No Festive Joy for RAF Claimants

No festive joy for Road Accident Fund claimants

11 DECEMBER 2019 by Zelda Venter originally posted on iol.co.za

 

Pretoria – It looks like a bleak Christmas is on the cards for claimants who are waiting to receive compensation from the Road Accident Fund (RAF).

At least eight of the RAF’s Absa accounts were attached about a month ago by about 346 injured motorists demanding payment.

No Festive Joy for RAF Claimants

As things now stand, RAF owes about R17billion to claimants whose claims were approved either through settlement or via various court orders.

Collins Letsoalo of the RAF’s legal department confirmed in papers before the Gauteng High Court, Pretoria, that the the road fund’s liability at this stage towards injured motorists was more than R17bn.

The RAF only receives on average of about R3.5bn each month.

The RAF last week launched an urgent application to try to stay afloat for now.

It asked the court to urgently lift the attachment of eight of its bank accounts.

In part B of it application, which it intended to bring at a later stage, the RAF asked that it be given at least 180 days to pay pending claims.

But Judge Selby Baqwa struck the urgent application from the roll due to non-urgency, as the bank accounts were already attached in October and the RAF had only now approached the court.

The judge also noted that the attorneys representing the 346 claimants demanding urgent payment, who managed to get the bank accounts attached, were not told about the application.

Letsoalo said in court papers that the RAF wanted to raise loans to pay its dues and was dependent on monthly levies.

“The average claims which are settled and not paid to claimants every month is R4.3bn, which is way more than the R3.5bn which the applicant receives every month.”

He said the money the fund received each month was not enough to pay its debts. He asked for an extension of at least 180 days, instead of the normal 30, in which to pay claimants.

“The applicant will never be able to reach a state where all judgment debts are paid within 30 days from the date on which the court orders are granted against it.” At best it could first start paying matters long overdue, as there was no money to meet all the court orders quickly, he said.

Letsoalo said the fact that eight of its bank accounts were now on ice did not help. “This results in the applicant not being able to transact on its bank accounts and not being able to pay claimants whose payments are long overdue.”

He said although the RAF sometimes delayed making payments, it eventually paid all its debts. He said the only purpose the attachment of the bank accounts would serve was to pay those who applied to be paid first, while the others who had been waiting for payment would have to continue standing in the line.

The total amount sought to be collected in terms of the 346 attachment notices is R173834583.

“There are more than 1000 writs of execution which have been served upon the RAF for payment at its Pretoria office. Each writ is not in respect of just one claimant but in respect of many claimants and for millions of rand… There are other writs of execution also served at the RAF’s regional offices on a daily basis.”

Letsoalo said the RAF was forced to prioritise the payments.

Lawyer Konrad Röntgen said it was becoming increasingly difficult to explain to his clients why they had to wait so long for payment. He said the RAF’s decision not to pay claimants within 30 days, but rather 180 days or later, was an infringement on the public’s right to be compensated.

“If the RAF had properly-trained claims handlers, claims could be settled without people having to go to court.” He also said the RAF did not want to settle matters, but would rather turn to court, which escalated legal costs.

Röntgen said the RAF should be in a much better financial situation now than in the past, as under the new legislation loss of earnings had been capped and general damages could only be claimed in very serious cases.

Another RAF lawyer, Jean-Paul Rudd, said the entity and government had responsibilities towards motorists, which were vested in the Constitution.

“The RAF can only be disestablished or de-funded through a legislative amendment. The RAF’s existence is rooted in the state’s obligation to respect, protect, promote and fulfil the right to freedom and security of the person. This entails an obligation not to cease funding the entity. The RAF was specifically established to pay compensation to accident victims. This is especially so since the RAF Act deprives injured persons from claiming against the common law wrongdoer.

“Legislation that purports to de-fund the RAF or to terminate it, without transferring its debts to another entity, would be susceptible to a constitutional challenge on the basis that it constitutes a failure by the state to fulfil its obligations in terms of the Constitution, to respect, promote and fulfil the right to freedom and security of the person,” he said.

RAF amendment bill could boost loss of support claim expenditure by 70%

28 January 2019 – By Jacques Coetzee originally posted on mg.co.za

The Road Accident Fund (RAF) is already in a shambles. But the proposed alternative, the Road Accident Benefit Scheme (Rabs) could make it worse, especially because it would also allow drivers at fault in an accident to lodge claims. This will have serious consequences.

The Road Accident Fund’s net deficit could expand from the R206.3-billion recorded in the 2017-2018 financial year to at least R225-billion should the planned changes go ahead.

If drivers at fault are to be included in claims, the implementation of Rabs is estimated to cause the expenditure of loss of support claims to jump from R3-billion to R21.6-billion, according to Professor Hennie Klopper from the University of South Africa, who heads of non-profit group Protection of Road Accident Victims (Aprav).

He says that this alone equates to an increase of at least R1 a litre on the fuel levy.

Klopper adds that the loss of support claims is only one example of what would drive up costs.

“The claims multiplier effect also applies to loss of income, medical and funeral costs,” he says. “The increased number of claims and the periodical payment of benefits is set to drastically escalate Rabs administration costs. No estimates have been given by government.”

The introduction of Rabs as a replacement for the RAF failed late last year when too few members of Parliament attended the sitting on the matter. Parliamentary records show that the Rabs Bill lapsed on January 9. According to the rules of the National Assembly, if a Bill has lapsed, the process has to start again from scratch, which according to Aprav could take up to two years.

Deidre Carter from the Congress of the People (Cope), who used to sit on the portfolio committee on transport ,which debated the bill last year, says there’s been very little support for the controversial Bill.

“Even though the ANC tried to push it through a second time, they failed. Every single political party, with the exception of the ANC, felt that it is not in the best interest of the people.”

The Bill includes a controversial amendment to the current accident compensation scheme referred to as the no-fault based system. According to the RAF, this amendment would remove the requirement to establish fault as a determinant to qualify for benefits.

The chairperson of the portfolio committee on transport, ANC member Dikiledi Magadzi, hopes that the Bill will be brought before Parliament again.

“I [can] still confirm that the Bill has not lapsed. That can be so if we fail to process it before the rise of the fifth Parliament. For now, I [the portfolio committee] shall wait for the Parliament programming committee to reschedule when we resume during February,” Magadzi says.

She adds that the biggest overhaul of the Act is the addition of the no-fault system. “We are saying, let’s enable the issue of who’s at fault of the accident to be dealt with by law enforcement, so we can focus on the accident itself.”

According to opposition parties who voted against the Rabs Bill and Aprav, the Bill is not in the interest of the South African people and is completely unaffordable.

“With the no-fault system, even a drunk driver causing an accident will be able to claim,” says Carter.

The RAF argues that the no-fault clause is meant to simplify the tedious and expensive current bureaucratic system and make available timeous and appropriate healthcare based on a reasonable tariff.

