Road Accident Benefit Scheme Bill: proposed amendments

This premium content has been made freely available

Transport

12 September 2018
Chairperson: Ms D Magadzi (ANC)
Share this page:

Meeting Summary

The Portfolio Committee on Transport met to review and deliberate on its proposed amendments (A-list) to the Road Accident Benefit Scheme Bill. The amendments had been deliberated in previous meetings and the intention was to ensure that the revised clauses and minor amendments made by the legal drafting team from the Office of the Chief State Law Advisor, Department of Transport (DoT) and Road Accident Fund (RAF) fulfilled the requirements of the Committee.

There was some confusion during the reading of clauses as the numbering of clauses was out of sequence. The legal team explained that the technical consequential amendments would ensure that all clauses were inserted in the correct chapters and correct order in the Bill. The intention of the meeting was to consider the principles and content detail in each clause.

The Committee approved the insertion of a new clause to ensure that injured persons could not be held liable for co-payments for medical treatment if they had not been able to provide consent at the time of treatment. A list of tariffs was issued to Members but, due to lack of time as there was a sitting in the National Assembly, the tariffs were not discussed.

Members engaged in an extended discussion of the meaning of a claimant, i.e. before or after a person made a claim, but resolved to accept the definition inserted in the Bill of one who had submitted a claim, even if documentation was outstanding. The Bill then read that the Administrator had to provide assistance in respect of documentation to both injured persons and claimants.

The clause requiring an investigation of road accidents, means of reducing accidents and other matters had been removed as those activities were the preserve of other legislation, but the Administrator remained responsible for verifying the paperwork submitted by a claimant.

The Committee discussed the clauses on management of funds and ensured that the operational account, the transitional account and the benefit fund remained in silos and that funds could not be transferred from the benefit account to the operating account.

Procedures for claiming compensation for funeral costs had been minimised, with only two documents required, and the figure had been set at R20 000, with increases according to inflation at the discretion of the Transport Minister, in concurrence with the Minister of Finance.

A new chapter entitled ‘Complaints’ was added. The Committee determined that such ‘complaints’ had to relate to a claim and therefore ‘dispute’ was a better word. Committee Members argued for a mediation process to follow an unresolved dispute, before it went to the stage of litigation. The legal drafters explained the difficulties of mediating in a prescribed environment where the mediator could not negotiate benefits that had been legislatively determined. The cost and time of such a process was also raised. Committee Members felt strongly that a mediation process was essential as it provided the opportunity for inputs from professionally qualified persons. Ultimately, the Committee decided that the drafters should find a middle way which combined the dispute process and mediation process so that there would be a concurrent process that allowed the Administrator to bring in external specialists.

The Committee was unable to complete the reading of the A-list and agreed to finalise this the following day.
 

Meeting report

Portfolio Committee Proposed Amendments (A-list) & flagged clauses: RABS Bill
Adv Johannes Makgatho, DoT Chief Director: Road Transport Regulation, indicated that the flagged items had been put into an A-list that had been circulated to Members. The technical team had discussed the A-list with the Parliamentary Legal Advisor and there were no concerns. He asked that the State Law Advisor be permitted to work through the A-list, which incorporated the flagged items.

Adv Nomvo Ngcenge, State Law Advisor, stated that an A-list had been prepared with the Department and submitted to the Parliamentary Legal Advisor for confirmation. She would speak to the Bill and the A-list to identify amendments. She would read clause-by-clause and line-by-line.

Clause 1 Definitions
"average annual national income"
Omit the definition and substitute: means the amount based on the average annual after- tax income earned in the Republic , for the whole of the employed and employed population between the ages of 18 and 59, inclusive, calculated in accordance with the methodology prescribed by the Minister in consultation with the Minister of Finance;

The Committee agreed.

"co-payment"
On page 5, after line 36, insert the definition "co-payment":  means the amount above the tariff contemplated in subsection 32(1)(b), for which amount the recipient of a health care service may incur personal liability towards a non-contracted health care service provider;

Mr C Hunsinger (DA) asked for the Chairperson to give him time to read Section 32(1)(b) as it was a very serious condition in relation to the definition.

The Chairperson requested Adv Ngcenge to read section 32(1)(b).

Section 32. (1) The Administrator shall be liable to pay a non-contracted health care service provider, or any person who paid such a health care service provider, for any health care service provided to an injured person, provided that— ((b) the Minister may, after consultation with the Minister of Health, limit the liability of the Administrator for the provision of any health care service to a reasonable tariff and treatment protocol which must be prescribed;

The Chairperson asked if it was fine.

Mr L Ramatlakane (ANC) asked whether it would be time-consuming if the State Law Advisor read the relevant section each time, rather than Members looking for it.

Mr Hunsinger stated that the Members were looking at new definitions intended to plug into a particular clause. He submitted that one needed to check the implications of the definition and so both the definition and the clause had to be read. They were inter-related and Members needed to have both documents side-by-side so that they could determine the implications and how it would apply.

The Chairperson asked Mr Willemse if it could be done that way.

Mr Chris Willemse, Senior Manager: Regulations, RAF, said that clause 32 in the Bill had a proposed new insertion regarding the co-payments as requested by the Committee. The proposed new proposed clause read as follows:

Clause 32
(2) A non-contracted health care service provider must obtain written approval from the injured person, his guardian, or curator, prior to providing any health care service to the injured person that may result in a co-payment, failing which the injured person and guardian shall incur no liability for the co-payment.

That was the reason for the definition. If there was no consent to a co-payment, there could be no liability for the co-payment.

Clause 32
(3) In the event that the injured person requires an emergency health care service, and the injured person, his guardian, or curator, is unable to provide the consent contemplated in subsection (2), the Administrator will be liable for the reasonable co-payment.

That addressed the concern that an injured person would be liable for a co-payment where he had not consented to it.

Mr Hunsinger appreciated the explanation. He was concerned about the wording which stated a specific set tariff structure, which could not then be reasonable nor relative. The words in the definition, ‘reasonable tariff and treatment protocol’ should be changed to refer to the specific tariff table and that would need to talk to the fact that there was a co-payment from a particular ceiling or particular platform.

Mr Willemse explained that the intention was for the Minister to prescribe the ‘reasonable tariff and protocol’. It became absolute in subsection (2) because the tariff was then in existence.

"illegal income"
On page 5, after line 50, to insert a definition of illegal income: means income derived from any activity which contravenes the law;

Mr Hunsinger asked what law was being referred to. It was rather wide. Stating company law or commercial law for example, would be better. It had to be more specific

Mr Willemse said that the 'law' was defined in the Interpretation Act unless otherwise defined in the Bill. The Interpretation Act defined law as "any law, proclamation, ordinance, Act of Parliament or other enactment having the force of law." It was therefore the legislated conduct in respect of the Bill.

"interim Board"
On page 5, after line 54, to insert: means an interim Board consisting of members appointed in terms of section 9(2);

The Committee agreed.

Clause 5
On page 7, in line 16, after "benefits" insert "which are not competent in terms of this Act".
On page 7, in line 23, to omit the second "and".
On page 7, in line 24, to omit "law." and to insert "law; and".
On page 7, after line 24, to insert: (h) consider complaints in terms of section 55.

Mr Hunsinger stated that in clause 5, there had been a suggestion to incorporate financial assistance to claimants. That should have been in 5(a).

