it did not mean that the Department would be able to come and just say “agree” to the Select Committee. This was a lesson for the future.
Mr D Feldman (COPE; Gauteng) gave gratitude to the Department. He knew it could be done and advised the Department to not take short cuts. It was very simple and said well done. He agreed that Bill should be adopted.
Mr M Jacobs (ANC; Free State) asked how long it was going to take. Court cases could take years, so how should one try and circumvent that? If the Committee did not have times frames it could go on forever.
Adv Masombuka said that trying to determine when the matter in court would be finalised was a difficult question. The court process was like playing chess; it depended on the move of the other party. If they did not agree, there would be bigger arguments in court. It was beyond the Department’s control. The “chairperson” there was in charge of deciding that.
The Chairperson said that the Department had indicated the targeted groups in the presentation. The intention of the Bill was to protect innocent people. The intention of the Bill was to try and cover people. The majority of members seemed to agree with the Bill.
The Chairperson noted that this clause dealt with the definitions in the bill.
Members did not raise any objections.
The Chairperson noted that this clause dealt with the transitional arrangements for certain third parties.
Members did not raise any objections.
The Chairperson noted that this clause dealt with the short title.
The Chairperson asked if Members supported the Bill.
Ms Themba noted that the Committee had a quorum and moved to adoption of the Bill.
Mr Feldman said he supported the motion.
The Chairperson noted that the Committee had agreed to the Bill.
The Chairperson noted that the Committee needed to deal with some internal matters and requested all non-members to leave the venue.
The meeting was adjourned.
Welcome and Introductions