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nAmIB I A U n IVERS ITY OF SCIEnCE AnD TECHnOLOGY

FACUL TV OF HUMAN SCIENCES

DEPARTMENT OF SOCIAL SCIENCES

QUALIFICATIONS: BACHELOR OF TRANSPORT MANAGEMENT

QUALIFICATION CODES: 07BTRM LEVEL: 6

COURSE CODE: RTL611S COURSE NAME: Road Traffic and Transport

Legislation

SESSION: JULY 2016

DURATION: 2 HOURS MARKS: 100

SUPPLEMENTARY/ SECOND OPPORTUNITY EXAMINATION QUESTION PAPER

EXAMINER(S) Ms M Hanekom

MODERATOR: Mr BS Konga

INSTRUCTIONS 1. This paper consists of 6 (six) questions. 2. All questions are compulsory. 3. Read all questions carefully before answering. 4. Incorrect spelling and illegible handwriting may prevent mark allocation.

ANNEXURES:

Anti-Corruption Act 8 I 2003 (6 pages)

Motor Vehicle Accident Fund Act 10 I 2007 (9 pages)

PERMISSIBLE MATERIALS Road Traffic and Transportation Act 1999 (Note: this need not to be clean copy)

THIS QUESTION PAPER CONSISTS OF 3 PAGES (Excluding this front page)

QUESTION 1

The following statements are FALSE. Give the CORRECT statement.

1.1 Common law is made by Parliament

1.2 In terms of the Anti-Corruption Act 8 I 2003 "gratification" refers to a monetary reward.

1.3 The driver of a prescribed vehicle will be regarded as the operator thereof.

1.4 In terms of the Motor Vehicle Accident Fund Act 10 I 2007 reimbursement for loss offuture support will be paid to dependant entitled thereto until he/she attains the age of 18 years.

1.5 The Road Fund Administration is the agency responsible for the licensing of motor vehicles in Namibia.

One mark each [5]

QUESTION 2

Briefly answer the following questions:

1.1 Define "transport operations"

1.2 What effect can a conviction in terms of the Motor Vehicle Theft Act, 1999, have on the guilty person's driving licence?

1.3 list the documentation required in order to have a duplicate key of a motor vehicle cut.

1.4 Distinguish between statutory crimes and common-law crimes.

1.5 Explain the term "vicarious liability".

1.6 What are the advertising requirements to trace the owners of abandoned vehicles?

1.7 list FOUR transport corridors that transverse Namibia.

1.8 How does the Namibian Constitution influence the interpretation of statutes?

QUESTION 3

(2)

(2)

(2)

(5)

(4)

(4) (4)

(2)

[25]

Write a short note (maximum 1 page) on "stakeholder requirements in transport operations". In your answer you should refer to the main stakeholders, what their requirements are and how you would address these.

[20]

QUESTION 4

One morning Innocent wakes up to discover that her brand-new motor vehicle has disappeared. She reports the matter to the Police. Six months later, acting on a tip-off, the Police Raid the premises of Dishonest Motor Dealer, and discover that Dissy Dishonest is selling motor vehicle parts that are subsequently identified as being parts from Innocent's stolen vehicle. During the court case, evidence is led that Dissy Dishonest and Tsotsi Man have been working together to steal motor vehicles which are then dismantled and sold as spare parts. It also transpires that Big Brain is the mastermind behind the whole operation, although he never participated directly in the crimes.

Answer the following questions, based on the above facts:

4.1 Is "theft of a motor vehicle" a common-law crime or a statutory crime? (1)

4.2 Big Brain can be charged with a crime in terms of the Motor Vehicle Theft Act 12 I 1999. With what can he be charged, and what are the potential consequences? Refer to the relevant section(s) in the Act. (5)

4.3 Dissy Dishonest is charged with the theft of motor vehicle parts, however the State is unable to prove that he actually participated in stealing the parts. Can the provisions of the Motor Vehicle Theft Act 12 I 1999 assist the State in securing a conviction? Refer to the relevant section(s) in the Act. (5)

4.4 In terms of the Motor Vehicle Theft Act 12 I 1999, under what circumstances may a Police Officer search the premises of Dishonest Motor Vehicle without a search warrant? (4)

(20)

QUESTION 5

Susan is the owner of a small car. She is using it to teach her daughter Mary to drive, even though Mary does not yet have a driver's licence. Peter and Paul are driving home from the shebeen, after drinking all day. Peter is driving. He fails to stop at a red traffic light, and is involved in a collision with Mary and Susan. Peter is injured to the extent that he will be in a wheelchair for the rest of his life and Paul is killed instantly; Susan sustains only slight injuries and Mary is severely traumatised.

With reference to the provisions of the Motor Vehicle Accident Fund Act, Act 10 of 2007, explain what the following persons will be able to claim from the MVA Fund. Motivate your answers in detail.

Note: you need not refer to the amounts claimable.

5.1 Mary

5.2 Susan

5.3 Peter

5.4 Paul's 10 year old daughter Claire

5.5 Paul's widow Lucy

2

(2)

(3)

(2)

(4)

(4)

[15]

QUESTION 6

In each of the following scenarios, state whether an offence has been committed in terms of the Anti-Corruption Act 8 of 2003. Motivate your answers.