Mr Willemse stated that that point was addressed later in the Bill. There was a new provision on financial assistance.

Mr Ramatlakane said that it had been agreed at the last meeting that the legal team would inset ‘claimant’ in 5(a). Had that been addressed somewhere else?

Mr Willemse referred the Committee to the definition of claimant in section 1: a person who had submitted a claim. ‘Claimant’ would not make sense in 5(a) because that was a reference to after the claim had been lodged. In 5(a), the Administrator was helping a person to lodge a claim. He was not yet a claimant.

Mr Hunsinger asked where the financial assistance to pre-claim was addressed?

Mr Willemse replied that he would have to refer to clause 56 in the A-list. There was a new 56(2) and (3).

Clause 56
(2) The Administrator must assist the injured person, claimant or beneficiary to obtain the documents required to submit a claim and to process a benefit.
(3) The Administrator must pay the reasonable and necessary costs associated with obtaining the documents contemplated in subsection (2).

Mr Hunsinger asked, if claimant was someone who had submitted claim, could ‘claimant’ be used in 56(2). Did it not imply after acceptance of the claim?

Mr Willemse explained that there might be a requirement for an additional document in the course of the claim, but the person was already a claimant because he had initiated the process of claiming. Claims submitted were not always complete and the Administrator had to assist with outstanding documents. The injured person was covered as well as the beneficiary so all three stages were covered in the Bill. Benefit review was also catered for in the subsection because additional documents might be required. So the complete value chain had been addressed.

Mr M Seabi (ANC) was still on clause 5(a), as raised by Mr Ramatlakane. The dictionary said that a claimant was one who had to submit a claim, not someone who had already submitted a claim. Therefore claimant could remain in section 5(a).

Mr Ramatlakane first commented on section 56(2) and (3). He had no problem with the insertion, except that there was a contradiction in 56(2), claimant had been used and so one could also insert claimant in clause 5(a) and it would not damage the provision.

Mr Willemse explained that there were three options in determining the meaning of a word in the Bill. Firstly, if it was not defined in the Bill, one had to refer to the Interpretation Act. ‘Claimant’ was not defined in the Interpretation Act. Secondly one had to see whether the word was specifically defined in the Definitions clause of the Bill, which was the case in that instance. Only if that was not the case, one would look at the ordinary dictionary meaning. In that Bill, under clause 1, ‘claimant’ was defined as someone who had already submitted a claim. It referred to an event that had happened. In clause 5, the obligation was to assist persons to submit claims. ‘Claimant’ would not make sense because the claim had not been lodged.
In clause 56, the difference was that it related assisting someone who had already claimed with additional documentation, such as affidavits. Clause 56 also refers to the injured person, who one that had not yet submitted a claim but it was being prepared and he needed assistance. The beneficiary also had to be assisted with obtaining documentation so all three stages were covered in terms of providing assistance.

Mr Hunsinger agreed that it was logical and made sense. He submitted that in clause 5, which listed the duties of the Administrator, the Committee should consider adding 5(h) that would include a liability on Administrator to support injured people, as explained. He understood that ‘injured people’ formed a category different from ‘claimants’ and the Administrator had, also, to assist injured persons .

The Chairperson asked if that was possible.

Mr Willemse agreed and indicated that it would need to be cross-referenced.

Mr Ramatlakane accepted the resolution of the matter.

Mr Seabi was still on clause 5(g) on the A-list. On page 7, in line 24, to omit "law." and to insert "law; and".
His understanding was that ‘law’ had to be inserted and that, because there would be subclause (h), the ‘and’ in 5(f) should be deleted.

Mr Willemse stated that the addition of 5(h) would amend 5(f) and there would be renumbering. Those were consequential amendments.

Mr Seabi asked if the new (h) dealt with disputes.

Mr Willemse agreed that it did.

Clause 5 agreed by the Committee.

Clause 6:
On page 7, from line 38, to omit "in such manner as it may deem fit".
On page 7, in line 40, omit “, excluding share certificates”.
On page 7, from line 51, to omit paragraph (j).

Agreed by the Committee.

On page 7, in line 54, to omit "(k)" and to substitute "(j)".

Mr Hunsinger asked for feedback on the word ‘investigation’ as there had been some concerns and the suggestion had been to replace it with the word ‘verify’ in respect of the validity and the benefits of the claim.

The State Law Advisor stated that the Committee had determined that 6(j) be removed because the clause was applicable to other legislations. “investigate the causes of road accidents, the injuries sustained in road accidents, means of reducing road accidents and any other matter concerning claims or the provision of beneļ¬ts in terms of this Act”.

Mr Hunsinger recalled that the Committee had recognised the importance of verifying claims. Where was that dealt with? Whatever claim was submitted had to be verified concerning its validity. That was part of the ‘investigate’ clause. He agreed that there were people who looked at road crash causes but someone had to check the paperwork. Had it been captured somewhere else?

Mr Willemse replied that the duty to assess claim was captured in 5(c ) and the empowering mechanisms lay in clauses 43, 44 and 45. The overall duties were provided for in duties in clause 5.

Mr Hunsinger asked for confirmation that 6(j) had been scrapped.

Mr Willemse confirmed that it had been scrapped.

Mr Ramatlakane took the Committee back to line 38 (f) where ‘in such a manner’ had been removed, but he thought that was to have come in after legislation. He had written a note about borrowing money ‘in consultation with Treasury’. What had happened to that.

Mr Willemse explained that the words ‘subject to legislation’ would encapsulate the Public Finance Management Act (PFMA) which, in section 66, required an entity to obtain approval from National Treasury which was headed by the Minister of Finance. It set out a process for approval and until such approval had been obtained, no loans or guaranteed could be obtained by the Administrator. “subject to national legislation’ refers to those processes in the PFMA.

Mr Ramatlakane stated that the Committee had requested the inclusion of ‘in consultation with National Treasury’ as there had to be extraordinary engagement with National Treasury. That was why the Committee wanted emphasis on the words. Was that inclusion barred in terms of legal exclusion? Was that asking too much?

Mr Willemse cautioned that it created uncertainty as to what process National Treasury should follow. It suggested that a different process was required from the process described in the PFMA.

Mr Ramatlakane said that the Committee was making the law and Mr Willemse was the technical advisor to make it work. The Committee had requested the insertion to deal with borrowing money. Members knew that it could not be done without permission and that Treasury’s processes related to borrowing were curtailed so the Bill was seeking consultation with Treasury. Why the long discussion? The intention was to borrow money and use it appropriately.

Adv Makgatho said that the insertion could be made as requested.

Adv Nomvo Ngcenge continued with Clause 6 proposed amendments:
On page 7, in line 54, to omit "(k)" and to substitute "(j)".
On page 8, in line 1, to omit "(l)" and to substitute "(k)".
On page 8, in line 2, after "accidents;" to insert "and".
On page 8, in line 3, to omit "(m)" and to substitute "(l)".
On page 8, in line 4, to omit "Act; and" and to substitute "Act.".
On page 8, from line 5, to omit paragraph (n).

Mr Seabi asked that the State Law Advisor ensure that she read the quotation marks.

The Chairperson noted that all amendments were agreed to.

Clause 7
On page 8, after line 13, to insert the following paragraph: (b) the Chief Financial Officer;
On page 8, in line 14, to omit "12" and to substitute "10".
On page 8, in line 19, to omit "(c)" and to substitute "(d)".
On page 8, in line 21, to omit "(d)" and to substitute "(e)".

