The Road Accident Benefit Scheme (RABS) Bill was subjected to considerable criticism from representatives of the legal and medical professions during public hearings conducted by the Portfolio Committee on Transport, with some suggestions that it was inferior to the Road Accident Fund (RAF) scheme it was supposed to replace.
The Law Society of South Africa said the Road Accident Fund (RAF) gave people far more rights than the proposed Bill. The current RAF system afforded fair, equitable, reasonable and affordable compensation to injured road accident victims. The introduction of RABS would create another class of state pensioner, receiving less adequate compensation for injuries caused to them by the fault of another. If,RABS were to be implemented, injured persons should at the very least have their own common law rights restored to them, putting them on the same footing as any other person injured by the negligence of another. In the LSSA’s view, failure to do so would render the entire scheme vulnerable to constitutional attack.
The Legal Resources Centre focused its attention on the practical difficulties which refugees and asylum seekers would face if they were involved in road accidents, the main issue being their need to have valid permits allowing them to work or study in the country. The Centre argued that refugees and asylum seekers were disadvantaged by the fact that there were only three Department of Home Affairs offices where they could apply for permits or renewals – in Msinga, Pretoria or Durban – and there were delays because of backlogs and financial constraints hindering the ability of applicants to travel to complete the necessary processes. Without valid permits, their access to compensation for injuries was compromised.
DSC Attorneys looked at the impact of the proposed RABS on children involved in road accidents, pointing out that children had a right to claim for a long-term benefit only when they turned 18. The child was compromised so far as general damages and loss of income were concerned. The system as it stood was going to demolish the child who intended to aspire to become great and assist his family. South Africa had a massive amount of accidents, and the new Bill seemed to intend to take away the rights of the victim.
A neuro-surgeon said almost all road accident victims had head or brain injuries, and 75% were from poor and often illiterate families. If it was the purpose of the Bill to assist people who were poor or vulnerable, legislators should understand this large group of victims could be harmed even further. A person with a brain injury would not know how to find someone who understood their brain injury because of their capacity to think being impaired. They would have been untreated because they could not explain their brain damage, and what they would describe to the medical practitioners would be simplified to them just having headaches. So without a rational and equitable provision in the Act, those people would be excluded from access to health care services.
The public hearings will continue over the next two weeks.
The Chairperson greeted all those in attendance and said that the hearings would be continuing for the next two weeks. The submissions and inputs were very important to the Committee.
Law Society of South Africa
Adv Murray van Heerden, Law Society of South Africa (LSSA), said he was at the hearing to defend the poorest of the poor and not to defend lawyers. In his submission, he would be highlighting the key issues in the Bill.
Assuming the annual income to be R52 000 per annum and the pre-accident income remaining at R219 820 per annum, then the maximum payment was R13 738.75 per month. The maximum payment could be reduced, according to the Administrator’s discretion, to what they believed was the injured person’s residual earning capacity, regardless of their actual employment. Raising aspects that needed to be considered, such as Section 5 of the Act, made the Administrator liable to pay for health care services of the injured party, but the health care services were limited to restoring the injured person’s health to the extent practical, and the Administrator could refuse ongoing purely palliative treatment that was not aimed at restoring an injured persons health. The injured party was denied the freedom to choose the nature and extent of treatment and services from a medical practitioner or at an institution of his or her own choosing. Section 28 of the Act abolished civil actions for damages against the owner or driver of a vehicle involved in an accident, or the employer of the driver. The rights of the motorist had been preferred to those of an innocent injured victim. The Road Accident Fund (RAF) gave people far more rights than the proposed Bill.
Mr Van Heerden said that the current RAF system afforded fair, equitable, reasonable and affordable compensation to injured road accident victims. The claimants received adequate compensation, and motorists and their employers, as well as owners of motor vehicles, continued to enjoy complete indemnity without the fear of a constitutional challenge exposing them to uninsured risks. Contrary to the recommendations if the Satchwell Commission, the common law rights of the innocent road accident victim to recover the balance of the damages suffered by him or her which were not covered by the statutory scheme, had been abolished and road accident victims who were catastrophically injured were even denied life enhancement benefits. A person injured as a result of the negligence of another in a road accident was denied reasonable compensation for the damages suffered. They were also denied any lump sum payment and were thus denied a financial life line to provide rehabilitation following life changing injuries. The negligent motorist was entitled to exactly the same compensation for injuries suffered in an accident caused by his or her own negligence, and was completely absolved of any financial responsibility to make good the loss occasioned by that negligence. It removed a common law claim against a wrong doer.
