Constitutional Court hears challenge to certain provisions of the Road Accident Fund Amendment Act
20/08/2010

On 1 March 2010 application was made to the North Gauteng High Court in Pretoria by the Law Society of South Africa and ten others (‘the Applicants”) challenging the constitutionality of certain provisions of the Road Accident Fund Amendment Act 19 of 2005, which came into effect on 1 August 2008. The application was opposed by the Minister of Transport and the Road Accident Fund (“the Respondents”). Judgment was handed down by the then Acting Judge Fabricius on 31 March 2010, dismissing the application with no order as to costs.

The Applicants then filed an application for leave to appeal directly to the Constitutional Court, and this application was set down for hearing on 12 August 2010. The full bench of the Constitutional Court (except for Judge Joffe), not only heard argument by the respective parties relating to the application for leave to appeal, but the merits upon which the judgment in the court a quo was challenged.

The Respondents’ only objection to the Applicants’ application for leave to appeal was on the prospect of success of the constitutional challenge in another court of law. Chief Justice Ngcobo and the rest of the bench, reserved judgment in respect of the application for leave to appeal and allowed counsel for the parties to proceed with their respective arguments on the merits of the appeal.

The case of the Applicants, which was refined and narrowed from the initial constitutional challenge brought in the court a quo, was based on the arbitrariness and irrationality of three particular sections of the amended Road Accident Fund Act:

• Section 21(1)(a) - Abolishing the common law claim against the wrongdoer;

• Section 17(4)(c) - Capping of the claim for future loss of income or support to R160 000.00 per annum;

• Section 17(4)(b) - The prescribed tariff as determined by the Minister of Transport for the recovery of non-emergency medical treatment (the “UPFS” rate).

Counsel for the Applicants essentially submitted that the abovementioned provisions limited the amount recoverable for loss of income or support, violated a victim’s constitutional right of property and security of the person as contained in section 12 of the Constitution, that the tariff for non-emergency medical treatment was in violation of the right to access to health care services as contained in section 27 of the Constitution and lastly that the abolishment of the common law claim against the wrongdoer was in direct conflict with the right to an appropriate relief as guaranteed by section 12(1) of the Constitution.

The case for Applicants was closed with a request that the Honourable Court should declare sections 21(1)(a), 17(4)(b) and 17(4)(c) of the RAF Act as unconstitutional.

The Respondents argued that the provisions as contained in the aforementioned sections and challenged by the Applicants were both rational and furthermore do not infringe any of the rights as guaranteed by the Constitution.

The Respondents argument of rationality was based on the fact that the amended provisions are the process/means of achieving the following “legitimate” government objectives and as such these means do not have to be reasonable in order to be deemed rational:

1. Financial viability of the Road Accident Fund;

2. Compensation payable on a no fault basis;

3. The creation of a Social Welfare Scheme which extends to all classes of injured persons, not only victims of motor vehicle collisions.

The Respondents further placed on record that the Road Accident Fund Amendment Act 19 of 2005, which came into effect on 1 August 2008, was only a temporary transitional measure enabling government to achieve the objectives listed above.

In light of the above, the Respondents closed their case with a request that the leave to appeal be dismissed and in the event that the Honourable Court grants judgment in favour of the Applicants, that the declaration of unconstitutionality should be suspended for a period of two years.

The issues relating to the costs of the application also still remained in dispute, as the Applicants contend that they should be able to recover the costs of the application in the even that they are successful on any of the three grounds previously listed. The Respondents were of the opinion that no order as to costs should be made.

The Constitutional Court after having heard Counsel for the Applicants and Respondents reserved judgment. No indication was given on when judgment will be handed down.
Andrew Phillips
Candidate attorney
andrew-p@adamsadams.co.za