MVA practice under the Motor Vehicle Accidents Act, 1986
Honey, Dudley Percival
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1. Background: The Government's decision to convert the South African MVA System from an insurance scheme to a fuel levy scheme necessitated radical amendments to what was known as the Compulsory Motor Vehicle Insurance Act, No 56 of 1972. Certain recommendations of the Majority Report of the Grosskopf Commission also had to be accommodated. Apart from deleting from the Act and regulations all references to insurance, the legislature also availed itself of this opportunity to rearrange the various provisions of the Act and its regulations, to streamline the provisions of certain clumsily-worded sections, and most importantly to introduce some radical new concepts totally foreign to the traditional MVA legislation. 2. Innovations and other features: Against this background it is certainly true to say that the Motor Vehicle Accidents Act, No 84 of 1986 represents the most innovative exercise since the publication of the Compulsory Motor Vehicle Insurance Act, No 29 of 1942: 2.1 Fuel levy The Scheme is now funded by a levy on fuel rather than by the sale of insurance. (Section 5 (1) of the Act) 2.2 No uninsured vehicles As a necessary consequence of 2.1 above, the concept of uninsured vehicles has fallen away. 2.3 Enforced exchange of evidence on merits The principle of enforced early exchange of evidence on the merits has been introduced into the Act. The obligations resting on the claimant are contained in Regulation 7 (2)(b) and the obligations resting on the Appointed Agent are contained in Section 13 (3) of the Act. Whilst the principle is indeed laudable, the manner of implementation has regrettable implications for the claimant (non-compliance being penalised by repudiation of the claim), the so-called reciprocal duties being heavily loaded in favour of the Appointed Agent. (See also 2.5 below.) 2.4 Legislation by regulation Related to the principle mentioned in the preceding subparagraph is the fact that the traditional wide liability of the MVA Fund and the Appointed Agent as contained in Section 8 (1) of the Act, has been made subject to "the prescribed conditions" contained in the Regulations. Thus the principle of legislation by regulation has crept into this Scheme, enabling the exclusion of liability and the implementation of the Appointed Agentis right of recourse to be governed by Regulation. 2.5 Suspension of prescription Provisions concerning suspension of prescription have been introduced which are totally foreign to the traditional principles of suspension known to the South African MVA legislation. This involves an interplay between Sections 14 (1)(a), 14 (2) and 15 (2)(b) read together with Regulation 7 (2)(b)(iii). These provisions create a nexus between the provisions creating an obligation on the claimant to furnish evidence on the one hand and a prohibition against the issue and service of summons on the other hand, with a commensurate suspension of prescription for as long as the Appointed Agent enforces his right to call for further evidence on the merits. 2.6 Inadvertent exclusion of certain categories of persons In the formulation of Regulation 7 (1), which identifies the claims which the Appointed Agent must handle, at least one category of claimants (and probably more) has been omitted, thus leaving such claimants totally without remedy. 2.7 Apart from the abovementioned radical departures from traditional principles, there are also a number of less dramatic innovative provisions, notably the following: (a) The re-introduction, in amended form, of the traditional concept of the self-insurer (Section 5 (2)(b) of the Act); (b) Significant changes to the forms utilised in the implementation of the Scheme, such as a consolidated MV3 claim form and an amplified accident report form; (c) The claimant's traditional right contained in Section 20 (2) of the 1972 Act to demand that the furnish certain may be owner documents whereby Appointed Agent identified, has abolished; (d) To avoid collusion between certain parties (bearing in mind that Appointed Agents will be paid R450 for each claim handled), penalties have been imposed with regard to the furnishing of false information relating to tokens on vehicles involved in accidents (Section 13 (4) of the Act); (e) An attempt has been made to avoid earlier loopholes in the provisions reserving MVA work largely to the attorneysl profession (Section 10 (d)). (f) There is an amendment contained in Regulation 9 (1)(b)(ii) authorising the use, in the place of the statutory medical form, of " a copy of the relevant charge sheet", but only "in the case of a prosecution of the person who caused the deceased's death", which immediately raises the question as to whether such charge sheet is admissable where the person charged was acquitted; (g) The disposal of settled claims has been simplified; (h) Annual renewal of tokens of identification has been discontinued; (i) Uncertainty has been created by Section 20 of the Act regarding a claim arising from the death of a breadwinner after the commencement of the new Act on 1st May 1986 as a result of injuries sustained in an accident which occurred prior to the said date. (j) Section 10 (b)(ii) introduces a subtle significant change in the category of passengers excluded from compensation who are members of the household of the driver; only if such passenger is one who is entitled under Section 9 (1)(b) to special damages only, is he now excluded. (k) By virtue of Section 7 the private sector has achieved a meaningful role in the affairs of the MVA Fund. 3. Whilst many of the innovations were commendable in principle, the linguistic implementation of these principles has regrettably been unsatisfactory in many respects, thus necessitating a great deal of original analytic interpretation, and many submissions have had to be made which will undoubtedly have to be ested by our courts.