The run-up to tomorrow’s national and provincial elections offered an overwhelming amount of newsworthy articles and we won’t blame anyone who suffers from electioneering fatigue. With 48 contending political parties (19 more than 2014), it has been close to impossible to keep up with all the promises, predictions, opinions and manifestos.
It might even be quite a challenge for many to find the right blocks for their crosses on the very long ballot papers.
Aprav also had a very busy month since our last newsletter. RABS recently popped up in some media and various ludicrous statements and claims were made, including some ‘simplistic’ views on solutions to replace the RAF. Some of the utterances were blatantly false and others were made out of ignorance or even malicious intent perhaps!? APRAV decided to answer these through a series of social media posts. Our combined response to the utterances are now available on our website and can be used as a handy reference document –http://bit.ly/2VENB9w – and we’re covering it in this 4th edition of APRAV in Action in 2019.
Extract from article in Legalbrief – Published 15 March 2019 Issue No 4659
Parliament: DA TAKES MINORITY REPORTS TEST TO COURT
National Assembly Speaker Baleka Mbete intends opposing an application lodged by the DA last month in the Western Cape High Court regarding the inclusion of detailed minority party views in committee reports on Bills tabled for second readings in the National Assembly and NCOP, reports Pam Saxby for Legalbrief Policy Watch.
The DA’s Chris Hunsinger confirmed it and said the application was lodged with the aim of addressing a procedural anomaly.
National Assembly Rules 288(3)(f) and 166(4) seek to facilitate representative and participatory democracy, accountability, transparency and public involvement – in keeping with the requirements of sections 57(1)(b) and 57(2)(b) of the Constitution (internal arrangements, proceedings and procedures). In the DA’s view, a National Assembly Transport Committee decision last November not to include the rationale behind the party’s position in a committee report accompanying the Road Accident Benefit Scheme Bill to the House flew in the face of these requirements, as the founding affidavit makes very clear.
All of which may explain why the beleaguered piece of proposed new legislation has been relegated to ‘further business’ on the National Assembly order paper and was rapidly overtaken by apparently more pressing matters. While it is not clear whether the Bill itself is before the court, its second reading may need to wait until the DA’s application has been heard and an in-principle ruling made. No date has been set for the case.
Credit – Pam Saxby (@SaxbyPam)
MORE ABOUT RABS
At the end of March the DA legal team received a letter from the State Attorney and responded as settled by Counsel:
– It is agreed that the 6th Parliament would be at liberty, in terms of section 57(1)(a) and (b) of the Constitution, to determine its own proceedings, which may be to proceed with all things related to the above subject matter de novo or it can resolve to proceed with the business from where the 5th Parliament left off.
– In light of the fact that your client cannot bind the 6th Parliament in any way whatsoever at this point, our client is amenable to agree to hold the matter over until the election of 8 May 2019 and until it is clear what the 6th Parliament’s intentions are especially with regards to the above subject matter.
– Our client will require your client to furnish us with a written undertaking that after 8 May 2019, fair notice will be given to us should the 6th Parliament intend to proceed with the work done by the 5th Parliament despite our application which shall still be pending.
– We therefore agree to pend our client’s Application until such time as it is clear what the intentions are of the 6th Parliament.
We await to hear from you in this regard.
“GENERAL DAMAGES” CAUSING HAVOC – Case reference received from Prof Hennie Klopper
Mabaso obo KM v Health Professionals Council of SA and Others (75676/16) [2018] ZAGPPHC 735 (1 Oct 2018)
“We are approached on an almost daily basis by road accident victims who have had their claims wrongly rejected, reduced or simply ignored. This is despite the RAF’s assurance to so-called direct claimants that cutting out lawyers will, firstly, speed up the resolution of their claims and, secondly, save them money, when this is simply totally untrue,” says Kirstie Haslam, partner at DSC Attorneys.
ACTUARIES COMMENT TO MINISTER OF FINANCE ON RABS COSTING!
