Hollard official Danny Joffe writes in a circular that judgement in Mvumvu v Minister of Transport and Road Accident Fund (RAF) in March 2011, implies that sections 18 relating to limitation of passengers claims to R25 000 under the old RAF Act, is invalid, but invalidity is suspended for 18 months for Parliament to determine the extent of compensation.
If Parliament does not set a limit, as it may do in 2012, passengers would be entitled to claim unlimited compensation. “This was the section that allowed for passenger liability claims, as the fund only gave R25 000 to injured passengers, who then had to claim the remainder of their damages from negligent drivers, whose insurance policy would pay out,” Joffe explains.
In terms of the changes to the Road Accident Fund Act, new amendments were only meant to apply to accidents after 1 August 2008, and technically there could still be passenger liability claims for matters occurring before then, which would only prescribe in August 2011.
Now it seems that accidents that occurred before 1 August 2008 and have either come to court, are awaiting judgment, or are still to go to the RAF, would have to wait, since passenger liability wordings require claims for full allotment from the Road Accident Fund, before allowing claims from clients.
Passenger liability claims, whether on trial or still to go to court, are now in limbo, Joffe said.
The Constitutional Court confirms as valid the RAF provision that an injured passenger may not sue a driver in terms of common law for a remainder of damages, after a claim to the Road Accident Fund. An Amendment Act drastically caps what passengers may claim from the Road Accident Fund.
“The ruling means that passengers must be satisfied with what the RAF pays out in terms of the caps. The ruling finally removes the need for passenger liability in insurance policies in South Africa, since it can no longer be appealed.”
A driver can not be sued in a South African court for causing injuries to a passenger while driving a vehicle. “The Constitutional Court said that the restriction on the tariff for future medical is not consistent with the Constitution, and it appears that one would still be able to claim medical costs on the private tariff.”
“Remember this still only applies to accidents dated after 1 August 2008, that are subject to the new Act,” Joffe said.
Traffic incidents, deaths, injuries, and violations remain relatively high in South Africa, while traffic law enforcement and road conditions remain inconsistent.
PHOTO; Hollard Select Brokers legal director Danny Joffe comments on implications of a recent judgement relevant to Road Accident Fund claims.