Road Accident Benefit Scheme Bill [B17-2017]: Summary of public hearings in the provinces

Meeting report

The Committee elected Acting Chairperson, Mr L Ramatlakane (ANC) who stated that the Committee will be hearing Notes of Road Accident Benefit Scheme compiled by Adv Alma Nel about the public participation received when the Committee went out to meet people in their communities. Thereafter, the Committee will receive a legal opinion from the Parliamentary Legal Advisor about the constitutionality of the Bill and on the  rationality and reasonableness of excluding undocumented migrants.

Notes on RABS Bill Provincial Participation Process: 24 July - 14 August 2018
Adv Alma Nel, Committee Content Advisor, indicated that taking all comments into account, on assessment one can conclude that the majority of speakers could have been better informed on the content of the Bill and what benefits they would be able to claim should it become law. An education drive prior to engagement on the Bill would have been welcomed. Some speakers stated that they support the Bill despite their questions directly following the statement showing an expectation that is contradictory to what the Bill seeks to cover. For example, persons over the retirement age who would have a limited claim, persons who have prescribed claims hoping that they would be able to claim for the same incident once the Bill becomes an Act, and persons indicating loss of property as a result of the vehicle accident who are hoping they can claim for loss or property.

Members had indicated to those present that they would still have time to make further input on the Bill and that they should take the documents received at the public hearings to their communities and tell others about the Bill. However, Members did not indicate if there was a cutoff date for these additional submissions. The consultation process might be questioned due to the limited documents available at some sessions, the consultation being in only one town per province, the limited translated documents available and the apparent lack of full briefings on the Bill prior to requesting comments.

The following points were encountered during all engagement sessions:
- The current claim process is too cumbersome and takes too long to conclude
- Claimants struggle to make contact with RAF offices to follow up on claims and therefore request improvement in communication as well as regional offices to access services and make claims closer to their residence
- The amounts claimable should be depicted in the Bill
- The Bill should cap the percentage on claims which may be charged by attorneys
- The Law Society should assist in tracing attorneys that abscond with claimant’s funds or who make fraudulent claims
- Fraud and corruption in the RAF administration must be addressed rather than a new Bill
- How can government afford RABS as the fuel levy is already considered to be high
- Claims as a result of poor road conditions require clarity
- Will the administration handle the influx of claims under the no-fault system
- The no-fault system is seen as unfair
- Limitation of benefits to under 18 and over 60 claimants requires clarification, especially for severe injuries
- Education was needed on both RAF and RABS as many did not know they could claim.

Mr Chris Willemse, RAF Senior Manager: Regulation, said that the majority of those who commented did not provide input in terms of specific clauses but rather about the fundamental principles of the system. Their concern about how long it takes to make claim payments speaks directly to the no-fault versus fault principle. There were comments about foreigners and that perhaps there should be a separate fund for foreigners, and that they should not benefit to the full extent as citizens. There were comments about attorneys and many complaints about the current administration and the time it takes to get the payment after the settlement.

A cap on benefits is in the Bill but it is not a fixed amount because the Scheme is treating claims differently. The statement about there being no benefits until you are 18 years old is inaccurate because people are entitled to medical benefits from day one until you die.

The rationale about 18 years is that is when you would be able to enter the labor market and there is a SASSA benefit before that and from age 60 onwards. He said RAF had been on numerous educational drives with their RAF-on-the-Road events. RAF has a 100 hospital based offices but we cannot expand that due to financial constraints. We have regional offices and we have been attempting to go to communities to educate people on the new dispensation. It is a technical subject area and we cannot expect citizens to understand the law of delict.

On a principle level, many of the comments address the fault versus no-fault system, as well the drunk driver criminal offence.

Discussion
Mr C Hunsinger (DA) stated that his comments stemmed from improving the situation where the majority of the people made comments without an understanding of the Bill. He suggested that the Committee should do a comparison table of the two systems which should be provided to the public in order to garner informed public opinion. He suggested one standard document should be provided to all provinces instead of four different documents that had been provided to the public.

Telling the public that there is still time to submit was very vague. Thus, a clear date must be communicated otherwise people will treat it as an open-ended procedure. He did not agree with the comment by Mr Willemse the no-fault system dealt with the public complaint about the time it took to process a claim. Instead it relates to administration and management which people experienced in a negative way. He noted the comments that there was no communication with the claimants – people would submit claims but they would not receive any communication.