Minister Mboweni noted in his Budget Speech that: “The Road Accident Fund levy increase is not enough to match the Fund’s R 215 billion liability. We urge the Department of Transport to quickly resubmit the Road Accident Benefit Scheme Bill for Parliament’s urgent consideration. It will help stabilize fuel prices.”
We strongly disagree as fuel prices will be set to rise in order to fund a dual system. We have repeatedly noted that the actuarial costing of the Road Accident Benefit Scheme is outdated. Significant changes have been made to the Bill since the initial costing made 2 years ago.
Algorithm Consultants & Actuaries
On 02 May, Transport Minister Blade Nzimande released a preliminary Easter road safety report that covers 18 – 22 April. He stated that 162 people died on SA’s roads during the 2019 Easter period. BUT THESE STATS ARE FOR THE EASTER WEEKEND ONLY – NOT FOR THE EASTER PERIOD. And excludes road deaths that took place during the public school holidays that preceded the Easter weekend this year.
Minister Nzimande claims “almost 50% decline in road fatalities was partly the result of law enforcement agencies coming together and increasing visibility on major routes.” Really?
He did add that ‘there were fewer cars on the roads compared to last year due to Easter and school holidays being split.’ – but this ‘footnote’ did not make the headline to put the claimed ‘massive reduction’ in perspective.
Aprav would like to know what the traffic volumes through toll gates were compared to Easter weekend 2018. * “Friends in the fuel retail sector indicated that their sales were down by 40%+ compared to Easter last year – more people stayed home”
We do not think there is much to celebrate about this ‘almost 50% reduction’ announcement. Keep in mind the ‘usual daily average’ is 38 road deaths per day throughout the year [EVERY DAY!]
The South African Medico-Legal Society held a ‘crisis’ Medico-Legal Industry Summit on Sunday 5 May 2019. The purpose was to identify key burning issues in the industry and start highlighting likely solutions that Government could consider. Medico-Legal Experts, leading Academics, Senior Government Officials and other key Industry leaders, from all over South Africa, attended. The outcome of this Summit will be submitted to President Ramaphosa.
APRAV presented its key views on the ‘RAF-RABS’ issue. Key realities were highlighted with the bottom line that Government and the Industry must collaborate to find practical, affordable and implementable solutions. Merely continuing with the RAF isn’t sustainable in the long-term, but implementing RABS will be even worse! Proper and appropriate research needs to be done, detailed financial analyses, investigation of alternative solutions, constitutional compliance and most of all – the interest of the public and road users should lead whatever changes are considered. The broader issue of reducing motor vehicle accidents must be part of the solution going forward.
Concerning was the very one-sided RABS views of the newly President elect of the Actuarial Society of South Africa, that stated “RABS is affordable, fair and equitable”. Without much science or rationale he also presented that “RABS will be cheaper and better for claimants”. These comments of course are not based on common facts, since the Department of Transport’s own appointed Actuaries indicated RABS may be 40% up to even 100% more expensive. It is also well documented that rural members of the public will find it close to impossible, in practical reality, to lodge a claim. APRAV made sure that a more complete picture was shared with audience.
Sunday’s presentation was a major departure from the Actuarial Association’s detailed submission to the Portfolio Committee on Transport in May 2018, in Parliament. Is this the newly elected President of the Actuarial Society’s personal views or did a major change occur in this organisation’s position since its parliamentary submission a year ago? If the latter, can we request that the basis for this change be shared with us all?
APRAV supports SAMLA’s initiative fully and will participate and contribute to this endeavour as much as we can. The intention is to facilitate a process that will lead to the establishment if a Medico-Legal Governing Body.
The national APRAV Solutions Task Team, formed five years ago under the guidance of Professor Hennie Klopper, will meet on 11 May 2019.
