Road Accident Benefit Scheme Bill: minority report

Meeting report

The Chairperson said that the Committee would undertake the clause by clause exercise; however, the Democratic Alliance had submitted its minority report.

Mr C Hunsinger (DA) requested that he take the Members through the minority report before the clause by clause exercise was undertaken, so that it may be interrogated by Members if need be.

The Chairperson agreed to the request.

Democratic Alliance minority report
Mr Hunsinger briefly took the Members through the objections contained in the minority report. He said that it was no secret that the DA viewed the RABS Bill as not the ultimate solution and there are a lot of other options (social security schemes) that could be considered including looking at amending the Road Accident Fund (RAF) Act. There are concerns about the financial implications of running the dual system, uncertainty about modelling the cost of RABS, the rehabilitation benefit, and the average annual national income. The main matters that gave rise to the objection to the Bill were the no-fault system and the removal of the common law. Therefore, the party objected to the motion of desirability for the Bill.

The Chairperson said that the Committee received the view of the DA, and it would be appropriately tabled in the House as is and no response from Committee Members was warranted.

Mr Hunsinger went further to outline areas to which the DA objected (see document). These were:
- Rationality
- Equality
- Illegal earnings
- Dispute resolution
- Human dignity
- Choice of medical practitioner
- No medical costs
- Abolition of general damages
- Bodily integrity
- Deprivation of property
- Health care and social security
- Access to Courts
- Tariffs
- Tagging

Discussion
Mr Ramatlakane (ANC) asked about the status of the minority report, and how it could be dealt with going forward because there were issues in the report that have been dealt with adequately by the Committee in previous meetings. It was imperative that Members were informed about the status of the minority report so that they can deal with it because there were a number of issues that were previously dealt with in the Committee. He said the minority report is not a thesis that constitutes the views of all minority parties. If the minority report was entertained as it is, it would have huge implications for the Committee and he was not inclined to agree with it.

The Chairperson said that she allowed the minority report to be brought in before the clause by clause exercise so that Members can interrogate it and raise any questions and concerns they may have.

The Committee Secretary said that it was not necessarily a minority report but the minority views submitted as per the National Assembly Rules and the party was within its rights to do so. She explained that a Committee Report would outline Committee amendments, and if there was a party objection that would be stated accordingly and it would outline the clauses that are objected to. In this case, the DA objected to the Bill so that will be outlined as such, and the views have to be reflected in the Report because that would be the information reflected for other parties and Members when they read the Committee Report.

Mr T Mpanza (ANC) was concerned about the process and suggested that the Committee note the objection and proceed to the agenda item.

Mr M Sibande (ANC) agreed and suggested that the objection should clearly state that it was only the DA position and not other minority parties. There are a lot of minority parties in the Committee and they may not necessarily share the same view as the DA.

Mr Ramatlakane said that it must be noted that the DA objections have been dealt with in the Committee in previous meetings, and there is an alternative view to the matters being objected to by the DA. It must be clearly stated that all those matters were canvassed and it was perplexing that these matters came at the tail end of the process – this must be categorically stated in the Committee Report.

He turned to the Department and said that there were matters he had raised in previous meetings that were not responded to by DOT. He had emailed the Department asking when the Road Accident Fund would disappear and RABS emerge, and no longer be a dual system. No response had been received. The Satchwell Commission clearly suggested that we must move away from RAF to a new system. There must be a transitional clause that gives an indication that the Department of Social Development would come in at some point because the new system speaks to a social security scheme. Secondly, how do we know that government will have the required money to clear the existing R200 billion deficit? Only once people who are in the system are out, can the RAF eventually cease to exist. He asked the Department to provide the answers, unless the answers are not available and the moment.

Mr Chris Willemse, RAF Senior Manager, responded that he did not receive the email referred to by Mr Ramatlakane but he could respond to the questions.

Mr Johannes Makgatho, Senior Legal Advisor: Department of Transport said that he recalled that Mr Ramatlakane’s questions were responded to by Mr Willemse in the 13 September 2018 meeting.

