More than 5,000 strong objections have arisen in response to the recently unveiled Road Accident Fund Amendment Bill 2023 draft. If this bill becomes law, it could severely curtail the entitlements of drivers, passengers, and pedestrians seeking compensation for injuries sustained in motor vehicle accidents.

Shift from “Compensation” to “Social Benefits” Framework

Published by the Department of Transport on 8 September 2023, this Amendment Bill offers a mere month for public commentary and proposes a fundamental overhaul of the Road Accident Fund (RAF).

Advocate Justin Erasmus, Chairperson of the Personal Injury Plaintiff Lawyers Association (PIPLA), collaborating with various law societies, is spearheading opposition to the proposed amendments. Erasmus asserts that these changes significantly restrict existing rights while offering limited benefits, particularly impacting South Africa’s marginalised. It is a matter of grave concern amid the country’s high unemployment rates and one of the world’s highest motor accident rates.

Crucial restrictions to existing rights

Erasmus highlights several crucial restrictions on existing rights. Currently, claims for income loss are provided as lump-sum payments, but under the new system, claimants will receive partial annuities that gradually add up to the lump sum. Moreover, the amount payable will be subject to periodic reviews of the Fund’s liabilities, and if a claimant passes away before receiving the total annuities, their heirs will inherit nothing.

No compensation for pain and suffering

The new bill abolishes compensation for pain, suffering, disfigurement, and shock. This is especially troubling considering the RAF’s history of delayed or non-payment and financial mismanagement. Erasmus suggests that this represents an attempt by the government to reduce payouts to victims rather than fulfil its legal obligations.

Dr Herman Edeling, Chairperson of SAMLA, echoes this concern from a medical perspective. He emphasises the lack of ethics and immorality of depriving underprivileged individuals of general damages compensation, distinct from loss of earnings and medical expenses. The RAF currently does not provide upfront payments for medical costs, meaning that victims must cover all medical expenses under the new bill, rendering the annuity payments practically worthless.

Additional exclusions for drivers and claimants

• New system: accidents must occur on public roads for victims to be eligible for coverage. Parking lots, sports fields, private roads and so on will not be covered. Pedestrians crossing highways are also explicitly excluded.
• Victims will not be compensated if injured by an unidentified vehicle (hit and run).
• New system: excludes compensation for non-South African citizens or direct permanent residents injured by motor vehicles in South Africa.
• The changes also exclude individuals over the legal alcohol limit, regardless of fault, and their dependents if they are killed. The RAF may also recover expenses from individuals who have consumed alcohol, even if they were not responsible for the accident.

Impact on medical schemes and claims

The impact on medical aid schemes and their members will be substantial. There will be no reimbursement for expenses covered by medical aid or insurance, potentially leading to increased premiums and significant delays for victims needing urgent care.

All future medical claims will require pre-authorisation by the RAF to receive payment. The clause about claims against the at-fault party needs reevaluation; since 2008, innocent victims have been unable to sue wrongdoers for damages not recovered from the RAF.

Erasmus concludes by urging all concerned citizens to voice their objections by 6th October through the Dear South Africa website. An information resource, Road Accident Rights, has also been established for further insights into this critical matter.