According to an analysis of RAF claim applications between 2013 and 2017 conducted by the Mail & Guardian, it takes an average of 972 days to finalise a claim that requires medical certification. In addition, the RAF spent R8.8-billion on legal and other expert costs in the 2017 to 2018 reporting period.

Magadzi says that there’s a slim chance of the Bill being put forward to Parliament within the next few months, if not within the next year or two. “The debates have been done,” she says. “The only thing that is needed is to curate it, then it goes to the National Council of Provinces.”

Pieter de Bruyn from Aprav says the organisation will take all the steps required to prevent this Bill, in its current form, from being passed, even if it needs to approach the courts.

“For reasons not known to Aprav, the department of transport is hellbent on getting Rabs through, with no adequate research, planning, consultation or consideration of the complicated realities of South Africa,” he says.

The right to road safety

The right to road safety

1 June 2018 – Originally posted on derebus.org.za

By Prof Hennie Klopper

South Africa is internationally one of the most unsafe countries for road travel (see ‘South African road deaths vs the world’ https://businesstech.co.za, accessed 9-5-2018). Fourteen thousand of its citizens (38 per day) die on its roads and as many as an estimated 524 000 persons – based on annual hospitalisation figures and fatality rates – are annually injured in road crashes.

The Road Safety Annual Report  2017 published by the International Traffic Safety Data and Analysis Group and the International Transport Forum states at p 16 that out of 40 countries SA has the highest fatality rate per 10 000 vehicles (see http://dx.doi.org, accessed 9-5-2018).

Financial cost

In ‘Costs of crashes in South Africa – Research and Development Report August 2016’  by the Council for Scientific and Industrial Research (CSIR) and commissioned by the Road Traffic Management Corporation states that the 2015 cost to the South African economy is stated as R 142,95 billion equating 3,4% of Gross Domestic Product (GDP) (www.arrivealive.co.za, accessed 9-5-2018). These costs are calculated on the graph (on p 21) by the Road Traffic Management Corporation (RTMC) report at p ii.

According to GA Kumar, TR Dilip, L Dandona, and R Dandona in ‘Burden of out-of-pocket expenditure for road traffic injuries in urban India’ (2012) BMC Health Services Research 285 the pervasiveness of financial cost of road crashes is illustrated by a study in India where public spending on health is low. Significant ‘out-of-pocket expenses’ for the mostly impoverished communities are high – the average being 2,5 times more than average usual annual medical expenditure. Transport costs, food, etcetera, was equal to the average medical expenditure for hospitalisation due to any other illness, creating a double burden on households.

Social and intangible consequences of road crashes

A study conducted by the European Federation of Road Traffic Victims (FEVR) indicated that immediate and long-term psychological, practical and legal support was essential. In general, rehabilitated and disabled victims, victims and surviving family members were satisfied with the medical and health care received, but most felt that criminal proceedings, court proceedings and insurance issues were unsatisfactory. Psychological consequences of survivors and family members, included: insomnia; headaches; nightmares and general health complaints. Survivors reported increased use of medication (especially tranquillisers and sleeping tablets) as well as increased consumption of alcohol (see European Federation of Road Traffic Victims (FEVR) 1997 ‘Impact of road death and injuries Proposal for improvements’, European Commission, Geneva, Switzerland.)

Road safety management

The RTMC is responsible for road safety in SA and operates under the auspices of and reports to the Department of Transport.

The Department of Transport in cooperation with the Road Safety Advisory Council have devised a National Road Safety Strategy for the period of 2015 to 2020, which deals with practical issues, such as –

  • million vehicle checks a month project;
  • re-energise AA brand – with RTMC;
  • Administrative Adjudication of Road Traffic Offences implementation;
  • implement periodic vehicle testing;
  • regulation of the driving school industry;
  • learner licences for matric learners; and
  • improved professional driver permit training and qualification.
 

Cost

category

Total cost of road traffic crashes
(RTC) (R million)
Fatal Major Minor Damage

only

Total %
Human casualty costs 58 332 24 794 14 546 1 358 99 030 69,3
Vehicle repair

Costs

218 809 2 902 17 395 21 326 14,9
Incident costs 2 018 5 113 2 740 12 723 22 595 15,8
Total cost 60 569 30 716 20 189 31 477 142 951

Further strategies, such as, road safety management, infrastructure, etcetera echo the government’s international road safety obligations.

These strategies are devoid of unequivocal, conscious concentrated and concerted actions focused on law enforcement. The building of capacity for law enforcement is not mentioned, which is central to the Australian Road Safety Action Plan, which emphasises the reduction of drunk driving and the enhancement of national law enforcement (http://roadsafety.gov.au, accessed 11-5-2018). For example, since the introduction of random breath testing in Australia in 1982, fatalities decreased from a high of 28,9 per 100 000 of population in 1970 to 4,1 in 2014. In 2017 the New South Wales (NSW) Government spent AUD$282 million on road safety. The Australian Government is responsible for regulating safety standards for new vehicles, and for allocating infrastructure resources, including for safety, across the national highway and local road networks (https://infrastructure.gov.au, accessed 11-5-2018). In SA Road Safety is a national responsibility, for example, the 2015/2016 Gauteng Provincial transport budget did not make any provision for road safety. Department of Roads and Transport was allocated R 6,6 billion for its core programmes. This was allocated to five programmes, namely, Administration (R 318 million); Transport Infrastructure (R 2,26 billion); Transport Operations (R 2,19 billion); Transport Regulations (R 281 million) and Gautrain (R 1,5 billion) (www.polity.org.za, accessed 23-5-2018).

A concerted effort to the active promotion of road safety in SA is mostly only visible during peak holiday periods, such as Easter and Christmas. The results of these periods are usually touted as being a positive outcome of such campaigns.  This strategy is misconceived. First, fatalities occur throughout the year at a rate of 14 000 per annum. This figure translates to 1 167 deaths per month or 39 deaths per day. During the 2017 December holiday period 1 527 South Africans lost their lives. Of these 37% were pedestrians (see Paul Herman ‘Pedestrian deaths biggest contributor to festive season road death toll’, www.news24.com, accessed 11-5-2018). The festive season started with the schools closing on 6 December 2017 and ended when they re-opened on 17 January 2018, which is a period of 42 days. The corresponding previous period was from 7 December 2016 to 11 January 2017 or 35 days. The death rate for the 2016/2017 festive season was 1 714 (49 per day) and for 2017/2018 1 527 (36 per day). When the period of the festive seasons for the periods compared are equalised to 35 days, the fatalities during 2017 reduces to 43 per day – a positive outcome of six fatalities. This outcome does not consider the comparative traffic densities for the periods compared, which were not revealed in the government’s press releases. Against the six lives saved during the 2017/2018 festive season, 12 837 South Africans lost their lives in the 11 months preceding the 2017/2018 festive season. Second, most fatalities occur within a 60 km radius from the deceased’s residence (see CM Leveau and MN Vacchino ‘Residence place as a risk factor in different types of fatal car accidents’ 2015 22(2) International Journal of Injury Control and Safety Promotion 95 www.tandfonline.com, accessed 11-5-2018 and see also P Lehohla ‘Road Traffic Accident Deaths in South Africa, 2001 – 2006: Evidence from death notification’ www.statssa.gov.za, accessed11-5-2018). This is because more kilometres are travelled near a road crash victim’s work and residence compared to festival season and vacation journeys.