Mr Van Heerden argued that the introduction of RABS would create another class of state pensioner, receiving less adequate compensation for injuries caused to them by the fault of another. If, despite all, RABS were to be implemented, injured persons should at the very least have their own common law rights restored to them, putting them on the same footing as any other person injured by the negligence of another. In the LSSA’s view, failure to do so would render the entire scheme vulnerable to constitutional attack. Income support remained divided between temporary income support covering the first two years post-accident, with long term support benefits commencing in year three and ending in the death of the beneficiary, alternatively at age 60, and to limit them to emergency health care was not reasonable.
The way section 34 (2) of the Bill was drafted, a person other than a citizen or permanent resident of the country would not be deemed an ordinary resident in the country if they had been absent from the Republic for a period longer than six months per year, calculated over a consecutive three-year period following a road accident, or failed to submit an affidavit confirming that they remained ordinarily resident in the country. Section 34 (3) provided that the Administrator would not take into account any illegally earned income by injured persons. What constituted income illegally earned would no doubt give rise to debate, because some people made their income as hawkers.
Mr Van Heerden said that Section 35 (3) (b) defined persons deemed to earn the average annual national income as including any injured person who failed to submit acceptable proof of income with the claim, or if during the three years preceding the road accident, the injured person was economically inactive, for whatever reasons, including studying or being unemployed, or electing not to exercise a trade, occupation or profession for gain. The issue with (2) (a) was that in the event that the injured person was required to file a tax return in terms of the applicable tax legislation, the claim must be supported by a tax assessment for the applicable year or years, for up to three years preceding the road accident. However, not having a trail of tax returns did not indicate one had been unemployed. This was unreasonable and inequitable. Section 35 (3) (a) stated that the injured person must earn the annual average income if they failed to submit acceptable proof of income with the claim. This ignored the pre-accident earning capacity. If the Administrator thought one could earn, the injured person would not get the temporary income benefit. The Act did not include an inflation increase. In sub-section (5) (c), the amount and duration of the temporary income support benefit was to be determined by the period specified by the medical practitioner after the physical examination contemplated in subsections (4) (a) or (b), which could be 60 days after the accident, two years after the accident, or any period before the person reached the age of 18 ,or any period before the person reached the age of 60. This meant that for two months or longer, if that person was the sole breadwinner, that household would not have an income.
Mr Van Heerden referred to Section 38 (1), which read that subject to the Act, the Administrator shall be liable to provide a family support benefit to the dependents of a deceased breadwinner, provided that such dependents were ordinarily resident in the Republic. He provided the Committee with an example of a father who left his wife and children in Zimbabwe to come and work in South Africa in order to provide for them. He becomes a South African citizen, but when he gets into an accident his family cannot get the family support benefit because they are Zimbabwean citizens. This was although they were the dependents of a South African citizen.
Mr C Hunsinger (DA) said that the presentation had a golden thread in terms of the examples that were used. Mr Van Heerden seemed to have done a thorough study of the Satchwell Commission, so could he balance out the recommendations of Commission with what had been taken up and what was not in the RABS Bill? How much of the Satchwell Commission was affecting the RABS Bill in terms of reasonability and what was unreasonable?
Mr Van Heerden responded that the Commission had recommended a system of compensation, amongst other things.
Mr Hunsinger asked what the judicial review entailed, and if it would be helpful to victims. It was like an application to the high court.
Mr Van Heerden responded that the judicial review process began with an application to the appeals committee which may, after hearing the appeal, confirm the decision, vary the decision of the Administrator, or rescind the decision and replace the decision of the Administrator with such other decision as it considers just. The decision by the appeals committee was final, subject only to judicial review.
Ms S Xego (ANC) said that there was a common thread in the presentation, which was the word “poor.” The poor were also the interest of Parliament. The LSSA had cleared the perception that the lawyers represented only themselves and their own interests when it comes to RAF. How had Mr Van Heerden reached the conclusion that the Bill would be a punishment to South Africans if it catered for non-South African citizens.