Find the complete agenda on https://www.aprav.co.za/future-solutions/
Key issues to be covered are the following: 2019-2020 Projects:
a) Short-term RAF Rescue Plan
b) Investigate 3rd party agent/insurance as a possible option
c) Draft RABS version II (with some amendments)
d) National Road Safety Programme
+ Broadening of stakeholder interaction:
a) Parliament Portfolio Committees
b) Medico-Legal Industry + others
c) Other relevant – and Human Rights Organisations
d) Public
Invitations, based on the same agenda, will be sent to all provincial Task Teams on Thursday 9 May 2019.
RAF FACTS that are NOT FAST
Sobering facts from the RAF Annual Report 2018.
It raises serious questions about productivity, litigation and the effect of restrictions on compensation.
234 000 outstanding claims! Add to that annually ±50 000 unresolved claims…
No new ‘scheme’ or system can solve this unless there is political will to address executive leadership issues.
From p20 of the 2018 RAF Annual Report
“Outstanding claims increased by almost 15% from 213 877 at the end of the previous financial year due to an increased number of registrations, as well as claims finalised that have also increased, but could not meet the high influx of new claims registered.”
Current road safety campaigns consist of seasonal deployment of traffic officers. Drunk driving checks, roadblocks and some education up to 7-10 days p.a. on main routes during Easter and Christmas periods. There are no sustained visible road safety campaign throughout the year. And the majority of deaths actually occur in metropolitan areas and not on the ‘long road’ during holiday periods.
APRIL’s most popular FB post attracted reaction and comment from all over: FACTS ABOUT LAST WEEK’S UNINFORMED UTTERANCES ON RAF & RABS
Apparently the Department of Transport (DOT) announced on Wednesday (17 April) that it was in the process of scrapping the embattled RAF for a new scheme. “As government, we intended to replace the current fault-based system administered by the Road Accident Fund (RAF) with the Road Accident Benefit Scheme (RABS),” said spokesperson Ishmael Mnisi. – FACTS:
– Anyone claiming and reporting that the Road Accident Func (RAF) is about to be “scrapped” and replaced by RABS is misleading the public, don’t have the facts and is acting unconstitutionally!
– The RABS Bill has not been approved by Members of Parliament and lapsed at the end of the 5th parliament. It is also subject to a CT High Court Review (a DA RABS Minority Report application).
Even if RABS is approved by MP’s, there is then still a very long Constitutional, affordability and Regulatory Risk Assessment road ahead for this Bill – which it WILL NOT PASS!
– Advocating the imminent introduction of RABS is saying the democratically elected Members of Parliament serves no purpose in making laws and the Constitution and courts are irrelevant.
– The RAF support the objectives that are guaranteed in our Constitution, namely bodily integrity and being safe (including being safe on our treacherous roads). The proposed Road Accident Benefit Scheme (RABS) does not support these..
– We tend to focus on the annual tragedy of the Easter Weekend death toll. But what about the 38 people that die on our roads every day! This is more than 14 000 people per year! The RAF ensures comprehensive loss of support claims by the dependants of accident victims as well as loss of income claims by injured persons – as required by the Constitution. If the RAF is replaced by RABS – who will protect the interests of dependants of the 38 people who die every day?
– The DOT has wasted millions of Rands on PR and staff appointments to promote a bill that is not approved by Parliament and that will be found unconstitutional. Why? Perhaps because the fuel levy (R3.3b cash pm) will simply flow into state coffers, to be utilised freely? Currently these funds can only be used to administer RAF claims, to pay dependants and injured and for treatment needed.
– Lastly the claim that the RAF is not functioning optimally or as cost-effective as what the Act intended or as it used to be. There is management and organisational solutions that can in many cases be fixed relatively easily. The RAF can be cash-flow positive (again) in 12-24 months if the leadership will and managerial commitment exist!
We want to encourage you to follow and participate in the robust and interesting debates that take place on our social media platforms. We need a diversity of opinions to optimise the opportunities that social media offers.
It will be great if you can upload this banner or a similar version on your website to invite visitors to link to the Aprav website. We want to drive traffic to www.aprav.co.za and will appreciate your support. Feel free to send us a note on APRAV@Outlook.com if you are interested.