In terms of the public response, it is difficult to pinpoint their sentiments. He did some numbers, of the nine meetings held in the nine provinces, 981 people attended and of that only 242 people spoke. In the allocated 27 hours spent in the nine provinces, only 45% of the 27 hours was actually listening to the people. The remaining 55% went towards starting late as well as introductory sessions. Therefore, the efficiency rate for public hearings equated to 45%.

On the 242 people's remarks, 36.4% related to RAF claims which are not relevant in terms of the RABS Bill. 13.6% said they support the Bill and its content; therefore, saying yes to the RABS Bill. 33.5% said no to the RABS Bill. 10.7% said we should rather consider amending the RAF Act. 6 people had questions rather than comments and 8 people had comments that were unrelated. In four of the nine provinces there was a greater sentiment for amending the RAF Act rather than the RABS Bill. In two provinces, a bigger percentage saw the need for the new Bill rather than amending the RAF Act.

He asked if the representation was effective considering that only 242 people were heard in all the nine provinces. He then thanked the Department and the Committee for how the public hearing process unfolded and said that it went fairly well.

Mr M Sibande (ANC) said that as he was listening to Mr Hunsinger, he wanted to comment about his statistics. He did not think it was proper for Members to provide statistics because he may expose some of the things that occurred during the public hearings. Firstly, he wanted to thank the Department and the Committee support staff for the way the process was handled.

In rebuttal of statistics provided by Mr Hunsinger, he did not quite understand where the influence of those statistics came from as some of the lawyers saying no to the Bill were the very same people who had said yes. That very same group were going to the people out there. Members should never undermine the intelligence of the people because some of the people were really educated and knew what they were talking about. The Committee’s mission was to listen to the people. Therefore, those statistics are not correct. Those lawyers were given an opportunity to present in Parliament but yet they were following Parliament during the public hearings in the provinces. Some of those people did not even respect our Chairperson. He lamented about these statistics.

People must bear in mind that even the Satchwell Commission highly recommended that the Committee goes out to speak to the people. This was not a kangaroo process, there was discussion and proper planning conducted before this process unfolded.

On how the Treasury input was handled, that was supposed to be received at the time the public submitted. The Committee has not yet really discussed the submissions from stakeholders. The Committee is yet to discuss all of that input and then take a decision thereafter.

Language was a concern that people raised. In future the different languages as per the Constitution must be advanced. He recommended about the technical RABS education, that if it is not enough, the Department should buy a slot and make a short play to encourage people to know about it. People are not even aware that this law was promulgated in 1942 even before Mandela was arrested.

How does one justify the lawyers that squandered R80 billion, but there is no information about how much was paid to the victims? The legal profession takes people for granted, and they must be exposed. They have even tried to mobilise people to be anti the public hearing process. We saw what they were trying to do but we kept quiet about it. Another challenge with the lawyers is what action the Department will take in situations where the lawyers take people’s money and disappear. DoT needs to seriously look into this. There are lawyers here who are vampires. Next time these lawyers must be exposed.

Ms S Xego (ANC) thanked Adv Nel for the report. She was disturbed by the first comments about the North West hearing in the report. Adv Nel highlighted that there were differing views on the RABS Bill in that province. The first sentence states that the Bill was not supported but that is different from the introduction she provided to the Committee today on page 2. Although no statistics provided, the Committee did its homework to see what people were saying. The Committee cannot rely on the statistics provided by Mr Hunsinger. She suggested that if there is a difference in opinion, the Committee can revisit the records to re-look at the statistics.

The Western Cape hearing on 2 August was adjourned because there were no documents. It was interesting that people were insisting that the meeting must continue even though there were no documents. The Committee needs to dig much deeper.

In terms of lessons learnt, the majority of the people were unaware of their rights about RAF. There are certain activities that confuse one such as the loss of documents that disappear from hospitals with RAF offices. There is certain activities between some hospital staff and those of the RAF. We have learnt that most of our people have been taken for a ride for a long time because they did not understand their rights about the RAF and for others the time period for making a claim has lapsed.

If the Committee proceeds with this Bill, it means that after the debates in Parliament, the Bill will be sent to the NCOP and whatever was not addressed now, it will be addressed during the NCOP process. One cannot say that generally the Bill was not supported. To her understanding the Bill was supported although there were concerns.

