Future medical expenses…………………………………………………………………………………..4

Future loss of income or support…………………………………………………………………………. 7

General damages………………………………………………………………………………………… .8

Passengers………………………………………………………………………………………………… 8

Secondary victims………………………………………………………………………………………… 10

Foreign claimants………………………………………………………………………………………… 10

Emergency medical treatment…………………………………………………………………………… 11

THE COMMON LAW CLAIM AND ITS FATE UNDER THE BILL………………………………… 11

INTRODUCTION

1. The Department of Transport seeks an urgent opinion on an aspect of the Draft Road Accident Fund Amendment Bill." The bill provides for extensive amendment of the Road Accident Fund Act 56 of 1996. It inter alia imposes a series of new limitations on the compensation payable to road accident victims. The question on which the department seeks advice, is whether it is constitutionally permissible to limit the compensation payable to road accident victims and at the same time deprive them of their common law claim for damages against the driver or owner whose negligence caused the accident in which they were injured.

THE LIMITS ON COMPENSATION UNDER THE ACT

2. The Act and its predecessors have never provided for full compensation to motor accident victims. They have always imposed limitations on the compensation of various categories of victims. The effect of the draft bill will be to lift certain of the limitations and to introduce others. We will describe the limitations to which the compensation payable under the Act will be subject if the draft bill were enacted. We will not distinguish between old and new limitations because the distinction is immaterial for purposes of our opinion.

3. Our opinion is confined to the question whether it is constitutionally permissible to abolish the road accident victim's common law claim against the wrongdoer in the context of the scheme under the Act which affords him or her less than full compensation. We have not been asked for an opinion on the constitutionality of any of the limitations on the compensation payable to road accident victims. We have consequently also not considered their constitutionality in any depth. We will however in passing comment on some of the limitations which seem to be constitutionally suspect.

Future medical expenses

4. Instead of paying lump sum compensation to road accident victims in respect of future medical expenses, the Fund may give them an undertaking to pay their future medical expenses only after they have been incurred and then only in accordance with a prescribed tariff. The tariff distinguishes between public and private healthcare providers' and must in both cases provide for "reasonable compensation"

5. The Fund is merely required to undertake to compensate the victim "in respect of" future medical expenses. It means in a case where there has been an apportionment of liability, that the Fund merely has to undertake to pay its proportionate share of any future medical expenses as and when they are incurred." The effect of such an undertaking in a case where the Fund has for instance been held liable for 60% of the claimant's loss, is as follows. The Fund does not pay the claimant any compensation in respect of future medical expenses at the outset When the claimant requires medical treatment, he or she must first undergo the treatment and then claim reimbursement from the Fund. The latter is however only liable for 60% of the cost at the prescribed tariff. The claimant remains liable for the balance. If he or she cannot afford it, then they cannot undergo the treatment at all.

6. This system operates harshly on poor people who cannot afford the balance of the cost of their medical treatment. His lordship Mr Justice Goldstone made this point in Dladla:

"It is not difficult to conceive of the case where an injured impecunious person would be financially unable to incur the cost and would thus be unable to claim compensation in terms of an undertaking. That, I might say, will particularly be the case where, unlike the present, the defendant is liable for a small proportion rather than a large proportion of the costs in question. In such a case, it seems to me, it would not be difficult to conceive of a situation where the certificate would be rendered worthless to a plaintiff to whom such an undertaking was given.

7. Poor victims are in these circumstances worse off than they would have been if they had been paid lump sum compensation in respect of future medical expenses at the outset. They would then at least have been able to afford some future medical treatment. When such a victim is only given an undertaking to pay a portion of his or her future medical expenses, the undertaking may be entirely worthless if the victim is unable to afford the balance of the cost of any future medical treatment

8. We are of the view that this rule may well be unconstitutional insofar as it unfairly discriminates against poor people in breach of s 9(3) of the Constitution and impedes their access to healthcare services and social security in breach of s 27(1) and (2) of the Constitution

Future loss of income or support

9. Compensation for future loss of income or support is awarded in a lump sum but its computation is subject to the following two limitations:

