By Paul Hoffman*
The carnage on South Africa’s roads has reached alarming proportions. According to the Medical Research Council some 14,000 people lose their lives on our roads each year. The cost to the country of road accidents is in the region of R40bn per annum. If the scourge of death on the road is successfully dealt with these considerable funds can be re-directed to infra-structural needs on which the money can be far better spent.
It is accordingly imperative that the State reacts to the crisis, in which the annual death toll exceeds that in the Iraqi war, in a manner which is both reasonable and accountable. The detailed statistics kept by the Arrive Alive campaign show that the brunt of injuries and fatalities are borne by disadvantaged communities. In a country in which there are about ten times as many people as vehicles, it is obvious that the poor are vulnerable as users of public transport and pedestrians on or near roads. But the problem goes further than this: The statistics indicate that the rate at which taxi passengers come to grief is four times higher than for other road users.
The perils which road users face on a daily basis can be regarded as a human rights issue. This issue calls for urgent remedial action by the State, which has the constitutional obligation to respect, protect, promote and fulfil the human rights which enjoy entrenched status in Chapter 2 of the Constitution – our Bill of Rights.
Everyone in the new South Africa has the right to life, even convicted mass murderers. But on our roads about 14,000 people per annum lose their lives in the ongoing chaos and carnage.
This loss of life has a knock-on effect in that bread-winners die, children go hungry, the economy is deleteriously affected and the bereaved friends and families of those who die on the roads are left to grieve and suffer anxiety for their losses. Those who have claims for damages have to go through the tortuous processes of the Road Accident Fund whether to prove fault and quantum as is now the case, or simply quantum, as will be the case, if amending legislation becomes law and survives constitutional challenge.
The right to bodily integrity and security is enshrined in the Bill of Rights. Everyone has the right “to be free from all forms of violence from either public or private sources”. These words are a direct quote from section.12 (1) (c) of the Constitution.
That there is violence on our roads is beyond question: Not only the intentional violence involved in running battles between rival taxi-operators, in hijackings, stone-throwing and cash-in-transit robberies, as well as the depravity of that ever increasing band of road-ragers, but also the negligent violence inflicted in most serious accidents on the persons and property of those involved. Accident victims receive their injuries by violent means. Obviously so. But our Constitution sets a standard that demands freedom from violence; here too, the State is failing in its obligation to protect everyone from the endemic violence on our roads.
The right to human dignity, along with equality and freedom, are the most basic rights enshrined in the Constitution and dignity has repeatedly been singled out by the Courts as a fundamental right in our new democratic order. The Bill of Rights explicitly states that everyone has “inherent dignity and the right to have their dignity respected and protected”.
Road travel these days is not a particularly dignified activity. Dodging potholes, avoiding taxi wars and road-raging motorists, swerving around intoxicated pedestrians on highways, lingering in traffic jams at rush hour and praying to reach one’s destination intact, are not the stuff of a dignified road lifestyle. Yet, the value system in place demands respect for and protection of everyone’s dignity. There is nothing dignified in dying violently in a collision, nor even in sustaining serious injuries in a mass of mangled metal.
The right to freedom of movement enshrined in the Bill of Rights becomes illusory when the road network is converted into a war zone where citizens fear to tread, whether by day or more especially by night. The lack of proper maintenance of roads, the construction of roads with blind rises and other inherently hazardous design features and the serious shortage of effective law enforcers on the roads all serve to impair the freedom of movement to which we are entitled.
As already pointed out, the State is obliged under section 7 (2) of the Constitution to respect, protect, promote and fulfil all of the human rights discussed thus far. It is simply not doing so on our roads. These rights are not socio-economic “second generation” rights which are intended to be “progressively realised”. They are rights which are all already due to and claimable by everyone.
The Courts are the custodians of the values contained in the Bill of Rights. When the State fails to live up to the standard set by the founders of our Constitutional democracy, the Courts are there to afford relief to those who feel aggrieved by or dissatisfied with the State’s shortcomings.
The current manner in which national, provincial and local roads are policed, patrolled, controlled and monitored is demonstrably unlawful and in violation of the human rights of all road users whether they are drivers, passengers, pedestrians or cyclists.
Urgent steps are required to make roads safer. The number of deaths on the roads indicates that we are in a war situation. The solutions are obvious; radical improvement is needed in three main areas: firstly, law enforcement on roads, especially for those who speed and those who drive drunk, secondly, maintenance and construction of roads, and thirdly, the attitude of drivers toward the privilege of using the roads. The academic experts refer to proper Enforcement, Engineering and Education as the appropriate way forward.
The availability of more affordable vehicles from the East will lead to a population explosion of vehicles one the new dawn kicks in fully. A flood of tourists can be anticipated due to the high rankings of our ports, game reserves and cultural opportunities. As these factors will bring more people onto the roads, it is imperative that the roads and the safety of road users be given top priority.
