The Law Society of the Northern Provinces (LSNP) said that the Road Accident Benefit Scheme (RABS) Bill should be a balancing act between fair compensation and the affordability of the scheme in terms of available resources. Participating in the Portfolio Committee on Transport’s public hearings on the Bill, the LSNP suggested that general damages should be included in the Bill as recommended in the Satchwell Report. Removing general damages would infringe on the victims’ constitutional rights to dignity and bodily integrity. The Bill had very limited dispute resolution mechanisms, in that it provided for an internal appeal against the decision of the administrator, and then allowed the claimant to take the decision on review to the high court. There were uncertainties about the consequences of the no-fault system. For example, how many claims would be brought, and what would the average cost of each claim be? To address the uncertainties, there had to be an analysis of the trends of road accidents and claims over time, and a costing exercise of RABS by experienced actuaries. If the no-fault system was introduced, it should apply only to healthcare and rehabilitation costs. The Committee was advised to consider the financial viability of offering rehabilitation, given the lack of rehabilitation centres in South Africa.
Lawyers for Human Rights (LHR) spoke about protecting the rights of foreign nationals through the RABS Bill. The organisation spoke out against xenophobic violence and encouraged ethical leadership in government to prevent violence against foreign nationals and holding leaders accountable when they transgressed in their duties. It recommended that the Department of Transport deal with xenophobia by implementing the findings of the 2010 South African Human Rights Commission report. Undocumented foreign nationals must be compensated in the Bill, because the Department of Home Affairs (DHA) was responsible for the slow processing of asylum-seeker applications and permits.
The Southern Africa Litigation Centre (SALC) asserted that the Bill created difficulties and unfairness for undocumented foreign nationals by excluding them from claiming benefits under the Bill. The removal of the common law right of general damages which allowed the victim to claim from the perpetrator of a road accident would encourage unnecessary litigation, which could be avoided by providing for general damages in the Bill. Clause 27(4) was problematic, because it limited undocumented migrants to claiming only emergency health care. All persons who contributed to fuel levies as vehicle owners or users of public transport should be able to benefit from the RABS, so foreign nationals should also be allowed to claim because they also contributed to fuel levies.
Portfolio Committee Members asked about the affordability of the Road Accident Benefit Scheme, given the additional administration required; the binding nature of the Satchwell Commission report on the drafters of the Bill; the dispute resolution mechanisms between the claimant and the administrator; solutions on how to track undocumented foreign nationals if they had to benefit under the Bill; the financial implications of compensating undocumented persons; which other jurisdictions compensated undocumented migrants for injuries suffered in road accidents; and whether the issues raised relating to the Department of Home Affairs could be addressed by accommodating undocumented migrants in the Bill.
Law Society of the Northern Provinces
Mr Gert Nel appeared on behalf of the Law Society of the Northern Provinces (LSNP). He had presented the previous day, and today he was joined by three professionals to make submissions to the Committee regarding the RABS Bill. Advocate Carel van Jaarsveld would deal with the constitutionality of the RABs Bill; Mr Kobus Pretorius, an actuary, would deal with calculations and comparisons to determine whether the Bill was pro-poor; and Ms Elzeth Jacobs, an occupational therapist, would discuss rehabilitation benefits in the Bill.
Adv Van Jaarsveld said he had practiced law for 20 years and had dealt with road accident matters for most of that time, and had represented the Road Accident Fund (RAF) in court. He said there were three basic documents that needed to be discussed -- the Constitution, the Law Society of South Africa and Others v Minister of Transport and Another 2011 case (Law Society case), and the Satchwell Commission Report which was published in 2002 after the investigations which had begun in 1999.
The Law Society case required that the RABS Bill to do a balancing act – a duty which the state accepted in that matter. In that case, it had been said that fair compensation should be given in relation to the resources that were available in the scheme. He felt that the Satchwell Commission had succeeded in making recommendations that struck that balance. However, many of the recommendations were not included in the Bill. He was concerned that the recommendations which favoured the administrator were included, but not the ones that protected the victims of road accidents.
Adv Van Jaarsveld focused on three issues with the Bill.
Firstly, the Bill did not allow for victims to claim general damages. The Satchwell Report had recommended that general damages should be kept and it referred to these as life enhancement benefits. The Commission had been indecisive about keeping general damages, because the scheme could save between 35% and 39% of funds by removing general damages. However, it had acknowledged that people with serious injuries needed further compensation. By not providing such benefits, the Bill infringed section 12 of the Constitution, which dealt with the right to bodily integrity, and section 10, which was the right to dignity. The Law Society case supported the fact that people who were seriously injured in road accidents and had their quality of life reduced, should be compensated. The right to dignity included the right of persons to choose a life that was meaningful to them. The former judge of the Constitutional Court, Justice Laurie Ackermann, had even written a book on human dignity which talked about the retention of inherent human worth, as it was the cornerstone of the Constitution. The purpose of the Bill was to give the widest possible protection to victims. However, RABs limited the benefits available.