On page 8, from line 22, to omit paragraphs (e) and (f).
On page 8, in line 26, to omit "(b)" and to substitute "(c)".
On page 8, in line 33, to omit "(b)" and to substitute "(c)".
On page 8, in line 37, after "Officer" to insert ", Chief Financial Officer

Mr Seabi pointed out that ten years had to be reduced to five years.

The State Law Advisor apologised for the error and confirmed that it should state five years.

Mr Hunsinger could not find the application of the subsections in the Bill.

Adv Makgatho stated that the legal team had renumbered the entire clause following the insertion of CFO, (e) and (f), had been removed.

Mr Hunsinger found the reference but noted that there were a lot of changes and Members needed time to look up the clauses.

The Committee agreed to the amendments.

Clause 8
On page 8, in line 41, to omit "(b)" and to substitute "(c)".
On page 8, from line 42, to omit subsection (2) and to substitute:
The Chairperson shall preside at meetings of the Board and in his or her absence from any meeting of the Board, the Deputy Chairperson shall preside at that meeting.
On page 8, in line 46, to omit "(b)" and to substitute "(c)".
On page 8, in line 47, after “inability” to insert “for the duration of the meeting.”

Clause 9:
On page 8, in line 49, to omit "(b)" and to substitute "(c)".
On page 8, in line 50, to omit "period" and to substitute "term."
On page 8, in line 54, to omit "(b)" and to substitute "(c)".
On page 9, in line 1, to omit "12" and to substitute "six".

Clause 10 :
On page 9, in line 5, to omit "(b)" and to substitute "(c)".
On page 9, from line 8, to omit ", without following the other provisions of section 7".

Clause 13
On page 9, in line 29, to omit "a majority" and to substitute to insert "50% plus 1".
On page 9, in line 32, to omit "a" and to substitute "50% plus 1 of the".

Mr Seabi referred to clause 11(a). The Committee had agreed to omit (a).

Mr M Shelembe (NFP) asked about the number of members who would create a majority of members entitled to vote. Did it refer to the number present on the day or the number of Board members, regardless of whether they were there on the day?

Mr Seabi referred to clause 13(1) that stated that the majority had been substituted by 50% plus one.

Adv Makgatho stated that it would refer to the number of members appointed to serve on the Board.

Mr T Mpanza (ANC) referred to clause 11(d) which referred to mentally unfit. The Committee had agreed to remove ‘or unfit’. Full stop after mentally ill.

The Committee agreed.

Clause 14
On page 9, in line 38, after "14." to insert "(1)".
On page 9, in line 38, to omit "(b)" and to substitute "(c)".
On page 9, after line 40, insert the following subsection:
(2) The entitlement to the remuneration and allowances contemplated in subsection (1) must be fixed at a flat rate per annum, and must not be calculated based on the number of attendances of Board meetings.

The Committee agreed to the changes to clause 14.

Clause 15
On page 10, from line 10, to omit subsections (2), (3) and (4) and to substitute:
(2) The Board may delegate any of the powers entrusted or duties assigned to the Administrator in terms of this Act, to a member of the Board, the Chief Executive Officer, the Chief Financial Officer, a committee or an employee of the Administrator.
(3) The Chief Executive Officer may delegate any of his or her powers in terms of this Act, to an employee of the Administrator.
(4) Any delegation under subsections (2) and (3) must be in writing and—
(a) is subject to any limitation or condition imposed in terms of this Act or by the Board or Chief Executive Officer, as the case may be;
(b) does not prevent the exercise of that power in question by the Board or the Chief Executive Officer;
(c) may authorise any person referred to in subsections (2) and (3) to sub-delegate, in writing, the delegated power or duty to another employee, or to the holder of a specific post in the Administrator; and
(d) does not divest the Board or Chief Executive Officer of responsibility for a function or power so delegated.
(5) The Board or Chief Executive Officer, as the case may be, may confirm, vary or revoke any decision taken as a result of a delegation in terms of subsection (2) or (3), subject to any rights that may have become vested as a consequence of the decision.”

The Committee agreed to the changes to clause 15.

Clause 16
1. On page 10, from line 27, to omit subsections (2) and (3) and to substitute:
(2) A member of the Board must at all times comply with the fiduciary duties and general responsibilities specified in sections 50 and 51 of the Public Finance Management Act, 1999 (Act No. 1 of 1999).

The Committee agreed to the changes to clause 16.

Clause 17
On page 10, in line 39, after “by” to insert “giving three months”.

Mr Seabi reminded the legal team that the Committee had said 90 days. That would not necessarily be three months.

Mr Mpanza commented that the principle had been three months.

The Committee agreed to the change to clause 17.

Clause 18
On page 10, in line 41, after "18." to insert "(1)".
On page 10, after line 44, to insert the following subsection:
(2) The Minister may only remove a member—
(a) after having given the member a reasonable opportunity to make representations; and
(b) after having considered any representations received.

Mr Seabi noted that, although it was a new clause, in principle, the Committee had said that ‘reasonable time’ had to be defined in days.

Mr Mpanza added that the Committee had suggested seven days would be a reasonable time.

Mr Hunsinger said that it was about the procedure: there had to be fairness. There had been a fair attempt to describe procedure but maybe it could be built on a bit further.

Adv Makgatho noted the point and agreed to look at the description of the procedure.

Mr Mpanza referred to clause 16(1). The Committee had agreed that there had to be a procedure if there was a conflict. One suggestion had been to submit forms before the meeting began and to declare an interest up front. He recalled that there had also been something about the PFMA.

Adv Makgatho stated that it was a norm before a board meeting for members to complete a form showing any interests.

Mr Hunsinger asked what the procedure would be if a conflict arose.

Mr Willemse stated that such a scenario was covered in the PFMA and he read out the section.

Mr Hunsinger agreed that it underscored the problem. In practical circumstances, a conflict of interest could arise during a meeting and withdrawal of one member would mean that the meeting was not quorate.

The Chairperson noted that it would mean not less than seven and not more than ten.

Mr Seabi reminded the Chairperson that the Committee might have missed the point about not less than seven but not more than ten.

Clause 19
On page 11, from line 1, to omit paragraph (c) and to substitute:
(c) If the Minister dissolves the Board, or if the Board resigns, or if the Board becomes inoperable, the Minister—
(i) may appoint an administrator to take over the functions of the Board and to do anything which the Board might otherwise be empowered or required to do by or under this Act, subject to such conditions as the Minister may determine; and
(ii) must, as soon as it is feasible but not later than six months after the event contemplated in paragraph (c) has occurred, appoint new members to the Board and for this purpose section 7 applies with the changes required by the context.
On page 11, from line 8, to omit subsection (2) and to substitute:
(2) (a) The costs associated with the appointment and functioning of the administrator shall be for the account of the Administrator.
(b) The appointment of the administrator terminates at the at the first meeting of the new Board.
Mr Seabi referred to clause 19(1)(b). The Committee had agreed that time had to be defined in terms of reasonable opportunity, i.e. seven working days, and that the Minister had to respond within seven working days.

The Committee agreed to the input in clause 19(1)(b).

Mr Hunsinger stated that the Administrator could not be appointed for an indefinite period, nor as a continuous arrangement. The Committee had requested that a specific arrangement be inserted.

