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Road Accident Fund as a saving grace

Every journey has a start and an end. It is safe to say that one does not venture on journeys without an objective. That being said, one need look no further than Section 3 of the Road Accident Fund Act of 1996 (The Act), which encapsulates the Acts very essence. Section 3 states that;

‘the object of the fund shall be the payment of compensation in accordance with this Act for loss of damages wrongfully caused by driving a motor vehicle’ .

In practice however, it is found that the most fitting description of the Road Accident Fund (RAF) would be that it is to many a ‘saving grace’. This article will endeavour to explore the ‘saving grace’ concept and unpack key elements of the Mvumvu case and its relevance today.

The premise to a RAF claim is a consultation with an attorney. Immediately, one is faced with questions around time frames. The more one conducts consultations and interacts with clients; one invariably notices a common thread. The thread that weaves its way from client to client is an expression of urgency and desperation which exponentially increases with time. In order to comprehend this phenomenon, one need only consider the socioeconomic status of one’s clients. The ‘saving grace’ in this context, refers to the amount of money expected once the claim has been settled. Too many, the ‘pay out’ is an opportunity to create a better life for the entire household, an opportunity to improve education and to change lives.

In the case of Mvumvu and Others v Minister of Transport and Another 2011 (2) SA 473 (CC), the court dealt with the unconstitutionality of Section 18 of the Road Accident Fund Act of 1996, whereby the applicants claim was limited to R25 000 after a collision occurred due to the negligence of the taxi driver . This section was unconstitutional as this limit only applied to certain categories of passengers.

For purposes of this article, it is imperative to emphasise that the decision reached in this case is much more than legislative progression, in fact it has the effect of dealing with issues relating to South Africa’s oppressive past. As Mr Decide Makhubele put it in an article ‘Rectifying the Mvumvu Disparity’, the provision in question applies most specifically to those who travel by means of public transport as they are the people that are most affected by the limitation.

The court held that the provisions of Section 18 ‘indirectly’ discriminated against black people in that other races are not as affected by the use of public transport, such as buses and taxi’s . It was thus found that this section had a disparate impact which targeted a specific group of people and as a result was discriminatory on the grounds of Section 9 (3) of the Constitution.

Despite South Africa’s legislative progression, one cannot ignore the elephant in the room, to the effect that most RAF clients are still an underprivileged demographic. It is therefore, no wonder that urgency and desperation for ‘pay outs’ remain the constant disposition of clients in this sector.

Presently, we find ourselves more than a decade after the Constitutional Court made its decision on the Mvumvu case. After all those years have elapsed, one is still left with a bitter distaste when gauging just how far South Africa has moved on after such a liberating decision. One can simply no longer ignore the elephant in the room, yes; legislatively South Africa has progressed in terms of equality and the Road Act fund Act stands to be a prime example of such progression. One however, struggles to move past the fact that majority of the Motor Vehicle Accident claims remain to be the same class of individuals as when the matter had been decided more than a decade ago. Once again that common thread spoken about reappears, urgency and desperation in face of the same group of people that were marginalised in the past.

Gathering from the above, I am able to conclude that transformation is slow in South Africa whereby many battles have been won, but yet to win the war. It is time to unite and move forward in the spirit of Ubuntu, a word which so perfectly mirrors the Constitution. I hereby ask, is it possible to move past the elephant in the room?

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.