Mr Van Heerden referred her to the fact that according to the Act, if you were a South African citizen who had not lived in South Africa for a long time and had been a resident somewhere else, then you would not get the benefit.
Ms Xego said that Parliament did not mind what was happening in other countries, because the South African government was dealing with its own citizens.
Mr Van Heerden said that the benefits for non-South Africans were limited. They had obligations out of South Africa.
Mr T Mpanza (ANC) said that he too had noted Mr Van Heerden’s opening statement, but theory and practice were different things, just as reality and perception were two separate things. The perception was that lawyers were making money at the expense of the poor, though the lawyers stated that they represented the poor. There was also a perception of collusion between the lawyers and the doctors. What was the LSSA’s view on this? He commended the comparisons made in the presentation, and agrees with Mr Van Heerden on the matter of the benefit stopping at age 60. Had the lawyers picked up any good and bad aspects in RABS, and how he would rate those aspects? What clear recommendations were there from them, and did they want to maintain the RAF or amend it? What was the proposal as a way forward for an Act that would be inclusive?
Mr Van Heerden responded that he was not aware of the general perception, but was aware of the allegations against certain lawyers and doctors. He did not believe the current system had been thought out, and that the common law claim did not affect the wrongdoer. The victim loses from the Act what they could claim from the wrong doer. The current system was not fair.
Mr L Ramatlakane (ANC), said that their business was to make laws. It was their responsibility to amend and repeal, and in this context they were in the safe position. He appealed that if the LSSA did not help fix what was wrong, then the Department would fix it as they saw fit. He did not understand what the argument was in the example of the right to claim by South Africans in comparison to non-South Africans. What was Mr Van Heerden’s view on the current Act versus the social security system?
Mr Van Heerden responded that social security was very low. The victim was a South African citizen with dependents in Zimbabwe, which he was supporting from the Republic. It was unfair that that family was not able to get the benefit. A victim under the RAF was better off.
Mr Ramatlakane asked what country Mr Van Heerden had seen that supported citizens of another country. Had he done a study of such countries?
Mr Van Heerden said that the obligation to settle claims was worldwide, but in South Africa it was not accepted if the dependents were non-citizens.
Mr M Sibande (ANC) said he understood the intention of the comments in the introduction made by Mr Van Heerden was to protect the very poor. The Bill did not ask people not to seek alternatives. The real issue was that some people were worried they would not benefit from the funds anymore.
He asked about the case studies done by the LSSA on this matter, because usually people looked only at western countries.
Mr Van Heerden said that the RAF Act determined the pay out in South African rands, not dollars, so regardless of the currency the people who claimed needed, the benefit would be paid out to them in that currency’s rand equivalent.
Mr Ramatlakane asked going forward what Mr Van Heerden’s view was.
Mr Van Heerden said that it would be unconstitutional for a South African citizen’s Zimbabwean dependents not to get the benefits.
Mr Ramatlakane asked for supporting evidence in the constitution.
Mr Van Heerden said that his legal background referred him to section 28.
Mr Ramatlakane said that the request for the worldwide evidence Mr Van Heerden had mentioned in support of the Act would also be helpful.
Ms N Nolutshungu (EFF) said that she had expected a clear proposal on the way forward from the LSSA.
Legal Resources Centre (LRC)
Ms Petra Marais, Intern: LRC, said the Legal Resource Centre was a public interest non-profit organisation that sought to ensure that the principles, rights and responsibilities enshrined in the national constitution were respected, promoted and protected.
The LRC believed section 27 of the proposed Bill was a very important issue, as it would affect asylum seekers and refugees that were involved in any kind of road accident. The LRC would be contesting only subsection 27 (4), where its focus would be on the inclusion of the words “valid permit.”