Adv Makgatho noted the request.

Mr Mpanza did not want noting. He wanted to see a specific timeframe and that it not be left open-ended.

Mr Ramatlakane noted that an interim board was appointed for a six months. The appointment of an Administrator could, therefore, not go beyond six months.

Mr Willemse stated that the concern had been addressed in (c)(ii). If the Minister dissolves the Board, or if the Board resigns, or if the Board becomes inoperable, the Minister— (ii) must, as soon as it is feasible but not later than six months after the event contemplated in paragraph (c) has occurred, appoint new members to the Board and for this purpose section 7 applies with the changes required by the context.

The Committee agreed to clause 19.

Clause 20
 On page 11, from line 15, to omit subsection (1) and substitute:
(1)The Board must, with the concurrence of the Minister, appoint a suitably qualified and experienced person as Chief Executive Officer on such terms and conditions of employment as may be determined by the Board.

The Committee agreed to the changes to clause 20.

Clause 21
 On page 11, from line 21, to omit subsection (1) and (2) and substitute:
 (1) If the Chief Executive Officer is for any reason absent or unable to carry out his or her duties, or if a vacancy in the office of the Chief Executive Officer occurs, the Board may, with the concurrence of the Minister, appoint a suitably qualified person to act as Chief Executive Officer until the Chief Executive Officer is able to resume his or her duties or until the vacant position is filled.
(2) An acting Chief Executive Officer— (a) may exercise all the powers and must carry out all the duties of the Chief Executive Officer; and (b) is appointed on terms and conditions, including those relating to remuneration and allowances, as the Board may determine.

Mr Hunsinger asked how long the acting CEO would be appointed for.

Mr Ramatlakane was relying on his memory but the Committee had said that any acting position was determined by DPSA or the PFMA.

The Committee agreed to the changes to clause 21.

Clause 24
 On page 11, in line 43, to omit "Board, in consultation with the Chief Executive Officer," and to substitute "Chief Executive Officer, in consultation with the Board,".
 
The Committee agreed to the changes to clause 24.

Clause 25
On page 11, in line 47, to omit "The Minister may for good reason, on recommendation of the Board" and to substitute "The Board may for good reason, with the concurrence of the Minister,".

The Committee agreed to the change in clause 25.

The State Law Advisor noted that Clause 26 had been rejected and that new clause were inserted in the Bill.

Clause 26: Benefit account
26. (1) The Administrator must open and maintain a benefit account. (2) The benefit account shall consist of— (a) Road Accident Benefit Scheme levies imposed in terms of the Customs and Excise Act, 1964 (Act No. 91 of 1964); (b) money appropriated by Parliament; (c) money loaned to the Administrator; (d) interest earned on money in the account; and (e) investment returns on invested money from the account.

 Mr M De Freitas (DA) asked where the clause was that spoke about money to be invested.

Mr Willemse stated that under powers and function sect 6(e ), which had to be read with the PFMA that required an entity to have an investment policy.

The Committee agreed to clause 26 in totality.

Clause 27:Application of money in the benefit account
27. The money in the benefit account shall, subject to the provisions of this Act, be under the control of the Chief Executive Officer, and shall be applied by the Chief Executive Officer for— (a) the payment of benefits provided for in Chapter 6; (b) costs related to the appointment of, and the fees of, curators appointed to assist claimants and beneficiaries; (c) subject to approval by the Minister of Transport, in consultation with the Minister of Finance, transfers to the transition account referred to in section 28; and (d) the payment of expenses related to the maintenance of the benefit account.

Mr De Freitas did not see a definition for ‘curators’.

Adv Makgatho stated that it had not been provided for in the Bill. He would include it.

Mr Ramatlakane said that the Committee agreed with clause 27, including the definition.

The Chairperson added that it was agreed that a definition for ‘curator’ be added.

Mr De Freitas suggested that the definition to explain what it meant by ‘to assist claimant and beneficiaries’ be included in the clause.

Mr Hunsinger referred to clause 26(1) and clause 27. Clause 26 stated, ‘must open and maintain a benefit account’ and clause 27 stated that the money and control would be under the CEO. Control versus maintain led him to ask about practical management and access. Who had control and who had access? There needed to be clarity between what the Administrator and the CEO should do. He suggested the addition of clause 27(e) as there was no inclusion of the support requested for the injured in preparation of a claim.

Mr Mpanza noted that there was no definition of the Appeals Board. That was required.

Mr Makgatho agreed that Mr Hunsinger’s observation was well spotted. He would add such a subsection and would also add the definition for Appeals Board.

The State Law Advisor proceeded to read the new clauses.

Clause 28:Transition account
 28. (1) The Administrator must open and maintain a transition account. (2) The transition account shall consist of— (a) money that belonged to the Road Accident Fund prior to the coming into effect of this Act; (b) money appropriated by Parliament; (c) money transferred into the transition account, subsequent to the approval contemplated in section 27(c); (d) money loaned to the Administrator; (e) interest earned on money in the transition account; and (f) investment returns on invested money from the account.

Mr Hunsinger raised the matter of roles and functions in terms of the role of the Administrator and the CEO in clause 28(d). To whom was the money loaned? Who had control of money loans? He was confused about who carried the accountability between Administrator and CEO. He suggested a section that differentiated between the two and made it clear as to who was accountable.

Mr Willemse stated that the drafters could add a clause but added that the board would have to approve the banker and the account and ensure that it was opened. In terms of signatory powers, the CEO would deal with transactions and operational issues. Loans were made to the juristic person, i.e. the Administrator.

Clause 29: Application of money in the transition account
 29. The money in the transition account shall, subject to the provisions of this Act, be under the control of the Chief Executive Officer, and shall be applied by the Chief Executive Officer for— (a) the payment of third party compensation, expert reports and litigation expenses under the Road Accident Fund Act, 1996 (Act No. 56 of 1996), in respect of claims that arose prior to the coming into effect of this Act; and (b) the payment of expenses related to the maintenance of the transition account.

The Committee agreed to clause 29.

Clause 30: Operations account
 30. (1) The Administrator must open and maintain an operations account. (2) The operations account shall consist of— (a) money appropriated by Parliament; (b) money donated or bequeathed to the Administrator; (c) money that may become due to the Administrator in terms of any other legislation; (d) interest earned on money in the operations account; (e) investment returns on invested money from the account; and (f) money recovered in terms of any insurance or re-insurance scheme.

Mr Hunsinger asked about 30(f). he wanted a practical example. Was it short term insurance?

Mr Willemse explained that the Administrator would look after the assets of the entity. He had to insure against damage and could have short-term insurance claims. He could have re-insurance claims under the claims liability and claims against the Road Accident Fund insurance.

Mr Hunsinger referred to the insurance and the liability that could be re-insured. He was not sure that it should be to the benefit of the operational account. Was it the re-insurance of the risk which the RAF could insure with one of the big five re-insurers? He thought that that would be to the benefit of the benefit account.

Mr Willemse asked if the actuary could respond. His understanding was that it covered both.

The Senior Manager: Actuarial, Road Accident Fund, said it could be a consideration because the money received from re-insurance claims would be used to pay for other things and so it could be allocated to the transitional account if the claim arose from the RAF account or the benefit account if it arose from that account.

Mr Hunsinger accepted that a re-insurance relating to benefits would go to the benefits account.