The Victoria, NSW, zero tolerance approach was adopted by the KwaZulu-Natal (KZN) provincial government in 1998 with limited success. Reasons for the failure have been researched and were given as the limited success in the transfer of skills, knowledge and understanding of the theory and practice of the Victoria’s Road Safety Strategy leading to the conclusion that the Victoria Solution cannot be transposed into foreign environments without significant review and adaptation based on local expectations and conditions. Nothing has transpired since and KZN road fatalities went into serious regression since 2002. No recent evaluation could be found but the 2016 RTMC fatality figure for KZN is given as 2 715 (see D Myers ‘The KwaZulu-Natal Road Safety Project five years on: Success or myth? An External evaluation’ https://repository.up.ac.za, accessed 11-5-2018).

The reasons advanced for South African road fatalities are rampant corruption in the obtaining of driver’s licences, inadequate and improper driver testing, bribery of traffic officials, ineffective proper and ethical traffic law enforcement (see Justice Project South Africa ‘Road Safety’ www.jp-sa.org, accessed 11-5-2018.)

From the 2015/2016 RTMC Traffic Offence Survey report, indications are that compared to speed checking, offences such as ignoring barrier lines and dangerous overtaking were by far offences that were not adequately policed (speed checking amounted to 270 000 enforcement actions. Combined dangerous overtaking (inconsiderate driving) and ignoring barrier lines to 105 000 actions (see Traffic Offence Survey December 2016 www.rtmc.co.za, accessed 11-5-2018). Common causes of road traffic collisions, include –

  • speeding;
  • distraction through use of cell phones;
  • dangerous overtaking;
  • failing to indicate;
  • failure to use seat belt or crash helmet;
  • driving without taking weather conditions into account;
  • driving while intoxicated;
  • tailgating; and
  • unsafe infrastructure.

Constant and effective law enforcement has the potential to produce effective and immediate positive results due to the correlation between the number of vehicles involved in collisions and traffic offences (see RTMC 2011 Road Traffic Report www.arrivealive.co.za, accessed 11-5-2018).

Another contributory reason for the lack of road safety may be the insufficient number of traffic officers (usually blamed on lack of funding). Nationally there are only 18 000 officers when 100 000 are required (see S Sesant ‘Dire shortage of traffic officers’ 23-11-2016 accessible at: www.iol.co.za, accessed 11-5-2018).

Of course, road safety is not only concerned with law enforcement. Other aspects such as infrastructure, safe vehicles, road user behaviour and post-crash care are relevant and should be separately thoroughly investigated.

Road safety funding and related spend

Road safety funding and related spend

It is obvious that to be effective the RTMC must be adequately funded. A comparison between the RTMC (prevention agency) and the Road Accident Fund (RAF) (agency dealing with the consequences of road crashes) can shed light on both the adequacy of funding and the priorities in spending.

Despite extraordinary high number of road traffic crash deaths and injuries, RTMC government funding has remained virtually static at approximately R 80 million per annum (see RTMC Annual Reports at www.rtmc.co.za, accessed 11-5-2018). Compare this with NSW a ‘province’ of Australia’s 2017 road safety budget of AUD$ 282 million (close to R 3 billion)).

This is inexplicable considering the R 142,92 billion cost of road traffic crashes to the South African economy. The higher expenditure on the consequences of road crashes (RAF) than its prevention is entirely short sighted and imprudent. More so, in view of the additional R 10 billion per annum government funding of the RAF (consequences) in 2015/2016 fiscal year under unfavourable economic circumstances. This funding could preferably have been allocated to the RTMC to financially bolster its law enforcement capabilities, reduce road crashes and consequently its exposure to the consequences of road traffic accidents. Prioritising prevention of road crashes may make the RAF funding problem disappear. The government’s behaviour rails against its avowed general overarching policy of ‘A better life for all’. Especially against the backdrop of the fact that 37% of road accident victims are pedestrians who may be counted as the poorest of the poor (see ‘South Africa’s shocking road death numbers at highest level in 10 years’ Businesstech 9-6-2017 https://businesstech.co.za, accessed 11-5-2018).

Apart from the financial reasons for the increased and active promotion of road safety, there is another cogent human rights issue, which should guide the government when dealing with road safety and that is the fundamental right to safety from all sources of physical and other harm. This includes harm caused by road crashes.

Right to road safety

Section 11 of the Constitution provides that: ‘Everyone has the right to life’, while s 12(1)(c) states that everyone has the right to freedom and security of the person, which includes the right ‘to be free from all forms of violence from either public or private sources’. Section 21(1) guarantees the right to freedom of movement. I submit that the conjunctive reading of these sections lay the basis for a right to live free from the threat of death and debilitating injury. It, in my view, particularly obligates the state to ensure that its citizens are not exposed to violence, which originates from the use of roads.

Section 12(1)(c) underpins s 3 of Universal Declaration of Human Rights of the United Nations. This international obligation of governments has seen the establishment of the rights of the child, the rights of women, the rights of workers, and the rights of people in development in general. These rights have further been elaborated and substantiated by international human rights instruments, such as the International Covenant on Economic, Social and Cultural Rights; the Convention on the Rights of the Child; the Declaration on the Elimination of Violence Against Women; and the Employment Policy Convention (Convention No. 122) (see D Mohan ‘Safety as a Human Right’ Health and Human Rights Harvard University 2003 161 and United Nations, International Human Rights Instruments  www.uohchr.org, accessed 11-5-2018). These rights and their extension, lay the basis for the recognition of a right to safety (Mohan in Mike Mitke ‘WHO declares the individual’s right to be safe’ (2002) 17 Journal of the American Medical Association 306.) This notion of a right to safety was translated by the Delhi Declaration into material form and explicitly stated by the Montreal Declaration at the sixth World Health Organisation Conference on Injury Prevention and Control held in Montreal in May 2002. Section 1 states that safety is a fundamental right and is essential for the attainment of health, peace, justice and wellbeing. Section 11 places a responsibility on states to respect and protect the right to safety and to develop mechanisms to protect the people’s right to safety against any violation by agencies, including corporate bodies.

Based on the Constitution and internationally accepted principles, I submit that South Africans have a right to live free from debilitating injury and threats, which impinge on their right to life. In the context of road travel this right translates into a governmental obligation to protect its citizen’s right to safety. Or stated differently, to take practical, pro-active and efficient action to ensure effective road safety.

