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​Legal FAQ

On which ground may access to third party information be denied?

The following is a (non-exhaustive) list of the ground on which the RAF may refuse to grant access to a record: 

MANDATORY PROTECTION OF PRIVACY OF A THIRD PARTY WHO IS A NATURAL PERSON

The Information Officer must refuse a request for access to a record if the disclosure would involve the unreasonable disclosure of personal information about a third party, including a deceased individual.

However, a record may not be refused if it consists of information:

  • About an individual who has consented in writing to the disclosure of the information;

  • Given to the public body by the individual to whom it relates, and that individual is informed by the public body before it is disclosed, that the information belongs to a class of information that might already be publicly available;

  • That is already publicly available;

  • Relating to an individual’s physical or mental health, or well-being, who is under the care of the requester, and who is under the age of 18 years or is incapable of understanding the nature of the request, and further that the giving of access would be in the individual’s best interests;

  • About an individual who is deceased and the requester is the individual’s next of kin, or is making the request with the written consent of the individual’s next of kin;

  • About an individual who is or was an official of a public body, and the information relates to the position or functions of the individual.

 MANDATORY PROTECTION OF COMMERCIAL INFORMATION OF A THIRD 
PARTY

The Information Officer must refuse a request for access to a record if it contains:

  • Trade secrets of a third party;
  • Financial, commercial, scientific or technical information other than trade secrets of a third party, where the disclosure thereof would be likely to cause harm to the commercial or financial interests of that third party;
  • Information supplied by a third party in confidence, and if disclosed would reasonably be expected to place the third party at a disadvantage in contractual or other negotiations; or prejudice the third party in commercial competition.

However, a record may not be refused if it consists of information:

  • Already publicly available;
  • About a the third party who has consented in writing, to its disclosure to the requester;
  • About the results of any product or environmental testing (not the results of preliminary testing or investigations conducted for developing methods of testing) or other investigation carried out by or on behalf of a third party; where the disclosure thereof would reveal a serious public safety or environmental risk.

MANDATORY PROTECTION OF CERTAIN CONFIDENTIAL INFORMATION AND PROTECTION OF CERTAIN OTHER CONFIDENTIAL INFORMATION OF A THIRD PARTY

The Information Officer must refuse a request for access to a record if the disclosure thereof would constitute a breach of a duty of confidence owed to a third party in terms of an agreement.

The Information Officer may refuse a request for access to a record if the record consists of information supplied in confidence by the third party, and if disclosed, could prejudice the future supply of similar information or information from the same source and it is in the public’s interest that the information from the same source continue to be supplied.

However, a record may not be refused if it consists of information:

  • Already publicly available;
  • About the third party concerned and the third party has already consented in writing, to its disclosure to the requester.

MANDATORY PROTECTION OF SAFETY OF INDIVIDUALS AND PROTECTION OF PROPERTY      

The Information Officer must refuse a request for access to a record if its disclosure could reasonably be expected to endanger the life or physical safety of an individual.

The Information Officer may refuse a request for access to a record if its disclosure would likely prejudice or impair the security of a building, structure, or system, including a computer or communication system, a means of transport or any other property;

The Information Officer may refuse a request for access to a record if its disclosure would likely prejudice or impair the methods, systems, plans or procedure for the protection of:

  • An individual under a witness protection scheme;
  • The safety of the public, or any part of the public;
  • The security of a building, structure, or system, including a computer or communication system, a means of transport or any other property.

MANDATORY PROTECTION OF RECORD PRIVILEGED FROM PRODUCTION IN LEGAL PROCEEDINGS

The Information Officer must refuse a request for access to a record if the record is privileged from production in legal proceedings, unless such privilege has been waived.

ECONOMIC INTERESTS AND FINANCIAL WELFARE OF THE RAF

The Information Officer may refuse a request for access to a record if the record:

  • Contains trade secrets of the RAF;
  • Contains financial, commercial, scientific or technical information, and the disclosure thereof would likely cause harm to the commercial or financial interests of the RAF;
  • Contains information, which if disclosed, could place the RAF at a disadvantage in contractual or other negotiations, or prejudice the RAF in commercial competition;
  • It is a computer programme as defined in the Copyright Act, No. 98 of 1978, which is owned by the RAF.

The Information Officer may not refuse a request for access to a record of the RAF if the record consists of information:

  • Already publicly available;
  • About or owned by a public body, other than the RAF to whom the request is made, and the public body has consented in writing to its disclosure to the requester;
  • About the results of any product or environmental testing or other investigation (excluding the results of preliminary testing or investigations conducted for developing methods of testing) carried out by or for the public body, and the disclosure thereof would reveal a serious public safety or environmental risk.

MANDATORY PROTECTION OF RESEARCH INFORMATION OF A THIRD  PARTY AND PROTECTION OF RESEARCH INFORMATION OF THE RAF

The Information Officer must refuse a request for access to a record if the record contains information about research being carried out or to be carried out on behalf of a third party and if this were to be disclosed, it would likely expose the third party, the person carrying out the research or will be carrying out the research on behalf of the third party, or the subject matter of the research, to a serious disadvantage.