Mr De Freitas asked about money bequeathed to the RAF.

Mr Willemse said that there was a corollary in the financing of the scheme so that it was money that would flow into the operational account if someone bequeathed money to the Administrator.

Mr De Freitas asked where the details were stipulated. Should it not be carefully monitored if someone could bequeath something?

Mr Willemse stated that someone who wished to bequeath was free to do so. The money would be bequeathed to the legal entity. He wanted clarity on how else he would provide for a bequeathment in the Bill.

Mr De Freitas did not see anyone bequeathing anything to RAF as it was not a charity but, if it did happen, there would be a lack of accountability. It was left up in the air. The door was left open to some funny business. The explanation needed to be noted somewhere.

Mr Ramatlakane thought that on the previous occasion National Treasury had satisfied Committee Members who were worried about it. Mr de Freitas was correct as no one was likely to bequeath to the RAF and he thought to leave it, otherwise they would have to find a formulation for a hypothetical situation that might or might not arise.

Mr Mpanza also took it that it was a risk management clause. It was better to have it than not have it. The drafters were looking at a possible eventuality. If it happened, there was something in the Bill.

Mr Hunsinger was addressing section 30(d) where it referred to interest earned on money in the operations account. Would one extract capital from an operational account to invest and to earn interest for operations? That would be bad business. Should there be a description of the two accounts? Perhaps there should be clarity as to what would be allowed as there should no flow from the benefit account to the operations account. Those two accounts had to be treated as silos. There was no attempt to describe the relationship between the two accounts. There was, under (d), a possibility that might arise of investing operational money for the interest. What was the relevance of having (d)? Where else could they find the money for investment?  

Mr Ramatlakane did not see how the investment would creep into that account. There could not be taking of money from the benefit account to operations. He did not know whether it would ever happen. He thought that the current clause was fine unless there was a specific clause that the Members needed to be aware of.

Mr Willemse stated that the accounts did operate in silos. Money did not flow from the transitional into the current or into the benefits account. The interest referred to in (e ) was the day-to-day interest on the accounts. Call accounts had higher interest and that money flowed into the account. There was restricted use of the money. Clause 31 referred to the use of the money.

Adv Makgatho also referred to clause 31.

The Committee agreed to clause 30.

Clause 31: Application of money in the operations account
31. The money in the operations account shall, subject to the provisions of this Act, be under the control of the Chief Executive Officer, and shall be applied by the Chief Executive Officer for —
(a) the payment of administrative expenditure arising from the duties of the Administrator set out in section 5;
(b) the payment of administrative expenditure arising from the powers of the Administrator set out in section 6;
(c) the payment of remuneration and allowances for the Board as provided for in section 14;
(d) the payment of all non-claim liabilities of the former Road Accident Fund as provided for in section 63; and
(e) the cost of the actuarial valuations contemplated in section 32.

Mr Willemse said that a previous amendment had been agreed to and so there would have to be a consequential amendment in clause 31 regarding payment from benefits accounts.

The Committee agreed to clause 31.

Clause 32: Actuarial valuations
32. (1) The assets and the liabilities to be funded, respectively, from the benefit account and the transition account, shall be valued annually by an actuary appointed by the Administrator, to determine the sufficiency of the money in the respective accounts.
(2) The result of the valuations referred to in subsection (1) shall be included in the Administrator’s annual report.
(3) Subject to subsection (4), the liabilities to be paid from the benefit account must, in the long-term, be financed on a fully funded basis.
(4) In the event that the ratio of actuarial value of assets to liabilities of the benefit account, expressed as a percentage, falls below 90 percent, the Minister must take all reasonable steps provided for in this Act to restore the ratio to 90 percent or above, and may, in consultation with the Minister of Finance, undertake a review of the benefits or an adjustment of revenue sources or both, taking into account the requirements of the Constitution, the impact on the public and the fiscal position of government.

Mr Hunsinger referred to the maintaining of the balance in terms of ratio in the benefit account. Did the drafters envisage that the assets would only be of the monetary type? If so, where would the other assets vest? Where would the balance rest between assets and liability?

Mr Willemse stated that it referred to money in the account. A benefit would be backed by a provision in the benefits account. If that ratio fell below 90%, the provision would be triggered. There were no assets other than money in the transitional or benefit accounts.

Mr Hunsinger suggested that the word ‘assets’ be changed as it would be interpreted in the wider term, or the clause could refer to ‘monetary assets’.

The Chairperson stated that it would be considered.

Clause 33: Consideration of actuarial valuations
33. (1) The Administrator, the Minister, the Minister of Finance, the Minister of Health, and the Minister of Social Development, or their delegates, provided that such delegates are not those contemplated in section 7(c) to (f), shall meet within 30 days of receipt by the Administrator of the actuarial valuations contemplated in section 32, to consider the financial position of the Administrator and any remedial actions that may be necessary.
(2) In addition to the matter contemplated in subsection (1), at the meeting, the respective Ministers specified in section 60 shall consider the adjustment of the tariff and treatment protocols, annual average national income, pre-accident annual income cap, lump-sum funeral benefit, and the limit on the provision of vocational training.

Mr Hunsinger referred to clause 33(1) sections 7(c) to (f). Why was the Bill excluding the Director-Generals (DG’s) of the Departments referred to?

Mr Willemse explained that the DGs or their delegates were part of the Board and it had to be independent persons, i.e. other than ex officio members of the Board.

Mr Hunsinger asked how it would be different if it was the Deputy Director-General of a Department.

Mr Willemse explained that that person would not be acting contrary to section 50 of the PFMA. It was a compliance mandate.

The Committee agreed to Clause 33.

Clause 27
On page 12, from line 14, to omit subsection (1) and to substitute:
(1) The Administrator shall not be liable to provide a benefit, nor is the liability of any person excluded, in respect of bodily injury or death caused by or arising from the use of a vehicle—
(a) to perpetrate any terrorist activity, as defined in the Protection of Constitutional Democracy Against Terrorist and Related Activities Act, 2004 (Act No. 33 of 2004); or
(b) in circumstances where the producer, importer, distributor, or retailer is liable for the harm in terms of section 61 of the Consumer Protection Act, 2008 (Act No. 68 of 2008).

The Committee agreed to the changes to Clause 27.

Chapter 6
On page 13, in line 2, after "BENEFITS" to insert "AND BENEFIT REVIEW".

Clause 29
On page 13, in line 4, after "29." to insert "(1)".
On page 13, after line 13, to insert:
(2) The Administrator may terminate, suspend or review a benefit contemplated in subsection (1)(a) to (c) for the reasons and in the manner provided for in Part E of this Chapter. 12

The Committee agreed to the changes in Clause 29.

Clause 31
On page 13, from line 43, to omit subsection (1) and to substitute:
(1) Subject to the Preferential Procurement Policy Framework Act, 2000 (Act No. 5 of 2000), the Administrator may enter into agreements with public and private sector health care service providers to provide for the delivery of health care services to injured persons.

Mr Hunsinger asked why, in section 3(1) reference to the Constitution had been replaced by the preferential procurement policy.

Adv Makgatho explained that section 217 of the Constitution required the state to come up with an Act, which it had done and that was the Preferential Procurement Policy Framework Act of 2000 (PPPF). So PPPF was used instead of section 217.

Mr Hunsinger said that he had heard the explanation but made no further comment.