• The loss is calculated until the claimant's 65^th birthday or in the case of a dependant child until its 21^st ' birthday.
• The compensation may not exceed R160 000 per year

10. These limitations give rise to uncertainties and anomalies. We mention a few examples:

• The limitations apply to claims "for future loss of income or support" Does it mean that they do not apply to the loss of income or support which has already accrued at the time the claim is determined by settlement or judgment? It would be anomalous to make the impact of the limitations dependent on ct the timing of the determination of the claim.
• Does an injured claimant who is already 65 years old, have no claim for loss of income? If so, it probably constitutes unfair discrimination on the grounds of age in breach of s 9(3) of the Constitution.
• Must one assume that the deceased breadwinner would have maintained the claimant until the latter reached the age of 65/ even in those cases where one knows that the deceased breadwinner would not in fact have maintained the claimant that long? If so, the "limitation" would have the effect of inflating the claim beyond the claimant's actual loss.
• The limit on compensation of R160 000 per year is very crude. It means for instance that if a breadwinner with five dependants is seriously injured and permanently and totally incapacitated, his or her claim for loss of income is limited to R160 000 per annum. However, if the same breadwinner dies in the accident, all five dependants are entitled to compensation for loss of support up to R160 000 per dependant per year.

General damages

11. Compensation for non-pecuniary loss is payable only in cases of "serious injury" determined in accordance with a prescribed method of classification.

Passengers

12. The compensation payable to passengers remains subject to the following limitations:

1. If the passenger was an employee of the driver or owner of the motor vehicle and is entitled to compensation under the Compensation for Occupational Injuries and Diseases Act 130 of 1993, then the compensation payable to him or her is limited to the difference between,

• the compensation that would otherwise have been payable to him or her or an amount of R25 000, whichever is the lesser, and
• the compensation to which he or she is entitled under COIDA.

12.2. If the claimant was a member of the South African National Defence Force and is entitled to compensation under an act of parliament that governs the SANDF, then the latter compensation must be deducted from his claim under the Act.

12.3. A passenger for reward on a motorcycle has no claim for compensation at all.

13. We suspect that the first and last of these limitations are merely vestiges of the old Act which have been overlooked. It would be anomalous and probably unconstitutional to deny the motorcycle passenger for reward any compensation and to limit the compensation payable to the employee-passenger to a maximum of R25 000 and at the same time derive them of their common law claims against the wrongdoers. It would in our view constitute an irrational differentiation in breach of s 9(1) 'of the Constitution.

Secondary victims

14. Secondary victims have no claim for the emotional shock they suffer as a result of the death or injury of someone else.

Foreign claimants

15. The claim of someone who is not a South African citizen and is not resident in South Africa at the time of the accident may not exceed the amount he or she would have received if they were a citizen of or ordinarily resident in South Africa

16. We assume that the intention of this provision is to protect the Fund against exposure to claims based on the high cost of living overseas. But it is not clear to us how this provision will achieve that objective. Its application will in any event be very difficult. It says in effect that, where the claimant is a foreigner, the claim may not exceed the amount it would have been if the claimant had either been a South African citizen or had been ordinarily resident in South Africa. But how does one determine that amount? South African citizens live all over the world. Even people who are ordinarily resident in South Africa may temporarily live overseas. It seems to us that although the purpose of this provision may be sound, its application is likely to cause endless difficulty.

Emergency medical treatment

17. The draft bill introduces one extension of compensation beyond that which would have been recoverable at common law. When someone provides emergency medical treatment to a road accident victim, the service provider or the victim may claim compensation at the prescribed rate irrespective of whether the victim is otherwise entitled to compensation in terms of the Act

THE COMMON LAW CLAIM AND ITS FATE UNDER THE BILL

18. The Act provides for compensation to be paid to people who suffer loss as a result of their own injury or as a result of the injury or death o someone else in a motor accident caused by the negligence of the drive or owner of one or more of the motor vehicles involved. It means that it provides for compensation only in circumstances where the victim would otherwise have had a claim for damages against the negligent driver or owner responsible for the accident. It is indeed made clear that compensation is only payable where the claimant would have had a claim for damages against the driver or owner at common law.

