Personal Injury News January 2012

When the Constitutional Court declared that sections 18(1)(a)(i), 18(1)(b) and 18(2) of the Road Accident Fund Act 56 of 1996 (the old Act) were unconstitutional (Mvumvu and Others v Minister of Transport and Another 2011 (5) BCLR 488 (CC)), they suspended the order for a period of 18 months to enable Parliament to cure the defect.

On 17 August 2011 the Draft Road Accident Fund Amendment Bill, 2011, was published for comment. It appears that the aim of the draft Bill is to amend the Act, so as to provide for transitional measures in respect of certain categories of third parties whose claims were limited under the Act, as instructed by the Constitutional Court. The proposed amendment includes removal of the existing section 18 and substituting same through the insertion of section 18A of the Act.

The proposed Bill seeks to provide claimants with an option as to how they wish to have their claims administered. In the first instance, the claimant could elect to follow the procedure of the old Act in terms of which his/her claim would be limited to R25 000 of proven damages. It is likely that persons who sustained minor injuries and/or damages would elect this option, as the procedure and possibility of success is/was much simpler than the procedure introduced by the Road Accident Fund Act 56 of 1996, as amended, as it stood from 1 August 2008 onwards (hereinafter referred to as the new Act).

The alternative allows the claimant to elect to follow the procedure in terms of the new Act. In the event that the plaintiff elects this procedure, it would be necessary for him/her to notify the Road Accident Fund of this election, in writing, before the claim prescribes in terms of the old Act and within one year of the proposed amendment coming into effect. The notification shall be accompanied by the forms as prescribed by section 23 of the new Act.

The question that inevitably arises is whether or not the proposed amendment gives effect to the intention of the Constitutional Court when they declared the provisions of section 18 of the old Act invalid?

The provisions of the new Act still allow parties to claim compensation, albeit limited to a degree. Furthermore, the claimant has options. In the event that he/she does not believe that the injuries suffered and damages sustained are significant then he/she is entitled to accept the capped amount of R25 000 as compensation. One could almost argue that this "new category of claimant" has the best of both worlds. In the event that he/she believes that a motor vehicle collision has caused great suffering, injury and damages, then that claimant is afforded the opportunity to claim compensation by proving that the nature and extent of the injuries sustained and that the damages suffered, warrant compensation. Although the extent of such compensation would be limited, these limitations have already passed the test of constitutionality.

Regardless of what comments may arise with regards to the Bill, what will remain is the fact that the limitation of claims in terms of section 18 of the old Act have been declared unconstitutional, evidence of the fact that democracy is indeed flourishing, even in the midst of a financially pressed Road Accident Fund.

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