Conclusion

The economic costs of traffic crashes amount to a staggering R 142,92 billion per annum. Although the South African government has framed an impressive and credible road safety strategy its practical implementation seems to be inefficient and/or ineffective. Judged on the level of its spending on road safety, its political will to effectively grapple with the pressing road safety issue is not demonstrated. The lack of adequate road safety and its consequences is costing the country billions and unduly exposing its citizens to death and debilitating injury which impinge on their constitutional right to life and right to be free from all forms of violence from either public or private sources. In this regard the citizens of this country have a constitutional right to road safety and the government has a constitutional duty to take effective and practical steps to ensure road safety and the consequent drastic reduction of road crashes to protect its citizens who are involved in road crashes and of which a sizeable proportion are the poor against the likelihood of violence emanating from their use of South African roads. After all, this in completely in line with the government’s overarching policy of ‘A better life for all’. Ignoring its duty in this regard can hardly be said to be the hallmark of a caring government.

Professor Hennie Klopper BA LLB LLD (UFS) is an Emeritus Professor in the Department of Private Law at the University of Pretoria.

This article was first published in De Rebus in 2018 (June) DR 20.

Pretoria law firm to challenge RAF court directive

Pretoria law firm to challenge ‘laborious’ RAF court directive: ‘more costs, more backlogs’

20 September 2019 – By Dan Meyer originally posted on timeslive.co.za

Pretoria law firm to challenge RAF court directive

The directive affects personal injury claims in court.
Image: 123RF/dedmityay

A Pretoria law firm will launch an application at the Pretoria High Court to overturn a practice directive that it believes is leaving cases left to perish in an ever mounting backlog and the risk of enormous administrative costs.

A law firm is going to the high court in Pretoria in a bid to overturn a practice directive it believes will worsen a massive case backlog in the courts.

Gert Nel attorneys, which manages thousands of road accident victim cases in an attempt to resolve appropriate settlements in court, as opposed to direct settlements claimed through the Road Accident Fund (RAF), argue that the directive is overly laborious and will result in a backlog of about 6,000 cases continuing to pile up.

The directive affects personal injury cases.

“[Our firm] intends to file an application to have the so-called ‘Practice Directive 2’, which came into effect on the 8th of July 2019, declared null and void,” said personal injury attorney Gert Nel.

“If only 50% of these matters are subjected to the administration required to comply with Practice Directive 2, the additional cost implication to the RAF and ultimately the South African taxpayer will be an astounding R75 million,” he said.

The directive was put in place to manage the case flows in court by issuing “trial readiness certificates” before matters are heard, but Nel believes the directive will achieve the opposite.

“The high bar introduced by ‘Practice Directive 2’ to achieve trial readiness, is more likely to keep matters from being enrolled for trial, rather than enrolment being speeded up, and brings about an enormous increase in costs, on average R 50 000.00 per matter, and in this regard achieves exactly the opposite of the end it ought to have been designed for,” he said.

The Sunday Times reported in April that 6,000 RAF case files, some more than 10 years old, in deputy judge president Aubrey Ledwaba’s office, were likely to never see their day in court after costly medico-legal documents attached to them lapsed.

RAF and rights body clash over treatment of claimants

Insults fly as RAF and rights body clash over treatment of claimants

11 October 2019 – By Wendy Knowler originally posted on timeslive.co.za

RAF and rights body clash over treatment of claimants

The RAF and the Association for the Protection of Road Accident Victims (APRAV) traded bitter accusations this week, each accusing the other of self-interest at the expense of claimants.
Image: 123RF/Dmitry Kalinovsky

If you need to claim from the Road Accident Fund, are you better off claiming directly from the fund or hiring a lawyer to do it for you? Well, that depends who you ask.

This week, the RAF and the Association for the Protection of Road Accident Victims (APRAV) – a “human rights group established to protect the rights of road accident victims” – traded bitter accusations, each one accusing the other of self-interest at the expense of claimants.

APRAV fired the opening salvo, expressing its “deep concern” that the fund is spending millions of rands on operational and campaign costs “to aggressively recruit road accident victims to its Claim Direct service”.

APRAV chairman Pieter de Bruyn called the campaign “illegal and unconstitutional”.

“The majority of these cases are under-settled as a result the RAF’s lack of legal support and the injured party’s lack of knowledge of the law.

“This leads to legal action against the RAF for under-settlements, resulting in the RAF spending millions on legal costs that should have rightfully been paid out to victims,” he said.

“This despite the RAF’s assurance that cutting out lawyers will speed up the resolution of their claims and save them money.”

Complying with the RAF Act was a complex medical and legal process and an incorrect or incomplete claim significantly disadvantaged a claimant, de Bruyn said.

A road accident victim who claims through a lawyer is protected by the Attorney Fidelity Fund, an insurance fund to sue a lawyer if exploitation can be proved, he said.

“There is no such insurance if a victim receives an unjust amount.”

Placing RAF offices in hospitals was “uncomfortably close to the unethical practice of touting”, he said.

Responding, the RAF’s acting chief marketing officer Dr Adriaan Taljaard told TimesLIVE that the APRAV was made up of firms of attorneys and medical expert service providers who did RAF work – “all of whom earn a handsome living from RAF claims, and as such all have a direct, substantial, financial interest in road accident victims not claiming directly with the RAF”.

Not so, according to De Bruyn. More than half of APRAV’s supporters are not attorneys, he said.

Taljaard continued that if the fund paid an attorney R100,000 in settlement of a claimant’s claim for damages, the attorney would first deduct R25,000 “or more” in fees, plus disbursements, such as the fees of medico-legal expert reports, actuarial reports, assessor reports, and others.

“In the end the represented claimant receives but a fraction of the settlement amount, after the attorney and the other APRAV supporters have taken their share.”

But had the claimant chosen to claim directly, they would received the full R100,000.

The RAF’s assistance to claimants to claim directly was not illegal and not unconstitutional – quite the contrary, Taljaard said.

“The RAF Act makes provision for road accident victims to lodge their claims directly with the RAF. However, few claimants were aware of this right and even fewer claimants elected to exercise the right, so such claims were a rare occurrence until the RAF started to market the service, at which point APRAV supporters started to feel the pinch,” he said.

A direct claim management policy – known as the framework – regulated the internal management of direct claims, he said, requiring RAF employees to ensure that direct claims are neither under-settled, nor over-settled.

“Where breaches of the framework are identified, such matters are managed under the RAF’s disciplinary policy,” he said.

Most direct claimants were low-income people who can’t afford lawyers, whereas claimants represented by attorneys tended to be relatively higher income earners, Taljaard said.

As of September 30 2019, he said, it took 605 days to finalise a direct claim versus 1,331 days to finalise a represented claim.

FAST FACTS

– The RAF is mainly funded by a fuel levy, currently R1,93 per litre.

– Who can claim? A person injured in a road accident, except for a driver who was the sole cause of the accident; the dependent of a deceased breadwinner and a close relative of the deceased who paid for the funeral.