19. To the extent that compensation is payable under the Act, it takes the place of the common law claim. Section 21 makes it clear that, when a claimant has a claim for compensation under the Act, he or she may not claim damages in respect of the same loss or damage from the negligent driver or owner at common law. 20. But the Act has never provided for full compensation to be paid to all road accident victims. It has always limited the amount of compensation payable to certain categories of road accident victims. The passengers of the negligent driver are a good example. Their claims have always been limited. It has always been permissible for claimants who are only entitled to limited compensation under the Act, to recover the balance of their loss from the guilty driver or owner at common law. That is so because s 21 provides merely that claimants who are entitled to compensation under the Act, may not claim damages from the driver or owner in respect of the loss or damage for which they are compensated under the Act. Our courts have consistently interpreted this provision to mean that claimants whose claims under the Act are limited, may claim the balance of their loss for which they are not compensated under the Act, from the negligent driver or owner at common law.

21. The Act also allows the Road Accident Fund in exceptional cases, to recover compensation paid to a victim under the Act, from the negligent driver or owner. It has such a right of recovery,

• against the driver only if he or she was not licensed to drive or drove under the influence of alcohol or drugs to an extent that his or her condition was the sole cause of the accident, and
• against the owner only if he or she knowingly permitted such a driver to drive the motor vehicle.

22.The broad scheme under the current Act before its amendment may in other words be summarised as follows:

• The Act only provides for compensation to victims who would otherwise have had a claim for damages against the driver or owner at common law.

• The Act generally provides for claimants to be compensated in full in amounts equal to the claims they would have had at common law. The compensation then takes the place of their common law claim. They may only claim compensation under the Act.
• The compensation payable to some claimants is however limited. In these cases, the claimants retain the right to claim the balance of their loss from the driver or owner at common law.
• To the extent that claimants are deprived of their common law claims, the other side of the same coin is that drivers and owners enjoy a statutory immunity from liability at common law. They remain exposed at common law only to the extent that the Act provides for less than full compensation to certain claimants and preserves their common law claims for the balance. They are also in exceptional circumstances exposed to a statutory claim by the Fund for the compensation it has paid to victims.

23. The Bill does not change this basic scheme. It abolishes some of the existing limitations and introduces significant new limitations on the compensation recoverable under the Act. But it makes no change to s 21 of the Act which governs the common law claims of victims entitled to compensation under the Act. It follows that, on the current version of the draft bill, claimants whose claims for compensation under the Act will be limited, will remain entitled to recover the balance of their loss from the negligent driver or owner at common law. Their common law claims will in other words not be abolished if the bill is adopted.

24. Our instructions however proceed from the premise that all claimants will be deprived of all their common law claims and will be confined to their claims for compensation under the Act. The very point of the question on which we are asked to advise, is whether it is constitutionally permissible to limit their claims for compensation under the Act on the one hand and deprive them of their common law claims on the other. We will accordingly for purposes of this opinion assume that a further amendment will be introduced by which claimants under the Act are deprived of their common law claims against the negligent driver or owner responsible for their loss.

THE JUSTIFICATION FOR ITS ABOLITION

25. If the victim's common law claim against the driver or owner were to be abolished, the broad rationale of the Act would be as follows:

• The compensation payable under the Act remains fault-based. Road accident victims are entitled to compensation only if and to the extent that their loss was due to someone else's fault. They are paid compensation under the Act in lieu of the claim against the wrongdoer they would otherwise have had at common law.

The substitution of a statutory claim for the common law claim is to the advantage of claimants insofar as they now have a debtor with a "deep pocket". They would otherwise have been at risk of having a good common law claim against a debtor who cannot afford to pay. It is a significant risk. The substitution of a statutory claim against a public fund, is a significant advantage.