Mr Willemse said under the current system as a victim your rights vest in terms of the law as it stands today. There is a presumption that the legislature will not tinker with vested rights. So according to the Constitution, RABS cannot remove a right that vested under the current RAF dispensation. RABS will as of the date it comes into effect change the law or rather replace the current legislation but not necessarily tinker with vested rights under the RAF. Victims with accrued rights under RAF would retain their rights even when the RABS comes into effect, and there is a prescription period for those claims. New claimants would claim only under RABS. If you remove the current RAF dispensation, those claims that arose prior to RABS would be managed on a pure common law basis so you would pursue the wrongdoer for damages and whether the employer is the state or a private company the vicarious liability principle would apply and those claims would be uncapped. The RAF Act has a transitional provision that provides for claims that existed before it came to effect to be managed by the RAF and a similar provision exists for RABS. Over a period of time those claims would come to an end, no new RAF claims would arise and that liability would cease.

Mr Ramatlakane said that that was not the only issue he raised in his email. He also raised the social security system and what would be done about that. There are provisions in the current RAF Act that are repealable and he had asked which sections are those. The email would be re-sent to the Department if the officials never received it.

The Chairperson suggested that the Members undertake the clause by clause exercise.

The Committee Secretary asked if Mr Ramatlakane was satisfied with the Department responses and if the awaited responses would in any way influence the clause by clause phase. She advised that the responses should be dealt with before the Committee commences clause by clause consideration of the Bill.

The Chairperson reiterated that Mr Ramatlakane wants to know how the Department will factor in the social security aspect and ensure that it gets elevated because one of the objectives of the Bill deals with social security.

Mr Ramatlakane wanted clarity on the transitional provisions of the Bill. Perhaps DoT could come up with a clause that clearly states that the Department of Social Development to will come up with a comprehensive piece of legislation that deals with a comprehensive social security system. This Bill would be part of the comprehensive social security system. Thus the transitional period would end as soon as this liability has been settled and the previous RAF dispensation would then be repealed.

Mr Willemse said that it would not be problematic to include a transitional provision that once all the RAF claims have been paid, the RAF legislation would be repealed as long as it does not affect the rest of RABS. There were transitional provisions in the Bill already.

The Chairperson asked if the Committee could proceed to the next phase.

Mr Ramatlakane said if these transitional provision clauses were added at the end of the Bill then the clause by clause exercise can take place. The Committee would then consider those new transitional clauses once they have been drafted by the Department.

The Chairperson asked who would deal with the social security aspect.

Mr Makgatho replied that he was uncertain about this because it could be a policy matter, and he was almost certain that should come from the Department of Social Development.

Mr Willemse said that even the Constitutional Court refers to the current scheme (RAF) as part of a social security network in the country already, it is viewed as that and nowhere in the RAF Act there is any reference to social security. From a legal perspective it is viewed as a component of a broader social security framework in the country, so RABS is a big move closer to social security principles leaving the fault component behind. Nothing changes with the RABS it is just closer to the social security framework.

Mr Ramatlakane said that his point was that one of the recommendations from the Satchwell Commission was that the system should move towards a broader social security scheme. Therefore we should have a provision at the end of the Bill stating that there will be an integrated legislation that will deal with the broader social security of the country. Through this Bill how do we get there without expressing a view on it? We are making law here and we must have certainty where we are going with it. If it is part of the social security network, why do we not include it in the Bill?

The Chairperson asked the Department to take a short recess and consult with its legal team on this matter and come back with a concise and precise answer.

After the recess, Mr Makgatho proposed a clause that could be added on the Bill. The provision could be inserted to state “upon the extinction of the liability of the RAF, without setting a timeline, it will cease to exist.”

Mr Mpanza said that he did not want to agree to something that he did not understand.

The Chairperson asked the Parliamentary Legal Advisor to read out the proposed clause.

Ms Noluthando Mpikashe, Parliamentary Legal Advisor read the proposed clause: “Once the liability of the RAF is extinguished, the RAF ceases to exist” – the clause was not yet complete, and it would be refined. She noted a transitional clause already in the Bill which was clause 71(2)(a). She advised that the transitional clause in 71(2)(a) encompass the newly crafted clause to address Mr Ramatlakane’s questions.

The Chairperson asked if the Committee should continue with the clause by clause exercise or continue the next day.

Mr Sibande proposed that the process be undertaken the following day as a result of the new clause that has been proposed.

Mr Hunsinger agreed.

The Committee Secretary suggested that the Committee conclude the crafting of the proposed clause today because it might need cross-referencing. In the next meeting the proposed clause would be included in the clause by clause exercise.

The Chairperson stated that the Committee would continue at its next meeting and in the interim the Department can finalise the proposed clause.

The meeting was adjourned.