Secondly, Adv Van Jaarsveld dealt with section 27 of the Constitution – the right to healthcare and social security. The Constitutional Court had said that schemes such as RABS needed to be viable, financially and with regard to administration. He was uncertain about whether RABS could handle the administration of claims, since it would be dealing with all stages of the claiming process.
Thirdly, the Bill had very limited dispute resolution mechanisms. It provided for an internal appeal against the decision of the administrator, and then allowed the claimant to take the decision on review to the high court. That was not much of a remedy, because a review would deal only with whether the administrator had followed the correct procedure, but not consider the merits of the case. He referred to research by an academic in the North West Province on the comparison between dispute resolution mechanisms in social security and consumers, which had found that consumers had better protection than people receiving social services. The Satchwell Commission had recommended a two-tier internal appeal process, followed by an appeal and review to the high court on issues of law and fact, but this recommendation had not been included in the Bill. The courts encouraged internal remedies to resolve non-contentious matters so that the matters that went to court were proper disputes. Victims should be able to take matters to court so that they were not limited to internal remedies which would be heard by the internal body that had made the original decision. The limitation of dispute resolution mechanisms was against the interest of victims.
Mr Pretorius, the actuary, said that he would discuss loss of earnings and would base his presentation on the case study of Mr Lebereko, a victim of a road accident who had been assisted by Mr Nel in claiming from the RAF. Mr Lebereko’s earnings, excluding general damages under the RAF, had been estimated at R1.4 million, and under RABS he would receive R420 000 – 30% less than what he would have received from the RAF. RABS was not clear on whether victims could claim temporary loss of income benefits between months three and 24 after the accident. Claiming this benefit depended on a medical opinion as to whether the victim was able to continue working after the accident. Mr Lebereko had returned to work after two months, so he was not able to claim under the RAF.
However, Mr Pretorius was uncertain about the medical standards applied in determining whether a victim could claim temporary loss of income benefits. He was also uncertain about the long-term loss of income benefits which would be calculated from month 25 post-accident until retirement. The formula was 75% of the pre-morbid income, less the post-accident income. He was uncertain about whether the income at the time of the accident should be adjusted for inflation. Passive income, like a return on savings, should be included in the post-accident income.
Mr Pretorius said that the fact that the benefits under RABS were less did not mean that RABS was a more affordable scheme. The True South Actuaries and Consultants report from January 2017 showed that the medical and rehabilitation costs would be more than three times higher than the costs under the RAF. This would result in the overall cost of RABS being higher than the RAF. He was uncertain about the consequences of a no-fault system. For example, the number of claims RABS would receive was unknown, as was the average cost of the claim. The True South report had said that savings under RABs would come mainly from the removal of general damages, and amount to about 27.29%. He was uncertain about the administration expenses. The report estimated that those would stay the same. He disagreed with the report on that point, and felt that more benchmarking needed to be done to determine the administration expenses, given that administrators would be more involved in the claiming process under RABS. Given that RABS intended having a medical scheme for victims, the administration on that would also be intensive and require more funds than the RAF.
To address the uncertainties, he suggested that more trends be considered, to analyse the trends of road accidents and claims over time, and a costing exercise of RABS by experienced actuaries, using the data used by True South Actuaries.
Mr Pretorius recommended that more research be done on medical tariffs, as it was difficult to cost something if the price was unknown. A tariff needed to be set to determine the cost of RABS. His concerns were that if the tariff was too low, the private sector may not want to participate and if the tariff was high, it raised the question of affordability for RABS. If the medical scheme under RABS was run like conventional medical schemes, healthcare service providers may charge victims of road accidents excess fees.
To make RABS affordable, he proposed that the Committee further investigate the RABS cost drivers. If it was legal, general damages could be reduced, not completely removed. If legal fees were too high, one lawyer could be appointed to assist the claimant and defendant. If there was disagreement, they could appoint a second lawyer. The Department of Health could address the concerns about private healthcare costs. If the no-fault system was introduced, it should apply only to healthcare and rehabilitation costs. The claims under that system must be monitored over time to determine whether more benefits could be introduced under the no-fault system.
Ms Jacobs, occupational therapist, presented on the accessibility of rehabilitation under the RAF and RABS, having done extensive research on the matter. She said that RABS prioritised rehabilitation and emphasised the return to work of victims. Prioritising rehabilitation would result in decreased benefit payment periods, as benefits would end when a claimant returned to work.
She presented her findings using a scenario of four people involved in an accident. If two of them were unemployed, RABS would have to pay for medical expenses and rehabilitation to prepare them for employment after recovery. They would have to be given jobs after recovering. This would be difficult task, as jobs were not easy to find in South Africa, especially for disabled people. If the other two people were employed in high risk occupations, they would need physical and vocational rehabilitation.
Ms Jacobs said there were only 35 rehabilitation facilities in South Africa. Eleven were run by government and 24 by the private sector. Only four provinces had state rehabilitation centres -- Gauteng, Western Cape, North West and KwaZulu-Natal. The private rehabilitation centres were only in Gauteng, Western Cape, KwaZulu-Natal, Eastern Cape, Free State and Mpumalanga. Limpopo and the Northern Cape had no rehabilitation centres. Only 18 centres offered vocational rehabilitation.