• The trade-off is in the first place that the compensation payable under the Act is limited. The limitations are designed to ensure that the basic needs of all are met from public funds but to limit the overall cost of the scheme.
• The second element of the trade-off is that the victim's common law claim is abolished to afford immunity from liability to drivers and owners. They are afforded this immunity because they are the funders of the scheme through the fuel levies they pay. If they were not afforded this protection, they would have had to pay both the cost of the scheme and the cost of liability insurance to cover themselves against the risk of claims by the victims of road accidents.

26. The abolition of the common law claim against the driver and owner was considered in the government's White Paper on the Road Accident Fund published in January 1998. Appendix H to the White Paper justified the abolition of the common law claim as follows:

"Should Government abolish the common law right, this will result in the wrongdoer being protected from claims by innocent victims whose lives may have been ruined by the accident. However, the abolition of the common law right may not necessarily be as radical as it may appear at first glance, nor may it necessarily be as prejudicial to the public at large, for the following reasons:

a. Presently a victim has no common law right against the wrongdoer personally, because the RAF fully covers the wrongdoer's liability (with the exception of the limited passenger claims). To maintain the common law right in conjunction with the proposed restructured benefits, would lead to increasing jeopardy for the population as a whole.

b. It would be inequitable if a roaduser without means who falls victim to an accident, could recover his excess from the wrongdoer with means, yet should the latter ever fall victim to the wrongdoing of a person without means, the common law right would yield no recovery.

c. The right to sue a wrongdoer does not guarantee satisfaction, as the wrongdoer may very well be the proverbial man of straw with no means to satisfy the victim's excess claim.

d. It is unlikely that many wrongdoers will be able to pay meaningful claims without expensive indemnity insurance which few can afford.

e. Where the excess is recovered, many wrongdoers could be left destitute in contrast to the victims themselves who would have received reasonable benefits. Such wrongdoers may in turn burden the state.

f. There exists statutory precedent for no recourse at common law for losses in excess of the benefits paid under the Compensation for Occupational Injuries and Diseases Act No 130 of 1993.

g. For those victims who have acquired appropriate private insurance, there would be no need to revert to the common law. Their risk would already be fully covered by their top up insurance. However, it would be unrealistic to assume that many pedestrians would take out such cover.

h. It is acknowledged that many people who are employed in the formal sector already have top up provision in the form of medical aid care, pension and disability benefits to replace income lost due to injury or accident. Such people may not require additional top up cover to insure against the excess not covered by the proposed system of benefits.

i. The removal of the cap on certain passenger claims further alleviates the need to maintain the common law right"

27. The wisdom of such a scheme which abolishes the common law right, is a matter for debate and is open to legitimate difference of opinion. It does seem to us however that it can be said to be rational in that it is at least capable of rational justification in its broad outlines albeit that there might be irrational anomalies in its detail.

28. The abolition of the common law claim in particular is in our view capable of rational justification. It is a legitimate state objective to require motorists to fund the compensation payable to the victims of motor vehicle accidents under the Act and in return to give them immunity against claims for damages by those victims.

29. Against this background, we turn to consider the constitutionality of the abolition of the common law claim. We do so with reference to the various bases upon which it might conceivably be challenged.

PROPERTY

30. Section 25 of the Constitution protects all forms of property. The main features of its protection of property for present purposes, are two-fold:

• The first is that no one may be arbitrarily deprived of property. It means that no one may be deprived of property without "sufficient reason

• The second is that property may only be expropriated for a public purpose or in a public interest and subject to the payment of just and equitable compensation.

31. The draft bill will not affect any existing claims for compensation under the Act or any common law claims which have already accrued when it comes into force. That is made clear in clause 11 of the bill which expressly provides that any claim for compensation in respect of which the cause of action arose prior to the date on which the amendments take effect, must be dealt with as if the amendments had not taken effect. There will consequently be no question of any deprivation or expropriation of accrued claims under the Act or at common law.

