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THE FACTS ABOUT THE ROAD ACCIDENT BENEFIT SCHEME (RABS) BILL
 
What is RABS?
RABS is intended to replace the current fault-based system administered by the Road Accident Fund (RAF), which often results in extensive and costly litigation, prolonged claims finalisation and high administrative costs.  Under RABS, fault will not be considered on the part of the claimant or other persons involved in the road accident. The focus will essentially be on how the claimant is immediately assisted.  A no-fault scheme will create a new era of socio-economic balance and will also remove the unintended negative consequences and financial burden on the families of the wrongdoer.
 
Who benefits under RABS and what will it do for accident victims?
RABS is a social benefit scheme that will provide a social security safety net - based on social security principles - to those injured in road crashes and to the dependants of breadwinners who are killed as a result of road crashes. RABS will furthermore continue to indemnify those responsible for road crashes from civil liability.
In terms of the Scheme, payments will be made directly to claimants, medical and healthcare service providers. Funded by the fuel levy, RABS will provide benefits for medical expenses, income support, family support and funeral benefits.
Claimants will be able to claim from the Scheme, while the Scheme’s administrator (RABSA) will assess claims for benefits and pay beneficiaries in terms of the Act.  RABSA will take over all of the existing and future RAF claims and RAF undertakings, as well as the RAF staff.
It is not possible to state exactly when the RABS Bill will eventually be promulgated, but the public will be kept updated on progress made and will be informed closer to the time of implementation.
 
What are some of the misconceptions about RABS?
·        RABS will not be as effective as the current scheme
 
The current scheme administered by the RAF is subjected to fraud, opportunistic and over-inflated claims, professional malpractice and human failing. There is no financial incentive for injured accident victims to return to work or to undergo rehabilitation. In addition, many accident victims and their dependants are excluded from receiving compensation for medical treatment, loss of income, loss of support and funeral expenses, due to the fault requirement. This results in these accident victims having to rely on other social benefit schemes such as the South African Social Security Agency for grants, including disability grants, child support grants and foster child grants. 
 
In contrast to the RAF that only provides compensation to motor vehicle accident victims who can prove negligence on the part of another driver, the proposed RABS scheme will provide benefits to all accident victims and their dependants, irrespective of who was at fault.  Benefits will be defined and paid in a structured manner.
 
Because of the defined nature of the benefits, they are transparent and easily understandable by a claimant, compared to the subjective nature of the compensation paid by the RAF, which in many instances require expert opinions and actuarial calculations.
 
·        RABS will exclude lawyers
 
RABS does not exclude a claimant’s right to elect to make use of the services of an attorney. Disputes under RABS will be referred to an internal appeal body. If the claimant or beneficiary remains unsatisfied with the outcome of the dispute, the matter may be referred to a court for a review of RABS’s decision or action.
 
It is expected that the role of attorneys in the new scheme will be limited considering the removal of the requirement to prove fault and due to the fact that benefits are defined. However, RABS will continue to administer claims that arose under the RAF scheme which will mean that attorneys will continue to play a significant role in respect of those particular claims.
 
·        RABS’s structured payments will disadvantage claimants
 
Currently, lump-sum payments made by the RAF are, in many instances, utilised by claimants for the purchase of luxury vehicles, homes and holidays, and not for the purpose for which the payments are made. This inevitably results in many claimants soon being in a position where they are unable to sustain themselves.
 
RABS will make structured or monthly payments of benefits to ensure that the benefits are used for the intended purpose and also that they are available when needed in future. RABS benefits are furthermore protected from attachment by creditors.
 
Structured payments will also support the financial viability of the Scheme in that the monthly payments will cease when the beneficiary is successfully rehabilitated and returns to work. The Scheme would have over-compensated the claimant if a lump-sum payment had been made.
 
·        RABS is not financially sustainable
 
Benefits will be capped in order to provide affordable and sustainable benefits to more people that would otherwise not have had a claim under the scheme administered by the RAF.
 
RABS prioritises rehabilitation and focuses on the return to work of injured beneficiaries, which may result in shorter benefit payment periods due to the benefit ceasing when the beneficiary returns to work.
 
A medical tariff will limit RABS’s expenditure on medical and associated costs.
 