Speed plays a destructive role in most accidents. The technology to control speed is available. The taxi recapitalisation project is an excellent starting point for the installation of modern “hi-tech” devices aimed at intelligent speed adaptation (ISA) of vehicles. Traffic offenders could routinely be directed to fit such devices as part of their punishment. New vehicles should come with ISA equipment as a standard feature. Most freight fleets already have similar equipment and have benefited by it. Resistance to the notion of “Big Brother” watching our motorists is easily trumped by the crying need to reduce accidents in general and the death and injury toll in particular. In Kenya all public transport vehicles are now required to install speed governors.
It is the responsibility of the State to devote adequate resources to effectively deal with the problems which give rise to the manifest lack of safety on the roads of South Africa. The problem is a huge and very expensive one. Firm and decisive action has the potential to save the nation a good part of the R40bn per year which it currently costs because no one has taken the lead by displaying the will necessary to take charge of the situation. The diminution of human misery and suffering which bold action will bring has no price.
This is certainly not a situation in which the “Government can’t afford it” or resource constraints argument applies. On the contrary – the State can’t afford not to swiftly implement the changes so obviously needed.
There is good news out of Kenya. The road accident toll in that
country was slashed by about 73% after the responsible authorities
30,000 unlicensed and unroadworthy vehicles from circulation.
Quick and decisive action is required to bring about similar improvement in South Africa. It is for the legislature and the executive at all levels of government to take that action. The necessary machinery is in place, there is a need to prioritise issues and supplement enforcement personnel. The failure to act will inevitably give rise to Court challenges in which declaratory, mandatory and supervisory relief will be sought. It does not need to come to that – the onus is clearly on the State to do what is right for road users. By focusing on the human rights violations which are the order of the day on our roads, it becomes crystal clear that, constitutionally speaking, it is incumbent upon the State to act swiftly to redress the situation reasonably and accountably.
But it is not only the State which has a role to play. The insurance industry also needs to subscribe to the values contained in the Bill of Rights and to scrutinise its own policies and practices with a view to ascertaining whether they pass constitutional muster. In short, are our insurers part of the problem or part of the solution?
In this regard it is instructive to note that there is a huge dichotomy between the approaches of the short term and long term branches of the insurance industry to the effect of motor collisions on their respective businesses. In the short term sector drunken driving, or more accurately driving with more than 0,05 grams per 100mml of alcohol in the bloodstream, is a basis for vitiating liability for claims brought under the policies issued in respect of motor vehicles. Drunken driving is penalised, not rewarded.
Quite the converse applies in the long term industry. The same drunken driver whose short term claim for the damage to his or her car, wrapped around a pole on a Friday night, is repudiated will be handsomely rewarded by driving fast enough to ensure fatal consequences because the long term insurers of his or her life will pay the death benefits on all life insurance policies issued on the dead driver’s life without demur. This is a consequence of an industry-wide practice rather than because of the applicable policy wording. Research indicates that the policies for accident, life and funeral cover which are issued in the local long-term insurance market do in fact contain a number of exclusion clauses which could reasonably be applied in the event of the life insured dying from the proven over-indulgence in alcohol and drunken driving.
This curious practice may be based upon the perception that it is difficult to obtain proof of drunkenness. This perception does not deter the short term industry. It is based upon an historical situation in relation to blood alcohol content testing which the State has addressed. All post-mortem duties which formerly fell to the South African Police Service were taken over by the Department of Health with effect from 1 April 2006. It has trained medical personnel in basic forensic pathology and intends to ensure consistent and reliable testing for blood alcohol content in the future. There are still backlogs at the laboratories, attributable to a shortage of personnel to take up the slack inherited from SAPS. It is important to note that the Department of Health is willing and waiting and wanting to co-operate closely with the insurance industry on the reporting of BAC testing.
If it is indeed in prospect that the BAC of all insured drivers who die in road accidents will be accurately, reliably and efficiently tested, then the only basis for not using the information available from the Department of Health is the industry wide practice of turning a blind eye towards the state of intoxication of the insured driver. Sympathy for the beneficiaries under the policies concerned ought not to be allowed to cloud the issue. They benefit as a consequence of the illegal conduct of the life assured. The decision to drink and then drive is a conscious choice which everyone who participates in both activities must make. The fact that it is universally known that the long term life industry in effect condones the choice to drink and drive by paying the claims of those drunken drivers who come to grief, encourages drunken driving. Worse still is that some of these drunken drivers are thinly disguised suicides and others take the risks involved in driving drunk secure in the knowledge that their dependents will be looked after by the proceeds of the life policies in place. This is not a situation which should be allowed to continue. The premiums of those of sober habits and those who do not drive drunk ought not to be used to subsidise the practice of paying claims made on policies where the insured was driving drunk at the time of death. It would also be absolutely unconscionable for some insurers to remain “soft” on drunken driving while others take the more principled stand of repudiating claims in which the life insured was breaking the law at the time of death.
The self-interest of the industry would be served by bringing its practice into line with that of the short term insurers. The life industry is losing millions of rand per annum in driver related deaths, many of which relate to drunken driving. The level of carnage on the roads is a national disgrace. The choice facing the industry is whether it wants to be part of the problem of death on the roads or whether it wishes to contribute to the solution by adopting a more socially responsible approach to the drunken driving issue.
- Paul Hoffman SC is a director of Accountability Now.