32. The amendments made by the draft bill will consequently only affect the future victims of motor accidents. They do not have a constitutionally protected property interest in the future maintenance of the law of delict. This principle is well-known in US law. Justice Reardon explained it as follows in Pinnick's case:

"In arguing that the cause of action affected by c.670 constitutes a vested property right, the plaintiff seems to ignore the distinction between a cause of action which has accrued and the expectation which every citizen has if a legal wrong should occur to find redress according to the rule of statutory and common law applicable at that time. The Legislature is admittedly restricted in the extent to which it can retroactively affect common law rights of redress which have already accrued. However, there is authority in abundance for the proposition that "[n] o person has a vested interest in any rule of law entitling him to insist that it shall remain unchanged for his benefit. " New York Cent. R.R. v White, 243 U.S. 188, 198, 37 S. Ct. 247, 250, 61 L. Ed. 667, 672; Munn v Illinois, 94 U.S. 113, 134, 24 L.. Ed 77, 87. And, as we shall demonstrate in more detail below, legislative action based on this principle, prospectively modifying or abrogating common law causes of action, have been judicially upheld both in this Commonwealth and elsewhere on numerous occasions. The citizen may find that events occurring after passage of such a statute place him in a different position legally from that which he would have occupied had they occurred before passage of the statute. He has no cause, however, to complain solely because his right are not now what they would have been before.

33. The reasoning of the US courts is that it can never be correct to freeze outmoded rules of law into jurisprudence by placing them beyond the reach of the legislature. As long as the legislature acts to attain a permissible legislative objective", it is free to abrogate a common law claim of recovery of loss.

34. We find this reasoning persuasive. Some road users may have a financial interest in the retention of the residual common law claim. But this does not mean that their property rights will be affected if the law is changed before their right to claim from a specific wrongdoer has become vested.

35. We conclude that the abolition of the common law claim will not be open to successful attack under the property clause.

SECURITY OF THE PERSON AND APPROPRIATE REMEDY

36. Section 12 of the Constitution protects freedom and security of the person. It includes the rights,

• bodily and psychological integrity including the right to security in and control over one's own body.

36. When the driver or owner of a motor vehicle negligently causes a motor i accident in which someone else is injured, it probably constitutes a violation of the victim's constitutional rights to be free from all for forms of violence and to bodily and psychological integrity including security in and control over one's own body. It does not follow however that the state is obliged under the Constitution to provide for the victim to have a claim for damages against the wrongdoer.

38. There appears to be no such claim under Canadian law. Although the Supreme Court of Canada has not yet finally determined the matter, there is a long line of cases in which the courts have held that the constitutional right to "security of the person" in s 7 of the Canadian Charter, does not entitle the victim of bodily injury to a claim for compensation against the perpetrator. The Ontario Court of Appeal for instance referred in Filip's case to "the formidable array of authority, in this province and elsewhere, for the proposition that the right to security of the person under s7 does not embrace the civil right to bring an action for the recovery of damages for personal injury.

39. The US courts have adopted the same approach. The Massachusetts Supreme Court for instance said the following in Pinnick's case:

"Whatever may be the fundamental "right of personal security and bodily integrity" to which the plaintiff refers, it is not affected by c. 670. That chapter merely limits the common law right in the automobile accident situation to obtain money damages on account of unintentionally inflicted pain and suffering and modifies the procedure for obtaining damages according to common law measure for all other elements of recovery.

The court reached the same conclusion in Montgomery's case:

"Article 18 certainly does not interfere with any right to "security of the person" as that right was recognised by the United States Supreme Court in Griswold v Connecticut, 381 U.S. 479, 85 S. Ct 1678, 14 L. Ed 2d 510 or Eisenstadt v. Baird, 405 U.S. 438, 92 S. Ct. 1029, 31 L.Ed. 2d 349, cased cited by the plaintiffs. Rather than depriving plaintiffs of legal protection to their persons, article 18 has simply altered the economic remedy available for injury to their persons.

40. The position under our Constitution is however probably different for the following reasons:

40.1. First, s 7(2) of our Constitution inter alia imposes a duty on the state to protect the fundamental rights enshrined in the Bill of Rights against violation by others. The Constitutional Court held in Baloyi for instance that s 7(2) obliges the state to protect everyone's right to be free from all forms of violence from public or private sources. It said that this "has to be understood as obliging the state directly to protect the right of everyone to be free from private or domestic violence. "The court added in Carmichele that the state was in some circumstances obliged to be proactive in the protection of everyone's right to be free from public or private violence by providing, "appropriate protection to everyone through laws and structures designed to afford such protection."