She said that section three of the refugee site sets out the criteria to be confirmed as having refugee status in South Africa. An asylum seeker who sought recognition and protection as a refugee in South Africa was issued with a Section 22 permit, which was valid for a maximum of only six months. The LRC had found that some permits were valid for less time periods, such as a week or two. A section 22 permit grants the holder the right to work and study in South Africa. It was a temporary permit, but certain asylum seekers could be in possession of a permit for almost 12 years, which meant it was not necessarily a temporary step anymore, but could be a permanent state. An asylum seeker could be granted a Section 24 permit, which was a refugee permit valid for four years. Asylum seekers were more vulnerable to legislation, because their permits were valid for shorter times. Though the LRC were not experts on road claims, they did know about refugees and asylum seekers, and were there to represent them.
Ms Marais said that the preamble to the Bill made no differentiation between asylum seekers and refugees within the Republic. No differentiation was in line with the principles and values entrenched within the constitution, and was also in line with the spirit of Ubuntu. The preamble specifically mentioned the need for an effective benefit scheme that was equitable, affordable and sustainable. The LRC respectfully submitted that the inclusion of section 27 (4) was not in line with those principles.
The preamble also states that the Bill aims to lessen the impact of injuries by providing financial support to reduce the income vulnerability of a person to injuries or death in road accidents. Asylum seekers and refugees were economically vulnerable, and excluding them in this Act created a further cycle of more vulnerability. There were also the consequences of the backlog in the system, which was why not all refugees might be in the possession of a valid permit. The LRC would provide a practical insight into to the everyday experiences of asylum seekers or refugees, and why they were asking for section 24 to be reconsidered
Ms Marais said new people entering South Africa to seek refuge were currently without documentation and had to apply for a section 22 permit, which was the asylum seeker permit. The newcomers were at high risk of being undocumented for an unreasonable period, since the only refugee reception offices where asylum seekers could apply for asylum was in Msinga, Pretoria or Durban. The Supreme Court of appeals had ordered the Department of Home Affairs (DHA) to reopen and maintain a fully functional reception office in Cape Town before the end of March 2018, but the refugee reception office remained unopened. This meant that if any newcomers in Cape Town wished to apply for the asylum seeker permit, they had to travel to Durban or Pretoria, and if they were injured in any way in a road accident during that journey, they would not be included under this Act.
With the renewal of existing permits, the only option for asylum seekers who were currently permanent residents in Cape Town was also to travel to Durban or Pretoria to renew these permits, or hope that the DHA in Cape Town would renew their permits. Since asylum seekers have difficulty finding work, especially when they have an expired permit, traveling to another province provides great financial difficulties, so the majority of asylum seekers who wish to renew their permits must hope to be assisted at the Cape Town department of the DHA. The renewal of permits that were issued in other provinces should not be considered unconstitutional -- asylum seekers should be able to renew their permits in any refugee reception office in the Republic, regardless of where they were first issued.
Ms Marais said that the DHA had refused to issue birth registration for children born of parents who were holders of expired permits, and the children stay undocumented until the parents renew their permits. Those children would be outside the criteria for this Act. When a child arrives in the country, accompanied by a relative, the child’s name would be considered under that family member’s name, which could lead to various complications -- if that child was separated from that relative for whatever reason, there would be great difficulty in renewing his/her asylum seeker permit without the assistance of that family member.
The LRC wished to portray the practical difficulties that asylum seekers and refugees face to renew their permits through no fault of their own. The proposed Bill had wide application and was proposed to simplify the claim process, but even within the application there was a clause for excluding asylum seekers and refugees with expired permits.
The LRC was urging the Committee to consider the implications of section 27 (4) in light of the constitution and more specifically the Bill of Rights, and sections, nine, ten and 27 (1c). An 18-year-old who enters into South Africa with a relative while still being a minor could have difficulties renewing their expired asylum seeker permit without the assistance of the now estranged relative.
Mr Ramatlakane said that the Department valued the work that the LRC does. Some of the points that had been made were not in the written submission, and he asked for a copy of the amended presentation. The submission was concerned with the Bill in its current form because of the exclusion of refugees and asylum seekers, and should go further into illustrating the problems which arise from delayed permit applications. As a result, the expired permit holders had not status, and the LRC was arguing that there should be a provision in the Act that recognised these challenges before the actual status was confirmed. From that perspective, how did the LRC suggest this be done, because an application does not include granted status, and could be declined for various reasons? If the LRC would like there to be a special provision in the Act, what would that provision say? The DHA had promised to accelerate the opening of the reception office.
