Much criticism has already been levelled at the Fund’s policy of issuing apportioned undertakings and the hardship that this causes. It is suggested that the section be changed to allow the Fund only to issue an un-apportioned undertaking. Any apportioned payment for future expenses should be by way of a lump sum, up front.

Despite the current section, in practice it is often not possible for the Fund to come to an agreement with a claimant on the instalments to be paid and the Fund has not been able to utilise the section to force a claimant to accept instalments.

The period over which they will be paid;

The rate of such interest;

If payments are made in instalments up to what age will the RAF pay the loss of income if the conditions of employment do not stipulate a retirement age?

Loss of income and / or support in many instances has an element of housing subsidies, pension contributions by the employer and other perquisites. The proposal does not deal with these aspects;

The proposal will also have serious implications where apportionment does apply. Payment in instalments will have the effect that depending on the apportionment a third party may only receive 20, 30 or 40% of his previous income. If such a person is a breadwinner this will mean financial disaster for the entire family. In the normal sequence of events a lump sum payment enables such a person to adapt and restructure his future. With apportioned instalments there is no prospect of recovery.

In accordance with the normal principles of delict a claimant’s damages are assessed all at one time, including future damages.

Currently lump sum payments for future expenses are discounted to allow for the fact that they are being paid in advance. Contingencies are applied which serve to further reduce the payment.

At present a file at the RAF has a finite lifespan. A claim is received, processed, finalized and payment is made. A system that implies periodic payments implies that each file would have a greatly extended lifespan and would require attention from time to time. The number of files would increase exponentially as it logically follows that fewer and fewer would be finalized. Given the administrative inefficiencies of the RAF, which are well documented, this system has the potential for untenable frustration for each and every claimant. The RAF will have to employ increasing numbers of claim handlers and the "transaction" costs will increase accordingly with even less of the Fund’s income being paid to the claimants, themselves.

As indicated above, the proposed payment in instalments runs counter to the very basis of our common law. To allow theses amendments would be to allow the RAF to evade its responsibility to properly compensate victims of road accidents and thus not fulfil the very function for which it was created.

As the Fund is merely deferring payment of a debt, which in accordance with the principles of delict becomes due and payable as at the date of the accident no doubt the Fund will be obliged to inflate the instalments from time to time, at least in keeping with the CPI and will probably have to pay interest on the outstanding balance at the legal rate.. The actual cost to the Fund, at the end of the day, assuming the claimant has a normal life expectancy will far exceed its liability in terms of a lump sum payment.

If the injured claimant is a breadwinner, and dies prematurely, presumably the instalments will die with him, giving his family no chance of surviving financially.

If lawyers are removed from the system, who will assist the seriously injured claimant in enforcing his rights; especially those from rural areas or the illiterate? Does this not infringe upon SECTION 34 and SECTION 9 (3) of the Constitution where impairments will be placed on an indigent person who has the right to obtain legal representation?

For an evaluation of the proposal it is necessary to understand "non-patrimonial loss". Our law does award damages for certain intangible "losses". These are non-pecuniary or non-patrimonial losses where there have been detrimental personal consequences in the form of pain and suffering, loss of amenities, loss of health, disfigurement and disablement.

In HOFFA NO VS SA MUTUAL FIRE AND GENERAL INSURANCE COMPANY 1965( 2) SA 944

General experience has taught that especially people with serious injuries (loss of limbs, paralysis, blindness or deafness) use this compensation to adapt to the life changing effects suffered and to try to build a new life. It affords such a claimant independence and dignity. In many instances it is used to start a small business, which serves not only to provide some income but also an occupation.

The section seems to introduce a completely new concept to General Damages, that is, "past" and "future" General Damages. Furthermore, there is reference to a threshold for General Damages.

Damages below a certain value will not be paid at all (thus disqualifying many small claims entirely, which cannot be just, equitable or capable of withstanding the scrutiny of the Constitutional Court); or whether damages up to a certain amount, will be paid in a lump sum and the balance in instalments;

Further, it is difficult to see how a valid distinction is to be made with General damages incurred in the past, as opposed to General Damages in future. General damages are currently assessed and agreed or otherwise decided at the finalisation of the matter.

A whole new system will have to be developed to cope with this new concept. Once again, with lawyers out of the system who will assist the injured claimant in interpreting and enforcing fair payment?

To understand the implication of the proposal it is necessary to understand the principle that in terms of our common law a victim (third party) or the dependants of a deceased are entitled to receive full compensation in respect of the loss suffered. The function of damages in law is to place the injured party in the same position in which she or he would have been in but for the wrongful action. The rationale for the payment by the RAF of full compensation is to discharge the full liability or legal responsibility of the wrongdoer who therefore becomes absolved of any further responsibility.

In terms of Section 21 of the Act the claim for compensation lies against the Fund only and a third party may not claim compensation in respect of that loss or damage from the owner or driver of the vehicle.

The proposal will not only necessitate the amendment of Section 21 but it also open the debate of limited liability and the common law right of the third party to sue for the balance of damages.

It is a well-established principle of our law that a victim is entitled to treatment of choice. If a victim therefore does not have medical aid insurance he cannot exercise this basic right.

The proposal also does have no reference which prescribed medical tariff will apply and is therefore open to misuse by bureaucratic management of the RAF who may use this proposed section for crisis management.

The Commission has dealt extensively with the principle of double compensation or collateral benefits in Volume 1, page 460 – 464 (par 17.190 – 17.209).

The question to be answered is why you should not be allowed to benefit from the precautions, which you yourself have taken and paid for. Is it a fair system if a person who does have an extravagant lifestyle with no personal insurance can receive full compensation but a person applying due diligence in respect of himself and his family is entitled to lesser compensation due to the fact that he has received collateral benefits in respect of precautions which he has paid for.

Is difficult to comprehend why prudent individuals should be penalized and the RAF relieved of its current statutory obligations. It is obvious that the only and real motivation for this proposed amendment is to save the RAF money.

Why should somebody who, as the result of the negligent act of another, has suffered psychiatric injury with consequent indisposition should not be entitled to compensation where as someone with only soft tissue injury is entitled to compensation. It is the submission that psychological or psychiatric injury is "bodily injury" as contemplated in the Act.

Certain sections, even if enacted prospectively will also be susceptible to constitutional challenge.

The Satchwell report states that only 14.8% of recipients use their undertaking and to exemplify this tragedy, 90, 8% of all undertakings to Black persons are dormant. They simply don’t have the representation and infrastructure to reclaim their right that undertakings give them. The basis of the undertaking is that you have to first incur the cost and then recover, which visits extreme hardships and prejudice on indigent claimants who cannot afford to pay for the medical treatment and equipment up front.

Satchwell states on page 643 (22.136) of her report that clearly the proposed amendments are motivated to reduce the RAF’s expenditure and thereby the expectation of denying compensation and saving money is probably well founded. The efficacy of undertakings and the interest of disabled claimants appear to have played no part in the funds proposals.

The Undertaking system of payment of future medical expenses, as it presently exists under SECTION 17(4) of Act 56 of 1996, in so far as it has the effect of depriving an indigent person