MVA Q&A

1. Define the following as per 2007 Act (20 marks)

- Injury management

includes any treatment, programme, scheme or process intended to restore

physical, mental, emotional, behavioral health and function and redress all
forms of impairment.

- Motor vehicle

Vehicle designed/adapted for propulsion or haulage on a road by means of

fuel/gas/electricity; includes trailer/caravan/agricultural implement
design/adapted to be drawn by that vehicle.

- Dependent

In relation to a person in a Motor Vehicle Accident, spouse/minor

child/disabled, legally entitled, other than in contract, to monetary
maintenance from such person includes spouse/child from customary union
and child from same.

- Claimant

Person entitled to claim under section 24 and 25

- Injury

Injury to a natural person and includes all

physical/emotional/psychological/behavioral, abnormality and all impairment
caused or induced by a motor vehicle accident.

- Motor Vehicle Accident

Event where injury or death of a person occurs on account of the involvement

in a motor vehicle driven and includes an event where an unoccupied vehicle
moves from one place to another other than falling on account of gravity.
- Medical treatment

Includes any treatment or programme/scheme/process intended to restore

physical/mental/emotional/behavioral health and function, infirmity of mind
and body and redress all forms of impairment and includes hospitalization.

- Rehabilitation

Restoration of bodily function, any

treatment/programme/scheme/course/schooling/training/process intended to
improve and restore physical/mental/emotional and behavioral health and
function and restore all forms of infirmity of mind and body and includes
hospitalization.

- Driver

Person who was driving the motor vehicle

- Defective

Fault in tyre/steering/breaks/seat belt, rendering use of motor vehicle unsafe

or in breach of any law regulating traffic and road transport.

- Life enhancement

Means home alterations and the provision of care giving, transport and
artificial aids.

2. The MVA Fund comes to you as a lawyer and informed you that they
have paid out the claim of Mr X, which arose as a result of an accident
that was caused by Mr Y. They want to recover the money so paid.
Kindly advise the MVA as to the section they can utilize. (20 marks)

See s33. The Fund may (without any cession of rights) recover from:

(i) The owner of the vehicle

(ii) The person whose negligence or other unlawful act caused the
loss/damage
 NB: SEE THE CIRCUMSTANCES UNDER WHICH THE FUND MAY
RECOVER MONIES, s33 (2)(a) – (f).

3. Discuss the Nasciturus fiction in relation to the MVA Fund (10 marks)

The so-called nasciturus fiction, refers to the legal principle in which foetuses,
if subsequently born alive, will acquire all of the rights of born children
whenever this is to its advantage.

See: Road Accident Fund v Mtati (SCA case) where this principle was
discussed iro motor accidents.

4. On 01 January 2018, Mr Donald Trump informed you that the Fund

repudiated his claim to be paid out U$ 1 million for loss of income and U$ 500
000 for funeral costs for his son be buried in the USA.

Can you advise him on what he can claim and how the MVA claim
system works in Namibia? Your advice should include how he was
supposed to have claimed, why the Fund would repudiate his claim and
what he can do (20 marks)

- See s24(6)

NOTE: A foreigner/tourist is entitled to the same benefits as a national ito s25

but only for the period that he/she is in Namibia.

- Loss of income, look at the requirements for this

- Funeral costs (max N$ 7 000)

WHAT CAN HE DO??

5. Your client comes to you and request that you invoke the following
provisions of Act 10 of 2007: (20 marks)

3.1Section 23 – Accident response

23(1) requires that, in the absence of a claim in respect of death or injury

suffered in a motor vehicle accident, the fund may take steps to ensure: a) a
motor vehicle accident is attended without delay b) the injured who needs
medical treatment is conveyed to hospital or other medical treatment facility,
c) the condition of those injured is stabilized before invoking sections 24 and
 25 or d) bodies of persons killed are taken to the mortuary. 23(2) In
discharging its responsibilities, the fund may contract service providers and
therefore incur fair and reasonable costs.

3.2 Section 24 – Liability and limitations of the Fund

24(1) A person who suffered loss/damage as a result of injury to himself or

others or death due to driving a motor vehicle in Namibia, is entitled to
benefits. 24(2), The fund must award benefits as per s25 to a person who
suffered loss or damage, a) as a result of injury to himself or b) as a result of
death or injury to any person.

24(3), service providers to potential MVA beneficiaries in terms of subsection

1 read with section 25, may be reimbursed by the fund for such.