6.1 Paulus has been appointed as liquidator of XYZ Transport. Carlos, an auctioneer, offers Paulus N$500 000 if he can arrange that Carlos be appointed as auctioneer to sell the trucks of the insolvent company. Carlos stands to make a substantial commission if he gets the appointment. Paulus is, in fact, in no position to arrange such appointment, but agrees nevertheless. (10)

6.2 Mbatata is caught exceeding the speed limit. He offers the Traffic Officer N$500 not to write him a speeding fine. The Traffic Officer refuses. (5)

[15]

TOTAL: 100 marks

9

Act No.8, 2003 ANTI-CORRUPTION ACT, 2003

to declare, in the manner and to the extent prescribed, their assets, including assets held in trust for them or by other persons on their behalf, and to furnish such information as may be stipulated in relation to those assets;

(d) prescribing the creation and keeping of a register for the recording of assets and information refened to in paragraph (c), and the powers, functions and duties of the Commission or any other authority or person in relation to-

(i) the keeping of that register;

(ii) the receipt or collection of information to be recorded therein;

(iii) the preservation of secrecy in respect of that information; and

(iv) the circumstances when and the conditions on which any such information may be disclosed; or

(e) any other matter which is reasonably necessary in order to promote the efficiency of the Commission to achieve the purposes of this Act.

(2) A regulation may provide that the contravention of, or failure to comply with, any provision thereof constitutes an offence and prescribe penalties therefor not exceeding a fine ofN$1 00 000 or imprisomnent for a period of five years or both such fine and such imprisonment.

Referral of matter to Prosecutor-General

31. ( 1) If, upon completion of an investigation by the Conunission, it appears to the Director that a person has conunitted an offence of corrupt practice under Chapter 4 or any other offence discovered during the investigation, the Director must refer the matter and all relevant information and evidence assembled by the Commission in connection with the matter to the Prosecutor-General.

(2) If, upon refenal of a matter in terms of subsection (1 ), the Prosecutor-General decides to prosecute any person for an offence under this Act, the Prosecutor-General, in . consultation with the Director, may delegate authority -

(a) to conduct criminal proceedings in court in respect of that matter; or

(b) to defend or prosecute any appeal emanating from criminal proceedings in relation to that matter,

to any staff member of the Commission, including the Director or Deputy Director, who possesses the required legal qualifications to appear in the courts ofNamibia.

(3) A person to whom authority is delegated under subsection (2), exercises the powers under that authority subject to the control and direction of the Prosecutor-General.

CHAPTER4 CORRUPT PRACTICES AND PENALTIES

Definitions for this Chapter

32. In this Chapter, unless the context indicates otherwise-

"agent" means a person employed by or acting for another in any capacity whatsoever, and includes -


(a) a trustee of an insolvent estate;

(b) the assignee of an estate assigned for the benefit or with the consent of creditors;

(c) the liquidator of a company or other corporate body that is being wound up or dissolved;

(d) the executor of the estate of a deceased person;

(e) the legal representative of a minor or a person who is of unsound mind or otherwise under legal disability;

(f) a public officer or an officer serving in or under any public body;

(g) a trustee, an administrator or a subcontractor and any person appointed as an agent in terms of any law;

"business" means any activity carried on for the purpose of gain or profit within Namibia or elsewhere, and includes all property derived from or used in or for the purpose of carrying on such activity, and all the rights and liabilities arising from such activity;

"corruptly" means in contravention of or against the spirit of any law, provision, rule, procedure, process, system, policy, practice, directive, order or any other tetm or condition pertaining to -

(a) any employment relationship;

(b) any agreement; or

(c) the performance of any function in whatever capacity;

"gratification " includes -

(a) money or any gift, loan, fee, reward, commission, valuable security or property or interest in property of any description, whether movable or immovable;

(b) any office, dignity, employment, contract of employment or services and any agreement to give employment or render services in any capacity;

(c) any payment, release, discharge or liquidation of any loan, obligation or other liability, whether in whole or in patt;

(d) any valuable consideration or benefit of any kind, any discount, commission, rebate, bonus, deduction or percentage;

(e) any forbearance to demand any money or money's wotth or valuable thing;

(f) any service or favour, including protection from any penalty or disability incurred or apprehended or from any action or proceedings of a disciplinary, civil or criminal nature, wether or not already instituted, and including the exercise or the forbearance from the exercise of any right or any official power or duty;

(g) any right or privilege;

(h) any aid, vote, consent or influence, or any pretended aid, vote, consent or influence;


(i) any offer, undettaking or promise, whether conditional or unconditional, of any gratification within the meaning of any of the preceding paragraphs;

"principal" includes any employer, any beneficiary under a trust, any trust estate, the estate of a deceased person, any person beneficially interested in the estate of a deceased person, in the case of a person serving in or under a public body, the public body and in the case of a person acting in a representative capacity, the person on whose behalf the representative acts;