Physical rehabilitation helped people regain their normal functions, whereas vocational rehabilitation allowed someone to return to work. Five state facilities offered vocational rehabilitation, but the services were very limited and could not count as services. Services were mainly limited in Limpopo, Mpumalanga, Northern Cape and the North West. Patients from those provinces were treated mainly in Gauteng. Most centres were located within the cities so people in the rural areas struggled to get to the centres. She observed that the challenges faced by victims of road accidents were that if there was no rehabilitation centre in their region, they had to travel to other regions. Some people could not afford the cost of travelling to another region. South Africa did not have return-to-work programmes. Rehabilitation did not always restore full functionality, which meant that many people were not able to return to work.
Ms Jacobs recommended that rehabilitation be offered to all victims of serious injury, whether employed or unemployed, as it was a basic human right. The financial viability of offering rehabilitation to victims of road accidents was not possible because there was a lack of rehabilitation centres in South Africa; rehabilitation was not always effective; South Africa had a high unemployment rate, especially regarding disabled persons; and there was a lack of return-to-work programmes. Rehabilitation was very important for those who qualified, but it would not be financially viable under RABS.
Mr Nel said that the RABS Bill was not pro-poor because a claimant needed a medical report to lodge a claim with the RABS administrator. Clause 43 sets out the obligations of the claimant and beneficiary. The fact that RABS would be a no-fault system did not mean that claimants would automatically be compensated. Claimants first needed to qualify to be awarded benefits.
Mr M de Freitas (DA) noted Mr Pretorius’s point that RABS would require intensive administration, and asked how that problem could be addressed. He asked what the Law Society of the Northern provinces thought of the fact that every person injured in a road accident could claim from RABS -- even a drunk driver -- and on the point that RABs would not pay a claimant until 180 days had passed since the accident. He asked for clarity on the point that RABS favoured employed people over the unemployed.
Mr Nel responded that the Department had to do proper benchmarking to determine whether proper administration would be done under RABS. Administration under the RAF had been very poor over the years, and the fact that the RAF would be merged into RABS was concerning.
Adv Van Jaarsveld agreed that a drunk driver would be able to claim under RABS. The fault system was the fairest when considering victims of road accidents, as perpetrators of accidents were not compensated.
Ms Jacobs said that RABS intended saving money by rehabilitating people and having them return to work so that benefits could cease.
Mr M Sibande (ANC) said that the Satchwell Commission had not been the only commission appointed to make recommendations, and the Portfolio Committee could not be told to include all the recommendations in the Bill, because the Satchwell Report was not binding in law.
Adv Van Jaarsveld said that the Satchwell Commission was different from other commissions, because it was the only one that had started after the Constitution had been passed. It was the only commission that accepted that the RABS Bill fell under the social security cluster, and all its recommendations had been made with that in mind. It had been given an implied approval by the Constitutional Court in the Law Society case. Its recommendations were very balanced.
The Chairperson asked for clarity on the dispute resolution mechanisms between the claimant and the administrator.
Adv Van Jaarsveld said that the RABS Bill allowed the claimant to appeal a decision only internally and then take the matter on review to the High Court. He suggested that administrators were given wide discretion to make decisions, but claimants had very few dispute resolution mechanisms available. A good example of dispute resolution mechanisms was that of the pension fund adjudicator, who had a wide discretion on how to investigate matters and could make any order that a court could make. If a claimant from a pension fund was unhappy with the internal process, they may take the matter to court and raise the dispute afresh. Consumers were also protected, in that there was the Consumer Tribunal, but if a consumer was unhappy with the decision of the tribunal, they may raise the matter in court. RABS needed a stronger dispute resolution mechanism to protect victims’ rights.
The Chairperson asked Adv Van Jaarsveld to make a written submission to the Committee on appropriate dispute resolution mechanisms.
Ms S Xego (ANC) raised a concern about using victims’ pictures in presentations to the Committee. For example, she did not appreciate the fact the LSNP had shared a picture of a woman whose leg had ben injured, but the image had been taken of her stomach and below, wearing underwear. She also observed that the case studies were only of black people, which gave the impression that only black people were vulnerable. She asked whether the LSNP represented people of other races. She noted that Adv Van Jaarsveld had spoken about that the unconstitutionality of the Bill, and asked him to point about the unconstitutional clauses. She asked whether the LSNP had considered that the Department of Health was planning to introduce the National Health Insurance (NHI), which meant that RABS did not have to rely on private medical expenses. Would the LSNP accept the Bill if a medical tariff was set and presented to the public?
Mr Nel apologised for sharing the image of his client. He had wanted to illustrate the fact that RABS would not compensate serious injuries, like the one in the image. He said that he did not choose his clients according to their race. In the matter of Law Society of South Africa and Others v Minister of Transport and Another 2011, the court had said that victims of road accidents should be given medical treatment and if the government could not provide such treatment, the victims must be taken to private hospitals. Knowing the tariff would allow the public to assess the affordability of RABS.
