1. OVERVIEW OF KEY THEMES EMERGING FROM THE RAFC REPORT

Five main themes emerge from the Road Accident Fund Commission (RAFC) report, as the key areas of importance in the assessment of the Road Accident Fund (RAF) which are briefly discussed below. These are:

1. The purpose and role of the RAF

The RAF is intended to compensate the victims or families of those killed in road accidents in South African public roads. The RAFC report states that approximately 23% of the fund goes to transaction costs. Further scrutiny indicates that more hidden transaction costs can be attributed to the 48% of claims that are for general damages. Some funds have been lost to corruption and a portion of the fund is spent on road safety through sponsoring the Arrive Alive road safety campaign. The Inter-Departmental Committee on the Road Accident Fund Commission Report (IDC-RAFC) does not believe that such high transaction costs are justified for an entity such as RAF. It is felt that these costs should be controlled and reduced in order to release more of the funding to the intended benefits.

In addition, the role of the RAF has mainly been reactive i.e. post accident victim compensation. The IDC-RAFC proposes that the RAF becomes more proactive and increase investment in road safety and accident prevention in order to reduce the claims burden it currently faces. In essence this has already begun with the support of the Arrive Alive campaign. If this is accepted, the role of RAF would need to be
clearly identified and coordinated with that of the National Department of Transport (NDoT) and the future functions of the Road Traffic Management Corporation.

2. Administration of the RAF

The administration of the RAF is characterised by predominantly legal expertise supported by an administrative service. Since the RAF has a legal basis for processing claims and awarding compensation, huge funds go to professional fees. The claims process has been found to take an average of over two years before a victim or the family can be compensated. There have been cases of false claims that have gone through the system, with other claims being difficult to trace. It is clear that institutional reform is required and the RAFC proposes a shift to a medical basis for compensation. Such a shift would require a restructuring of the current RAF or the creation of a Road Accident Benefit Scheme (RABS) as recommended by the RAFC. The IDC-RAFC cautions that the new system be thoroughly investigated to remove any incentives for corruption and discourage any abuse of the system by the medical sector. In this regard consideration should be given to the listing of accredited preference service providers, including emergency and ambulance services, treatment centres and medical doctors.

3. Basis for compensation

The current RAF system is based on the apportionment of blame, it uses 'fault' as a basis for processing claims and awarding compensation. This causes the system to rely heavily on the legal sector, including the victims. This unfortunately also enables corruption in the system since victims usually stand to benefit a large, once-off, lump sum. This system is sometimes seen to be unfair to the category of road victims that are deemed to be ineligible for claims because their accidents had no "wrongdoer".

The RAFC report proposes abandonment of the "fault" system in preference of a "no fault" system. The IDC-RAFC supports this proposal as such a shift will be more equitable and include some of the victims that are currently excluded. However the IDC-RAFC cautions that the financial implications of the shift need to be carefully considered, particularly since the number of victims that will be eligible for compensation is going to increase.

4. Equity and sustainability of the RAF

The apartheid spatial planning system made sure that Africans were deprived of access to opportunities. It further ensured that families spent a large proportion of their income on transport. Furthermore, this increased the risk levels of Africans being involved in accidents. According to the report 53% of all the reported accident cases were of Africans. Approximately 74% of the people who claim against the fund are in the income category of less than R4000 per month. Approximately 44% of claimants were passengers. Claims against the fund were dominated by people with slight injuries at 48%, accounting for 22% of the compensation disbursed. The people in the above category are commonly those with little or no education. They often have no knowledge of the RAF. In cases where they do know, they are not able to afford the legal fees associated with the claims process and, in cases where they can, they are at the mercy of legal experts who charge exorbitant fees due to the clients limited knowledge.

The IDC-RAFC is concerned that the current system is not really equitable and thus supports the proposed interventions as they will contribute to reducing the general damage claims and remove the dependency of the claims process on the legal sector, thereby reducing the high professional fees.

The current RAF compensation approach i.e. the lump sum payment of the compensation to the victim, is not sustainable in the long term. The victims need medical cover soon after the accident to enable effective treatment as early as possible, however, many victims cannot afford such fees and end up not getting the necessary healthcare in time. The lump sum is given to the victims long after the accident has occurred, and by such time the victims normally have other financial demands that require capital funds i.e. debts and other short term needs that may use up all the money that is intended to sustain the victim or family in view of the sudden change in their lives. This results in people running out of money and being confronted by poverty. Adding the good portion of the compensation that must still go to legal fees, the victims clearly cannot be sustained by the lump sum payment.

The IDC-RAFC supports the pension payment approach instead of the lump sum payment, particularly since this approach allows for monitoring of the impact of the accident over time for more realistic compensation and also enables the RAF to accumulate reserve funds.

5. Road accident compensation fund versus social security benefit scheme

There is a current debate on whether the RAF should continue to exist as an autonomous dedicated fund for compensating road accident victims or whether it should be integrated into the social security system of the country. The RAFC report proposes the latter and makes a number of recommendations based on this approach. Good arguments have been made for and against each of these options.

The IDC-RAFC supports such a shift, but indicates that this debate should possibly be allowed to continue, with comments invited from a wide range of stakeholders. One concern is that the RAFC report bases most of its recommendations on the adoption of the social security approach. The question may well be what happens if the current dedicated fund model is retained.

Currently the RAF is expected to generate R3,4 billion, R3,7 billion and R4 billion from the fuel levy over the Medium Term Expenditure Framework (MTEF) period. The Fund is currently expecting to exhaust its reserves in 2003/04 and is budgeting for a deficit of between R0,5 billion and R0,8 billion per year over the MTEF.

The actuarial calculations of the expected cost of the new Road Accident Benefits Scheme proposed by the Commission provide for seven scenarios, ranging from a fault-based system with no compensation for general damages to a no-fault system with full compensation.

Based on the recommendations of the Commission the scenario of a no-fault system with some limits to compensation is costed in more detail in the table below.

While this estimate seems quite conservative given the increased spread of benefits paid on a no-fault basis, the Commission does caution that further work should be done on costing the new scheme before the benefits are defined. A major omission in the costing scenario presented is the cost of the administration of the new scheme. There are also a range of new functions that are recommended for the administering authority of the new scheme, such as information management and analysis, and education and awareness-raising, in support of the Arrive Alive campaign, which are not addressed in the estimated costing.

Another key fiscal concern relates to the recommendation that the RAF be discontinued and replaced by a completely new road accident benefits scheme. The cash-flow projections for the proposed accident benefits scheme are illustrated in the table below.

These projections are relatively realistic, given the time it will take to set up a new benefits scheme. But the Commission recommends that the new scheme be established and run in parallel with the existing RAF until the RAF can be phased out.

Given the RAF's liability exposure and backlog of claims, this could take a few years. It would be unrealistic to expect to be able to fund the RAF and the new scheme through the fuel levy during the transition phase. This means that the new scheme will require a grant of at least R1 billion (possibly R2 billion if institutional costs are considered) for its first year of operation. It will probably require similar grants for at least the next two years - until the RAF has been disestablished and the fuel levy funds can be channelled to the new scheme.

The IDC-RAFC recommends that once the institutional model for the implementation of the agreed recommendations of the RAFC has been defined, a detailed financial model should be developed to ensure that appropriate trade-offs could be made between the scope of the scheme and the scale of benefits to be offered.

Given that the existing legislative framework within which the RAF is established and operates is in the process of being reviewed, the following comments reflect on the concurrence between the proposed legislative amendments and the recommendations of the RAFC.

The majority of the proposals for amendments to the Road Accident Fund Act, 1996, made by the Road Accident Fund during 2002, appear to be in line with most of the important recommendations by the Road Accident Fund Commission, and/or their effect.

