Constitutional challenge to the Act

Road accident fund

Road Accident Fund Amendments: constitutional challenge to the Act

The widely anticipated constitutional challenge to the The RAF Amendment Act, 2005 (“the Amendment Act”) was started recently in the Pretoria High Court. The Law Society of South Africa, The South African Association of Personal Injury Attorneys, The Quad Para Association of South Africa and also the National Council for Persons with Physical Disabilities have applied for assorted parts of the Amendment Act to be declared invalid since they’re inconsistent with the Constitution. The applicants also seek to put aside a quantity of the brand-new Regulations since they’re either inconsistent with the Constitution or perhaps not authorised by the RAF Act.

 The material modifications to the Act which are now being challenged are:

The abolition of the claimant’s common law right to claim any damages not recoverable from the RAF from the negligent owner or driver of the vehicle that caused the injury, or the company of aforementioned negligent driver (Section 21 of the RAF Act). The basis of the challenge is the fact that this constitutes a breach of the right of road accident victims to security of the individual,

the right to an appropriate and powerful remedy for those breaches of that particular right and also the duties of the State to safeguard, promote and fulfil those rights;

the capping of loss of profit or loss of support claims (Section 17(4)(c)) that is also alleged to become a breach of the right to security of the individual. The Regulations being challenged are:

 

The best of road accident victims who’ve suffered serious injuries to claim damages for compensatory damages (Regulations 3(1)(b)(ii) and (iii)); The meaning within the ordinances of “serious harm” on the foundation the Minister of Transport is not authorised by the Act to define a significant harm (Regulation 3(1)(b)) the recommended process of evaluation of serious injuries which, with all the other regulations concerning healthcare, are alleged to become a violation of the right to healthcare when it comes to Section 27 of the Constitution (Regulation 3(1)(b)); The reasonableness of the tariff for other health care bills and crisis (Regulation 5 (2)) read together with the tariff put down in Notice R. 771 released by Gazette on 21 July 2008);; the establishment of an administrative appeal tribunal whose judgements are final and binding in the foundation it deprives victims of accessibility to court in contravention of Section 34 of the Constitution (Regulations 3(4) to 3(13) inclusive).

 

The application form, to the extent it’s successful, is going to be referred to the Constitutional Court for confirmation.

 

Whilst it appears certain the application will probably be opposed by the Minister, the applicants make some telling points. For example, they allege the victims of road accidents in South Africa are, as a consequence of the changes to the RAF Act, in a distinctively position, since they’re deprived of the damages which victims of crime, medi-cal or hospital negligence, athletic injury along with other accidents might have from the wrong-doer.

 

The applicants draw a distinction between the rights that workers have under the Compensation for Occupational Injuries and Diseases Act, 1993 (“COIDA”) and those which the victims of road accidents have, pointing out that workers have a right to compensation on a no fault basis. Workers will also be eligible for additional compensation if their company was negligent and possess the right to declare their common law right to claim damages against anyone whose negligence caused their harm, except their employers with whom they stand in a “heavily controlled voluntary relationship”.

 

In addition, damages for medi-cal and hospital attention under COIDA is appreciably higher compared to the rate prescribed under the RAF Act. While road accident victims may possibly simply get medical and hospital attention at an interest rate to be determined by the Minister and based on tariffs for health services offered by public health institutions injured workers are eligible for get private health care.

 

The applicants also make the idea that even though private “top up” cover can be obtained there are a lot of groups of sufferers that cannot insure themselves such as for example the indigent, kids and students, and those excluded from getting coverage due to insurers’ underwriting conditions. Within this aspect, the applicants make reference to persons with HIV, persons that are fat, persons in high risk occupations and people who undergo illnesses for example diabetes and heart conditions.

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