With our South African diversity, it is not surprising that we have several major annual events, where people gather and celebrate, in the same spirit. Events such as Reed Dance, Macufe Festival, and AfrikaBurn, in addition to the various events hosted by religious groups, over Easter and December, for example, draw in large crowds. While jubilation and contentment are always ostensible, one harsh reality that cannot be ignored is the many lives that are lost in the process, while others severely injured in car accidents en route.
Often, the victims are unaware of what legal remedies are in place and those who do not know where to go or if their claims are valid.
Usually, when such accidents occur, the government would intervene, providing medical assistance or funeral costs. Occasionally, the government even promises to assist with counselling. However, this seldom materialises.
Given the limited knowledge and unfortunate position the families find themselves in, they appreciate such assistance and believe that is the end of the road. However, legally, there are further remedies in place which they should not hesitate to seek. Firstly, the institution from which the victim can claim is determined by the circumstances surrounding the incident and, importantly, how exactly the incident occurred. Typically, a claim will be against either the Road Accident Fund (RAF), relevant Municipality, transportation company, or insurer, and so on. Sometimes, the relevant Member of the Executive Council (MEC) of Health, or even a natural person may be drawn in. This is not, however, a closed list, as the prevailing circumstances will determine who to claim from. It must be noted, the law in South Africa stipulates a “once and for all” rule, which means you can only lay a one for one incident. For example, you may not claim from the RAF and receive compensation and then move on and place a claim against the transportation company, etc.
One can claim for a number of reasons and factors which are considered accordingly. These include instances where a victim passes away as a result of the incident, their family may claim for loss of support; funeral expenses; medical expenses, where applicable; emotional shock and trauma, and so on.
In the case of the victim surviving, there are also a number of claims one may consider, including, claiming for past and future medical expenses; loss of earnings/earning capacity; general damages; emotional shock and trauma; constitutional damages, and so forth.
The amount of compensation a victim is entitled to is influenced by several factors, including, inter alia, one’s level of education; age; academic performance and/or achievements; career path; pre-existing conditions; disability pay-outs, where relevant; severity of the injuries sustained; ,effect on their physical appearance, and more.
At times, you find victims involved in the same incident wondering why their compensation, with regards to its nature and the amount, differ, and some even suspect foul play by their legal representatives. In very rare circumstances will the compensation be the same because each claim is determined on its own merits. The difference is rooted deep in the underlying purpose of the compensation, which is to try as far as possible to restore the victim to his/her original position. The purpose of compensation is, contrary to general perception, not to enrich the victim/victim’s family.
The events’ importance and value need not be gainsaid. As such, they, together with the stakeholders, need to be protected. They are important for the economy, tourism industry, cultural, and religious reasons. The fear, however, of such major accidents serves as a “pushing factor”, to the detriment of the economy, tourism and so on.
For example, following one of the major Reed Dance car accident in 2013, most parents decided against sending their girls to the event due to fear. These events are indispensable and the government; organisers; relevant organisations need to intensify their efforts in minimising such accidents. Where, however, the unfortunate transpires, victims need to be wary of the legal remedies available. Even if they get medical, funeral and counselling assistance, it does not end there, they are entitled to claim for compensation, the nature and amount of which will depend on the prevailing circumstances of each case.
by Mtho Maphumulo | Associate