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.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