Ms Elgene Roos, an LRC attorney, responded that by removing valid permits it would not mean that everyone was catered for, even those who were in the Republic illegally, but rather it would be decided on a case by case basis. The interpretation of the provision would be very important in how it affected asylum seekers and refugees in the country who were not able to access services because of the Cape Town reception office not being fully functioning. There was a vulnerable community in South Africa where, if they were exposed to an accident, in terms of the Bill they would not be able to claim because they did not have a valid permit. Section 27 (4) should be removed in its entirety. Removing the limitations on the right to claim would enable asylum seekers and refugees to be able to claim. There should not be a special provision for asylum seekers and refugees, but the current expectation was for them to have a valid permit at all times or else they would be excluded from the system. The constitution says everyone had a right to these benefits.
Mr Ramatlakane asked what happened in the event that status was not given. The submission was based on the theory and the effects of the delay through backlogs in obtaining legal status. There was no problem with people who had legal status in the country, but if a person did not have legal status, what was the flip side of the unintended consequences?
Ms Roos said she would prepare an opinion and present it to the Committee of what consequences would arise with the removal of a valid permit for those who would not receive legal status.
The Chairperson asked that the LRC’s prepared response be submitted before Thursday next week, and that it should be prepared to be called back to speak to that response.
Mr G Radebe (ANC) commented that he did not see the necessity of deleting section 27 (4), because it addressed part of the responsibility of the asylum seeker. People from Cape Town might find it difficult to renew their permits, but everyone knew they should make prearrangements to renew their permits by the time it expired. Once section 27 (4) was removed, it would open a gate for people to delay renewing their permits. It would remove the urgency for them to renew their permits.
Mr Sibande asked how the LRC categorised the instance of the people smuggled through the borders of South Africa in terms of international norms and standards, and how this situation was treated.
Ms Roos said that in terms of international and domestic law, South Africa had an obligation to everyone who was in the country and should not differentiate. If all institutions were functioning as they should be, some of the concerns would actually fall away. In response to Mr Radebe, she said asylum seekers did have the responsibility to renew their permits but not all nationalities were served on the same day at the reception offices, and had to wait for their nationality’s allocated date. They did not have the financial resources to travel to the provinces every three months. It should not be expected, from a privileged perspective, that everyone was financially able to travel to another province every three months. People who needed to renew their car licence did not have to travel to another province -- they could merely go to the local traffic department.
Mr Sibande asked what the international norms and standards for this situation were.
Mr Radebe commented that when given a three-month permit, the expectation was that after that permit expired one must go back to one’s original country. The whole intention of asylum was that one left at some point, which was after the expiration of the permit, but those who felt comfortable in the country decide to stay permanently. Individuals needed to take responsibility to renew their permits.
Ms Roos said she had not conducted case studies of other countries and did not know what the international standards were, but the Republic had obligations towards asylum seekers and refugees in the country. She would submit a written response to the Committee.
Mr Hunsinger asked LRC what the situation for asylum seekers and refugees was under the RAF.
Mr Mpanza, who was appointed acting Chairperson, asked for a time frame for the submissions.
Ms Marais said her understanding of the difference between the RAF and the RABS was that the RAF had a geographical obligation which allowed the asylum seekers and refugees to apply for a claim, and the claims success was based on each case. RABS based the decision on the status of the person.
Ms Roos responded that the courts did recognise the vulnerability of asylum seekers and refugees.
The acting Chairperson thanked the presenters and reminded them that they should be prepared to be called back if necessary to another meeting.
Ms Kirstie Haslam, Partner: DSC attorneys, said that the document they had brought was a condensed version of a previous document they had sent in. Children under the age of 18 were the most vulnerable victims of road accidents.
Mr Mohamed Salie, DSC advocate, said that most of the people present had had a very uncomfortable life growing up, where they walked long roads and were likely to get hit by a car. Briefly, the current system made provision for a child, which was in accordance with the constitutional provision of not being victims of violence, but the RABS as it was did not make provision for general damages. Children were informally employed to earn an income, but in terms of RABS those children had a right to claim for a long-term benefit only when they turn 18. The child was compromised so far as general damages and loss of income were concerned.