These legislative proposals should be viewed as critical for the sustainability of the Fund, and should be implemented in the short to medium term. The said legislative proposals are expected to result in a positive impact on the Fund's cash-flow position. Annual cash outflow will be reduced in view of the fact that cash lump-sum awards will largely cease. In addition, costs of delivery are expected to reduce on account of the removal of the incentive of cash lump-sums, which is seen as the primary driver of disputes, deviance and fraud.

Draft legislation already prepared some time ago, will need to be reworked to accord with a reassessment of the latest situation.

The specific matters requiring legislative change in the short to medium term are as follows:

The above legislative changes will have to be effected to the Road Accident Fund Act, Act 56 of 1996, should it be decided that the current RAF be transformed. Should it, however, be decided to establish the Road Accident Benefit Scheme, as recommended by the RAFC, complete new legislation will have to drafted to provide for the establishment, procedures, functions and operations of such a Scheme.

In order to effectively implement the revised proposals for the compensation of road accident victims, two options are available. The first being to restructure the existing RAF according to the principles contained in the recommendations of the RAFC report. The second is the creation of a new organization for this purpose.

The RAFC proposes that the new scheme for the delivery of benefits to the victims of road accidents be administered by a new parastatal to be called the Road Accident Benefit Scheme (RABS). Should this proposal be accepted, it is further proposed that the current scheme of road accident compensation and the RAF organization should endure until such time as the proposed road accident benefits scheme and its administrative authority are established. As indicated in Section 2, the implementation of two parallel systems, until the existing RAF can be phased out, will require additional funds estimated to be in the order of about R 2,0 billion per year for at least three years.

The IDC-RAFC is of the opinion that the RAFC report does not sufficiently deal with the interim phase of transition i.e. the phasing out of the current RAF and the phasing in of the new RABS.  For instance:

§         There are significant financial implications for running the two entities in parallel for a number of years during the transition period.

§         Clarity is required on what is going to happen to the current RAF institution, its personnel and assets vis. a vis. the institutional requirements of the new entity.

§         It is also not very clear what form this entity will take in terms of management and administration during transition and after e.g. whether it will be part of a government department, an autonomous entity, whether it will be answerable to the ministry of Transport or Social Development etc.

In view of the above the IDC-RAFC is of the opinion that a technical analysis needs to be conducted to develop a series of institutional models (or scenarios) for the proposed phasing in of a Road Accident Benefit Scheme (RABS) and phasing out of the Road Accident Fund (RAF). This analysis must consider the institutional, legislative and financial implications for each model. The possibility of restructuring the existing RAF according to the principles contained in the recommendations of the RAFC report should also be included as one of the options.

The Inter-Departmental Committee on the Road Accident Fund Commission Report (IDC-RAFC) has considered all the recommendations of the RAFC report and its implications on, for example the accident victims, the National Department of Transport, the current Road Accident Fund (RAF) and the social security system. In general, the IDC-RAFC is in agreement that the current system be reviewed and that a more reasonable, affordable, sustainable and equitable system for the compensation of road accident victims be implemented as soon as possible.

Most of the recommendations are acceptable to and supported by the IDC-RAFC. The current Road Accident Fund (RAF) also indicates in its comments on the RAFC report that many of the recommendations that are contained in the RAFC report are in agreement with the RAF's thinking in terms of improving the efficiency of its service delivery. It also goes further to mention that some of these recommendations have been proposed by RAF or are already in the process of being implemented.

The IDC-RAFC position on the 179 recommendations is provided in Annexure 1. To simplify reading, the recommendations have been grouped into five schedules, as shown in the following table:

The IDC-RAFC believes that in general the recommendations of the RAFC report will have major gains in terms of improving the performance of the road accident compensation system, extending the cover of the compensation system, ensuring that the funds reach the intended beneficiaries, sustain the victims and that the system itself becomes sustainable. It is however proposed that the contents of this document be carefully considered to add value to the proposed recommendations.

For the purpose of the table below time frames are defined as follows:

Short term : period not exceeding 18 months

Medium term : period between 18 and 36 months

Long term : period longer than 36 months

This Annexure is divided into the following schedules:

The schedules follow the numbering used in the report of the Commission. The position of the IDC appears in italics.

1. The link between safety on the roads and claims for road accident benefits must be clearly articulated and publicised by the administrative authority of the road accident benefits scheme.

4. The administrative authority should be proactive in initiating, promoting and funding initiatives, programmes and research to promote safety on South African roads, to limit the factors contributing to road accidents and to prevent and improve the management of injuries resulting from such accidents. Such involvement should not usurp the duties of the Ministry of Transport or relieve it of its own road safety responsibilities.

5. All persons who suffer bodily injury on South African roads or who are family members of those who die on South African roads should be entitled to seek assistance from the road accident benefits scheme. The focus of any such scheme should be the victims of road accidents or defined family members, and the resources of the scheme should be dedicated to supporting them and their families and alleviating the impact of road accidents.

11. The administrative authority of the road accident benefits scheme should maintain the capacity to engage in ongoing product research, which requires continuous evaluation of the principles underlying and practices adopted by the scheme in the light of local, regional and international experience, benchmarking and developments.

12. In addition to claims administration and delivery of benefits to road accident victims, the scheme should direct its intervention towards education, risk management and continuous improvement in areas such as accident prevention and road safety.

13. The administrative authority of the road accident benefits scheme should be proactively involved in the education of the road using public about the existence of the scheme, requirements for eligibility, the nature and extent of benefits, the sources of assistance available to claimants, and methods of resolving disputes. Such advice should be disseminated by means of booklets, pamphlets, call centres and information desks, media publicity and sponsorship of appropriate events and programmes. Information should be presented in an attractive, user-friendly form, stressing that the administrative authority is there to serve road accident victims who are entitled to benefits.

14. The road accident benefits scheme should utilise and share in the resources of non-governmental organisations and Government departments such as the Department of Social Development, the Department of Health, the Department of Labour, the Compensation Fund, the Unemployment Insurance Fund, the South African Police Service and the Department of Home Affairs, to facilitate speedy, anxiety-free provision of benefits.

17. The administrative authority of the proposed road accident benefits scheme should engineer all processes (management and financial), systems (information

technology and infrastructure) and structures (personnel and practices) in order to deliver stated benefits with appropriate systems of control adhering to proper rules of governance and statutory requirements.

26. The levy should be regularly adjusted in order to ensure sufficient funding is available for the road accident benefits scheme in accordance with budgeted expenditure on appropriate road accident benefits, which budget should be linked to inflation, socio-economic conditions, product development and other cost drivers.

29. The administrative authority of the road accident benefits scheme should be mandated to deliver stated benefits within and in accordance with appropriate systems of control, adhering to proper rules of governance and functioning according to approved business plans and budgets for benefits, all of which should be scrutinised and monitored by appropriate oversight bodies.

30. Priority should be given to controlling administration and overhead costs of the administering authority of the road accident benefits scheme and the fees charged by lawyers and experts in the administration and prosecution of claims on behalf of victims and in defence of claims on behalf of the administering authority.

31. The importance of assisting road accident victims in their application for and pursuit of claims for benefits must be acknowledged. Appropriate, user-friendly, accessible and affordable arrangements must be made to ensure that every claimant is provided with free professional assistance at all stages of prosecution of the claim including lodgement, assessment, review or appeal.

32. The administrative authority of the road accident benefits scheme should operate in accordance with established and published benchmarking standards; be subject to independent scrutiny and monitoring in relation to financial, delivery and administration targets; comply with principles of good governance; and operate within a strategically realigned environment.

