13 October 2003

Deputy Minister of Transport

Chairman of the Committee of the Road Accident Fund Amendment Bill

Mr Jeremy Cronin

Honourable Deputy Minister

It has come to our attention that your committee of the Road Accident Fund Amendment Bill, to be introduced to the National Assembly as a Section 75 Bill, will have a portfolio meeting on Tuesday 14 October 2003.

After reading the proposed amendments and after thorough discussion between the members of our South African Medical Legal Society of the proposed legislation, we as Society want to express that we strongly oppose the proposed amendments. We would like to inform you about this and formulate these objections as follows.

1. We as South African Medico Legal Society see it as a wrong to cap the loss of earnings payments. We strongly

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oppose any discrimination of any South African citizen on account of his intellectual or any other capacity that enables him to earn more income than the average income of the average South African.

We want to draw your attention to our Bill of Rights Sec 9(1) that everyone is equal before the law and has the right to equal protection and BENEFIT of the law and the Sec 9(3) that the State may not unfairly discriminate directly or indirectly against anyone ... on social origin. Sec 22 states that every citizen has the right to choose their trade, occupation or profession freely and Sec 25 that no one may be deprived of property ... and no law may permit arbitrary deprivation of property. Sec 36 with the limitation of rights is not applicable in this situation.

We would like to point out to you that Sec 9 with respect not to be unfairly discriminated against solely on ground of social origin is a non derogable right according to Sec 37(5)(c).

Earning capacity is considered as an intellectual right on social grounds and therefore property of that specific person.

2. We as South African Medico Legal Society are strongly opposed to the system where lump sum payments will be scrapped and monthly instalments introduced. This newly proposed system will deprive the majority of our citizens of their right to just administrative action (Sec 33 of our Bill of Rights) and access to courts (Sec 34).

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Lump sum payments enables the majority of our people to acquire proper professional assistance of lawyers and private medical services and specialists. This professional help is indispensable for people who cannot afford these services otherwise.

Justice should be seen and be done. With the proposed monthly instalments the opposite will be the case as the majority of our people of whom most are poor, will be robbed of their right to be properly compensated for their patrimonial and non patrimonial damage caused by this new monthly instalment system. No money for these poor people will be available to pay for this necessary professional help.

Not only does this newly proposed monthly instalment rob the victims of a motor vehicle accident, but also will it rob a substantial body of professional people of their livelihood and income. These trained professional people, like lawyers, advocates and doctors, trained to assist these motor vehicle accident victims, are suddenly without any income, which is against our Constitution's Bill of Rights Sec 22 (Freedom of trade, occupation and profession), Sec 25 (Property) and Sec 33 (Just administrative action).

According to Sec 38 (Enforcement of rights) these professionals have the right to approach a competent court alleging that these rights have been infringed (have the right to approach your competent committee alleging that their rights will be infringed).

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Abuse of a system like the current lump sum payment system is not per se a reason to scrape this system, but rather a reason to fight the injustice done by the abuse. The scale of balances of injustice tips when the lump sum payments are repealed because of the above mentioned wrongs done to the victims and their assisting professionals.

3. Proposed amendments in Sections 17A where rendering of a medical service of supplying of medical goods is limited to the prescribed medical tariff, supposes this prescribed medical tariff as a fair and just compensation.

The contrary is in fact the truth as the South African Medical Association and other professional medical bodies heavily contested this negotiated medical tariff as unfair and unjust over the years. The South African Medical Association therefore has over the years proposed MASA scales against which medical practitioners should be compensated.

We as South African Medico Legal Society strongly advise you to acquire the appropriate information from the South African Medical Association and other professional medical bodies as your Amendment Bill enforces a social wrong developed over the years.

4. We as South African Medico Legal Society strongly oppose the separation of emotional and physical suffering. As a human being the body and mind cannot be separated, but to do so for curbing of expenses is unscientific and wrong.

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When a person is involved in a motor vehicle accident that person has the right to be compensated according to the Road Accident Fund Bill.

If that person is involved by witnessing, observing or being informed of the bodily injuries or death of another person as a result of the driving of a motor vehicle (Amendment of Section 19) that person has the right of compensation of proven emotional shock and injury.

No compensation would mean discrimination of that group of persons involved in the sequela of a motor vehicle accident.

No discrimination on account of psychological disability against physical disability (Sec 9(3) Equality of our Bill of Rights).

In short we would like to submit these objections to the proposed amendments of the Road Accident Fund Bill as they constitute unfair and unjust legislation. This legislation should not be changed as proposed and is not reasonable and not justifiable in our open and democratic society based on human dignity, equality and freedom.

The South African Medico Legal Society is strongly opposed to unreasonable and unjustifiable changes to the current Road Accident Fund Bill as proposed.