Mr Ramatlakane stated that the Committee would not be coming back to section 31. Section 217 prescribed that tender participation should be open and not for ‘boetie-boetie’ (‘brothers’). PPPF specified exactly who could tender and how the process worked so there was no contradiction. It came from the constitutional provision.

The Committee agreed to the changes in Clause 31.

Clause 32
On page 14, after line 24, to insert:
(2) A non-contracted health care service provider must obtain written approval from the injured person, his guardian, or curator, prior to providing any health care service to the injured person that may result in a co-payment, failing which the injured person and guardian shall incur no liability for the co-payment.
(3) In the event that the injured person requires an emergency health care service, and the injured person, his guardian, or curator, is unable to provide the consent contemplated in subsection (2), the Administrator will be liable for the reasonable co-payment.

On page 14, in line 25, to omit "(2)" and to substitute "(4)".

Mr de Freitas was lost.

Mr Willemse said new 32(2) and (3) had been inserted and old subsection (2) became 32(4).

The Committee agreed to the changes to Clause 32.

Clause 35
On page 15, in line 51, to omit "failed" and to "substitute "was unable".
On page 16, in line 52, after "benefit" to insert "upwards".

The Committee agreed to the changes to Clause 35.

The State Law Advisor stated that clause 39 had been rejected and a new clause was proposed.

Clause 46: Liability of Administrator in respect of funeral benefit
46. (1) Subject to this Act, the Administrator shall be liable, in respect of the funeral of a person whose death was caused by or arose from a road accident to pay an immediate family member of the deceased, a lump sum of R 20 000.00, in the manner set out in the rules, upon submission of—
(a) a copy of the death certificate issued in terms of the Births and Deaths Registration Act, 1992 (Act No. 51 of 1992); and
(b) proof that the death was caused by or arose from a road accident.
(2) The Minister may, with the concurrence of the Minister of Finance, subject to affordability, from time to time, adjust the amount contemplated in subsections (1) upwards by notice in the Gazette to take into account the effects of inflation.

Mr Seabi referred to previous discussions. Was the R20 000 a minimum or was it the total of what could be paid? He recalled the Committee saying that it would set a minimum.

Adv Makgatho explained that R20 000 was the amount at which they would start but it would be adjusted with inflation. It was not unheard of. It was the amount determined in the Life Esidimeni cases.

Mr Willemse added that R20 000 was the current average for funeral expenses in the Road Accident Fund.

Mr Hunsinger was at clause 34. There had been a couple of recommendations. Firstly, that residents and citizenship was addressed as there was no support for an ordinary resident. Secondly, the reasonable period (34(b)(2)) had to be specific. Thirdly, the reference to income illegally earned in clause 34(3) had to be defined as many were earning informally. He asked that those three aspects be considered under clause 34.

The Chairperson asked Mr Willemse and the technical team to assist.

Adv Makgatho reminded the Committee that the definition of illegal income had been included in the definitions section.

Mr Willemse said clause 27(4) stated that illegal foreigners were entitled to emergency measures only. Citizens and permanent residents qualified automatically as per 34(2). Clause 34 dealt with a person who was not a permanent resident or citizen or an illegal foreigner but was legally in the country. Those people had to be in country for at least six months per year for at least three years to receive benefits.

Mr Hunsinger asked if there was no support for an ordinary resident.

Mr Willemse repeated the explanation.

Mr Hunsinger suggested that 24(2)(c) be clarified because a category was outstanding. One sentence would clarify it, or maybe a definition, although they were standard definitions in terms of Home Affairs.
He asked about 34(2)(b) - a reasonable period.

Mr Ramatlakane suggested that the Committee should agree to an amendment in terms of the reasonable period of 30 days, as agreed. It should be corrected. The Committee had also asked for a definition in terms of the current Act. If the drafter added all of those, it would be clear and then the Committee would not need to rehash the issue.

The Committee agreed that the insertions would be made.

Mr Mpanza referred to clause 46 in the A-list . The R20 000 was given as an average but the Committee had been of the view that R20 000 should be the minimum. He added that ‘pay a family member’ of a deceased’ was open-ended, especially in the African family context which made no distinction between the immediate and extended family. He did not want disputes. The Bill should refer to someone who had been approved or legitimised by the family.

Mr Ramatlakane asked if it had not been dealt with in the foundation document. The person identified in the founding document would be the one who should receive the money. That form would identify everyone in the family. There had been a long discussion about the amount of R20 000 and it had been decided that it should be the minimum. If one read it, it seemed to read as a minimum that could be increased by the Minister.

Mr Willemse explained the difference between the funeral benefit and other benefits. Previously, the Committee had discussed the claimant nominating beneficiaries for the income benefit. In the current clause, it was about funeral benefits and so the person had been killed and therefore had not nominated anyone. It was a different benefit. Immediate family was a defined term: ‘immediate family member’’ means a spouse, parent, grandparent or a sibling or descendant above the age of 18. It was cleaner from an implementation perspective to pay an immediate family member as defined. The Administrator could identify those persons.

Mr Hunsinger noted that clause 39 had been rejected in totality and replaced with the clause on page 13 with no reference to looking for any family members. As it stood, everything fell away around the Committee’s concern about finding a member of the deceased.

Adv Makgatho suggested that the Committee should go back to the original clause. Members had wanted something less cumbersome and quicker than the original clause which had required the Administrator to obtain a lot of information. In the instance of the death of a person, it had to be dealt with quickly. Only two documents were needed for the R20 000 – proof of the family member and the death certificate.

Mr Hunsinger said that it left one open. What was the procedure for the family to get the benefit or funding? It might simply be forgotten or fall away. He submitted that the Bill should go back to the original requirements and that the entire section should not fall away.

Mr Ramatlakane said that the Committee had felt the list required for the funeral was onerous while the funeral had to happen within five days. It had not been achievable. The Committee had asked for a rewriting of the section. Members had requested the definition of the person, which still had to be done. They were clear about what was required from the family. The invoices should fall away. If there was a new suggestion, it should be motivated. He was satisfied with clause 46 and had not heard a motivation for something different. It spoke to a funeral benefit. He did not think that there should be another escape route.

Mr Seabi agreed that the Committee had had extensive discussions and that Members had asked for a simplified process. He supported the suggestion that they should move with it as in the A-list.

Mr M Sibanda (ANC) stated that the Committee had even highlighted different cultures and religions. He supported the previous two speakers. He explained that he was ill and could hardly speak.

Mr Hunsinger referred to section 38(10) where the cut-off age for youth was 18. There had been a discussion about going to 21. The insurance industry allowed for youth of up to 23 to cater for students at tertiary institutions.

Mr Ramatlakane said that, after discussion, the Committee had ended up with an age limit of 18.

Clause 42
On page 21, after line 33, to insert:
(2) Subject to this Act, a dependent of a beneficiary of a temporary or long-term income support benefit, who died as a result of the injuries sustained in the road accident, is entitled to a family support benefit without submitting a claim, in the manner set out in the rules.
On page 21, in line 34, to omit "(2)" and to substitute "(3)".
On page 21, from line 34, to omit "funeral benefit in terms of section 39(2)"and to substitute "family support benefit in terms of subsection (2)".
On page 21, in line 37, to omit "(3)" and to substitute "(4)".

The Committee agreed to the changes to Clause 42.