– A detailed list of RAF’s Regional Offices, hospital centres, customer service centres and walk- in centres is available on its website: www.raf.co.za

– If you are in doubt about a claim settled directly by the RAF, email hello@aprav.co.za. More information can be found on www.aprav.co.za

APRAV’s De Bruyn said the RAF’s “lame narrative that continuously focuses on crooked and greedy lawyers” shouldn’t distract from the fact that “the RAF is acting unconstitutionally and that victims are being disadvantaged daily because of the RAF’s unlawful activities and incompetence on top of it”.

The attorney’s fee was seldom the maximum 25%, he said, and there was “absolutely no opportunity” for an attorney to charge more fees than provided for, as all fees were scrutinised by the courts.

“The important role of an attorney in personal claims is grossly underplayed,” De Bruyn said.

“The majority of represented claimants do not have the finances to run a personal injury claim where medico-legal reports can cost up to R25,000 per report – these costs are carried by the attorneys and some experts for up to seven years.”

As for the RAF’s statement that direct claims were finalised sooner than represented claims – that was “an obviously subjective measure”, he said.

“The RAF unjustifiably litigates represented cases after neglecting to properly investigate these claims.

“They then settle 99% of these claims on the steps of the court. What a waste of taxpayer money. This delays compensation to deserving road crash victims and costs R10.3bn (30% of the RAF budget).”

A large proportion of direct claims are prescribed through neglect, De Bruyn said.

“The fund let 11,000 direct claims prescribe in a single 18-month period alone – APRAV has RAF documented proof of that. That’s 11,000 desperate road accident victims who were claiming direct in the hope of receiving support and compensation that they desperately need.”

The RAF Act provided that only practicing attorneys may deal with claims and prohibited measures to circumvent this principle, De Bruyn said.

“Very few, if any, of RAF claims handlers dealing with direct claims are practicing attorneys. The RAF’s own annual report confirms that the amount paid out to direct claimants is much less than that of claimants that are represented by professional support.”

APRAV warns of pitfalls in Road Accident Fund’s Claim direct service

APRAV warns of pitfalls in Road Accident Fund’s ‘Claim direct’ service

30 September 2019 – Originally posted on rnews.co.za

APRAV warns of pitfalls in Road Accident Fund’s Claim direct service

East London – The Association for the Protection of Road Accident Victims (APRAV) has expressed deep concern that the Road Accident Fund (RAF) is spending millions of rands on operational and campaign costs to aggressively recruit road accident victims to its ‘Claim Direct’ service.

According to Pieter de Bruyn, chairperson of APRAV, a human rights group established to protect the rights of road accident victims, the RAF’s illegal and unconstitutional ‘Claim Direct’ offering is destroying the lives of victims every single day that it continues.

He says that victims are being coerced into lodging a ‘direct claim’ directly with the RAF without the assistance of a legal representative. The RAF effectively steps into the shoes of an attorney, supposedly taking over the role of due professional care but often takes advantage of these direct claimants by not processing their claim fairly or timeously and often under-settling the claim.

“The majority of these cases are under-settled as a result the RAF’s lack of legal support and the injured party’s lack of knowledge of the law. This leads to legal action against the RAF for under-settlements resulting in the RAF spending millions on legal costs that should have rightfully been paid out to victims.

APRAV says the RAF falsely promotes ‘Claim Direct – easy as 1-2-3’ yet it is a clear case of over-promising and under-delivery.  While the RAF’s #KeepItSimple

campaign encourages road accident victims to claim directly without legal representation saying that the public needs no ‘middlemen’, this is misleading and irresponsible.

“Consumers are realising that the RAF does not keep its ‘Claim Direct – it’s Easy’ promises. We receive regular feedback from numerous attorneys who get daily calls from victims whose claims have been wrongly rejected, reduced or simply ignored.

“We hear countless stories from road accident victims who were coerced into claiming directly from the RAF and are then ‘forgotten’. This is despite the RAF’s assurance that cutting out lawyers will speed up the resolution of their claims and save them money.”

“To adhere to the requirements of the RAF Act is a complex medical and legal process and an incorrect and or incomplete claim will significantly disadvantage any claimant and may even result in a zero claim,” de Bruyn says.

If a claimant allows the RAF to handle their claim, the government agency preparing the claim is the same government agency deciding on the size of the claim and is the same one victim’s appeal to if they are not satisfied. The fundamental and inherent risk and flaw is clear.

Furthermore, the RAF appoints its own attorneys and medical experts (paid for by the RAF), who all act on the RAF’s instructions to protect their financial exposure to a claim.

APRAV says there are thousands of requests for claims to be reviewed or appealed due to under-settlement and that the RAF’s own statistics indicate that thousands of direct claims lapse or expire.

APRAV says consumers must ask themselves of what the chances are that anyone in this process will fight for their rights and get them a fair financial settlement?

“Keep in mind that an experienced attorney will carry thousands of rands in expenses on behalf of the claimant for as many years as it takes to settle the claim.

“This includes getting all relevant documentation (the SAPS accident record, hospital records, paying medical experts for the evaluation of the impact of injuries on the victim’s ability to work) and they deal with the often-reluctant RAF attorneys, and persevere and drive their victim’s claim until it is settled fairly and properly,” de Bruyn says.

He further explains that a victim without legal representation has little chance of receiving a fair settlement as consumers using the services of a legal expert are protected under the Attorneys Act, through which they can sue litigators who are suspected of exploitation.

If a victim claims through a lawyer, there is also protection by the Attorney Fidelity Fund [AFF], an insurance fund to sue a lawyer if exploitation can be proved. With the RAF, there is no such insurance if a victim receives an unjust amount.

Further exacerbating this are RAF hospital-based offices to ‘facilitate’ claim submissions – a practice uncomfortably close to the unethical practice of touting.

Touts approach victims who are confused, suffering and in pain. They are persistent and convincing with promises of ‘quick and cost effective’ settlement payments and make wild assertions about securing millions of rand in compensation for their injuries and suffering.

In South Africa, the Law Society of the Northern Provinces (LSNP), KwaZulu-Natal Law Society (KZNLS) and the Cape Law Society (CLS) all prohibit the practice of touting. Lawyers and their representatives are not allowed to approach potential clients directly for work.

“It is impossible for the RAF’s Claim Direct Service to offer just advice and counsel to road accident victims, and it’s a clear case of a conflict of interest which is impacting on the people who desperately need fair and objective due process.  We urge all road accident victims to be aware of the pitfalls when working directly with the RAF.

Unless you are absolutely convinced that the RAF is a competent, service orientated and trustworthy state organisation with only your best interest at heart – please think again before allowing the RAF to ‘manage’ your claim,” de Bruyn concludes.

He urges the public to contact APRAV if they have any doubt about a claim settled directly by the RAF on hello@aprav.co.za.  More information can be found on www.aprav.co.za.