Ms Xego asked Mr Pretorius why Mr Lebereko’s earning had been valued at R1.4 million, and why the R420 000 under RABS would be insufficient.
Mr Pretorius had used expert input from various medical practitioners. He had looked at Mr Lebereko’s earning before the accident. He could not work for two months after the accident. When he returned to work, he could not earn what he had earned before the accident. The present value loss of earnings amounted to R1.4 million. RABS limited the compensation that may be paid to the victim, in that Mr Lebereko would qualify only for the long-term benefits which were paid out two years after the accident.
Mr Nel said that inflation and career-pathing were not considered under RABS. The purpose of the RAF was to put the victim in the financial position they would have been in, had the accident not happened, whereas the purpose of RABS was not to compensate. The RABS Bill sought to balance the affordability of the scheme and paying out the claims made.
Mr T Mpanza (ANC) said her had also found the images presented offensive, and asked presenters to be sensitive to the diversity of South Africa. He asked that presentations reflect the true political nature of the country. He asked the LSNP to focus on matters involving the Committee and direct its issues with the Department of Transport through other channels, so that their concerns were addressed. He asked the LSNP for its view on a comment made by the Black Lawyers’ Association the previous day, that the Bill favoured the rich and not the poor. He asked Adv Van Jaarsveld to indicate which clauses of the Bill were unconstitutional. He noted that the Portfolio Committee had been accused of implementing only parts of the Satchwell Report that favoured the administrator, and not the victim. He said that the Committee was not compelled to implement the recommendations, as they were not binding law.
Mr Nel apologised again for the unintended racial undertone of the case studies presented. He did not believe that the Bill favoured the rich over the poor, as people earning above a certain amount and had medical aid would be excluded from benefiting under RABS. He advised that there should be a peer-review process for determining the medical tariff.
Adv Van Jaarsveld said that the Bill could not be passed if it was unconstitutional. The court in Law Society of South Africa and Others v Minister of Transport and Another 2011 used the reasonableness test to determine whether removing certain benefits in the Road Accident Fund Act was constitutional or not. The court had found that removing general damages infringed section 12 of the Constitution, and limiting loss of earnings benefits infringed section 25 of the Constitution. Rights were being limited in the Bill, and the justification for the limitation was the funding crisis of the RAF. Victims’ constitutional rights must be balanced against the available resources. The Satchwell Commission had a good balancing act, and that should be used as the starting point. It was the only commission that had been started after the 1996 Constitution. The report was not binding, but had valuable recommendations.
Lawyers for Human Rights
Ms Kayan Leung introduced Lawyers for Human Rights (LHR) as an independent human rights organisation with 39 years of experience in human rights activism and public interest litigation in South Africa. It used the law to change and deepen the democratisation of South Africa by providing free legal services to vulnerable and indigent people whose constitutional rights had been infringed. The LHR’s refugee and migrant rights programme was a specialist programme that advocated and enforced the right of asylum-seekers, refugees and other migrants in South Africa. It worked towards preventing xenophobia and appreciated the opportunity to make submissions regarding the Road Accident Benefit Scheme Bill.
Ms Leung started by recommending accountability and ethical leadership at all levels. Leaders should conduct their offices in a manner that did not cause division. Leaders who transgressed must be dealt with through public accountability. Leaders at various levels had promoted stereotypes against migrant communities which had resulted in xenophobia, and that was unacceptable. Leaders must act in an ethical way by respecting the beliefs, values, dignity and rights of all. There was a link between xenophobic statements by public figures and increased levels of xenophobic violence in South Africa over the past decade. For example, King Goodwill Zwelithini had made offensive comments which had led to xenophobic attacks in 2015, and in 2017, Mayor Herman Mashaba had said that foreign nationals lived in hijacked buildings in Johannesburg. The offensive comments were not based on evidence and they infringed on foreign nationals’ rights to equality and human dignity.
The media also promoted the narrative that migrants contributed to high levels of crime in South Africa. There were misconceptions about the impact of migrants on the South African economy. Many South Africans believed that migrants steal their jobs and take away government resources from the citizens. These misconceptions resulted in violent attacks against migrants. Research showed that migrants actually contributed positively to the South African economy. She acknowledged the people's march against xenophobia which had been held on 23 April 2015. The march had been supported by the Gauteng Province leadership, including Premier David Makhura. Such leadership promoted constitutional values and contributed to building social cohesion.
Ms Leung’s second recommendation was that the Department of Transport (DoT) deal with xenophobia by implementing the findings of the South African Human Rights Commission (SAHRC) report of 2010. She asked the DoT to protect the rights of foreign nationals in South Africa, as South Africans discriminated against them and blamed them for crime and unemployment. She noted that the preamble of the Constitution stated that South Africa belonged to all who lived in it. Therefore, the rights in the Constitution also applied to foreign nationals. There was lawlessness in informal settlements which resulted in violence against migrants as there was poor infrastructure and under-capacitated police. She advised that the government should intervene to protect South Africans in informal settlements.