Clause 43
On page 21, in line 43, after "may" to insert ", subject to the duty to assist the claimant contemplated in subsection 56(2),".

The Committee agreed.

Clause 46
On page 23, in line 53, to omit "one year" and to substitute "three years".

The Committee agreed.

Chapter 8 Complaints
The State Law Advisor informed the Committee that this was a new chapter.

Mr Hunsinger noted that the Committee had discussed the unfortunate circumstances where a benefit due to a family would cease when the beneficiary died. Under the current design, the children would have to apply for a continuation of benefits. The Committee had discussed a mechanism where benefits would continue without children having to apply. He believed it would fit into the Bill at the point that the Committee had reached.

Mr Willemse explained that automatic provision occurred in instances where the beneficiary had been an income support beneficiary. There was no follow-up when the widow died because the benefits for the whole family were dealt with at the same time. They all received benefits so, if the surviving spouse died, the children would already be receiving, and continue to receive, a benefit. That was aligned to the current position of the RAF.

Mr Seabi stated that the Committee had agreed to putting it in the General Provisions and the Committee was not yet there.

Mr Hunsinger asked where to find the description given by Mr Willemse.

Mr Seabi explained that he was trying to support Mr Hunsinger by stating that it should be under General Provisions.

Clause 55: Complaints
55. (1) Any qualifying person, claimant or beneficiary may, on the form and in the manner set out in the rules, lodge a complaint with the Administrator regarding any matter provided for in this Act.
(2) The complaint must be lodged within three months of the complaint arising.
(3) The Administrator may request a complainant to supply any additional information necessary to consider the complaint and to attend a meeting for the purpose of making an oral enquiry into the complaint.
(4) The Administrator must consider the complaint and respond in writing, not later than three months after the complaint was lodged, informing the complainant of the Administrator’s decision.

Mr Ramatlakane asked why an oral enquiry was specified in clause 55(3).

Mr Willemse explained that the current RAF had that facility and that it received a number of complaints and it was sometimes necessary to hear the complaint orally and to engage with the complainant in order to understand it.

Mr De Freitas asked why it had been reduced to only oral complaints. It should be broader.

Mr Hunsinger had an additional point. He appreciated the addition regarding the complaints procedure. However, should it not be in the objectives where the only reference was to dispute? Either both words should be used or complaints replaced by disputes to give adequate linkage to both of those.

Mr Willemse stated that provision had been made to add ‘to manage disputes’ to the duties.

Mr Ramatlakane suggested that in clause 55(3), oral or written enquiries would cover both concerns.

The Committee agreed.

Clause 48
On page 24, in line 18, to omit "may" and substitute "must".
On page 24, from line 22, to omit "as a member of a law society" and to substitute "and enrolled as an advocate or an attorney under the Legal Practice Act, 2017 (Act No. 28 of 2017)". (The State Law Advisor corrected herself – it was not Act No. 28 of 2014, but of 2017.)
On page 24, in line 23, to omit "10" and to substitute "five".
On page 24, in line 24, to omit "alternative".
On page 24, in line 28, to omit "10"and to substitute "five".
On page 24, in line 32, to omit "10" and to substitute "five".

Mr Ramatlakane asked about the use of complaints and disputes in the Bill. Should Chapter 8 not be headed disputes? There could be complaints not necessarily related to the claim. Those that were claim-related were disputes. Everything in Chapter 8 related to disputes.

Mr Hunsinger asked the Committee to pay attention to clause 47(4): If the Administrator rejects a claim, the claimant must be informed in writing within 14 days of the decision and of the claimant’s right to appeal against the decision of the Administrator. There was a need for a procedure for the disputes or complaints. Members might need to consider the procedure and the 14-day period.

Adv Makgatho accepted that Chapter 8 should be headed ‘Dispute’, not complaints. Under 4, it would be possible to add ‘within 14 days of the complaints’ right to lodge a dispute’ and then the clause would continue in its current form.

The Committee agreed to the proposals.

Mr Ramatlakane said that the A-list had omitted amendments to clause 47. The Committee had talked about mediation. Where did that come in?

Mr Willemse explained that the numbering on the A-list did not cover all the changes. Clause 55 on the A-list would follow immediately after Clause 47, i.e. become Clause 48 in the Bill.

There was some confusion in the meeting over clause numbers and chapters.

Mr Willemse explained that the numbering would change when consequential changes were made. Those changes would ensure the correct numbering of clauses as they would appear in the final Bill. He could not give the correct chapter numbers but agreed that disputes and appeals would appear in different chapters because the appeals person was appointed by the Minister.

The Chairperson asked the legal team to address Mr Ramatlakane’s question about ‘reasonable time’.

Adv Makgatho indicated that the insertion that he had referred to would cover ‘reasonable time’.

Mr Hunsinger explained that the Bill was clear that complaints or disputes formed an activity generated by an unhappiness with the process. A person could lay a complaint instead of going to mediation. Mediation was another opportunity rather than going on appeal and should be a subsection of disputes, as it was an option when one wanted neutrality. He suggested that clause 47 remained and that a new clause 48 could deal with disputes and then clause 49 could carry mediation. Those clauses should come before the chapter on appeals.

Mr Ramatlakane agreed that it should follow logically.

The Chairperson reminded the Committee that one submission had suggested that there could be mediation rather than going straight to formal appeals. There were independent experts who could assist the two parties to resolve the matter and that would avoid appeals. That was why the Committee wanted a mediation process.

Adv Makgatho said that his take was that, with Road Accident Benefit Scheme, the Department Bill was trying to minimize going the litigation route. The mediation route was not binding and would have to be confirmed in court. It was a long and tedious process and required the services of consultants, mostly with a legal background, and would be a question of costs and time with the process. Having a dispute or complaints process was intended to avoid that.

Mr Willemse stated that the presentation on mediation had been from a person who dealt with medical negligence claims. The presenter engaged with parties and insurers who could compromise on a settlement. They were dealing with needs of parties as opposed to rights. The rule of law required the Administrator to give effect to the legal framework. It was not possible to compromise, nor was there discretion available to the Administrator that would be contrary to the Act. In a commercial environment, compromises could be made to reach agreement. In the Road Accident Fund, there was no discretion to go outside the prescribed benefits and so mediation was of little use. One could only look at the rights of a person and that would lead to a decision. That could go to appeals but mediation would add time and would not benefit the process.

The Chairperson noted that Parliament was sitting at 2pm and the Committee had to be mindful of time.

Mr Ramatlakane heard the explanation for the exclusion of mediation. What should have happened was that it should not have been a decision of the drafters. The complication had to be put to the Committee for a decision. Exclusion could equal manipulation of the report that should come before the Committee. The drafters could have had their own reasons for changing something, but they could not take decisions. The Members were relying on notes when there was a room full of lawyers who were supposed to be assisting the Committee. He did not take it lightly because the Committee had been excluded and it was second guessing. He detested that. Because of time, perhaps the dispute process should gravitate towards the middle and address mediation under the dispute clause. The Committee should live with a complication that had been explained very late in the day. Drop mediation and run with the dispute. It was a halfway house. That was his take.

Mr Hunsinger said it should not be seen as one following the other. There should not be a full mediation process and a full dispute process. It should not work like that. It could be designed to work in parallel. Consideration should be given that mediation could be a parallel process and the Administrator could include specialists, e.g. medical specialists, could help to resolve the dispute. If one could only rely on documentation, it would not work as well as using experts.