What was more pertinent was that the last three months of income determined what the child would get for the rest of their life. Assuming the child was a third-year medical student who had been earning a part-time income on the side, the RABS system did not make provision for their income to be calculated in terms of a doctor’s salary. The system as it stands was going to demolish the child who intended to aspire to become great and assist his family. South Africa had a massive amount of accidents, and the new Bill seemed to intend to take away the rights of the victim. The rights of children needed to be catered for in the Bill. The current system RAF system should be improved instead, borrowing what was seen as necessary adoptions from the RABS Bill, and integrated into the RAF system. The common law right should not be demolished.
Dr Herman Edeling, neurosurgeon, said that over the past few years he had done in-depth assessments of about 3 500 people who had been involved in car accidents, and almost all have them had suffered head and brain injuries. Approximately a quarter of the people he had seen were in a sustainable and adequate employment with a profession. These people were not rich, but they had a house, a car and a medical aid fund. The other three-quarters of the 3 500 were poor, with some form of employment but at very low wages, or they were unemployed. They were vulnerable by way of poverty, illiteracy, unemployment and head injuries.
The RABS Bill Chapter 7 on claims procedures, section 42, deals with patients claiming benefits who do not have the capacity to comply with the procedure for claiming benefits, and the simple effect was that if they do not have some form of competent administrative assistance, they would not be able to claim. If they managed to submit a claim, they would not understand or be able to deal with the obligations posed to them. The patients would not have the capacity to provide the administrator with what was required in Section 44. Section 46 claims lapsed in certain circumstances, but the patients would not know when the time period had passed or how to remedy that problem. All of these provisions for the submission of claims would exclude persons with head injuries, illiterate people and many who were unemployed. It would specifically target poor and vulnerable people, and people with head injuries who were not poor before the accident would become poor after the head injury.
Dr Edeling added that if it was the purpose of the Bill to assist people who were poor or vulnerable, it was very important for the legislators to understand that there was a large group of victims of road accidents who would be targeted and harmed even further. Access to health care in chapter 6, part a), related to health care services, but a person with a brain injury would not know how to find someone who understood their brain injury because of their capacity to think being impaired. They would have been untreated because they could not explain their brain damage, and what they would describe to the medical practitioners would be simplified to them just having headaches. So without a rational and equitable provision in the Act, those people would be excluded from access to health care services.
The Bill had a section where the Administrator would set a tariff on the fees for medical and hospital treatment, but if the department wished to provide access to the victims, then they must provide real access taking reality into account instead of a money-saving notion which would effectively result in no treatment.
Ms Haslam said that she would be concluding the submission by debunking the myth of fault as it surrounded the rights of children in the RAF Act. The various assumptions established that a child had to establish negligence on the part of the offending driver. Children were injured either as pedestrians or as passengers in vehicles, not drivers of vehicles. When comparing what a child would lose under RABS, an internal review had been done on the cases of 25 children finalised in the past 12 months, and 24 had resulted in a 100 percent liability on the part of the Fund. Who actually benefitted from the no-fault system at the end of the day could be related to the deplorable accident statistics.
Where children suffer head injuries resulting in long-term loss of income-earning capacity, the injuries could be misinterpreted by lay parents, and it took specific questions to find indicators of the long-term consequences. She referred to a case of a 16-year-old in a car accident as a passenger, who tried to pursue a teaching qualification after the accident, qualified after matric, but could not meet the functional requirements of the position. She retained a residual earning capacity which was less than that of a teacher. Under the RAF, she was awarded her medical expenses both past and future, and loss of earning in the past and future. Under RABS, she would walk away with only her medical expenses. General damages would be abolished, and there would be no scope for earning capacity. This could not be equitable or reasonable.
Mr Hunsinger asked Mr Salie, from his experience, how common law would act as a mechanism in terms of general road behaviour. At a workshop he had attended, RABS had been presented as amounting to a 20% saving. Did he think that in the administrative functioning of the current RAF, a 20% saving was achievable, or even a bigger saving? He asked what could be done differently, and whether there was a resource of knowledge that could indicate that the RAF should be fixed, rather than presenting the RABS as the only solution.
He had been a bit upset when Dr Edeling had stated that presentations had been made over the years with submissions for a RABS Bill that had been evolving over the years, but very little of his findings had been absorbed into those presentations. Did he perhaps have a focused solution he would like to present to the Committee and to the Department? What aspects did Ms Haslam see as major differences between the scenarios that were being considered for the future with regard to loss of earning capacity?.