The LHR had a refugee and migrant rights programme which was the largest legal service provider to refugees and migrants in South Africa. Every year, it helped more than 10 000 refugees and asylum seekers in the clinics, which were based in Johannesburg, Pretoria, Durban and Musina. The LHR had intervened when there were xenophobic attacks in 2015, 2016 and 2017 by monitoring the violence and offering legal assistance to displaced people. It advocated for foreign nationals in the media throughout the crisis and was involved in restorative talks aimed at reconciliation and reintegration. Therefore, it had been able to make recommendations on how the government could respond to xenophobia.
Ms Leung said that when migrants were displaced after violent attacks in Pretoria in 2016, the LHR had written letters to the Department of Home Affairs (DHA) to allow migrants to approach the refugee reception offices to reprint their permits which were lost during the violent attacks. When the LHR had advised refugees to apply for social assistance, they could not get help because they did not have documentation. She urged the government to put measures in place to manage situations where many people needed emergency assistance during outbreaks of violence.
She suggested the following as means the government could use to effectively respond to xenophobic violence:
- establish early warning mechanisms to verify reports of xenophobia and how to respond to immediate medical needs that result;
- make resources available to respond to violent outbreaks;
- have peacekeepers and democratic organisations to build solidarity for social justice and hold government accountable at all levels; and
- strengthen democracy by enforcing the Bill of Rights.
Ms Leung’s third recommendation was that laws and policies must promote the rights in the Constitution. The Constitution protected everyone because it stated that “we the people of South Africa, recognise the injustices of our past; honour those who suffered for justice and freedom in our land; respect those who have worked to build and develop our country and believe that South Africa belongs to all who live in it; united in our diversity.” She said that the Refugees Amendment Act 11 of 2017 undermined the constitutional right of immigrants. For example, the Act limited the right of immigrants to work by creating difficult requirements for work visas and asylum. The limitation infringed on the migrants’ right to choose an occupation and that right was linked to the right to human dignity. When migrants did not have jobs, they would rely on state resources. Their reliance on state resources would perpetuate the negative stereotype that migrants depleted state resources. 1700 submissions had been made by civil society to the DHA, but these had not been considered because the Act had been passed, despite all the submissions being against it.
The proposed processing centres for asylum seekers in the White Paper on international migration would isolate refugees and asylum seekers and hamper their integration into society. She disagreed with the proposal, and commented that the United Nations High Commissioner for Refugees had recommended integrating immigrants into communities to promote social cohesion, reduce xenophobia and create a better protection environment. She asked the government to create laws which would not undermine social cohesion.
Ms Leung’s fourth recommendation was that the government resolve the challenges it faced in providing services to migrants, such as corruption and the collapsed asylum system, in order to combat institutionalised xenophobia. In 2015, the LHR had released a report regarding corruption within the asylum process entitled “Queue here for corruption: measuring irregularities in South Africa's Asylum system.” The research had shown there was corruption at all stages of the asylum process, which continued even after a foreign national had obtained refugee status. This was a serious problem which needed to be addressed by the DHA, as it impeded the fair process relating to documentation of foreign nationals. There was a lack of resources in processing asylum applications which had resulted in a backlog at DHA offices. She was not impressed with the slow response from the DHA in protecting foreign nationals. In 2015, the LHR had challenged the Department’s decision to close the Port Elizabeth refugee reception office. Taking the Department to court had not helped because it had not obeyed the court order.
Against that background of the challenges faced by foreign nationals, Ms Leung said that the LHR found problems with Chapter 5 of the RABS Bill, which dealt with the liability of the administrator. Clause 27(4) limited the RABS administrator to awarding only emergency health care services to road accident victims who were not citizens or permanent residents of South Africa. This clause excluded undocumented migrants who did not have permits because of delays at the DHA, and corruption in the system. This meant that they received health care or compensation for injuries suffered. She urged the Department of Transport not to adopt the trends of the DHA of not protecting migrants. The RABS should be reasonable, equitable, affordable, sustainable and in line with the ethos of the Constitution.
The LHR also had a problem with clause 28, which excluded the liability of the owner, driver and employer of the person who caused the road accident. It removed the victim’s common law right to claim general damages from the person who had caused the road accident. This meant that road accident victims would be denied life enhancement benefits. The removal of the victim’s right to claim from the person who caused the accident may be constitutionally challenged, because it was unfair, unreasonable and prejudicial to South Africans.
Ms Leung found clause 39 problematic, as it prescribed a lump sum for funeral benefits. It was not reasonable to have a fixed amount, and it was not clear what the amount was. The clause was prejudicial against migrants because the fixed amount may not be enough to repatriate a deceased migrant, or for family members to apply for visas. The clause infringed on the constitutional right to dignity which was available to South Africans, documented and undocumented foreign nationals.
She concluded that the clauses pointed out in RABS infringed on constitutional rights. The constitution was meant to redress the wrongs of the past and achieve inclusivity with its laws. Failing to consider constitutional rights in formulating RABS may be unconstitutional.