37. The scheme should be accessible and efficiently administered and transaction costs should be reduced.

61. The administrative authority of the road accident benefits scheme should provide financial counselling if requested by any person who is entitled to or who has received benefits in terms of the scheme.

64. In general, redemption of periodic benefits should not be permitted.

65. The administrative authority of the road accident benefits scheme should have the power to review and reconsider the entitlement of any claimant to benefits. Such review must include an assessment by medical practitioners or therapists of the incapacity or disability of the accident victim and investigation of the victim's home environment, living circumstances, employment opportunities, surviving spouse or partner and dependent children. Any claimant who does not consent to such review shall not be entitled to receive payment of any benefits from the road accident benefits scheme

67. The administrative authority of the proposed road accident benefits scheme should establish a professional and efficient infrastructure for the proactive administration and policy driven provision of the supply of healthcare services, pension payments and life enhancement payments.

Supported. (Already addressed by the RAF.)

68. The administrative authority of the road accident benefits scheme should have the power to assess the short- or long-term or permanent incapacity or disability of the accident victim. If the injured person does not consent to such assessment that person should not be entitled to receive any benefits from the road accident benefits scheme.

Supported. (Already addressed by the RAF.)

69. Victims should be examined and assessed only by healthcare practitioners who have been trained in the use of and are accredited to perform assessments in accordance with appropriate and determined guidelines or frameworks.

70. Assessments of disability or loss of functioning for purposes of determining entitlement to income support benefits should be made in accordance with guidelines such as those published by the World Health Organization (WHO) in the International Classification of Functioning (ICF).

71. At any time after the initial assessment, the administrative authority of the road accident benefits scheme should have the power to make a fresh assessment of incapacity or disability or loss of functioning. A claimant who does not consent to participate in such assessment shall not be entitled to receive any further benefits from the road accident benefits scheme.

73. Assessments shall only be conducted by healthcare practitioners registered with the Health Professions Council of South Africa (professional boards: medical and dental, psychology, emergency care personnel, medical technology, radiography and clinical technology, physiotherapy, podiatry and bio-kinetics, occupational therapy and medical orthotics, prosthetics, speech-language-hearing, dietetics, environmental health officers, optometry and dispensing opticians professional boards) the South African Pharmacy Council, South African Nursing Council or the Allied Health Professions Council (professional boards: homeopaths, ayurvega, acupuncture, chiropractic, naturopath, osteopath, phytotherapy, aromatherapy, massage therapy, reflexology).

75. The administrative authority of the road accident benefits scheme should, in consultation with the relevant sub-committees of the Health Professions Council of South Africa, establish panels of doctors, therapists and other healthcare professionals, whose professional services shall be paid for by the administrative authority in accordance with a tariff and who shall offer independent professional opinion and assessments of claimants.

76. The administrative authority of the road accident benefits scheme should bear all costs, including travelling and accommodation, reasonably incurred by the claimant in undergoing initial and review assessments, such costs to be payable in advance by the administrative authority or at the time they are incurred.

79. The administrative authority of the road accident benefits scheme should establish its own internal review mechanism or body capable of monitoring decisions on benefits and initiating immediate reconsideration of decisions where there is an indication or notification by a claimant of a dispute. In this way the administrative authority can rectify incorrect decisions and monitor deviations from policy.

85. A tariff should govern the cost of provision of healthcare, rehabilitation and life care. The Commission is divided with regard to the tariff which should be applicable:

a) The majority (Commissioners Phiyega and Sithole) recommend that the administrative authority of the road accident benefits scheme should determine its own tariff (to be known as the RABS Tariff) after discussions with service providers and other interested parties.

b) The minority (Commissioner K Satchwell) recommends that the administrative authority should not design a new tariff additional to the many tariffs currently operative in South Africa and internationally and that the Uniform Patient Fee System (UPFS), developed and implemented by South Africa's Department of Health for use in public sector facilities, should be utilised and applied.

87. The administrative authority should develop a core of administrative and management competencies in the fields of healthcare, rehabilitation and life care, with the establishment of departments within the scheme dedicated to administering and managing benefits for victims who have sustained serious injuries or disablement and who require such services.

89. The road accident benefits scheme should articulate clearly that all victims are entitled to timeous, optimal and appropriate healthcare. Victims/claimants should not receive differentiated treatment on the basis of socio-economic status and the ability to access private medical insurance.

92. No thresholds to access or deductibles before the provision of healthcare in either the public or the private sectors should be introduced.

93. There is no basis upon which this Commission can recommend and the administrative authority of the road accident benefits scheme could implement any ceiling limiting the duration or the extent of cost of the provision of healthcare by or through the proposed road accident benefits scheme. It is recommended that the introduction of such a ceiling on healthcare, rehabilitation and life care benefits be revisited as and when data become available in respect of injuries sustained, treatment required, the costs thereof and treatment and rehabilitation outcomes.

98 The provision of timeous, and effective emergency medical services and trauma care of a high standard should be identified and articulated as a priority in the provision of benefits to road accident victims.

102. The administrative authority should establish a core of managed healthcare competency within the scheme. This would enable the scheme to capture information about injuries and classify it in appropriate diagnostic groupings. Cases could be managed during the acute phase of trauma, and particularly after discharge from hospital, to ensure the implementation of rehabilitation and life care. It would also facilitate the assessment, adjudication, price validation and prompt and efficient payment of healthcare claims. Quality assurance mechanisms should be introduced to ensure that resources delivering care are appropriate and adequate; the performance of service providers should be checked against quality benchmarks and, where necessary, correcting strategies should be introduced. Managed healthcare would also facilitate the selective use of high-quality cost-effective providers of services and goods; the setting of protocols for assessment of disablement of victims and referral to appropriate medical services and rehabilitation facilities and the ability to select providers and

facilities competent to deliver effective life care by meeting certain minimum skill and equipment levels.

106. The administrative authority should establish a dedicated rehabilitation department and ensure that it is staffed by people with administrative and management competencies in the field of rehabilitation and life care.

107. The administrative authority should coordinate and administer the provision of rehabilitation services by existing agencies rather than establish its own services. It should develop benchmarks and performance standards by which the speed of delivery and effectiveness of rehabilitation can be measured and monitored on an ongoing basis and service providers should be monitored to ensure satisfactory standards of service. The administrative authority should, as far as is practicable, pursue the goal of decentralising rehabilitation facilities.

108 The administrative authority should engage proactively in making rehabilitation, goods and services more accessible to claimants by developing and disseminating information packages about claims processes, assessment processes, the advantage of early rehabilitative intervention, the availability of rehabilitation services, the availability of life care services, appliances and support. Rehabilitation guidelines should be prepared for medical practitioners, therapists and other rehabilitation specialists as well as for the suppliers of goods and appliances.

109. Road accident victims should be required to participate actively in any rehabilitation programme designed to improve their health or disability condition.

110. The road accident benefits scheme should pay all necessary travelling and accommodation expenses incurred by a claimant patient in obtaining rehabilitation treatment or access to rehabilitation or life care services.

114. The road accident benefits scheme should bear the cost of providing pharmaceuticals, prosthetics, corrective equipment and other aids and appliances required by injured or disabled road accident victims; should replace such aids and equipment where necessary and reasonably required and should investigate the feasibility of establishing sources of supply for claimants.

118. Any person who suffers a disability (whether temporary or permanent) as the result of a road accident and is therefore unable to provide adequately for his or her personal care should be entitled to receive attendant care services from the administrative authority. Attendant care is defined as services, other than medical or nursing care, required for the essential regular personal care of the disabled person. In assessing the need for such services, the administrative authority should have regard to a number of factors including the nature and effect of the disability; medical or nursing services already received by the disabled person; the wishes of the disabled person, specifically his or her desire to live outside an institutional environment; the extent to which attendant services are required to enable the disabled person to undertake or continue in employment; any assessment made by a rehabilitation professional and services that other family members could reasonably be expected to provide.

119. Any person who has suffered long-term or permanent physical disability which severely impairs his or her mobility or ability to live independently within a home or residence should be entitled to the reasonable cost of necessary modification to his or her home or residence. The administrative authority of the road accident

benefits scheme should take into account whether such modifications are required to enable the disabled person to gain access to or enjoy reasonable freedom of movement within or to live independently in the home or residence. It should not be a condition that the disabled person is the owner or tenant of the premises. The administrative authority should be empowered to meet the reasonable cost of modifications to the home or residence of a disabled person on a second or subsequent occasion. Where the cost of modifications provided by the road accident benefits scheme add substantially to the value of the home or residence the administrative authority should have the power to impose conditions requiring repayment of the increase in value on the sale of the premises or on the death of the disabled person but the administrative authority should also have power to waive any such condition.

120. The road accident benefits scheme should meet the cost of necessary modifications to a vehicle owned or regularly used by the disabled person or his family. The road accident benefits scheme should contribute to the cost of purchasing a motor vehicle for the disabled person where such contribution is required to avoid financial hardship. A mobility allowance should be paid to people who are unable to use public transport unassisted and incur additional travelling expenses by reason of a disability arising out of a road accident.

121. The road accident benefits scheme should meet the reasonable costs of a disabled person who is required, by reason of his or her disability, to live in an institution. The administrative authority should make payment directly to the institution for accommodation. Unless there are special circumstances, a modest amount, representing the "board and lodging" element of institutional accommodation, should be deducted from the amount paid to the institution and the disabled person should pay an equivalent amount to the institution from his or her income support benefits provided that the income support benefits are sufficient to meet this portion of the costs in full and that the disabled person is left with a residue sufficient to meet necessary daily expenses such as clothing, toiletries, leisure facilities and transport and to maintain family contact.

167 The proposed road accident benefits scheme should support, fund and engage in road safety initiatives.

7. Psychiatric or psychological illness or disorder resulting from observing or learning of death or injury in a road accident should not be included in the definition of bodily injury. Pre-natal injuries should be included in the definition of bodily injury. Bodily injury should also be defined to include damage to artificial limbs, eyes or teeth, crutches, spectacles, or other artificial aids.

Supported, however, the exclusion of psychological or psychiatric illness or disorder in the definition of bodily harm should have provision for the exemption of the victims who were directly involved in an accident and experienced trauma.

44. The Commission is divided in its recommendations with regard to geographic application of the proposed scheme:

c) The majority (Commissioners Phiyega and Sithole) recommend that benefits under the scheme should be payable or provided only to persons who are lawfully resident in the Republic of South Africa at date of the accident and not to persons not lawfully resident in the Republic of South Africa at date of the accident.

d) The minority (Commissioner Satchwell) recommends that:

(i) the scheme should apply to death or bodily injury suffered by any person killed or injured in a road accident within the Republic of

South Africa, notwithstanding that the person was not a citizen of, or a lawful resident within the Republic at date of the accident;

(ii) if a person who is injured in a road accident and is entitled to continuing benefits under the scheme takes up residence outside the Republic of South Africa after the date of the accident the road accident benefits scheme should continue to pay income support benefits to the beneficiary;

(iii) if a person who is injured in a road accident and is entitled to continuing benefits under the scheme takes up residence outside the Republic after the date of the accident the scheme should continue to meet the cost of medical care, rehabilitation and life care in accordance with the tariff of charges applicable in South Africa and in accordance with the opportunity to verify the person's continuing need for such services;

(iv) if a person is killed in or as a result of a road accident and a surviving spouse or partner or a dependent child who is entitled to continuing family support benefits under the scheme takes up residence outside the Republic of South Africa after the date of death, the road accident benefits scheme should continue to pay such family support benefits.

55. The proposed road accident benefits scheme should not pay once-and-for-all lump sum compensation in respect of damages sustained by way of economic loss.

77. Reliance on litigation as a means of obtaining road accident benefits should be substantially reduced or even eliminated by the abolition of delict as a basis for entitlement and of once-and-for-all lump sums as the preferred form of payment of compensation.

3 Data on the incidence and causes of road accidents should be made available to Government; to institutions and businesses involved in the planning, design and building of roads; and to transport bodies and road user associations.

6. The administrative authority should initiate, commission and participate in research into the nature and extent of injuries and disablement suffered by victims of road accidents, the availability and cost of medical care, and the availability of rehabilitation and life care; promote and support measures that will lead to a better outcome for those who suffer injuries and lend support to organisations dedicated to the care of road accident victims.

9 Benefits should be designed and implemented to help victims of road accidents and not to aid wrongdoing motorists or to profit the administrative authority or ancillary facilitators and support professions.

10. A road accident should be defined as one where bodily injury or death takes place on a South African road and involves a motor vehicle, motorcycle, bicycle, trailer, caravan, or animal drawn vehicle, whether the accident is caused by the vehicle (fuel driven or otherwise) or by human or animal behaviour, road environment or weather.

16. Claimants (road accident victims or their families) should be entitled to lodge

the first claim for a maximum period of twenty-four months from date of the road accident or first entitlement to benefits, subject to the following provisions:

a) service providers, whether hospitals, medical practitioners, pharmacists, therapists, suppliers of assistive devices, etc., should be required to lodge their claims within seven days (Commissioner Z Sithole), seven to twenty days (Commissioner R Phiyega) or one calendar month (Commissioner K Satchwell) from date of admission or treatment;

b) claimants (road accident victims or their families) should be required to lodge the first claim for income support benefits, funeral benefits, family adjustment benefits and family support benefits within three calendar months (Commissioner Sithole) or six calendar months (Commissioners Phiyega and Satchwell) from date of the accident or date of entitlement to benefits in order to be entitled to payment of benefits retrospective to the date of the accident or first entitlement to benefits. Only claims lodged within a defined period will be paid retrospective to the date of the road accident or entitlement to the benefit while claims lodged after the defined period shall be payable, but not in arrears or retrospective to the defined period;

c) claims for life enhancement benefits can be lodged at any time before the expiry of a period of twenty-four months from date of the accident. In certain circumstances, amended claims for life enhancement benefits based upon further and revised assessment of Whole Person Impairment may be lodged subsequent to expiry of a period of twenty-four months from date of the accident.

Recommendation 16(a) supported : one calendar month is reasonable for administrative purposes.

18. Expenditure of fuel levy income on administration and provision of compensation for minor injuries with negligible impact on health and no lasting effect should be eliminated or reduced. Resources should be conserved to provide benefits to those persons who have sustained serious injuries with life changing consequences for themselves or their families.

19. Fuel levy income should be directed to provide timeous and appropriate care at the acute stage, rehabilitation when required, life care when and to the extent appropriate and income and dependant support for those unable to earn or who have lost support through the death of a partner or parent.

20. The administrative authority of the proposed scheme should include within its capacity appropriately trained personnel and facilities for the timeous capture in electronic form of all relevant data, analysis thereof and presentation and distribution of such data and analysis to claimants and their representatives, the healthcare sector, road safety initiatives, Government and other interested individuals and bodies.

22. The fuel levy should be recognised as taxation imposed upon the road using public to fund the road accident benefits scheme as one component of the system of social security and not as an insurance premium to enable motorists to participate in a liability insurance scheme.

103. The administrative authority of the road accident benefits scheme should establish benchmarks of quality in both the public and private healthcare sectors by designating certain service providers as "preferred providers" where appropriate and either developing and monitoring protocols for care and rendering of services by such preferred providers or outsourcing these functions.

104. A principal feature of the legislation establishing the proposed road accident benefits scheme should be the provision of rehabilitative goods and services to road accident victims.

105. The administrative authority of the road accident benefits scheme should have a duty to provide rehabilitation services as soon as possible after the occurrence of an injury in a road accident and to be responsible for meeting the cost of rehabilitation services in accordance with the tariff and subject to negotiation of discounts, quality control and managed care arrangements.

112. The road accident benefits scheme should contribute to funding the training at universities, technikons, colleges, other establishments, and in apprenticeships, of rehabilitation practitioners and therapists and persons engaged in ancillary occupations including the design, engineering and production of wheelchairs, prosthetics and assistive devices.

113. The administrative authority should assist in the establishment and ongoing availability of therapy and rehabilitation facilities in clinics, hospitals, rehabilitation centres and other institutions by means which include funding salary posts, exchange of information, rendering of services, the purchase and maintenance of equipment and involvement in the administration and infrastructure of such facilities.

116. The administrative authority should promote the placement of disabled road accident victims in employment and should proactively engage with or develop schemes to provide financial incentives to employers who engage or maintain disabled road accident victims.

117. The road accident benefits scheme should contribute to the provision of workplace modifications to enable disabled road accident victims to work in or gain access to the workplace, having regard to the cost thereof, the benefit of the modifications to the employer and other workers or customers, contributions to the cost by the employer, the likely duration of the employment of the disabled person and any other relevant consideration.

8. A road accident benefits scheme should be conceived that is independent of common law delictual principles and liability insurance practice and is a social security scheme established for the protection of the victims of road accidents and their dependants.

15. Common law and statutory periods of prescription should be applicable only to claims for compensation instituted in terms of the common law and not to claims in terms of the proposed scheme.

21. The primary source of funding of the road accident benefits scheme should be a flat-rate levy on fuel (petrol and diesel) purchased for use on land. Full exemptions should be retained in respect of fuel purchased for use by railway trains and ships. Partial exemptions should be continued in respect of the purchase of fuel used by the forestry, agricultural and mining industries.

27. The road accident benefits scheme should be funded on a "pay-as-you-go" basis.

28. Reasonable reserves, identified as a certain percentage of outstanding claims liability, should be set aside to guard against disaster or unexpected contingencies, enhance intergenerational equity, ensure stability and prevent unnecessary fluctuations in the fuel levy.

34. The road accident benefits scheme should be moderate in its objectives and practices; sensible in its ambitions and reflective of both the needs and resources of the South African society; purposive in conception and not a piecemeal mixture of legislative amendment.

35. Benefits should be as inclusive as possible, be based on need not on "fault", and be directed towards those who have sustained life-changing injuries and disablement or who have suffered a bereavement.

36. Benefits should be made available when required to all who are entitled to them. The scheme should facilitate healthcare and rehabilitation as also the alleviation of financial hardship and anxiety.

38. The scheme should be within the financial means of road users and South African society as a whole and should provide value to road users in its funding demands, administrative costs and social security benefits.

39. The road accident benefits scheme should acknowledge its symbiotic relationship with the broader system of social security, which it should reinforce and which, in turn, should be supportive of the scheme. There should be balance or congruence between the benefits made available to road accident victims and those availed to other South Africans in need.

40. Sufficient justification exists for Government to fund and regulate a Road Accident Benefits Scheme to provide benefits exclusively for victims of road accidents, which scheme should be viewed as one component in an holistic system of social security.

41. In the long term Government should make provision for support of all persons in need, including the victims of all accidents who have sustained personal injury resulting in disablement, to receive social protection irrespective of the cause of such misfortune.

42. The road accident benefits scheme should be clearly articulated and established to explicitly reflect principles of social security and not liability insurance.

43. The scheme should apply to, and only to, death or bodily injury caused by or arising out of an accident on a public road within the Republic of South Africa.

45. Certain socially reprehensible behaviour may fall within "social policy exclusions" which may affect eligibility. Among these are:

a) intentionally self-inflicted death or bodily injury;

b) bodily injury or death sustained by a person in furtherance of or incidental to the commission of a crime in respect of which he or she is convicted;

c) bodily injury or death sustained by a person while driving or in control of a stolen or unregistered motor vehicle;

d) bodily injury or death sustained by a person while driving or in control of a motor vehicle without being in possession of a valid driver's licence;

e) bodily injury or death sustained by a person driving or in control of a motor vehicle whilst under the influence of alcohol or dependence inducing substances or while over the legal limit for alcohol consumption, irrespective of whether such influence or consumption contributed to or caused the road accident;

f) a person (otherwise eligible for benefits) who is imprisoned pursuant to conviction or sentence for any crime.

46. The Commission is divided in its recommendations with regard to the above "social policy exclusions":

a) The majority (Commissioners Phiyega and Sithole) recommend that all persons injured in road accidents should be entitled to receive necessary and reasonable healthcare, rehabilitation and life care services in accordance with the provisions of the proposed road accident benefits scheme, notwithstanding the socially reprehensible behaviour of the person injured or killed.

b) The minority (Commissioner Satchwell) recommends that healthcare benefits should not be available to road accident victims who fall within one or more or all of the "social policy exclusions" and that such persons shall be entitled to seek healthcare, rehabilitation and life care from State facilities or, at their own expense, at private facilities.

c) The majority (Commissioners Phiyega and Satchwell) recommend that persons who are disabled or suffer loss of functioning as a result of a road accident should not receive benefits in respect of lost income or loss of earning capacity and spouses, partners and children of people killed in or as a result of road accidents should not receive family support benefits where the injured or deceased road accident victim falls within one or more or all of the "social policy exclusions".

d) The minority (Commissioner Sithole) recommends that all persons who are disabled or suffer loss of functioning as a result of a road accident should receive benefits in respect of loss of earning capacity and all spouses and partners and children of people killed in or as a result of a road accident should receive family support benefits notwithstanding the socially reprehensible act of the person injured or killed.

e) The unanimous recommendation of the Commissioners is that all persons who fall within one or more or all of the "social policy exclusions" and who are injured, impaired, disabled or who suffer loss of functioning in or as a result of a road accident should not receive life enhancement benefits.

47. There should be no discrimination between different classes of road users, all of whom should be eligible for benefits under the proposed scheme irrespective of whether they were drivers, passengers or pedestrians and irrespective of the type of vehicle in which they were travelling and the nature of their relationship to the owner or driver of the motor vehicle. The ceiling on compensation available to certain passengers provided for in the current RAF Act should be abolished.

48. The proposed road accident benefits scheme should incorporate certain qualifications for or thresholds to benefits. These may include waiting periods, registration as a taxpayer and the degree of severity of bodily impairment.

49. There should be certain limits or ceilings on benefits available to road accident victims and their families which may be imposed by reference to a maximum percentage of pre-accident net income, a maximum percentage of the threshold for payment of income tax, a monetary maximum on the income support benefit or family support benefit or life enhancement benefit payable.

50. Where a claimant in terms of the proposed scheme is entitled to and has been paid or receives compensation under any other law, such as Unemployment Insurance, Workers' Compensation or the Basic Conditions of Employment Act, in respect of the same death or bodily injury such compensation or benefits should be set off against benefits otherwise payable or available under the road accident benefits scheme.

51. Benefits available to a claimant under the proposed scheme should not be reduced or otherwise affected by entitlement to accident insurance payments, retirement pensions, ex gratia payments or any collateral benefits other than social security benefits administered and paid by Government or public bodies. Road users should be entitled, and even encouraged, to make private arrangements to protect personal income or earning capacity and to alleviate the risk of reduced earnings or total loss of earnings due to death or disability resulting from road accidents. Road users and road accident victims who have made such private arrangements should still be entitled to claim benefits in terms of the proposed scheme.