40.2. Section 38 of our Constitution secondly affords everyone whose constitutional rights have been infringed, a right to "appropriate relief. The Constitutional Court has repeatedly held that "appropriate relief means "effective relief'". It means that the victim of a motor accident who has suffered bodily injury as a result of somebody else's negligence, has also suffered an infringement of his or her constitutional right to be free from violence from private sources and is consequently entitled to "appropriate relief in terms of s38 of the Constitution.

40.3. Both these lines of reasoning lead to the same conclusion namely that the state is obliged to afford an appropriate remedy to the victims of motor vehicle accidents who suffer bodily injury as a result of someone else's negligence.

41. It follows that, if the victims of motor accidents are deprived of their common law remedies and are only afforded compensation under the Act, the question is whether such compensation is sufficient to constitute an "appropriate" or "effective" remedy. It is clearly a judgmental issue, a balance that has to be struck, a question of degree. When is statutory compensation sufficient to constitute an appropriate or effective remedy for bodily injury and when does it fall short of that standard? There is obviously room for much difference of opinion. The courts are likely to afford the state significant latitude as long as the compensation for which it provides is within the ballpark of what may be regarded as appropriate or effective. We are in the circumstances of the view that the courts will probably hold that the Act passes muster because the compensation for which it provides is broadly appropriate or effective given all the socio- economic considerations at play.

42. We conclude that an attack on the abolition of the common law claim based on the constitutional rights to security of the person and an appropriate remedy, will probably not succeed.

EQUALITY

43. Section 9(1) of the Constitution provides that everyone is equal before the law and "has the right to equal protection and benefit of the law".

44. When a law is challenged under this provision, the first question is whether the law differentiates between people or categories of people. If it does, the second question is whether the differentiation bears a rational connection to a legitimate government purpose. If it does not, there is a violation of s 9(1)

45. Some of the limitations on compensation under the Act are in our view probably arbitrary and consequently fall foul of the guarantee of equality under s 9(1) of the Constitution. We have in mind for instance the cut-off for loss of income at age 65, the surviving limit on the claim of the employee-passenger to a maximum of R25 000 and the complete denial of any benefit to the motorcycle passenger for reward. Our brief is however not to give an opinion on the constitutionality of these individual limitations. It is confined to the broader question whether it is constitutionally permissible to abolish the common law claim against the background of these limitations.

46. The abolition of the common law claims of the victims of road accidents, does of course differentiate between people or categories of people. The two main lines of differentiation are the following:

• The first is a differentiation between those who suffer loss as a result of bodily injury or death caused by motor accidents on the one hand and those who suffer loss as a result of bodily injury or death due to other causes on the other. The former category are confined to compensation under the Act. The latter categories on the other hand are not afforded compensation under the Act but retain their common law claims against the wrongdoers instead.
• The second is the differentiation made by the Act between loss suffered as a result of bodily injury or death on the one hand and other forms of loss on the other. The victim who suffers loss as a result of bodily injury or death is confined to a claim for compensation under the Act. The victim who suffers loss as a result of the destruction of his or her motorcar in the same accident, does not have any claim under the Act but retains a common law claim against the wrongdoer instead.

47. Given that the Act does differentiate, the real question is whether the differentiation bears a rational connection to a legitimate government purpose. It must be borne in mind in this regard that the court will not set aside a law which it considers to be ineffective, or because there are other and better ways of dealing with a problem. As long as a law is objectively rational, a court cannot interfere with it simply because it disagrees with it, or considers the power to make law to be inappropriately. There is also a long line of cases which stress that the task of a court is not to second-guess the wisdom of policy decisions made by elected bodies."" The Constitutional Court has emphasised that courts are not allowed to make policy choices under the guise of rationality review.