Mr Ramatlakane asked whether the RABs Bill should be specific, or whether it should be a general Act which included the LHR recommendations regarding other departments, like the Department of Home Affairs. He asked how the Committee should deal with the backlog in the processing of asylum applications, and how undocumented people would be traced if they were allowed to claim from RABS. The LHR had pointed out that the Bill did not compensate undocumented people for injuries suffered in road accidents, but it had not provided solutions on how to deal with that problem. He asked whether the funeral benefits clause should be left as a wide provision, with the amount to be determined by the Minister of Transport. He asked which jurisdictions compensated undocumented migrants and why South Africa should not have limitations on the benefits available for undocumented people.
Ms Leung responded that when deciding whether the RABS Bill must be specific or general, the Portfolio Committee must uphold the Constitution in fulfilling the objectives of the Bill. Not allowing an undocumented person to claim more than medical expenses from RABS would be unjustifiable. It might not have been the drafters’ intention to exclude undocumented persons from claiming, but that had been the result. The Committee should set clear guidelines to determine funeral benefits, and that the funeral benefits need not be a fixed amount. She did not know of any jurisdictions which compensated undocumented persons for injuries suffered in road accidents. However, in South Africa undocumented claimants should be able to benefit because RABS would be funded by fuel levies and fuel levies were paid by vehicle owners and users of public transport, whether documented or undocumented.
Mr Ramatlakane asked whether all persons who paid fuel levies should be allowed to claim.
Ms Leung’s response was that there should not be a catch-all phrase stating that all persons who paid fuel levies should be able to claim. Rather, clause 27(4) should be reworded to include undocumented migrants.
Mr Ramatlakane asked what clause 27(4) should be amended to, and whether Ms Leung considered that there would be financial implications for the country if undocumented migrants were accommodated.
Ms Leung said that clause 27(4) unjustifiably discriminated against undocumented persons and that it should be changed. She would leave it to the Committee to decide what it would change it to.
Mr Sibande commented that the LHR’s presentation had been directed mainly at the Department of Home Affairs. Recommendations from the Southern African Development Community (SADC) could not be made to the Portfolio Committee because South Africa was a sovereign state and could determine its own laws. In making laws, South Africans must be given preference over foreign nationals.
Ms Leung responded that the submissions relating to the DHA had been for contextual background. Often migrants were accused of criminal activities and of being the cause of unemployment. She spoke against attributing the individual characteristic of criminality to a whole group of people. She suggested that undocumented foreign nationals should also benefit from the RABS Bill, because South Africa belonged to all who live in it.
Mr Sibande said that accommodating foreign nationals should not compromise the resources of the Department of Transport. Every country needed laws, and South Africa could not fall into lawlessness by giving undocumented migrants the same benefits as citizens.
Mr Mpanza said that submissions by various organisations had included accusations that the RABS Bill was unconstitutional. He found that strange, and said that the Department of Transport and the state attorneys could not have misled the Portfolio Committee into drafting an unconstitutional Bill. He asked how South Africa’s international treaty obligations fitted into the Bil,l and whether those obligations were in line with the Constitution.
Ms Leung responded that South Africa’s international obligations were a guideline for drafting laws and they were constitutional, because South Africa had ratified the treaties.
Mr Shelembe said that the LHR presentation had implicated people who were not present at the meeting, like King Goodwill Zwelithini being linked to xenophobic acts. Ms Leung had made valid points, but that was not the platform for those submissions, because the people implicated were not present. He asked the Portfolio Committee to distance itself from the LHR presentation.
The Chairperson said that the Committee was concerned only with submissions relating to RABS and that the Committee distanced itself from submissions relating to any other matter.
Ms Leung apologised for mentioning people who were not present at the meeting, but added that she had made the submissions to give context to the rest of her presentation.
Southern Africa Litigation Centre
Ms Kaajal Ramjathan-Keogh presented on behalf of the Southern Africa Litigation Centre (SALC), which was a regional non-governmental organisation based in Johannesburg and operating in 11 southern African countries. The organisation had decided to make submissions because of its regional migration work. The RABS Bill created difficulties and unfairness for undocumented migrants by excluding them from protection and benefits in the Bill.
There were many migrants, asylum seekers and refugees in South Africa. The immigration laws did not allow low-skilled migrants to regularise their immigration status, regardless of how long they had been in the country. This meant that many migrants could not get immigration status even if they were from SADC countries. There were clauses in the Bill that prejudiced undocumented migrants and ddido not provide care and treatment for them should they get injured in a road accident. The removal of the common law right of general damages, which allowed the victim to claim from the perpetrator of a road accident, would encourage unnecessary litigation which could be avoided by providing for general damages in the Bill.
Ms Ramjathan said the factors that the Satchwell Commission had recommended should be considered in preparing the Bill. The Satchwell report had said that in order for the RABS to be reasonable, it had to be part of the social security system and be moderate; the Bill should reflect the South African context; to be equitable the benefits must be proportional to the funding available; it must not be biased; the compensation should be affordable to road users and society; it must be sustainable by being efficient and linked to the broader social security system; and it must be long lasting for the victims reliant on it, so it must be financially and morally viable for South Africa. The Satchwell report had suggested that there should be a no-fault system, and that had been incorporated into the Bill. She then set out the objectives of the Bill which include providing a scheme which was reasonable, equitable, affordable and sustainable.
