LSSA / Minister of Transport application commenced on 1 March 2010
 The proceedings started with applications by the Ministers of Health and Finance, to intervene in the main application. Both applications were dismissed with no order as to costs. Counsel for the Applicants then began presenting argument to the court. The First to Fourth Applicants are presented by Adv JJ Gauntlett SC, Adv Johan Trengove, Adv Ncomisa Mayosi and Adv Frank Pelser. Adv JJ Gauntlett SC commenced the argument on behalf of the Applicants. He addressed the court on the constitutional issues, sections of the Constitution which are relevant to the current application and the test to determine whether the sections of the RAF Act under attack, should be declared unconstitutional. He also addressed the court on the locus standi of the First Applicant (Law Society of South Africa) to bring the application. He argued on behalf of the First Applicant that institutions such as the Law Society of Southern Africa (LSSA) must act in the public interest and bring such applications on behalf of vulnerable members of society, as if not assisted in this regard; such individuals will not have the financial ability to bring such applications themselves. Adv Johan Trengove then addressed the court on the tariffs for medical expenses. Counsel held that the UPFS tariff is prejudicial to the individual, in that it was never the intention of the legislature that this tariff be used in the private sector or by the Road accident Fund (RAF). The cumulative effect being that those individuals who do not have access to a medical aid or adequate finance to pay upfront for private medical treatment, are forced to seek treatment only in state hospitals. The court was referred to various affidavits, indicating that the public health system is challenged by issues of under funding, overcrowding and lack of training. Adv Trengove also addressed the court on S17(4)(c) of the amended Road Accident Fund Act which deals with the capping of loss of income to R160 000 per annum. It was argued that the court had not been provided with adequate evidence by the Respondents justifying how such an amount had been arrived at and this in turn amounts to an arbitrary limitation. Adv Trengove then addressed the court on the AMA Guides, which form the basis of determining entitlement to general damages. Counsel indicated to the court that in terms of the Amendment Act, the medical experts that would determine if an injured person has sustained “severe injuries” or not, are picked and paid by the RAF and as such there is a lack of independence and impartiality, and this is a major flaw in the Amendment Act. The 30% whole person impairment requirement of the RAF Regulations also exclude a large majority of road accident victims, who sustained serious injuries, to claim general damages from the RAF. Lastly, it was argued by counsel that in the event that the Court finds that the Amendment Act should remain as it is, the aggrieved individuals must be permitted to pursue the common law claim against the insured driver. Adv Mayosi will continue with the Applicants’ case on Tuesday morning, whereafter counsel for the Respondents will commence their address. Nicolette Koch Partner nicolette-k@adamsadams.co.za assisted by Ziyanda Buthelezi Candidate Attorney ziyanda-b@adamsadams.co.za and Carmel Buckham Candidate Attorney carmel-b@adamsadams.co.za |
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| 9/06/2012 | ||
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The firm practises directly in several Southern African countries and through long-established associates in others.