Mr T Mpanza (ANC) welcomed the Notes and thanked the officials for the hard work done. These are notes and they are not findings. Therefore they need to be treated as such. It is now up to the Committee after the hearings are concluded to have a thorough discussion and take the Notes into consideration. The Notes are not conclusive. He agreed with other Members' view that the statistics were incorrect because there was an overwhelming support for the Bill and that the Bill should proceed to the next level. This is work in progress, since consultations are still ongoing and we can allow further consultations to take place and then proceed to compiling a report on the Bill. What became very clear was the concerns about the RAF, and the Committee needs to do some oversight. The Committee needs to make a follow up on the administration of the RAF.

Mr L Ramatlakane (ANC), the Acting Chairperson, said that the public hearings process was not easy. It was indeed challenging and the Committee managed to deal with some of the challenges. The Committee did not work out a procedure for purely community participation in specific regions, and if this was managed, the Committee would not have had the lawyers pretending to be part of the community. In summary, some of the lawyers were mobilizing communities to reject the Bill nakedly and asking people to revolt against the process – advising people to leave their rights up to the lawyers because they have the skill. This was due to the income the lawyers receive in the current system.

For the Committee to engage with those comments, the public participation process is a process to ask people their views and what they think. People spoke to us based on their experiences and have given us views we need to take into account when dealing with the Bill clause by clause. We did not ask to go clause by clause, but just to comment and they did irrespective of whether they said yes or no to the Bill. Everything is captured, we can always refer to the records. The Western Cape meeting was adjourned but there were three or four people who spoke before the meeting was adjourned – those were captured. We cannot delete the record of those that spoke in that meeting.

The Committee held public hearings in Parliament, and further made the effort of going out to the people which was not a must. Generally, people have a problem with RAF in its current form. There were suggestions that the existing Bill must be amended, but the Committee came to a resolution that it would not go the amendment route. Whilst amendment was on the table, the revision of the law was also on the table. Therefore, the Committee decided to look at the law in its entirety. People must remember that an attempt was made to go through a minimalist approach, but the final resolution was a much more credible process.

On the statistics, it is merely a view and it did not represent the views of the Committee. It reduces the process to 13%, and that is why it is problematic. He would count three provinces that said no and six that said yes according to his calculations.

Ms D Magadzi (ANC), Committee Chairperson, said that with the information received, the point remains that RAF does not work, period. It is failing people dismally. People must be protected. In most provinces people were commenting on RAF issues but if you deduce what was being said, one can safely conclude that something needs to be done about the RAF.

The Acting Chairperson closed the discussion, and prepared for the  briefing from the Parliamentary Legal Advisor who will address the legal concerns raised in previous submissions submitted by stakeholders about unconstitutionality, common law, and other issues in the Bill. She will then advice on the National Treasury matter from the 14 August meeting.

Constitutionality of Road Accident Benefit Scheme Bill: Parliamentary Legal Advisor briefing
Adv Noluthando Mpikashe, Parliamentary Legal Advisor, responded to the comments by the public about unconstitutionality, common law and undocumented migrants. Clause 27 of the Bill limits payment of benefits to only emergency health care services for undocumented migrants. This meant they cannot claim for health care services; income support benefit; and family support benefit. It was unclear if an undocumented or documented immigrant may claim funeral benefits for a deceased undocumented migrant in terms of section 39 of the Constitution. It could be argued that the exclusion of undocumented migrants in the Bill was a violation of section 9 of the Constitution. In terms of section 9 everyone is equal before the law and has the right to equal protection and benefit of the law. If unfair discrimination is established, the party seeking to support the disputed measure attracts a duty to establish that the measure passes the test for limitation laid down in section 36 of the Constitution. In this case the department must prove that there is a rational connection between the differentiation and the government purpose. See document for details on common law right.

Discussion
The Acting Chairperson said that there may be other legal brains in the room that may wish to comment.
Mr Willemse replied about the removal of the common law claim that he had nothing to add because the Constitutional Court judgment was clear on the matter. On the limitation placed by clause 27(4) of the Bill – it is for the Department to show that those limitations are rational and reasonable. In response to this, the Department had referred to the Khoza case in the Constitutional Court. He quoted extracts from the judgement:

"It is necessary to differentiate between people and groups of people in society by classification in order for the state to allocate rights, duties, immunities, privileges, benefits or even disadvantages and to provide efficient and effective delivery of social services".