The Information Officer may refuse a request for access to a record if the record contains information about research being carried out or to be carried out on behalf the RAF and if this were to be disclosed, it would likely expose the RAF, the person carrying out the research or will be carrying out the research by or on behalf of the RAF or the subject matter of the research, to a serious disadvantage.

OPERATION OF THE RAF

The Information Officer may refuse a request for access to a record if the record contains an opinion, advice, report or recommendation obtained or prepared; or an account of a consultation, discussion or deliberation, including the minutes of meetings, for the purposes of assisting to formulate policy or the taking a decision in the exercise of power or the performance of a duty in terms of the law on the RAF.

The Information Officer may refuse a request for access to a record if the disclosure of the record could reasonably be expected to frustrate the deliberative process in the RAF or between the RAF and other public bodies, by inhibiting the candid communication of an opinion, advice, report or recommendation; or the conduct of a consultation, discussion or deliberation; or if the disclosure of the record could, by premature disclosure of a policy or contemplated policy, reasonably be expected to frustrate the success of that policy.

The Information Officer may refuse a request for access to a record if: 

  • The disclosure of the record could reasonably be expected to jeopardise the effectiveness of a testing, examining, or auditing procedure or method used by the RAF;
  • The record contains evaluative material, whether or not the person who supplied it is identified in the record, and the disclosure of the material would breach an express or implied promise, which was made to the person who supplied the material, that the material or the identity of the person who supplied it would be held in confidence; or
  • The record contains a preliminary, working or other draft of an official of the RAF.

MANIFESTLY FRIVOLOUS OR VEXATIOUS REQUESTS OR SUBSTANTIAL AND UNREASONABLE DIVERSION OF RESOURCES

The Information Officer may refuse a request for access to a record if the request is trifling or intended to harass, or if the work involved in processing the request would substantially and unreasonably divert the resources of the RAF. 

MANDATORY DISCLOSURE IN THE PUBLIC INTEREST

Despite the above-listed grounds for refusal, the Information Officer of the RAF must grant a request for access to a record of the RAF if, the disclosure thereof would reveal evidence of a substantial contravention of, or failure to comply with the law; or an imminent and serious public safety or environmental risk; and the public interest in the disclosure of the record, outweighs the harm contemplated under the grounds for refusal.

 

 

I want to request access to information about third parties, what is the process ​

If access is requested to a record that contains information about third party, RAF is obliged to attempt to contact the third party to inform him/her/it of the request. 

This affords the third party the opportunity of responding by either consenting to the access or by providing reasons why the access should be denied.

These reasons will be considered by RAF in determining whether access
should be granted or not.

 

 

Who pays for the costs of the dispute resolution? ​

1. The Fund shall bear the reasonable costs of the HPCSA.

2. The Fund shall bear the reasonable fees and expenses of the persons appointed to the appeal tribunal.
 
3. The claimant will have to bear the cost of his/her attorney in those instances where he/she is represented by and attorney/advocate.

 

 

What recourse exists if a dispute arises regarding the assessment of the seriousness of an injury?

1. The amendments provide for dispute resolution where the medical practitioner has assessed an injury as “not serious” or where the Fund has rejected a serious injury assessment report by a medical practitioner in terms of which the injury has been assessed as “serious”.

2. A claimant wishing to lodge a dispute must do so within 90 days of being notified of the outcome of the assessment or being notified of the rejection of the serious injury assessment report by the Fund.

3. The dispute must be lodged, on the prescribed form (RAF 5), with the Registrar of the Heath Professions Council of South Africa (“the HPCSA”).

4. The dispute will be determined by an appeal tribumal appointed by the Registrar of the HPCSA and will publish its findings within 90 days from the date that the dispute was referred to the Registrar.

 

 

Who pays for the serious injury assessment report?

1. The Fund shall only bear the cost of the assessment if the claimant’s injury is found to be serious and the Fund attracts overall liability in terms of the Act (merits, prescription, etc.); or

2. If the Fund decides that there is a reasonable prospect that a medical practitioner may assess the injury to be serious and the claimant lacks sufficient funds to obtain an assessment, the Fund may, at the Fund’s cost, at the request of the claimant, make available to the claimant the services of, or, alternatively, refer the claimant to a medical practitioner for purposes of an assessment.

 

 

What and who determines whether an injury is considered serious or not?​

1. This question is answered by a medical practitioner who assessess the claimant by following a process of elimination prescribed in the regulations.

a. Firstly, the medical practitioner must have regard to a list of non-serious injuries. This is a list that may be published by the Minister of Transport, after consultation with the Minister of Health. If an injury appears on this list that injury may not be assessed to be serious by the assessing medical practitioner. Where no list has been published the assessing medical practitioner may skip this step and move on to the next step.
The injury, by the medical practitioner, in terms of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Sixth Edition (“the AMA Guides”). If the injury resulted in 30 per cent or more Impairment of the Whole Person as provided in the AMA Guides, the injury shall be assessed as serious.

b. The last step in the assessment process will only be followed where the injury is not listed on the list of non-serious injuries and where the injury did not result in 30 per cent or more Impairment of the Whole Person. In terms of this step the medical practitioner may assess an injury as serious if the injury resulted in:
(i) a serious long-term impairment or loss of a body function;
(ii) permanent serious disfigurement;
(iii) severe long-term mental or severe long-term behavioural disturbance or disorder; or
(iv)loss of a foetus.