Mr Ramatlakane accepted the proposal. The same dispute clause could be used to call experts. He also understood the cost factor.

The Committee agreed with the proposal.

The Committee agreed with the other changes in clause 48.

Clause 53
On page 25, after line 31, to insert:
(3) In the event of a breach of subsection (2) the Minister may remove a member or alternate after having—
(a) given the member or alternate a reasonable opportunity to make representations; and
(b) considered any representations received.

Mr De Freitas asked, in clause 53, what was ‘reasonable opportunity’ and what was meant by ‘an alternate’.

Mr Willemse explained that the Minister appointed an alternate for each member and clause 53 provided a mechanism for Minister to remove the person responsible for the particular breach of conduct, be it a member or an alternate.

Adv Makgatho explained that ‘reasonable opportunity’ meant that the minister had to give the person the right to be heard.

Mr de Freitas asked that that understanding be placed in the clause.

The Chairperson noted that in similar instances in the Bill, a period of seven days had been stipulated. There needed to be consistency.

Mr Hunsinger referred to clause 52. The capping of remuneration had been discussed but did not appear there.

Mr Willemse stated that the discussion had been around Board members and there was a provision made that their stipend was capped regardless of the number of times the Board met. However, those referred to in clause 52 were standing committees. The Minister could pay alternates on a per meeting basis whereas the permanent members would receive a stipend.

Mr Hunsinger stated that there was justification to specify the distinction.

The Chairperson agreed that it had to be done.

Clause 54
On page 25, in line 32, to omit "from" and to substitute "of".
On page 25, in line 33, to omit "may" and to substitute "must".

The Committee agreed with the changes.

Mr Mpanza suggested that it needed to be clear that it was removal from the Appeals Committee.

Adv Makgatho stated that the drafters would qualify it by saying it was from the Appeals Committee

Mr Hunsinger suggested that the heading should be disqualification and removal of the Appeals Committee.

Mr Mpanza suggested that the heading should be Disqualification and Removal from Membership of the Appeals Committee.

The Chairperson agreed that the changes should be made.

Mr Hunsinger referred to section 54(2) below (c) and before (3). A decision had been taken to include a reference to section 53 subsection (2).
The Committee agreed.

Clause 55
On page 26, in line 4, to omit "30" and to substitute "180".
The Committee agreed.

Clause 56
On page 26, in line 20, after "56." to insert "(1)".
On page 26, after line 23, to insert:
(2) The Administrator must assist the injured person, claimant or beneficiary to obtain the documents required to submit a claim and to process a benefit.
(3) The Administrator must pay the reasonable and necessary costs associated with obtaining the documents contemplated in subsection (2).

The Committee agreed to the changes.

Clause 60
On page 26, in line 37, after "Health" to insert "and the Minister of Finance".
On page 27, in line 5, to omit "it".
On page 27, in line 11, after "adjust" to insert "upwards".
Agreed by the Committee.

Mr Hunsinger did not see a definition of the Appeals Committee.

The Chairperson informed Mr Hunsinger that the point had been raised by Mr Mpanza earlier and would be included.

Clause 61
On page 27, in line 35, to omit ", unless it is impractical to do so".
Agreed by the Committee.

Mr Hunsinger recalled that the Committee had decided that ‘the Board may’ be changed to ‘the Board must’.

Mr Willemse recalled the discussion but in that section, it was a ‘may’ because it was a discretionary power that the Minister could exercise on a future date, but it was not something that ‘must’ be done for the legislation to be enacted. In response to Mr Hunsinger, he stated that the discretionary power was in section 36.

Mr Hunsinger noted that it was a law unto a law itself. He thought that it would have been a ‘must’ in terms of the writing of the Bill because it had to be gazetted.

Mr Willemse explained that it was similar to giving the Minister regulation-making powers so the Minister ‘must prescribe’ and ‘may prescribe’ was a catch-all. In the current regulations to the Road Accident Fund Act, the Minister may prescribe training and requirements for an assessor to assess serious road accidents under the current legislation. It had been challenged and it had been found that there was nothing wrong in giving the Minister that discretion. That discretion did not mean that the Minister ‘must’ exercise it.

Adv Makgatho stated that the words ‘unless it was impractical to do so’ would follow.

Mr Ramatlakane stated that it was allowable that Minister had some discretion. The Committee did not have to go to war on it.

Mr Hunsinger said that he wanted to go to war on it. He wanted a ‘must’. The Committee could not allow discretion. For the sake of transparency it had to be known what training programmes assessors had to undertake and it had to be known what the criteria were for assessors. Why hide it?

Mr Ramatlakane said that, from his reading, that it did not give the right to hide. He believed that the Minister should be given the discretionary power.

Mr Seabi stated that the Committee had debated that point and that the same argument had been presented and the formulation had been accepted.

The Chairperson said that it was agreed. Even if Members agreed to disagree.

Clause 62
On page 27, in line 40, to omit "three" and to substitute "six".
On page 27, in line 43, to omit "three" and to substitute "five".

Mr Hunsinger stated that in section 62(1), it should be six months, not three months.

The Committee agreed to the changes in clause 62.

Clause 63
On page 28, after line 43, to insert:
(4) The law specified in the first column of Schedule 2 are amended or repealed to the extent set out in the third column of that Schedule.

Clause 64 – clause rejected.

Clause 65 – clause rejected.

Clause 71
The State Law Advisor stated that there was a new schedule:

Schedule 2
Act No. 58 of 1962, Income Tax Act, 1962
This would be amended as follows:
1. The amendment of section 10 by the insertion after item (iv) in subsection (1)(gB) of the following item:
“(v) benefits paid in terms of Chapter 6 of the Road Accident Benefit Scheme Act, 2017 (Act No. 17 of 2017”.

Mr Seabi stated that it had been agreed to include in General Provisions in Chapter 9 an automatic process for children and spouses so that they did not have to apply.

Mr Willemse explained that it had been dealt with in terms of section 42(2) where no claim forms were required as it was automatic.

The Committee agreed to the amendment.

Act No. 56 of 1996, Road Accident Fund Act, 1996
The State Law Advisor continued to read the extent of repeal or amendments to the Road Accident Fund from (2) to (7) in Schedule 2.

All repeals/amendments read out were agreed to by the Committee.

Mr Hunsinger stated that 4B(a) stated that tariffs had to be finalized but (c) seemed to cancel the tariffs and in section (c) they could carry on without it. Why was it necessary to have tariffs that could be waived? Where were the tariffs in terms of the contracted and non-contracted schedules?

Mr Willemse stated that Schedule 2 dealt with repeal or amendments to the Road Accident Fund. It was dealing with the changes in the law. It did not deal with the Road Accident Benefit Scheme Bill. He added that the tariffs had been submitted to the Committee.

The Chairperson assured Mr Hunsinger that it had been in his email inbox that morning.

Mr De Freitas stated that he could not prepare for a meeting if the documentation arrived the same day.

The Chairperson arranged for the Committee to meet the following morning to complete the reading of Schedule 2. A quorum was required or work on the Bill would have to be shifted until the following term.

The meeting was adjourned.

Download as PDF

You can download this page as a PDF using your browser's print functionality. Click on the "Print" button below and select the "PDF" option under destinations/printers.

See detailed instructions for your browser here.

Share this page: