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INROADS TO ROAD ACCIDENT LAW

On Sunday 1 st January 2006 at 17h00 in a radio news bulletin, it was announced that the number of deaths resulting out of injuries sustained in road accidents since the begining of the holiday season, had risen to 1090.This figure only mentions deaths but fails to mention how many people were injured in road accidents over this period. I would not be surprised if that number was substantially more then the figure of 1090. Furthermore these were the figures released prior to the great trek back of holidaymakers from their holiday resorts to their homes.

Again I would venture to suggest that the increase in road accidents, the ever increasing number of people injured in these accidents coupled with the ever increasing loss of lives in road accidents, make it more important for us whenever we venture out whether it be as a driver or passenger in a motor vehicle, or as a pedestrian, makes it necessary for each and every one of us to take extra care and to be more vigilant thereby ensuring and minimizing your chance of either being killed crippled maimed or injured in a road accident.

Against the backdrop of these thought provoking statistics, during 2005 one witnessed with alarm the progress made by our government in the face of resistance and opposition by many role players the approval of both houses of Parliament of the controversial Road Accident Fund Bill, with the result that all that is now needed to make this Bill law, is the placing by our President of his signature to and of the Bill. When it becomes Law, (and all indications are that it will be sooner rather then later), the new Act will restrict and curtail your rights if injured in a road accident caused by the negligence of someone else as to the amount of compensation you will be awarded and paid, the limitation of the cost of the medical treatment you receive which you will be able to recover, and the lack of access to having your case heard in a Court of Law ably and properly represented by your legal adviser. It becomes worse- your right to institute action against the negligent driver who caused your injuries will be taken away from you. At this time there remain some unanswered questions. We do not know when the Bill will become Law, and whether the Act will apply to accidents which have occurred prior to the date upon which the Act will become Law or prior to a date to be determined. What we do know is that the present rights of recourse we have under our existing legislation, will endure for a shorter time then any of us are able to predict.

It is not our intention in this communication to set out in detail the extent to which the Bill, if enacted into Law will curtail your rights to recover compensation for the injuries you may sustain in a motor accident. If you wish to gain more insight and are anxious to know the details we suggest you visit a web site called: www.stopthebill.co.za where the full details are available. It also contains a letter to the President and to the Minister of Transport urging them not to enact the Bill in to Law. It invites visitors to the site who are anxious not to see the Bill become Law to add their signatures to the petition. Add your signature to the petition. The more who object the greater is the possibility that the President may decline to enact the Bill into Law.

During 2005, our Courts have also been busy grappling with Road Accident legislation currently on our statue books in particular regulation 2(1) (b) and (c) promulgated under the Road Accident Fund Act.

Before dealing with the Court decisions it will be instructive for you to appreciate that at present compensation in respect of injury sustained in Road Accidents is recovered from the Road Accident Fund and the amounts you are able to recover apart from the cost of medical treatment and loss of earnings extend to compensation for pain and suffering and loss of life amenities determined by a Court of Law in accordance with well recognized principles applied over many years.

The above regulation stipulates that if one is injured in a motor accident where the driver of the vehicle which caused the collision failed to stop at the scene of the accident with the result that you are unable to identify either the driver of the vehicle or both the driver of the vehicle and the vehicle, you are obliged to lodge with the Police an affidavit setting out the circumstances of the accident within fourteen days from the date of the accident or within fourteen days of you reasonably being in a position to lodge such an affidavit. In the event that you do not lodge this affidavit either timeously or at all you are deprived of your right to claim compensation for your injuries and the Road Accident Fund is entitled to repudiate your claim. Two cases involving the validity and or enforceability of this regulation have come before the Supreme Court of Appeals in Bloemfontein and they are the cases of RAF VS MAKWELANE and the RAF VS THUGWANA. In both cases the Supreme Court of Appeals have ruled that:

  1. Compliance with the provisions of the regulation is peremptory, which means that your failure to lodge the affidavit renders your claim invalid and unenforceable;
  2. The existence of this regulation does not deprive you of or limit your constitutional right;
  1. The ROAD ACCIDENT FUND can raise your failure to comply with the regulation as an absolute defence at any stage of the proceedings prior to the handing down of a judgment;
  1. Our legislators had valid reason for enacting this regulation. In essence it was legislated in order to limit the instances of fraud being perpetrated against the ROAD ACCIDENT FUND. Simply stated anyone who desires to make a fraudulent claim against the Fund can do so by merely claiming they were injured in an accident which occurred on a particular date at a particular time by an unidentified vehicle and driver who failed to stop at the accident. By obliging the victim to depose to an affidavit setting out the circumstances of the accident as soon as possible after the accident discourages those with evil intentions and it gives the Police an opportunity to investigate the matter.

Thus when going about your daily activities either as a driver of a motor vehicle or as a passenger or as a pedestrian, please at all times ensure that:

•  You have your seat belt fastened;

•  Do not drive a vehicle while inebriated or under the influence of liquor, or do not allow yourself to be conveyed in a vehicle where you can see that its driver is inebriated or under the influence of liquor;

•  Drive your vehicle with care and consideration for other road users at all times and do not take chances;

•  At the scene of the accident take full particulars of the driver of all vehicles involved in the accident, their names addresses, telephone numbers and details of their comprehensive insurers.

•  Assist the Police at the scene of the accident by being forthcoming and co operative and ensure they have taken the correct information;

•  Report the accident to the Police and volunteer to depose to an affidavit setting out the circumstances of the accident as soon as possible after the accident;

•  If you are comprehensively insured report the accident to your Insurers as soon as possible after the collision;

•  Finally consult your Attorney as soon as possible after the accident, as if the Police decline to take affidavits, your Attorney will ensure that the correct steps are taken to protect your interests.

Finally if you remain uncertain as to what to do, or you want to ensure that the steps you have taken are correct, or you need advice in respect of your rights and how to enforce them, consult an Attorney and obtain legal advice it is the most prudent course of action to follow.

Johannesburg

VICKY BOVE AND LESLIE KOBRIN

2 nd January 2006

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