2. The medical practitioner who performed the assessment must complete a serious injury assessment report (RAF 4).

3. The claimant may lodge the RAF 4 with the separately after the submission of the claim at any time before the expiry of the periods for the lodgement of the claim prescribed in the Act and these Regulations​

 

 

What claims are affected by the amendments? ​

1. All claims arising from accidents that occur on, or after, the date determined by the President in his promulgation notice will fall to be assessed in terms of the amendments.

2. Claims that arise from accidents that occur prior to the date specified in the President’s promulgation notice will be assessed in terms of the current act, i.e. the amendments will have no impact on these claims.

 

 

What are the important changes introduced by the amendments regarding the liability of the Fund? ​

1. Under the current Act the claims of certain categories of passengers are limited to a maximum of R 25 000.00. The amendments have done away with this limitation and these passengers will in future be treated on an equal footing with all other types of claimant 

a. The lifting of this cap has the effect that certain categories of passengers will enjoy better cover than what is currently the case
b. Clearly this amendment will place additional pressure on the Fund’s financial position but the amendment was necessary to ensure equal access by the public to the benefits provided by the Fund.

2. Clearly this amendment will place additional pressure on the Fund’s financial position but the amendment was necessary to ensure equal access by the public to the benifits provided by the Fund. The current act excludes claims by passengers, in a single motor vehicle accident, where the claimant is in law responsible for the maintenance of the driver, or where the claimant is a member of the same household as the driver. The amendments deleted this exclusion with the result that the Fund will in future entertain such claims.

3. The current act does not exclude claims for emotional shock. The amendments however introduced a new exclusion in respect of claims for secondary emotional shock. Secondary emotional shock refers to instances where the claimant did not sustain any other physical injuries in the accident. A typical example of secondary emotional shock would be where a claimant witnessess an accident without being involved in the accident. It is important to note that although the Fund’s liability is excluded in respect of this type of claim that the claimant retains his/her common law claim against the wrongdoer.

4. The amendments retain the claimants common law right to claim against the wrongdoer only in instances where the Fund is unable to pay any compensation and in instances of secondary emotional shock.

5. The amendments limit the Fund’s liability for compensation in respect of claims for non-pecuniary loss (genereal damages) to instances only where a serious injury has been sustained.

6. The current act provides that a claimant is entitled to party-and-party costs when the claimant accepts an offer by the Fund. The amendments deleted this entitlement.

7. The Fund may issue a claimant with an Undertaking in terms of which the Fund will compensate the claimant for future medical and related expenses. The amendments now entitle the Fund to pay the compensation to the claimant or directly to the medical service provider. The amendments also provide that claims lodged under the Undertaking shall not prescribe before the expiry of a period of five years from the date on which the cause of action arose.

8.The amendments limit the Fund’s liability in respect of medical expenses to one of two medical tariffs. The first (higher) tariff will apply in all cases where emergency medical treatment was provided. Emergency medical treatment is defined as all medical treatment necessary for “…the immediate, appropriate and justifiable medical evaluation, treatment and care required in an emergency situation in order to preserve the person’s life or bodily functions, or both…” All medical treatment that can not be defined as emergency medical treatment will be compensated on the lower tarrif. This lower tariff is the Uniform Patient Fee Schedule for fees payable to public health establishments by full-paying patients, prescribed under section 90(1)(b) of the National Health Act, 2003 (Act No. 61 of 2003), as revised from time to time.

9. The amendments limit the Fund’s liability in respect of claims for loss of income to R 160 000.00 per year, irrespective of the actual loss.

10. The amendments limit the Fund’s liability in respect of claims for loss of support to R 160 000.00 per year, irrespective of the actual loss, in respect of each deceased breadwinner.
a. In terms of the amendments the Fund is required to adjust the R 160 000.00 limit on a quarterly basis, to counter the effects of inflation, by giving notice of the adjusted statutory limit in the Government Gazette.

What are the amendments all about and how do they affect me as a claimant?​

1. The amendment of the Road Accident Fund Act 56 of 1996 was necessary to ensure the future sustainability of the Fund. The Fund’s income, primarily derived from a fuel levy, does not keep pace with the value of claims lodged with the Fund. For this reason the Fund has over the years accumulated a deficit of over 20 billion Rand

2. The amendments introduce a number of limitations on the Fund’s liability to pay for certain types of compensation. It is expected that these limitations will improve the Fund’s financial position ensure its ability to pay claims in the future.