Benefits will be paid in instalments, as opposed to lump-sum payments currently made by the RAF.
 
The removal of fault and the provision for defined benefits further limit room for disputes and associated legal costs that would otherwise have been incurred. Additionally, an internal dispute resolution mechanism aims to address disputes in an efficient and cost effective manner.
 
·        RABS will result in payment delays
 
This is quite to the contrary. In a fault-based system such as that administered by the RAF, it is a requirement for fault to be proven before any compensation can be paid. Not only is it necessary to prove that another motor vehicle driver was at fault, but it is also necessary to determine the percentage of each driver’s negligence. The investigation into the fault aspect may take a long time and often leads to litigation which further delays settlement of the claim. The associated litigation may also result in a reduction in the compensation received by the claimant, as the legal representative will recoup his legal fees and the costs of experts used during the litigation from the amount paid by the RAF.  
 
Benefits provided by RABS will reach many more road crash victims and their families much sooner than is currently the case.
 
 
·        RABS’s prescription period will disadvantage claimants
 
The period within which claims must be lodged with the RABS are more generous than those under the RAF legislation. For instance, under the RAF, a “hit-and-run” claim (a claim where the driver of the other vehicle is not identified) must be lodged within two years from the date of the accident. RABS, however, does not distinguish between claims where the driver of the other vehicle is not identified, and all claims should be lodged within three years.
 
Minors, mentally incapacitated persons and those under curatorship will be able to lodge claims until one year after they are legally in a position to do so.
 
 
·         RABS will exclude foreigners, including tourists
 
All foreigners or tourists legally in South Africa (SA) will be entitled to the following benefits:
Ø  A healthcare services benefit, subject to the service being provided in SA;
Ø  An income support benefit, provided that the beneficiary’s ordinary place of residence is in SA, and for as long as the beneficiary is an ordinary resident in SA;
Ø  A family support benefit, provided that the dependant’s ordinary place of residence is in SA, and for as long as the dependant’s ordinary place of residence remains in SA; and
Ø  A claim for a funeral benefit.
 
If the foreign claimant was not legally present in SA at the time of the accident, the claimant will only be entitled to emergency healthcare services, i.e. healthcare services required to stabilise the medical condition of the injured person. In the event of the illegal foreigner’s death, no dependant will be entitled to a family support benefit, nor will the immediate family be entitled to a funeral benefit.
 
 
 
·         RABS payments will stop if a claimant dies
 
Subject to the RABS benefits rules, which define the entitlement criteria for each specific benefit, benefits will be payable to the claimant as long as the claimant is alive, i.e. income and family support benefits are not transferable. If the claimant later passes away as a result of the injuries sustained in the car crash, the claimant’s benefits will cease, but his dependents may then be entitled to claim family support benefits.
 
·        RABS’s electronic application process will disadvantage claimants with no access to e-mail or fax facilities
A claim may be lodged electronically, by post or manually by filling in the necessary forms. RABS is furthermore obliged to assist claimants to lodge claims.
RABS will take over the existing RAF national footprint comprising of its head office, five regional offices, five customer service centres and 83 hospital service centres. Additionally, RABS will continue to take its services to claimants in rural areas via the current ‘RAF on the Road’ community outreach campaign.
 
·        The Department of Transport (DoT) has not consulted widely about the RABS Bill
The DoT drafted the Bill following public consultation and final approval by Cabinet of the RABS Policy in 2011. The initial RABS Bill was published in 2013 and revised following consideration of public comments. The revised Bill, Regulations and Rules were published for comment on 9 May 2014.
The RAF developed the draft Rules and Forms required by the Bill and are consulting concurrently with the DoT on said draft Rules and Forms. These consultations have occurred with various stakeholders, including the public, legal and medical fraternities.
Apart from the national RABS workshop held in Centurion on 19 June 2014, the DoT has already held provincial RABS workshops in the Eastern Cape (Zwelitsha, King William’s Town and Port Elizabeth), KwaZulu-Natal (Empangeni, Pietermaritzburg and Durban), North West (Mahikeng, Rustenburg and Potchefstroom), Limpopo (Giyani and Polokwane), Northern Cape (Upington and Kimberley), Western Cape (Cape Town, Vredenburg and George), Free State (Kroonstad and Mangaung), and Gauteng (Springs and Soweto).