Ms Ramjathan set out the context within which the Bill would operate. The SALC agreed with the no-fault system in the Bill, and believed that it was progressive. Victims who previously could not claim from the RAF because of contributory negligence could claim under RABS. The exclusion of the liability of owners and drivers who would otherwise be liable under common law existed in the RAF, and would continue with RABS. The exclusion of liability did not extend to terrorist activities. All drivers who could prove that they were in an accident could claim compensation, even if they were to blame. This meant that RABS would receive more claims than the RAF.
Ms Ramjathan found clause 27(4) problematic because it limited illegal foreigners to claiming only emergency health care. There would be many cases of hardship as a result of this exclusion. There were many asylum seekers who did not get their permits renewed on time due to no fault on their part, but because of the ineffective and corrupt asylum system that existed. They would not be able to get health care or compensation for injuries suffered. The changes recommended in the section were contra bonos mores (against good morals). The changes did not consider the migration reality in the country, and could leave thousands of people without access to life-saving medical treatment. If the reason behind these exclusions was to deter irregular immigration, then denying victims of road accidents life-saving medical treatment would not achieve this. Immigration management and control was not the purpose of the Bill.
She raised concerns about removing protection for undocumented foreign nationals. The RAF provided cover to all users of South African roads for damage caused by negligent drivers. The client base included South Africans and foreigners in the country. There were two types of cover -- personal insurance cover to victims and indemnity cover to the wrongdoers. The situation was set to change, because RABS removed liability and cover for undocumented foreign nationals.
According to 2011 data, 2.2 million foreign nationals had lived in South Africa at the time. South Africa had a population of 55 million. 2015 statistics showed that there were between 500 000 and one million undocumented migrants living in South Africa. That equated to 2% of the total South African population. It was unknown how many undocumented migrants would be involved in future car accidents, but it would be such a small number that it would make an insignificant impact on RABS to include these people in providing health care services. The SALC recommended that the Committee reconsider its position on the issue.
Ms Ramjathan said that all persons who contributed to fuel levies in the country should be able to benefit from RABS. Contributions were made by drivers of motor vehicles and by people using public transport in buses and taxis. This included citizens, documented and undocumented persons. As RABS would be getting contributions from all people in the country, it would only be fair for all those people to benefit from the scheme. The purpose of the Bill was not to deter people from staying in the country without regular immigration status, but would do that by preventing undocumented people from benefiting on an equal basis with protection provided for South Africans. The purpose of the Bill was to be reasonable, equitable, affordable and sustainable. RABS would not achieve this purpose if it did not afford equal treatment to people by preventing them from protection on the basis of immigration status. The Bill of Rights requires national legislation to prevent unfair discrimination.
She raised a concern that the Department of Home Affairs did not help people who should be legally in the country with documents to prove their immigration status. Some examples of this included:
- In 2012, the Cape Town refugee reception office had been closed by the DHA. Despite a court order that it must be open, it remained closed. That meant that asylum seekers and refugees who would be serviced by that office were unable to renew their permits and for purposes of the Bill would be considered undocumented and would not be able to claim from RABS.
- Since 2011, three refugee reception offices had been closed -- in Johannesburg, Port Elizabeth and Cape Town. This made asylum seeking very difficult.
- There was a 90% rejection rate of asylum claims. Rejected asylum seekers could appeal rejections, but these appeals took many years to finalise despite the legislation stating that the final outcome must be made in 180 days. The delayed processing time negatively affected the ability of asylum seekers to regularise their status and possess documents that accurately reflected their status.
- There was a huge backlog with processing asylum applications. In 2015, the United Nations High Commissioner for Refugees had reported that one million asylum claims were pending. The DHA had not put plans in place to deal with the backlog. Instead, asylum seekers were being deterred because the process had been made more unfriendly.
Ms Ramjathan then spoke about an anti-xenophobia initiative called “Operation Fiela,” which had been launched by the SAPS in 2015. The way SAPS had carried out the initiative contradicted its original intention. The initiative had been launched to stop attacks on foreigners, but instead it had targeted foreigners and rushed their deportation. Over 15 000 people had been deported for being in the country illegally. In 2018, SAPS had launched “Operation Fiela II.” It would be unfortunate for the Department of Transport to also discriminate unfairly against foreign nationals and undocumented persons as proposed by RABS.
Clause 28 of the RABS Bill was problematic, as it removed the common law right of a road accident victim to claim damages from the person who caused the accident. The removal of the right may be constitutionally challenged. The RABS Bill excluded non-patrimonial benefits. The Minister of Transport had suggested that the Compensation for Occupational Injuries and Diseases Act 130 of 1993 (COIDA) was the basis for justifying the removal of non-patrimonial benefits from RABS. She said that that argument needed critical evaluation.
Ms Ramjathan said that the purpose of road accident legislation was to protect society against the socio-economic consequences of road accidents by providing full compensation for injuries suffered. The Department of Transport had created laws to compensate victims of road accidents. This meant that the victim’s common law right to claim from the wrongdoer was transferred to the state. The burden of providing social security was spread among actors in society who created the social-economic consequences of road accidents, namely the drivers, by requiring them to contribute to the RAF through fuel levies.
There was a common misconception that a victim’s right to claim compensation was based on the Road Accident Fund Act, and not common law. The victim’s claim was actually rooted in common law and based on delict. Section 21 suspended the wrongdoers liability on condition that the Fund could pay the victim (Da Silva and Another v Coutinho 1971 (3) SA 123). RABS was the first legislation to fully abolish the victim’s right to claim from the wrongdoer, because under section 36(1) of COIDA, victims retained the right to claim from the wrongdoer. Any attempt to fully substitute the victim’s common law right with limited statutory compensation benefits without the retention of the right to a residual common law claim, was serious and subject to constitutional challenges.
Ms Ramjathan said that under clause 29 of the Bill, RABS had replaced the fixed R10 000 funeral benefits provided for in the RAF with a “prescribed amount.” She said that the amount awarded may not be enough to cover the cost of transporting the body of a deceased migrant worker back to his family for burial. The family of an undocumented person was denied any compensation for the cost of repatriating the deceased’s body. The Bill did not indicate who would be responsible for repatriation costs of the body of an undocumented deceased person. Clause 29 infringed on the right to dignity, which was a constitutionally protected right given to every person in the country. Dignity was not limited to citizens and documented foreign nationals.
Mr Ramatlakane’s asked whether every person who contributed to fuel levies should be allowed to claim from RABS. How would those people be tracked? How would such a provision be worded in the Bill? Which jurisdictions compensated undocumented migrants for injuries suffered in road accidents? Knowing how other countries had dealt with such matters could give guidance to the Portfolio Committee. If the SALC did not have an answer to the jurisdiction question, it meant that its submissions were based on “gut feeling,” and laws could not be made on gut feeling.
Ms Ramjathan responded to the question on jurisdiction by noting that South Africa was a signatory to the 1951 United Nations Convention on Refugees and the Organisation of African Unity Convention Governing Specific Aspects of Refugee Problems in Africa. Therefore, South Africa had to honour its obligations by protecting foreign nationals, and that protection should also come from the RABS Bill. Regarding international obligations, it was problematic that South Africa had not ratified the Convention on the Protection of Migrant Workers and their Families. She recommended that RABS should accommodate migrants, and it was up to the Committee to determine how it would do that.
Mr Ramatlakane said that SA was a sovereign state and could determine which conventions it wanted to ratify. He felt that Ms Ramjathan had not fully considered the consequences of her recommendations and that she needed to clarify what needed to be changed in the RABS Bill.
Ms Ramjathan responded that accommodating migrants in the RABS Bill would not automatically result in South Africa ratifying the Convention on the Protection of Migrant Workers and their Families. Ratifying the convention was a separate event that South Africa should consider. She said that the RABS Bill could be constitutionally challenged for excluding undocumented persons from claiming.
Mr Sibande advised that organisations that made submission to the Committee had to look at things practically and not theoretically. Taxpayers could not be burdened with the additional cost of covering undocumented migrants.
Ms Ramjathan responded by saying that many undocumented persons were not so of their own doing, but because of the backlog in processing applications at the DHA. Therefore, the RABS Bill should take that into account and accommodate undocumented persons.
Mr Shelembe said that the concerns raised by the organisation regarding the Bill related to other departments, like the Department of Home Affairs. He felt that there was little communication between the organisations and the DHA, and encouraged interested persons to take matters up with the DHA because the Portfolio Committee did not have the power to address the challenges raised. Addressing those challenges would allow the Committee to pass a Bill that was not deemed problematic because of faults in other departments.
Ms Ramjathan said that migrants faced challenges because of the DHA’s weak processing of asylum and permit applications. The problems at the DHA were caused by maladministration, and not because of poor communication by interested persons.
Mr Sibande said that there were different departments with different platforms. Issues of the DHA should not have been brought to the Department of Transport, because the Committee could not respond on behalf of the Department of Transport.
Mr Ramatlakane asked whether the issues raised relating to the DHA could be addressed by accommodating undocumented migrants in RABS.
Ms Ramjathan responded in the negative to Mr Ramatlakane’s question. She asked that the DHA be involved in drafting the RABS Bill, because it knew the challenges faced by undocumented migrants in accessing documents, and those were challenges beyond the migrants’ control, therefore they should be accommodated in the Bill.
The Chairperson acknowledged that undocumented migrants faced challenges, and said that the Committee would consider that when reviewing the Bill.
Mr Ramatlakane clarified that although the Committee would consider the SALC submissions, it did not promise to address the concerns because many Members of the Committee were not satisfied with the reasons given for why undocumented migrants should benefit from RABS.
The meeting was adjourned.
- Southern Africa Litigation Centre submission
- Lawyers for Human Rights submission
- South African Medico-Legal Society submission
- South African Medico-Legal Society: guidelines
- South African Medico-Legal Society: mediation
- APRAV Medical Committee Chairperson’s Report
- Association for the Protection of Road Accident Victims submission
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