52. The Commission is divided in its recommendations with regard to retention or abrogation of the common law right to sue the wrongdoer for damages not met by the proposed road accident benefit scheme:

a) The majority (Commissioners Satchwell and Sithole) recommend that road accident victims and their families should retain all rights under the common law to compensation for death or bodily injury caused by or arising out of a road accident, with due allowance made for the benefits payable or provided under the proposed road accident benefits scheme. Road accident victims and their families should retain the right to sue a wrongdoing road user in common law in respect of those damages which have not been accommodated or fully covered by the State funded and regulated scheme of road accident benefits. Owners and drivers of motor vehicles should be encouraged to make arrangements for liability insurance cover to provide for any damages for which they may be liable.

b) The majority (Commissioners Satchwell and Sithole) recommend that the owner and/or driver of a motor vehicle or other form of transport using public roads or any other road user in the Republic of South Africa should not be indemnified by the road accident benefits scheme in terms of the common law or any other statute for any liability for death or bodily injury arising from any road accident except to the extent of the benefits provided under the proposed scheme.

c) The minority (Commissioner Phiyega) recommends that no action shall lie against a wrongdoing road user by a road accident victim or any family member of a road accident victim for the recovery of damages in common law in respect of death or bodily injury caused by or arising out of a road accident except for benefits provided under the proposed road accident benefits scheme.

53. The road accident benefits scheme should have no right of recourse against the negligent road user for any benefits paid by the scheme.

54. The proposed road accident benefits scheme should, broadly speaking, adopt a "no-fault" approach to the provision of road accident benefits.

56. Healthcare, rehabilitation and life care expenses should be met as and when they are incurred, with payment for services, supplies, facilities and equipment to be made directly to the supplier at the time they are provided to the patient.

57. Benefits for lost income or loss of earning capacity, whether by earners or non-earners, should be paid on a periodic basis monthly in arrears.

58. Benefits for loss of support, whether by earners or non-earners, should be paid to family members on a periodic basis, preferably monthly in arrears.

59. Life enhancement benefits should be paid in a lump sum, the amount of which should be related directly to the degree of impairment.

60. Funeral and family adjustment benefits should be paid in a lump sum in accordance with the determined flat-rate benefit.

62. Medical, hospital, rehabilitation and life care expenses should be provided to road accident victims at the expense of the road accident benefits scheme which should meet the cost of such provision by direct payment to the supplier at the time of provision thereof to the patient.

63. Benefits for lost income or loss of earning capacity, whether for earners or non-earners, should be paid on a periodic basis and preferably monthly in arrears.

66. The Income Tax Act No. 58 of 1962 should be amended to exempt all benefits payable in terms of the proposed road accident benefits scheme, whether in cash or in kind, from taxation in the hands of claimants.

72. Eligibility for life enhancement benefits of road accident victims who have sustained or experienced life-changing pain and suffering, loss of amenities and loss of enjoyment of life should be determined in accordance with guidelines such as those set out in the fifth and subsequent editions of the American Medical Association Guides (AMA Guides). The administrative authority of the road accident benefits scheme should have the power to assess the injured person in accordance with guidelines such as the Whole Person Impairment criteria used in the AMA Guides. An injured person who does not consent or fails to participate in such assessment shall not be entitled to life enhancement benefits.

78. Where litigation remains a feature, albeit minor, of the scheme, the administrative authority should work in conjunction with the Department of Justice, the judges-president and registrars of high courts, the presidents of regional courts, and the

clerks of magistrate's courts to investigate the introduction and implementation of court management and case management practices on professional and business principles to facilitate access to justice for all litigants.

80. Any person or body, whether a claimant or service provider, aggrieved by a decision of the administrative authority or by its failure to make a decision within a reasonable period should be entitled to appeal to a review panel comprising a minority of members from within the administrative authority and a majority of members who are not in the employ of the road accident benefits scheme. One such independent member, who should hold either a medical/healthcare or legal qualification, shall act as chairperson. Such review panel should have the power to reverse, affirm or vary the decision under review, to substitute its own decision or to remit the matter to the administrative authority of the road accident benefits scheme with or without directions.

81. Any person, whether claimant or service provider, aggrieved by a decision of the administrative authority or by its failure to make a decision within a reasonable period should be entitled to appeal a decision of a review panel to an appeal tribunal. The appeal tribunal should comprise members independent of the administrative authority and appointed by the relevant Minister. The appeal tribunal should generally be constituted by a chairperson with the status of a retired magistrate, judge, attorney or advocate, sitting with at least two non-judicial or legal members who should be selected from a panel of people with skills or expertise in relevant disciplines such as healthcare, rehabilitation, life care, industrial relations or human resources. The appeal tribunal should have the power to reverse, affirm or vary the decision under review, to substitute its own decision or to remit the matter to the administrative authority.

82. An appeal should be available on issues of law and on fact from the benefits appeal tribunal to the magistrate's courts or the high courts of the Republic of South Africa. The tribunal should itself have the power to refer a question of law to the High Court.

83 The resources of the road accident benefits scheme should be directed to provide timeous and appropriate care at the acute stage after injury, rehabilitation when required and life care when and to the extent appropriate, and such resources should be conserved to provide healthcare to those persons who have sustained serious injuries with life changing consequences.

84. The road accident benefits scheme should fund and, in appropriate circumstances, arrange, the provision of hospital, medical, therapeutic, home nursing and other ancillary healthcare, rehabilitation and life care services for all victims of road accidents on a "no-fault" basis (subject to the minority recommendation on social policy exclusions set out in chapter 16).

86. Healthcare, rehabilitation and life care expenses should be met by the administrative authority of the road accident benefits scheme as and when they are incurred with payment to be made directly to the supplier at the time of provision thereof to the patient.

88. The administrative authority should ensure that the organisation has capacity to collect and analyse data on the nature and extent of injuries suffered by road accident victims, the medical, rehabilitation and life care treatment and assistance required by such patients, the availability of such assistance and the costs thereof, to make available such data for research purposes and to fund research, education and development programmes directed towards improved healthcare, rehabilitation and life care management of injuries resulting from road accidents.

90. A portion of the fuel levy and other surcharges which fund the road accident benefits scheme should be used to contribute to improvement of healthcare provided generally in the public sector and particularly in the fields of emergency medical services, trauma care, rehabilitation and life care.

91. Road accident victims who elect to seek treatment at private facilities or from private practitioners at rates in excess of the tariff at which the healthcare benefits are provided by the road accident benefits scheme are at liberty to seek treatment wherever they wish and from whomsoever they wish and to take responsibility for the additional costs thus incurred without forfeiting entitlement to assistance from the road accident benefits scheme in accordance with the tariff provided.

94. The benefits provided by the proposed road accident benefits scheme should be confined to persons who themselves sustain bodily injury in road accidents or to defined family members of a road accident victim who is killed in or dies as a result of a road accident. No benefits should be payable to secondary victims in respect of psychiatric or psychological illness or disorder occasioned by the emotional shock of observing or learning of injuries or death sustained by others in road accidents.

95. The administrative authority of the road accident benefits scheme should be committed to contributing to reducing the disparities and inequities in health service delivery and increasing access to improved health care services. There should be a commitment on the part of the scheme to contribute to the improvement of the quality of service in the public healthcare sector by, inter alia, facilitating healthcare, introducing a tariff which will encourage and enable the public sector to improve service delivery and standards of treatment and compete with the private sector on quality of service, and using protocols to monitor the provision of healthcare to road accident victims.