Road safety tweaks to save lives and money – Paul Hoffman

17 September 2019 – By Chris Bateman originally posted on biznews.com

What makes this story so valuable is that it not only outlines the war-casualty extent of our annual road carnage, but provides practical solutions needing just government and insurance industry willingness. These two pivotal stakeholders have the capacity and it’s in their own interests, (not to mention government’s Constitutional obligation). The cost of inaction? An estimated 14,000 lives annually, costing some R40bn. That’s a lot of money and heartache which could be put to better use. Paul Hoffman’s argument ticks every box of a government serious about addressing the crisis. From their core electorate suffering the most, to complying with the Bill of Rights, to which it was the major contributor. Read on to discover solutions tried and tested on this continent which go to the heart of the problem, particularly our taxi industry. Then there’s the long-term insurance industry which encourages drunken driving by routinely paying out policies of drivers over the limit, totally unlike the short-term industry which vigorously enforces such a pay-out exclusion clause. After reading this argument, the only question remaining in my mind is; why are they not putting these proven measures in place? Therein perhaps, lies the real story. – Chris Bateman

Road Safety is a Human Rights Issue

By Paul Hoffman*

The carnage on South Africa’s roads has reached alarming proportions. According to the Medical Research Council some 14,000 people lose their lives on our roads each year. The cost to the country of road accidents is in the region of R40bn per annum. If the scourge of death on the road is successfully dealt with these considerable funds can be re-directed to infra-structural needs on which the money can be far better spent.

It is accordingly imperative that the State reacts to the crisis, in which the annual death toll exceeds that in the Iraqi war, in a manner which is both reasonable and accountable. The detailed statistics kept by the Arrive Alive campaign show that the brunt of injuries and fatalities are borne by disadvantaged communities. In a country in which there are about ten times as many people as vehicles, it is obvious that the poor are vulnerable as users of public transport and pedestrians on or near roads. But the problem goes further than this: The statistics indicate that the rate at which taxi passengers come to grief is four times higher than for other road users.

The perils which road users face on a daily basis can be regarded as a human rights issue. This issue calls for urgent remedial action by the State, which has the constitutional obligation to respect, protect, promote and fulfil the human rights which enjoy entrenched status in Chapter 2 of the Constitution – our Bill of Rights.

Everyone in the new South Africa has the right to life, even convicted mass murderers. But on our roads about 14,000 people per annum lose their lives in the ongoing chaos and carnage.

This loss of life has a knock-on effect in that bread-winners die, children go hungry, the economy is deleteriously affected and the bereaved friends and families of those who die on the roads are left to grieve and suffer anxiety for their losses. Those who have claims for damages have to go through the tortuous processes of the Road Accident Fund whether to prove fault and quantum as is now the case, or simply quantum, as will be the case, if amending legislation becomes law and survives constitutional challenge.

The right to bodily integrity and security is enshrined in the Bill of Rights. Everyone has the right “to be free from all forms of violence from either public or private sources”. These words are a direct quote from section.12 (1) (c) of the Constitution.

That there is violence on our roads is beyond question: Not only the intentional violence involved in running battles between rival taxi-operators, in hijackings, stone-throwing and cash-in-transit robberies, as well as the depravity of that ever increasing band of road-ragers, but also the negligent violence inflicted in most serious accidents on the persons and property of those involved. Accident victims receive their injuries by violent means. Obviously so. But our Constitution sets a standard that demands freedom from violence; here too, the State is failing in its obligation to protect everyone from the endemic violence on our roads.

The right to human dignity, along with equality and freedom, are the most basic rights enshrined in the Constitution and dignity has repeatedly been singled out by the Courts as a fundamental right in our new democratic order. The Bill of Rights explicitly states that everyone has “inherent dignity and the right to have their dignity respected and protected”.

Road travel these days is not a particularly dignified activity. Dodging potholes, avoiding taxi wars and road-raging motorists, swerving around intoxicated pedestrians on highways, lingering in traffic jams at rush hour and praying to reach one’s destination intact, are not the stuff of a dignified road lifestyle. Yet, the value system in place demands respect for and protection of everyone’s dignity. There is nothing dignified in dying violently in a collision, nor even in sustaining serious injuries in a mass of mangled metal.

The right to freedom of movement enshrined in the Bill of Rights becomes illusory when the road network is converted into a war zone where citizens fear to tread, whether by day or more especially by night. The lack of proper maintenance of roads, the construction of roads with blind rises and other inherently hazardous design features and the serious shortage of effective law enforcers on the roads all serve to impair the freedom of movement to which we are entitled.

As already pointed out, the State is obliged under section 7 (2) of the Constitution to respect, protect, promote and fulfil all of the human rights discussed thus far. It is simply not doing so on our roads. These rights are not socio-economic “second generation” rights which are intended to be “progressively realised”. They are rights which are all already due to and claimable by everyone.

The Courts are the custodians of the values contained in the Bill of Rights. When the State fails to live up to the standard set by the founders of our Constitutional democracy, the Courts are there to afford relief to those who feel aggrieved by or dissatisfied with the State’s shortcomings.

The current manner in which national, provincial and local roads are policed, patrolled, controlled and monitored is demonstrably unlawful and in violation of the human rights of all road users whether they are drivers, passengers, pedestrians or cyclists.

Urgent steps are required to make roads safer. The number of deaths on the roads indicates that we are in a war situation. The solutions are obvious; radical improvement is needed in three main areas: firstly, law enforcement on roads, especially for those who speed and those who drive drunk, secondly, maintenance and construction of roads, and thirdly, the attitude of drivers toward the privilege of using the roads. The academic experts refer to proper Enforcement, Engineering and Education as the appropriate way forward.

The availability of more affordable vehicles from the East will lead to a population explosion of vehicles one the new dawn kicks in fully. A flood of tourists can be anticipated due to the high rankings of our ports, game reserves and cultural opportunities. As these factors will bring more people onto the roads, it is imperative that the roads and the safety of road users be given top priority.

Speed plays a destructive role in most accidents. The technology to control speed is available. The taxi recapitalisation project is an excellent starting point for the installation of modern “hi-tech” devices aimed at intelligent speed adaptation (ISA) of vehicles. Traffic offenders could routinely be directed to fit such devices as part of their punishment. New vehicles should come with ISA equipment as a standard feature. Most freight fleets already have similar equipment and have benefited by it. Resistance to the notion of “Big Brother” watching our motorists is easily trumped by the crying need to reduce accidents in general and the death and injury toll in particular. In Kenya all public transport vehicles are now required to install speed governors.

It is the responsibility of the State to devote adequate resources to effectively deal with the problems which give rise to the manifest lack of safety on the roads of South Africa. The problem is a huge and very expensive one. Firm and decisive action has the potential to save the nation a good part of the R40bn per year which it currently costs because no one has taken the lead by displaying the will necessary to take charge of the situation. The diminution of human misery and suffering which bold action will bring has no price.

This is certainly not a situation in which the “Government can’t afford it” or resource constraints argument applies. On the contrary – the State can’t afford not to swiftly implement the changes so obviously needed.