"I accept that the concern that non-citizens may become a financial burden on the country is a legitimate one and I accept that there are compelling reasons why social benefits should not be made available to all who are in South Africa irrespective of their immigration status".

"It may be reasonable to exclude from the legislative scheme workers who are citizens of other countries, visitors and illegal residents who have only tenuous link to this country. The position of permanent resident is however, quite different to that of temporary or illegal residents."

"Limiting the cost of social welfare is a legitimate government concern."

The Acting Chairperson said one of the design principles of the RABS Bill is to limit cost. Therefore, in terms of rationality, the Bill meets the rationality test. In terms of reasonableness, he read,

“The state can protect itself against persons becoming financial burdens by thorough, careful consideration in the admission of immigrants, or by taking adequate security from those admitted, or by demanding such security or guarantees from their sponsors at the time the immigrants are allowed into the country or are permitted to stay as permanent residents”.

The Acting Chairperson said the State has means in terms of managing its liabilities. And this was the submission from the Department.  He asked the Department to provide the judgment to the Committee"

Ms Nomvo Ngcenge, State Law Advisor, said that she had scrutinised the Bill and after careful consideration, she came to the conclusion that the Bill is constitutional – it passed the constitutionality test. She would not go into further detail because the Parliamentary Legal Advisor had already furnished the relevant information. When the Bill is before Parliament, it is only Parliament that can decide on the submissions submitted by stakeholders but the Department has the responsibility to scrutinise those submissions to see whether they are in line with the policy proposal. Those submissions are not an interpretation of the law but are new proposals on the Bill. If the Committee says we must go ahead with those proposals, the State Law advisor, the Department and the Parliamentary Advisor would have to look into that and come up with a redraft.

The Acting Chairperson said that the Constitutional Court judgments indicated that there is nothing unconstitutional about the Bill.

Ms D Magadzi (ANC) said that the Committee was clear now on what to do going forward with a much lighter heart now that all the constitutional queries have been covered. As for the presentation received from Treasury earlier in the week that information is welcomed just as any other submission received by the Committee.

Mr Sibande said that he hinted earlier that the Treasury presentation was accepted. Most of the legal heads have been threatening about the Bill’s unconstitutionality, and it is now with grace that issue has been dealt with as well as the issue of immigrants. He was worried that learned people who are supposed to respect the processes, they were destructing it. The perception that was hovering during the public hearings in the communities was disturbing because people were being treated as if they are stupid. However, the albatross is now weighing off on our shoulders especially the fact that the Bill would pass Constitutional muster. He was concerned about the issue of the foreign people, and the manner in which lawyers kept on brining this issue up testifies that they do not care about South African citizens.

Mr Hunsinger said while the criteria is quite clear in terms of rationality as presented in what is in public good, he maintains that there is a difference in interpretations of value in what is public good. The current dispensation under RAF which represents a package of benefits versus a package of benefits as captured in RABS. There is a substantial difference and that could be tested constitutionality. The legislators are often challenges with financial sustainability and providing what is public good. It is important for the Committee to accommodate those priorities and considerations in seeking a particular balance in the next stage, irrespective of that we do, it will be challenged. Most importantly, our task is to seek balance and he still maintains that an amendment of the RAF Act rather than the RABS being the “only solution”, it must be considered as one of the solutions, not “thee solutions”.

The Acting Chairperson pointed out that the date of the Minister of Finance dated 19 July, must be corrected to 19 June 2018. The legal opinion as presented will go on the record. The Committee now awaits the Constitutional Court judgment that will be furnished by the Department.

In response to Mr Hunsinger that the Bill will be challenged, Mr Ramatklane said that statement was made by the lawyers during the public hearings. Parliament would not proceed with a Bill that contravenes the Constitution. When the Committee engaged with judges and lawyers, it indicated that this Bill must be able to stand the test of time. The Committee has been working with everyone to come up with good law, but if that were not be the case, the Constitutional Court would have to step in and comment accordingly. He was satisfied with the input received from the State Law Advisor and the Parliamentary Legal Advisor, and now the Committee needed to move on.

The meeting was adjourned.