24(4) The fund’s liability may not exceed:

(a) N$1.5 million for medical treatment, injury management, rehabilitation,

life enhancement
(b) N$100,000 cash grant as injury compensation
(c) N$100,000 per annum for loss of income (tax certificate to be provided
for year preceding injury or most of a five-year period prior to injury)
(d) Loss of support, based on income, limited to N$100,000 per annum
(e) N$7,000 as a funeral benefit (anyone killed in a motor vehicle accident
on Namibian roads)

24(5) For purposes of limitations in 4 above

(a) Value of award is calculated at date of determination

(b) Interest accrues to any unpaid or unused portion at rate applying to
unpaid judgment debts of the HC of Namibia
(c) Limitations only applicable to capital sum but not aggregates and any
accruing interest.

24(6) Award ito s25

(a) Any person in Namibia under

a. Visitor’s permit as per ICA
b. Section 14 of the Namibia Refugees Act
 Is limited to providing medical treatment and injury management for the
period such person is in Namibia or

(b) In respect of a person killed in a MVA and who

a. Is not granted residence in Namibia
b. Has the right to remain in Namibia in line with s14 of the NRA

Is limited to the funeral benefit as under s25(1)(h).

3.3 Section 26 – Exclusions

The fund will not award benefits to a person injured in a MVA or claiming
under s25

(a) If a person submits no claim, give no particulars of the occurrence or

furnish no documents for a claim.
(b) Unreasonably refuses or fails to
i. Furnish a medical report
ii. Permit the fund to inspect the medical records
iii. Undergo medical examination, at the cost of the fund.
(c) If the person is guilty of driving the motor vehicle involved in the
accident in contravention of s82(1) of the RTTA.

See the rest: (d) – (l)

3.4 Section 27 – Limitation of awards

27(1) If a Person claiming benefits under s 25.

(a) Is wholly responsible for the accident, then the benefits are limited to
reimbursement/medical treatment/rehabilitation/life enhancement/injury
management
(b) Has contributed to accident then the monetary award is reduced
proportionately to such contribution
(c) Was the driver of MV involved in contravention of s82(2) of RTTA then
the benefits are limited to reimbursement/medical treatment/rehabilitation/life
enhancement/injury management
(d) Had no seatbelt when suffered injuries then benefits reduced by 25%
 (e) Had not been conveyed in a seat or manner appropriate for
conveyance of persons then benefits reduced by 50%
(f) Not being a minor, an injured person was being conveyed, having
knowledge that motor vehicle was not fit for conveyance of persons or goods,
and had an option to disembark, the benefits are reduced by 50%
(g) -k and 27(2) a-c

6. Kindly discuss the principle with regard to the right of a foreigner to

claim from the MVA Fund in relation to Act No 10 of 2007 and relevant
legislation. (10 marks)

See: s24

24(6)(a) Any person in Namibia under

(i) Visitor’s permit as per Immigration Control Act

(ii) Section 14 of the Namibia Refugees Act

Is limited to receiving medical treatment and injury management for the period
such person is in Namibia or

(b) In respect of a person killed in a MVA and who

(i) Is not granted residence in Namibia

(ii) Has the right to remain in Namibia in line with s14 of the NRA

Is limited to the funeral benefit as under s25(1)(h).

24(4)(e)the liability of the fund may not exceed N$7,000 for a death caused by
a MVA as specified in s25(1)(h) where a cash grant is provided as a funeral
benefit in respect of the burial of a person.

The right to claim of a foreigner is not unfettered but subject to section 34 of

the Act, Act No 10 of 2007.

34(1) The right to claim under sections 24 and 25 prescribes at the expiry of 1
year from date the claim arose.

(2) If in 1 year, claimant lodge claim, as per s28(1) the claim then prescribes
in 2 years after claim arose.
 (4) Despite (1) and (2) above, a person who unreasonably fails to claim in 90
days of receiving a notice from the Fund, forfeits the right to claim.

7. In order to prevent prescription, kindly indicate within which period is

the adult claimant required to institute summons, subsequent to the
lodging of the claim within time, ito the MVA Fund Act of 1990? (20
marks)

- 3 years from the date of lodgment of a claim

- 5 years from date of accident

- 3 years from date of accident

- 5 years from date of lodgment of claim

8. Within which period may the MVA Fund object to the validity of a claim
lodged ito:

- MVA Fund Act 4 of 2001 (2 marks)

- MVA Fund Act 10 of 2007 (2 marks)

9. What would the assumption be if the MVA Fund did not object to the
validity of your client’s claim ito MVA Fund Act 10 of 2007 (2 marks)

Claim will be paid out?

10. What do you understand by the concept of contributory negligence? (5

marks)