96. On receipt of statements of account in accordance with the determined tariff the road accident benefits scheme should make direct payment for services provided by ambulance services, clinics and hospitals, medical practitioners, therapists and others in both the public and private healthcare sectors in the treatment of road accident victims.

97. The administrative authority of the road accident benefits scheme should contribute to the public healthcare sector by paying a global or capitation fee to the Department of Health subject to appropriate conditions. These could include that such funds are to be utilised by the Department of Health exclusively to provide emergency medical services, trauma care and rehabilitation services.

100. The administrative authority should contribute to education and training in emergency medical services and trauma care through, inter alia, providing bursaries and scholarships to nursing colleges, technikons and universities, and funding attendance at short term courses subject to appropriate conditions.

101. The administrative authority should contribute to the funding of transport and emergency medical services and to the establishment and maintenance of beds, wards, units and equipment utilised for trauma care in provincial hospitals and other public sector facilities.

111. The administrative authority of the road accident benefits scheme should compile data on injuries and disablement, rehabilitative interventions and outcomes and availability and cost of rehabilitation. Such information should be utilised to provide a base for research and programmes funded by the scheme and directed to reducing the severity of the impact of road trauma and improving treatment outcomes for road accident victims.

122. The Commission is divided with regard to eligibility of non-earners for income support benefits:

a) The majority (Commissioners Satchwell and Sithole) recommend that both earners and non-earners, who are injured in and disabled as the result of a road accident should receive income support benefits in respect of their loss of earning capacity.

b) The minority (Commissioner Phiyega) recommends that only persons defined as "earners" by the road accident benefits scheme should receive such income support benefits.

123. Pre-accident "earnings" should include income derived from personal exertion - not only salary or wages and overtime payments but also allowances, whether provided for the purposes of meeting expenses associated with employment or

otherwise, including the value of accommodation, board and lodging, food provided without charge or at a reduced rate and the value of a motor vehicle.

124. By "income" is meant net income after expenses but before deduction and payment of income tax. Only income disclosed to the appropriate authorities in terms of the Income Tax Act shall be taken into account for purposes of calculating income support benefits.

125. In general, income support benefits payable to "non-earners", as defined in terms of the road accident benefits scheme, should be ascertained by reference to the

minimum net income, which would render a taxpayer liable for the payment of income tax in terms of the Income Tax Act, otherwise known in the proposed road accident benefits scheme as the "tax threshold".

126. Income support benefits should be paid on a periodic basis, preferably monthly in arrears.

127. Redemption of income support benefits should not be permitted.

128. Income support benefits should only commence once a disabled road accident victim has attained the age of sixteen years.

129. Claimants seeking benefits from the road accident benefits scheme should be

identified as "earners" and "non-earners":

a) "Earners" may be defined as persons who were in fulltime or part time employment at the date of the accident or were on maternity or paternity leave at the time of the accident or had been in employment for a period of not less than 13 weeks during the 26 weeks (6 months) preceding the date of the road accident and have registered as taxpayers with the Commissioner for Inland Revenue prior to date of the accident.

b) "Non-earners" may be defined as persons who were not in employment at the date of the accident, whether by reason of age or studies, household duties or retirement, or who had been in employment for less than 13 weeks during the 26 weeks preceding the date of the accident. Non-earners would be persons who were not registered as taxpayers with the Receiver of Revenue (irrespective of whether they were in employment or were self-employed or worked as a contractor) prior to the date of the accident.

130. In calculating the earnings of an earner at date of the accident the administrative authority of the road accident benefits scheme should have regard to the average monthly earnings of the earner over a period of 26 weeks preceding the accident.

131. All persons defined by the road accident benefits scheme as earners who are

injured in a road accident and who have suffered a temporary or permanent loss of capacity to work in their own field of employment should be entitled to receive income support benefits.

132. The Commission is divided with regard to income support benefits for persons

defined as non-earners:

a) The majority (Commissioners Satchwell and Sithole) recommend that that

non-earners should be entitled to receive income support benefits only where they have sustained a permanent loss of earning capacity.

b) The minority (Commissioner Phiyega) recommends that non-earners should not be entitled to income support benefits, regardless of whether their incapacity is temporary or permanent.

133. The permanent nature of loss of earning capacity or disability shall be determined by appropriate medical or professional assessment but, save in exceptional circumstances and in the cases of amputation of a limb, brain injury and paralysis of a limb, shall not be determined before expiration of a period of time. The Commission is divided with regard to the period of time during which no determination of permanent incapacity should be made:

a) The majority (Commissioners Phiyega and Sithole) recommend that this period should be 18 months.

b) The minority (Commissioner Satchwell) recommends that the period should be 12 months.

134. Disability or loss of functioning should be assessed in accordance with guidelines such as those developed by the World Health Organization in the International Classification of Functioning (ICF). At any time after the initial assessment the administrative authority of the road accident benefits scheme should have the power to make a fresh assessment. A claimant who does not participate in such assessment shall not be entitled to receive any further benefits from the road accident benefits scheme. Assessment should only be conducted by healthcare practitioners registered with the Health Professions Council of South Africa.

135. There shall be a waiting period during which claims for income support benefits may be lodged but not paid and benefits should not be available at all during that waiting period. The waiting period shall, subject to reference to other legislation, commence from date of the road accident or the first indication of loss of earning incapacity caused by the accident, whichever is the later. The Commission is divided with regard to the length of the waiting period:

a) The majority (Commissioners Phiyega and Sithole) recommend that the waiting period should be 7 working days longer than the period, which may be provided for as "sick leave" in terms of the Basic Conditions of Employment Act.

b) The minority (Commissioner Satchwell) recommends that the waiting period should be a period of not less than one calendar month or 20 working days in addition and subsequent to availability and utilisation of periods of sick leave provided for in the Basic Conditions of Employment Act and the period for which unemployment insurance benefits are provided by the Unemployment Insurance Fund.

138. Income support benefits should be payable to earners in the amount of 80% of their net (after tax) pre-accident income, subject to a monetary ceiling.

139. The Commission is divided with regard to computation of income support benefits for non-earners:

a) The majority (Commissioners Satchwell and Sithole) recommends that income support benefits should be available to non-earners at 80% of the tax threshold - the minimum amount of taxable income which renders a taxpayer liable for submission of a tax return.

b) The minority (Commissioner Phiyega) recommends that no income support benefits should be payable to non-earners.

140. The Commission is divided with regard to the monetary ceiling to be imposed on income support benefits:

a) The majority (Commissioners Phiyega and Sithole) recommends that the monetary ceiling on income support benefits for the first 18 months of incapacity should be the highest "marginal rate" applied in terms of the Income Tax Act and that after the 18-month period it should be twice the highest "marginal rate".

b) The minority (Commissioner Satchwell) recommends that the ceiling should, for the financial year ending 2003, be R8 000 per month, which amount should be subject to automatic indexation and adjusted at six monthly intervals by reference to changes in the Consumer Price Index.

141. Income support benefits should cease on termination of the disability or incapacity of the claimant or on the death of the disabled person.

142. Funeral benefits should be paid at a flat rate of R15 000 (in 2003 values) per deceased road accident victim to the spouse, and, in the absence of a surviving spouse, to the family members of the deceased, which amount should increase annually in accordance with increases in the Consumer Price Index.

143. A "spouse" or "domestic partner" should include a party to a lawful marriage, a spouse or spouses married according to Muslim or Hindu rites, a spouse or spouses married according to customary law, or a same-sex partner to a relationship where there are undertakings of reciprocal support.

144. "Child" should mean a person under the age of eighteen years or a full-time scholar or student under the age of twenty-three years. There shall be no waiting periods applicable to family support benefits during which the members shall not be entitled to receive family support benefits.

