KRUGER & CO ATTORNEYS SUBMISSION TO TRANSPORT PORTFOLIO COMMITTEE
8 October 2003
RE PROPOSED ROAD ACCIDENT FUND AMENDMENT BILL
I have just returned from holiday today and been informed that a proposed Road Accident Fund Amendment Bill is to be "fast tracked" through Parliament.
I obtained a copy of the proposed Bill approximately a month ago, and there did not appear to be overly radical changes.
The Bill which is now to be "fast tracked" is. however radical in that it proposes what is in effect retrospective legislation drastically affecting pay outs and the rights of claimants.(See 6(2))
I run a practice in Parow mainly for indigent claimants, and many hundreds of my clients are affected by this proposed Bill. In particular clause 6.2 has been subtly altered from the original documentation, and a lay person would not pick up the retrospectivity which is concealed in it.
It is now necessary that I get hold of these people and tell them how their rights are to be affected by this Bill, and some of them may well be prepared to take a lower cash lump sum prior to this Bill coming into effect, rather than have to prove on a monthly basis that they are indigent, in pain or still injured.
It is grossly unfair to them to "fast track" this type of legislation. It is also impossible for me to contact them in a short space of time as they are virtually all poor people1 and post often does not get to them, and they have difficulty contacting us. as they do not a1ways have money available to arrange transport.
There appears to have been no warning or consultation regarding this retrospective proposal1 and I trust that a reasonable opportunity will be given to claimants to voice their views on this radical legislation.
Unfortunately this "fast tracked" legislation is following the usual pattern of Road Accident Fund debates, being an "us" and "them" argument between the attorney's profession and the management of the Road Accident Fund. The issue is however the rights of the claimants, and where they are affected by this radical type of legislation an opportunity must be given to attorneys acting for them to give them some indication of how their rights are to change. They might then in turn give certain instructions regarding the constitutionality or desirability of the proposed changes, or accept lower offers already made in lump sum form rather than the annuity payment to be enforced.
Addendum 1 to Submission from Kruger Attorneys
RE : RETROSPECTIVE LEGISLATION – ROAD ACCIDENT FUND
I have just been informed by Mr Kruger of our offices about the retrospective legislation which is to be dealt with at the public hearings on the 14th of this month before your portfolio committee.
I do third party work at Kruger & Company and have the following trials set down:
1. Mgumbi 30 October & 8 November 2003
2. Matthee 13 & 14 November 2003
3. Mukkadem 17 & 18 November 2003
4. Mabolo & Majova 27 & 28 November 2003
5. Mbuqe 4, 5 & 11 December 2003
There are also a number of trials set down for January 2004.
I have numerous other matters which are in process, where Offers have been received from the Road Accident Fund, and rejected as being too low.
The above are all substantial Offers relating to future loss of earnings, and lump sums are offered for future loss of earnings.
It is impossible for me at this stage to get hold of all the clients I have to in order to advise them of the changes which are being pushed through without notice as set out above.
I have looked at the Satchwell report and as I understood that report, the present system was to be ring fenced. Our firm was also kept up to date on the initial draft of the legislation which was to be proposed and published in due course, and there was no retrospective action in the matter.
Mr Kruger of our offices has pointed out to me that the portfolio committee only received this present retrospective bill on Thursday last.
We only got it from the portfolio committee on Monday.
It is completely unreasonable to pursue this type of radical legislation without giving the claimants a chance to assess their positions and decide what they want to do. I am probably going to be in breach of my duties with the Law Society if I do not tell them, but it is physically impossible for me to do it in the time constraints I have. At present I am preparing for another trial.
Please take this letter as a request to postpone this hearing in order that these persons can be contacted and I can explain their rights to them as it may not be worth their while to proceed to trial as some will in all probability not bother with the future payments, in instalments given the administrative inadequacy of the Road Accident Fund.
Kindly regard this matter as extremely urgent.
KRUGER & CO
Ps. I must emphasise that I have spent a lot of money of these claimants pay outs in the litigation process to try to improve their pay outs. It is going to be difficult now to explain to them what is happening, and why they must pay for this process if this aspect of the legislation goes through.
Addendum 2 to Submission from Kruger Attorneys
RE : JOHANNES VENEEL
I act on behalf of Mr Veneel. He has a substantial claim for loss of earnings at the Road Accident Fund, and we are in the process of arbitrating this matter. The summary process meeting is to be held on the 21st October 2003 in this regard.
I saw Mr Veneel yesterday morning to explain the proposed legislation before you and its radical retrospective nature and the fact that he will be getting an annuity in respect of his future loss of income claim instead of a lump sum.
It was difficult to explain it to him, as he thought I was joking. After I had explained it to him three times he realised it was not a joke and he was outraged. I told him he should speak to you, and we tried to get your offices on the line in order that you can speak with ordinary people whose rights are being affected by this legislation. Unfortunately we could not get through as only messages could be left at the numbers I got for you. He has accordingly asked me to write a letter to you to express his outrage at the fact that his vested rights are apparently going to be altered retrospectively with virtually no notice.
He is unfortunately in the position that he does not have money to fight the State and in fact is unable to work. I had to loan him R200.00 for food yesterday.
As pointed out to you earlier in my letter dated the 7th October 2003 this firm has literally hundreds of indigent people who are not able to oppose the state as this legislation is rammed through to their detriment.
I will however keep you informed of the reactions of the individuals whose rights are being affected by this legislation as we are going to get hold of them and explain it to them so far as we can.
KRUGER & CO