There is good news out of Kenya. The road accident toll in that country was slashed by about 73% after the responsible authorities removed some
30,000 unlicensed and unroadworthy vehicles from circulation.

Quick and decisive action is required to bring about similar improvement in South Africa. It is for the legislature and the executive at all levels of government to take that action. The necessary machinery is in place, there is a need to prioritise issues and supplement enforcement personnel. The failure to act will inevitably give rise to Court challenges in which declaratory, mandatory and supervisory relief will be sought. It does not need to come to that – the onus is clearly on the State to do what is right for road users. By focusing on the human rights violations which are the order of the day on our roads, it becomes crystal clear that, constitutionally speaking, it is incumbent upon the State to act swiftly to redress the situation reasonably and accountably.

But it is not only the State which has a role to play. The insurance industry also needs to subscribe to the values contained in the Bill of Rights and to scrutinise its own policies and practices with a view to ascertaining whether they pass constitutional muster. In short, are our insurers part of the problem or part of the solution?

In this regard it is instructive to note that there is a huge dichotomy between the approaches of the short term and long term branches of the insurance industry to the effect of motor collisions on their respective businesses. In the short term sector drunken driving, or more accurately driving with more than 0,05 grams per 100mml of alcohol in the bloodstream, is a basis for vitiating liability for claims brought under the policies issued in respect of motor vehicles. Drunken driving is penalised, not rewarded.

Quite the converse applies in the long term industry. The same drunken driver whose short term claim for the damage to his or her car, wrapped around a pole on a Friday night, is repudiated will be handsomely rewarded by driving fast enough to ensure fatal consequences because the long term insurers of his or her life will pay the death benefits on all life insurance policies issued on the dead driver’s life without demur. This is a consequence of an industry-wide practice rather than because of the applicable policy wording. Research indicates that the policies for accident, life and funeral cover which are issued in the local long-term insurance market do in fact contain a number of exclusion clauses which could reasonably be applied in the event of the life insured dying from the proven over-indulgence in alcohol and drunken driving.

This curious practice may be based upon the perception that it is difficult to obtain proof of drunkenness. This perception does not deter the short term industry. It is based upon an historical situation in relation to blood alcohol content testing which the State has addressed. All post-mortem duties which formerly fell to the South African Police Service were taken over by the Department of Health with effect from 1 April 2006. It has trained medical personnel in basic forensic pathology and intends to ensure consistent and reliable testing for blood alcohol content in the future. There are still backlogs at the laboratories, attributable to a shortage of personnel to take up the slack inherited from SAPS. It is important to note that the Department of Health is willing and waiting and wanting to co-operate closely with the insurance industry on the reporting of BAC testing.

If it is indeed in prospect that the BAC of all insured drivers who die in road accidents will be accurately, reliably and efficiently tested, then the only basis for not using the information available from the Department of Health is the industry wide practice of turning a blind eye towards the state of intoxication of the insured driver. Sympathy for the beneficiaries under the policies concerned ought not to be allowed to cloud the issue. They benefit as a consequence of the illegal conduct of the life assured. The decision to drink and then drive is a conscious choice which everyone who participates in both activities must make. The fact that it is universally known that the long term life industry in effect condones the choice to drink and drive by paying the claims of those drunken drivers who come to grief, encourages drunken driving. Worse still is that some of these drunken drivers are thinly disguised suicides and others take the risks involved in driving drunk secure in the knowledge that their dependents will be looked after by the proceeds of the life policies in place. This is not a situation which should be allowed to continue. The premiums of those of sober habits and those who do not drive drunk ought not to be used to subsidise the practice of paying claims made on policies where the insured was driving drunk at the time of death. It would also be absolutely unconscionable for some insurers to remain “soft” on drunken driving while others take the more principled stand of repudiating claims in which the life insured was breaking the law at the time of death.

The self-interest of the industry would be served by bringing its practice into line with that of the short term insurers. The life industry is losing millions of rand per annum in driver related deaths, many of which relate to drunken driving. The level of carnage on the roads is a national disgrace. The choice facing the industry is whether it wants to be part of the problem of death on the roads or whether it wishes to contribute to the solution by adopting a more socially responsible approach to the drunken driving issue.

  • Paul Hoffman SC is a director of Accountability Now.

Comment from Biznews community member Piet Ackermann

I read Paul Hoffman’s article in the 17 September edition with great interest. I have much appreciation for his analysis. As an accountant I would like to present a supporting view.

There is no argument that traffic law enforcement, or the total lack thereof) is the key to solving the ‘carnage on our roads’ (a totally overworked catch phrase). So allow me to present an analysis.

Let us assess the cost of one traffic officer: Salary and benefits: R25,000 per month. Vehicle: R15,000 per month. Support services (including the cost of prosecution): R20,000 per month. This adds up to R60,000 per month. For a 20-day month this equates to R3,000 per day.

Allow me to take a look at one very low hanging fruit, namely not stopping at a stop street. The usual fine for this is R700. So if a Traffic Officer could catch 5 (yes FIVE) people running a stop street every day, she will pay for her salary as well as a little bit extra. This should take her about one hour, leaving another seven hours of a normal working day to address moving violations. It is absolutely impossible not to write at least 10 tickets for reckless driving per day on the stretch of road between Goodwood and Parow in Cape Town (about 6 kilometres), not to mention the overloaded trucks destroying the road whilst battling it up the Plattekloof hill. Note that no mention is made of speeding, which is another huge potential money-spinner.

The point of this small sample? Traffic law enforcement can be a very profitable exercise. And it will lead to better behaviour on our roads, reducing the ‘carnage’. But it will require incorruptible Traffic Officers, proper prosecuting infrastructure and a bit of political will. Unfortunately not one of these three requirements are currently present.

Unethical touting and how to avoid becoming a victim

Unethical touting and how to avoid becoming a victim

Originally posted on bizcommunity.com

People who are injured in accidents are warned not to fall victim to ‘touts’ offering legal services for personal injury claims.

Unethical touting and how to avoid becoming a victim

© Rabia Elif Aksoy – 123RF.com

“It is an increasingly common practice in South African hospitals and emergency rooms,” says Kirstie Haslam, partner at DSC Attorneys. “Touts approach people who are confused, suffering and in pain – and sometimes, they can be convincing and persistent. “However, it’s not in your interests to use the services promoted by touts, whose behaviour is unethical and untrustworthy.”

But what is touting?

Haslam explains that touting is a direct and persistent attempt to sell something to, or solicit work from a person who has been injured in an accident and involves unethical gathering of information without the accident victim’s knowledge or consent.

She points out that in South Africa, the Law Society of the Northern Provinces (LSNP), KwaZulu-Natal Law Society (KZNLS) and the Cape Law Society (CLS) all prohibit the practice of touting. Lawyers and their representatives are not allowed to approach potential clients directly for work.

