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'Family' rule on RAF scrapped by court

2014-06-20 10:53

BETTER DEAL FOR CRASH VICTIMS: The Constitutional court has declared as "unconditional and invalid" a section of the Road Accident Fund Act. Image: SAPA

JOHANNESBURG, Gauteng - The South African Constitutional Court has upheld an order by a lower court declaring a section of the Road Accident Fund Act of 1996 unconstitutional and invalid.

Judge Johan Froneman said in a unanimous ruling on Thursday (June 19 2014) that the order, made by the Free State High Court in Bloemfontein, "balances the rights of road-accident victims with the financial consequences for the RAF".

Basically, it declared section 19(b)(ii) of the RAF Act invalid because its restrictions "discriminated unfairly between categories of people - those who had a close 'familial relationship' with the driver and those who did not".

CONSTITUTIONAL CHALLENGE

The section had excluded the fund from liability if the claimant was a passenger in a vehicle driven by a member of the same household, or when the claimant was responsible for the "maintenance" of the driver.

The Road Accident Fund Amendment Act of 2005 abolished section 19(b)(ii) of the old act but the amending provision only came into effect on August 1 2008.

Claims before that date continued to fall under the old act.

In April 2006 Vanessa da Silva was injured while in a car driven by her husband. It was found that the collision with a horse was caused by her husband's negligence. It happened before the amendment came into effect and section 19(b)(ii) of the old Act applied to her claim. She challenged the constitutionality of the section in the High Court on the grounds that it violated her right to equality.

Following a Constitutional Court ruling on another RAF case in 2011, it upheld Da Silva's challenge, ordering that all unfinalised claims under that section of the old Act be governed by the Transitional Provisions Act 2012.

The other case involved Anele Mvumvu which resulted in the passing of the Transitional Provisions Act to broaden the categories of claims which could be brought against the RAF.

Mvumvu and two others were injured in vehicle collisions on different dates before August 1 2008. They sought a declaration of invalidity against an order limiting the amount of compensation they could claim and in 2011 launched a constitutional challenge to legislative provisions of the old Act.

In the Mvumvu case, the Constitutional Court declared two sections of the RAF Act of 1996 inconsistent with the constitution and invalid. It asked Parliament to amend the impugned provisions in the Act.
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