48. We are of the view that the Act passes muster under this test. Injury and death as a result of motor vehicle accidents constitute a particular and very significant socio-economic phenomenon. It is legitimate for the state to devise a special scheme to deal with it. The Act creates such a scheme. It is legitimate for the scheme specifically to address losses suffered as a result of bodily injury and death caused by motor vehicle accidents without also dealing with losses of other kinds or due to other causes. Within the context of such a scheme, it is also legitimate for the state to require motorists to fund the scheme on the one hand aC7d to afford them immunity against liability for injury or death arising from the use of their vehicles on the other. We are accordingly of the view that the differentiation made by the abolition of the common law claim, is a rational and consequently defensible one under s 9(1)

49. This conclusion derives considerable support from the Constitutional Court judgment in Jooste's case.41 The court considered an attack on the abolition of the common law claims of injured workers against their employers under s 35(1) of the Compensation for Occupational Injuries and Diseases Act 130 of 1993. It dismissed the attack under s 9(1) of the Constitution and inter alia said the following in the course of doing so:

"But that argument fundamentally misconceives the nature and purpose of rationality review and artificially and somewhat forcibly attempts an analysis of the import of the impugned section without reference to the Compensation Act as a whole. It is clear that the only purpose of rationality review is an inquiry into whether the differentiation is arbitrary or irrational, or manifests naked preference and it is irrelevant to this inquiry whether the scheme chosen by the Legislature could be improved in one respect or another. Whether an employee ought to have retained the common-law right to claim damages, either over and above or as an alternative to the advantages conferred by the Compensation Act, represents a highly debatable, controversial and complex matter of policy. It involves a policy choice which the Legislature and not a court must make. The contention represents an invitation to this Court to make a policy choice under the guise of rationality review; an invitation which is firmly declined. The Legislature clearly considered that it was appropriate to grant to employees certain benefits not available at common law. The scheme is financed through contributions from employers. No doubt for these reasons the employee's common-law right against an employer is excluded. Section 35(1) of the Compensation Act is therefore logically and rationally connected to the legitimate purpose of the Compensation Act, namely a comprehensive regulation of compensation for disablement caused by occupational injuries or diseases sustained or contracted by employees in the course of their employment.

50. Consultant points out that the circumstances in Jooste's case were not on all fours with those in this case. That is undoubtedly so. But the differences are in our view not material for purposes of assessing the equality challenge. In both instances, the main advantage of the legislative scheme for potential claimants is the guarantee that they would be compensated. In both instances potential "wrongdoers" contribute to the Fund. Provided that a rational balance is struck between compensation of the victim and protection for the wrongdoer, the scheme satisfies the rationality threshold.

UNFAIR DISCRIMINATION

51. Section 9(3) of the Constitution prohibits unfair discrimination on any ground including those specified in the section. The Constitutional Court explained in Harksen that an attack on a law under this provision requires a two-stage analysis:

(i) Firstly, does the differentiation amount to 'discrimination'? If it is on a specified ground, then discrimination will have been established. If it is not on a specified ground, then whether or not there is discrimination will depend upon whether, objectively, the ground is based on attributes and characteristics which have the potential to impair the fundamental human dignity of persons as human beings or to affect them adversely in a comparably serious manner.

2. If the differentiation amounts to 'discrimination', does it amount to 'unfair discrimination'? If it has been found to have been on a specified ground, then unfairness will be presumed. If on an unspecified ground, unfairness will have to be established by the complainant. The test of unfairness focuses primarily on the impact of the discrimination on the complainant and others in his or her situation.

52. The individual limitations under the Act may be open to attack under this provision. We have for instance already indicated that the provision which allows the Fund to provide an undertaking in lieu of compensation for future medical expenses, in terms of which it is required merely to compensate the claimant for future medical expenses after it had been incurred and then only in proportion to its share of the liability for the claimant's loss, probably unfairly discriminates against poor people. We emphasize again however that it is not our brief to comment on the constitutional validity of individual limitations.