The LSNP has published guidelines on what exactly amounts to touting. According to these guidelines, it is unethical and unprofessional conduct for attorneys to:

  • approach potential clients face to face to promote their services
  • employ or incentivise anyone to arrange referrals or introductions of clients
  • make unsolicited visits or telephone calls, or send emails or letters, to anyone who has an existing attorney/client relationship.

How touting commonly occurs in South Africa

Haslam says that the most common type of touting occurs in hospitals. It revolves around personal injury claims, especially Road Accident Fund (RAF) claims.

“Agents approach accident victims, or their families, and make wild assertions about securing millions of rand in compensation for their injuries and suffering,” she adds.

This practice has become so prevalent that it raised the ire of the former Minister of Transport, Dipuo Peters. She described corrupt attorneys and their touts as vultures and “tsotsis” who were robbing victims of accidents.

How to avoid falling victim to touts

Haslam says that the key rule is to avoid engaging with anyone who approaches you directly, claiming to be a personal injury lawyer or legal agent. “Never ever share information of a personal or medical nature with a stranger who approaches you at the scene of an accident or in a medical environment to offer you legal services and never ever sign any type of documents with them of any nature.”

“Touting is totally unethical and may in some instances amount to criminal conduct,” she explains. “No credible attorney would risk being struck off the role, and no reputable law firm would break one of the cardinal rules of its own profession.”

“Instead, if you have a personal injury claim, contact an established, reputable law firm with a proven track record in personal injury law,” she advises. “This is the best way to avoid scams and ensure you get only competent legal advice and assistance.”

Danger of Direct Claims

The Danger of Direct Claims

By Kirstie Haslam from DSC Attorneys 

Danger of Direct Claims

Would you allow somebody who owed you money to have the sole power to decide:

  • Whether they owe you anything at all
  • If so, how much they owe you
  • And finally, the terms on which you will be re-paid?

Sounds nonsensical doesn’t it? And yet this is exactly what it boils down to when you look at the situation with road accident victims being not only encouraged to submit their claims directly to the Road Accident Fund but further, in some instances being solicited to do so where they already have competent legal representation.

The RAF’s interference in an existing attorney & client relationship is highly irregular at best, unethical and possibly actionable at worst. This is however a topic all on its own. Let’s for now just look at a situation where, by whatever means, the RAF has seduced a claimant into submitting their claim directly (so-called “direct claims”).

In order to understand just some of the problems with direct claims, you first need to look at what the position is of a legally represented road accident victim.

An attorney is professionally and ethically bound (amongst a myriad of other duties) to:

  • Represent his/her client to the very best of their professional ability
  • Boldly and fearlessly advance their client’s case
  • Fully investigate and prepare the case, exploring every possible avenue to identify all potential losses
  • Refer the client for a range of medico-legal assessments, in each instance identifying and instructing the appropriate team of experts to fully canvas the long term prognosis of each injury
  • Timeously prosecute the client’s case to its eventual conclusion and to secure the best possible outcome taking all relevant circumstances into account

Where an attorney falls short in carrying out his/her professional and ethical duties, a client:

  • Has the option to have recourse to statutory regulatory authorities to investigate and, if warranted, sanction him/her; AND/OR
  • Can institute civil action for the full recovery of any losses occasioned by the dereliction of duty, in which regard attorneys hold professional indemnity insurance cover
unfair new Road Accident Fund bill

Critics slam government’s ‘unfair’ new Road Accident Fund bill

24 August 2019 – Originally posted on iol.co.za

unfair new Road Accident Fund bill

Imagine you lose a limb in a car accident, or you are left brain-damaged, can never work again and the maximum benefit you can claim from the RAF is only R280 000 per annum? Picture: Dumisani Dube/African News Agency (ANA) Archives

Cape Town – Imagine you lose a limb in a car accident, or you are left brain-damaged, can never work again and the maximum benefit you can claim from the Road Accident Fund (RAF) is only R280 000 per annum?

Even this amount is not guaranteed, this may be the reality for many South Africans if a draft bill on the new workings and name change to the RAF is passed by Parliament. Personal injury lawyers are spitting fire and claim the move is an attempt by the government to get its hands on the estimated R40billion that the RAF collects annually from the fuel levy.

The proposed legislation will soon be discussed in the National Assembly and claims by several attorneys were strengthened this week when President Cyril Ramaphosa announced that the government plans to use money from the Government Employees Pension Fund to stock up its empty coffers.

Weekend Argus spoke to personal injury lawyers who are in agreement that there is “no thinking” behind many of the proposed changes.

Under the proposed legislation, the RAF will become the Road Accident Benefit Scheme and payouts will be capped at R280 000 per annum. People who are involved in car accidents would no longer be able to claim against the guilty parties and guilty motorists would get the same benefits as innocent victims.

Benefits would only be paid to persons between the ages of 18 to 60 years. If you are unemployed or unable to prove an income, your claim will be limited to the Annual Average National Income, currently R52 000 per year, (R4333 per month, which is subject to 25% personal income tax). This applies to students about to embark on a career and/or children when they reach the age of 18, regardless of the value of the real earning capacity destroyed.

For those able to prove an income, benefits will be paid based on after tax income. Loss of earnings is capped at Pre-Accident Annual Income, to be determined by the minister, but presumed to be in the region of R168 000, (R14 000 per month, less 25% tax).

Attorney, Anthony Batchelor, said claims by the RAF that it’s bankrupt is “absolute nonsense”.

“The government wants to get its hands on the funds. It’s the same with the Workman’s Compensation Fund; it’s inept, nobody touches it. The man in the street has a zero chance of fighting this. They (government) will use it to bail out entities like SAA and Eskom,” said Batchelor.

He added that while motorists will continue to pay fuel levies, they will not see the benefits of that levy. Batchelor said the Association for the Protection of Road Accident Victims, comprised of politicians, actuaries, doctors and advocates, challenged the draft proposal and will continue to do so when it comes up for discussion in the National Assembly.

Former head of the Cape Chamber of Commerce and attorney, Janine Myburgh, said she is disturbed by the fact that victims and guilty parties will enjoy the same rights.

“Anthony (Batchelor) is correct. The big thing to punt is the drunk driver and the innocent widow or child are both compensated on the same basis. This is what no fault means.

“In fact, a drunk driver who is employed and drives onto a pavement and seriously injures a child will get a great deal more as the driver’s income is capped at R168 000 per annum and the child at R52 000,” she said.

Specialist personal injury lawyer, Henry Shields, who has 42 years experience as an attorney and 25 years as a personal injury lawyer, said the RAF has been “dysfunctional” since the days when former minister, Mac Maharaj, was at the helm of the Department of Transport in 1994.

“He knew nothing about transport. The government saw a massive fund and thought, let’s get our hands on it. This is purely political,” he said.

Shields went as far as to say that the government was “destroying the system completely”.

“This is too much money for them (government) to ignore, especially if you are in the business of corruption. … You must remember that RAF employers are offered bonuses if they save money, not spend money,” said Shields.

At the time of publication, the Transport Department did not respond to queries from Weekend Argus.

Weekend Argus