145. Where death caused by or arising out of a road accident occurs within two years of the accident, the benefits which have been paid or provided to the road accident victim prior to death should not be set off against family support benefits available on death. Where death caused by or arising out of a road accident occurs more than three years after the date of the accident no family support benefits should thereafter commence.

146. Family support benefits shall be paid to each eligible child for the duration of such eligibility. Each child should receive or share proportionately in one-half of the deceased parent's income support benefits (a percentage of the pre-accident net earnings or a percentage of the flat-rate tax threshold benefit).

148. The entitlement of an eligible child to child support benefits should not be affected and should not be reduced by the earnings of such child from temporary or part-time employment.

149. The Commission is divided with regard to eligibility of spouses or domestic

partners to family support benefits:

a) The minority (Commissioner Phiyega) recommends that no family support benefits at all shall be paid to surviving spouses on any grounds whatsoever.

b) The majority (Commissioners Satchwell and Sithole) recommend that a spouse or domestic partner shall be entitled to receive family support

benefits on the following grounds:

i) All surviving spouses shall be entitled to receive family support benefits for a period of three years from date of death of the road accident victim, which benefits should not cease on the remarriage of the surviving spouse but should endure for the period recommended.

ii) Where the surviving spouse is responsible for the care of a child or children under the age of sixteen years, such benefits should endure for a period of three years (Commissioner Sithole) or five years (Commissioner Satchwell) or until the youngest child attains the age of sixteen, whichever is the shorter period, but not less than the period for which such benefits are available to a surviving spouse without childcare responsibilities.

iii) Where a surviving spouse suffers from a disability which renders him or her unable to work and which is evident at the date of the death of

the victim or within six months of such date, or where the surviving spouse is over fifty years of age at the date of death of the victim and is unemployed and lacks relevant work skills, the minority (Commissioner Satchwell) recommends that benefits should be payable to such spouse. Such benefits should endure until the death of the surviving spouse or until cessation of the disability or impairment of the surviving spouse's earning capacity. Where such disability ceases only temporarily the benefits should be suspended but should be resumed if the disability returns within a three-year period. Such benefits paid to surviving spouses by reason of physical or mental incapacity shall be subject to ongoing medical assessment and review.

150. Surviving spouses or domestic partners should receive or share proportionately in one-half of the predeceasing spouse's income support benefits (a percentage of the pre-accident net earnings of the deceased subject to the monetary ceiling or a percentage of the flat-rate tax threshold).

151. The monetary value of family support benefits shall be subject to annual increases. The Commission is divided with regard to the ceilings on income support benefits and hence on family support benefits as set out in chapter 32:

a) The majority (Commissioners Phiyega and Sithole) recommend that the ceiling on income support benefits shall be the highest "marginal tax rate" prescribed in terms of the Income Tax Act. Income support benefits and family support benefits shall therefore increase annually by reason of increases in the tax threshold, which determines income support benefits for non-earners, and increases in the highest marginal tax rate, which determines the monetary ceiling on income support benefits for earners.

b) The minority (Commissioner Satchwell) recommends that there should be a specified monetary ceiling on income support benefits and that both income support and family support benefits should therefore be indexed to and increase annually in accordance with increases in the Consumer Price Index.

152. Family support benefits shall not be taxable in the hands of surviving spouses or partners or children of the deceased road accident victim.

153. A family adjustment benefit should be paid to the surviving spouse, and failing

a surviving spouse, to the children of a deceased road accident victim at time of death or as soon as possible thereafter. The Commission is divided with regard to the amount which should be payable:

a) The majority (Commissioners Phiyega and Sithole) recommend that this should be a flat-rate benefit of R10 000 (in 2003 values), which should be increased annually in accordance with increases in the Consumer Price Index.

b) The minority (Commissioner Satchwell) recommends that this should be a flat-rate benefit equivalent to the funeral benefit of R15 000 (in 2003 values), which should increase annually in accordance with increases in the Consumer Price Index.

154. Where a road accident victim suffers a permanent physical or mental impairment of a certain degree of severity the road accident benefits scheme should pay life enhancement benefits.

155. The degree of impairment should be measured in accordance with the Whole

Person Approach or the Whole Person Impairment utilised in the 5th and subsequent editions of the American Medical Association Guides.

156. The degree of Whole Person Impairment should be assessed no later than

eighteen months after the date of the accident and, in general, the degree of permanent impairment should be assessed twelve months after the date of the accident, but the administrative authority of the road accident benefits scheme should have the power to assess the degree of impairment at an earlier time where it is satisfied that the impairment is stable and permanent.

157. The maximum amount payable in respect of life enhancement benefits should be R500 000.

Supported. However, the maximum amount must be annually reviewed to allow for inflation adjustments and published in the Government Gazette.

158. The amount payable as a life enhancement benefit should be related directly to the degree of Whole Person Impairment and the assessed percentage of Whole Person Impairment shall be paid as a percentage of the maximum life enhancement benefit available, save that a person who reaches an assessed level of Whole Person Impairment of 85% should be entitled to the maximum level of life enhancement benefits.

159. The Commission is divided in its recommendations with regard to the threshold of impairment:

a) The majority (Commissioners Phiyega and Satchwell) recommend that where the assessed degree of Whole Person Impairment is 30% or less no life enhancement benefits should be payable.

b) The minority (Commissioner Sithole) recommends that where the assessed degree of Whole Person Impairment is 40% or less no life enhancement benefits should be payable.

160. No life enhancement benefits should be paid where an injured person dies before assessment of the degree of Whole Person Impairment or payment of such life enhancement benefits.

161. Where a road accident victim is permanently unconscious or otherwise totally and permanently unaware of his or her impairment or disablement, life enhancement benefits should only be payable if that person has a spouse or domestic partner or a child with whom he or she is permanently resident subsequent to the road accident.

162. Life enhancement benefits should be paid in one lump sum.

163. The current RAF and the proposed road accident benefits scheme should be subject to the governance of a Board comprised of individuals who meet the criteria for membership set out by the King Reports on Corporate Governance and which is capable of fulfilling the collective responsibilities identified by those Reports.

164. The current RAF and the proposed road accident benefits scheme should not be subject to the provisions of the Short-Term Insurance Act of 1998 and the financial supervision of the Financial Services Board.

165. The Auditor-General should appoint to both the current RAF and the proposed road accident benefits scheme auditors who have no relationship with either organisation, and are prepared to undertake and engage in a vigorous audit of the financial affairs of the organisations.

169. The current scheme of road accident compensation and the RAF organization should endure until such time as the proposed road accident benefits scheme and its administrative authority are established.

170. The proposed scheme for the delivery of road accident benefits to the victims of road accidents should be known as the Road Accident Benefits Scheme. It should be administered by an entirely new parastatal, to be called the Road Accident Benefits

Scheme (RABS), reporting to the Parliamentary Portfolio Committee on Welfare & Population Development and accountable to the Select Committee on Public Accounts

(SCOPA).

172. The Commission is divided on the question of which department should be responsible for the proposed scheme:

a) the majority (Commissioners Satchwell and Sithole) recommend that the Ministry of Social Development should have overall and political responsibility for RABS;

b) the minority (Commissioner Phiyega) recommend that RABS should be under the authority of the Ministry of Transport.

173. The present RAF organisation should continue to be responsible for claims arising in respect of road accidents occurring prior to the date of enactment and operation of the new legislation. The RAF should be funded by a special allowance paid by the Department of Finance in response to budgets which have been presented to SCOPA and the Parliamentary Portfolio Committee on Transport.

174. The administration of the Road Accident Benefits Scheme should be founded upon the five basic principles of entitlement, independence, flexibility, high quality, rapid decision-making and speedy provision of benefits.