The draft policy on restructuring the Road Accident Fund has major implications for the individual road user in South Africa.

The aim of the new system, the “Restructuring of Road Accident Fund as Compulsory Social Insurance no 121 of 2010” is to assist more victims of accidents on a no fault basis and to indemnify more victims with medical cover than is currently the case.

However, the proposed act wishes to do away with the common law right for individuals to claim the balance of insurance claims from the wrong doer. This is serious as it goes against the Bill of Rights in the Constitution section 8.3 which states “that in order to give effect to a right in the Bill, it must apply or develop the common law to the extent that legislation does not give effect to that right”.

While this right was removed in August 2008 to date this was under the current system where compensation while a lengthy process is still fairly adequate. While the intentions of government are laudable to cover as many more people as possible on a system of no fault funded by the fuel levy under a social security type system, the problem is that the capped limits for injury claims will be very low amounts in order to accommodate as many road users as possible who fall victim to motor accident injuries.

While the new scheme to be managed by an entity called RABSA (Road Accident Board South Africa) will have a carefully planned benefit scheme for victims, the abolishing of a person’s right to sue for balance of damages outside the fund is both immoral and unfair. This is particularly unfair where a severe injured victim may require years of rehabilitation after an accident and the fund limits are capped leaving such a person high and dry.

When one drives a car on a public road there are automatically legal consequences. This will perpetuate even more careless, reckless and bad driving on our roads if drivers know there is no civil legal liability attached to them should they injure or kill someone in an accident.

The new scheme will hopefully see a more streamlined and medical benefit compensation as opposed to monetary compensation. Appointed service providers and the like should go a long way to make compensation quicker, less litigious and more efficient for everyone.

RABSA does contend however that additional services and financial support will be given to injured persons beyond the scope of common law. However, we are not told how this will happen and again what the cover benefits limit will be.

Another concern is the capacity of the state to run this scheme efficiently. We note in recent media reports how Road Accident staff want to strike because of grievances.

The Democratic Alliance encourages all interested parties and individuals to read the proposed new act and give public comment by 12 April 2010.

The information can be obtained on the Department of Transport website, look for “RAF No Fault policy” in left hand bottom column.

Unless there is sufficient opposition to force government to rethink the common law right, all of us will be hapless victims of motoring “Russian Roulette” with no legal claim against offenders who cause terrible accidents.

For further information, please contact Dacre Haddon, MPL on 079 694 3788

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