Mr Salie responded that the general damages component consisted of pain, shock and endless suffering. At times, apart from the award for general damages to parents and children from disadvantaged backgrounds, the courts had added to that the loss of earning capacity, which was the common law. There could be massive savings under the RAF scheme if the plaintiff and the defendant had the same experts. The staff should be educated on how to quantify.
Dr Edeling said that there were many attorneys and doctors who advocated for single expert appointments, as well as mitigation instead of litigation as a response to disputes. It would not work for anyone to have the individual authority to decide who the experts would be, or what the final decision should be, because people were corruptible and abused authority. The expert should be appointed by the two opposing parties. In response to Mr Hunsinger, written submissions had been sent to the Department of Transport, but they had not received feedback or a reflection that the submissions had been considered. There was a report where he and his team had compiled a system which was affordable and rational and sensible.
Ms Haslam commented that general damages was an acknowledgement of the pain, injuries and loss of amenities of life that the injury had led to. Children experienced trauma at a far higher level than adults, and in that context the abolishing of common law under RABS was prejudicial to the child and put the child at a disadvantage.
The acting Chairperson noted the emphasis on the rights of the child under RABS, but asked if the presenters would like the Department to do away with the no-fault approach, or maintain it. No one had said the RAF should not be amended, because they were identifying the short comings in the proposed Bill. What was the point of having an Act or Bill, but the very people the Bill was for did not know about it. People were now able to claim directly without legal representation, using service providers, but the issue was that the service providers were not being regulated. Public awareness of the programs would help lessen the ignorance on this process.
Ms Haslam said she was concerned with what was being sacrificed in the interests of being seduced by no-fault as a system. Together with this was the concern of the affordability and sustainability of a no-fault system. Since the release of the Satchwell Commission report, some countries had moved to no-fault mechanisms. There were elements of the RAF that were workable. The RAF was flawed, but there was room for a compromise between the RAF and RABS.
Mr Salie said that one could put up a cogent argument that the general damages provision being taken away was unconstitutional, because the common law right to claim was being taken away.
Dr Edeling said that it was morally wrong to take away what had some functionality and replace it with something worse, because if the current system was replaced with RABS, it would be replacing it with an inferior one.
Mr Ramatlakane said that the RAF as it stood needed to be changed, which would be a process. There would never be an intention by law makers to make a law that would be in contradiction to the Constitution. He assumed that the issues had been narrowed down so they could put their heads together to come up with a compromise. He suggested non-governmental organisations (NGOs) could be unbiased parties in mitigation processes.
Dr Edeling said that NGOs and legal practitioners could perform the function of mitigation. Whoever was structured to do the administration should not work for the Administrator, because they would agree to claims that were less than they should be in order to save money.
Mr Sibande observed that the focal point of the last two presentations had been on social welfare, and the other had been on Home Affairs, while this was the transport committee. Certain people get millions from the RAF. Every time laws were revisited and reviewed, there were certain stakeholders who wanted the status quo to remain, otherwise their contracts with the RAF would be affected. They wanted to take the money for themselves, and keep the profits.
Mr Salie said that all the claims were capped now. Many attorneys had gone to jail for taking the victims’ money, but there were attorneys who did their job honestly and sincerely.
Mr Sibande asked that the presenters help the Department, and submit the issues that seemed unconstitutional.
Mr Radebe stated that he was concerned that most of the NGOs pretended they were non-profit, but actually got more money than they should get. He wanted to know if there was a way to deal with this, because these NGOs were supported by other structures to get more state funds. Dr Edeling’s reasonable amount for a doctor’s fee might still be very high compared to what rural people could afford. Reasonable amounts in urban areas differed from those in the rural areas.
Dr Edeling responded that he did not know what the reasonable fee for medical practitioners was, but there were organisations that could provide the Committee with these figures. He acknowledged that there were questionable NGOs, but was acknowledging that there was a role that they could play.
The Chairperson thanked everyone who had presented for the insightful information they had given the Committee. There would be discussions and invitations for further discussions.
The meeting was adjourned.
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