53. We are concerned with the abolition of the common law claim under the Act. It would, as already mentioned, differentiate between road accident victims on the one hand and other victims of delicts on the other. But the differentiation will in our view not amount to "discrimination" because it will not be differentiation on any of the grounds specified in s 9(3) fir on another ground which is "based on attributes and characteristics which have the potential to impair the fundamental human dignity of persons as human beings or affect them adversely in a comparably serious manner

54. We conclude that an attack on the abolition of the common law claim under s 9(3) of the Constitution will probably also fail.

HEALTHCARE AND SOCIAL SECURITY

55. Under s 27(1) of the Constitution everyone has the right "to have access to ... healthcare services (and) ... social security". Section 27(2) goes on to provide that the state "must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation" of these rights. These provisions may conceivably found three lines of attack on the abolition of the common law claim against the wrongdoer under the Act.

56. The first line of attack may be based on the negative component of the state's duties under s 27 not to impair the access that people already have to healthcare services and social security The argument would be that the abolition of the common law claim against the wrongdoer impedes the access that road accident victims have to both healthcare and social security. In our view the fallacy of such an argument lies in the fact that the abolition of the common law claim will only affect future victims of motor vehicle accidents and will consequently not affect any existing access that victims of motor vehicle accidents already have to healthcare and social security.

57. The second line of attack may be based on the positive duty imposed on the state to take "reasonable" legislative and other measures "within its available resources" to achieve the progressive realisation of the rights to healthcare services and social security. The argument would be that the abolition of the common law claim against the wrongdoer renders the scheme unreasonable and that it thus falls short of the state's duty under s 27(2). We are however of the view that this argument will also not succeed. The state is merely required to take "reasonable" measures "within its available resources". When a scheme becomes unduly expensive overall, then it is not unreasonable to trim the benefits payable under it to keep its cost within reasonable limits. We are instructed that this is the purpose of the new limitations.

58. The third line of attack may be founded on that part of s 27(2) which requires the state to take reasonable measures within its available resources "to achieve the progressive realisation" of the rights of access to healthcare services and social security. The argument would be that the new limitations and the simultaneous abolition of the common law claim against the wrongdoer constitute a retrogressive step and thus falls short of the duty "to achieve the progressive realisation" of the rights concerned. We are however for the following reasons of the view that this line of attack will also fail:

• Section 27(2) does not impose a freestanding duty on the state "to achieve the progressive realisation" of the rights of access recognised under s 27(1). The duty it imposes on the state is to take reasonable measures within its available resources towards the progressive realisation of those rights. The purpose or object or aim of the state's measures must in other words be the progressive realisation of those rights. But as long as that is the purpose or object or aim of its measures, the measures themselves are merely required to be reasonable given the state's available resources.
• We also do not understand that all the changes to be made by the draft bill are designed to reduce the overall cost of the scheme under the Act to pay compensation to road accident victims. The benefits to certain categories of victims are reduced but it is done firstly to make it possible to increase the benefits payable to other categories of victims and secondly to contain the overall cost of the scheme. It cannot be said that in overall terms, the re-arrangement of benefits under the Act constitutes a retrogressive step.

The duty Imposed on the state by s 27(2) in any event does not mean that every social programme may only be ratcheted upwards and may never be reduced. The critical question remains whether the state takes reasonable measures within its available resources to achieve the progressive realisation of the rights of access recognised in s 27(1). The mere fact that some categories of victim will in future receive less compensation under the Act and at common law, does not in our view begin to make a case against the state that it has failed to take reasonable measures as it is required to do under s 27(2).

CONCLUSIONS

59.We conclude as follows:

59.1. Some of the limitations on the compensation payable to road accident victims under the Act as amended by the draft bill, are constitutionally suspect. We are however not asked to express an opinion on their constitutional validity and refrain from doing so.

59.2. Under the Act as amended by the draft bill, road accident victims retain their common law claims against the wrongdoers for the balance of their loss for which they are not compensated under the Act.

59.3. If those common law claims were to be abolished by a further amendment of the Act, the abolition will probably pass constitutional muster.

Wim Trengove SC

H J de Waal

Chambers Johannesburg and Cape Town