"property" means money or any other movable, immovable, corporeal or incorporeal thing, whether situated in Namibia or elsewhere and includes any rights, privileges, claims, securities and any interest therein and all proceeds thereof;

"public body" means -

(a) any ministry, office or agency of government;

(b) any regional council or local authority council; or

(c) any corporation, board, council, institution or other body, whether incorporate or unincorporated, or any functionary -

(i) exercising any power or perfonning any duty in tetms of the Namibian Constitution; or

(ii) exercising a public power or perf01ming a public function in terms of any law or the common law;

"public officer" means a person who is a member, an officer, an employee or a servant of a public body, and includes -

(a) a staff member of the public service, including the police force, prisons service and defence force, or of a regional council or a local authority council;

(b) a member of the National Assembly, the National Council, a regional council or a local authority council;

(c) a judge of the Supreme Court or the High Court or any other member of the judicial authority;

(e) any person receiving any remuneration from public funds;

(f) if the public body is a corporation, the person who is incorporated as such.

Offence of corruptly accepting gratification

33. A person commits an offence who, directly or indirectly, corruptly solicits or accepts or agrees to accept for the benefit of himself or herself or any other person any gratification as -

(a) an inducement to do or to omit doing anything;

(b) a reward for having done or having omitted to do anything.

Offence of corruptly giving gratification

34. A person commits an offence who, directly or indirectly, corruptly offers, gives or agrees to give to any person, whether for the benefit of that person or any other person, any gratification as -

Act No. 8, 2003 ANTI-CORRUPTION ACT, 2003

(a) an inducement to do or to omit doing anything; or

(b) a reward for having done or having omitted to do anything.

Corruptly accepting gratification by or giving gratification to agent

35. (1) An agent commits an offence who, directly or indirectly, corruptly solicits or accepts or agrees to accept from any person a gratification -

(a) as an inducement to do or to omit doing anything;

(b) as a reward for having done or having omitted to do anything,

in relation to the affairs or business of the agent's principal.

(2) A person commits an offence who, directly or indirectly, conuptly offers or gives or agrees to give to an agent, whether for the benefit of the agent or any other person, any gratification as -

(a) an inducement to do or to omit doing anything; or

(b) a reward for having done or having omitted to do anything,

in relation to the affairs or business of the agent's principal,

(3) A person commits an offence who-

(a) knowingly gives to an agent; or

(b) being an agent, knowingly uses,

any receipt, account or other document in respect of which the agent's principal is interested and which contains any statement which is false or erroneous or defective in any material particular and which to the knowledge of that person or the agent, as the case may be, is intended to mislead the principal or any other person.

(4) If, in any proceedings against an agent for an offence under subsection (1), it is proved that the agent corruptly accepted or obtained or agreed to accept any gratification, having reason to believe or suspect that the gratification was offered or given as an inducement or reward contemplated in that subsection, it is no defence that the agent-

(a) did not have the power, right or opp01tunity to perform or not to perform any act contemplated in that subsection;

(b) accepted the gratification without intending to perform or not to perform the act in relation to which the gratification was given; or

(c) failed to perform or not to perform the act in relation to which the gratification was given.

(5) If, in any proceedings for an offence under subsection (2), it is proved that the accused corruptly offered or gave or agreed to give any gratification to an agent as an inducement or reward contemplated in that subsection, the accused is guilty of the offence notwithstanding that the agent had no power, right or opportunity to perform or not to perfonn the act in relation to which the gratification was offered given or agreed to be given.


Corrupt acquisition of private interest by public officer

36. A public officer commits an offence who knowingly and corruptly, and otherwise than as a member of a registered joint stock company consisting of more than 20 persons, acquires or holds, directly or indirectly, a private interest in any contract, agreement or investment emanating from or connected with the public body on or in which he or she serves as a member or as an employee or which is made on account of the public body.

Corruption in relation to tenders

37. A person commits an offence who, directly or indirectly-

(a) gives or offers to give to any person any gratification as an inducement or a reward for, or otherwise on account of, the withdrawal of, or the refraining from the making of, any tender for a contract invited by any public body, private organisation, corporate body or other organisation or institution to perform any work, provide any service, supply any article, material or substance or for doing anything; or

(b) solicits or accepts or agrees to accept for himself or herself or any other person any gratification as an inducement or a reward for or otherwise on account of the withdrawal of, or the refraining from the making of, a tender for a contract refeiTed to in paragraph (a).

Bribery of public officer

38. A person who offers or gives or agrees to give to a public officer, or who, being a public officer, solicits or accepts or agrees to accept, any gratification as an inducement or a reward for, or otherwise on account of-

(a) voting or abstaining from voting at any meeting of a public body in favour of or against any measure, resolution or question relating to the functions of that public body;

(b) pe1forming or abstaining from pe1forming, or aiding in procuring, expediting, delaying, hinde1ing or preventing the performance of, any official act;

(c) aiding in procuring or preventing the passing of any vote or the granting of any contract or advantage in favour of any person; or

(d) showing or forbearing to show any favour or disfavour in his or her capacity as a public officer,

commits an offence, whether or not the public officer had the power, right or opp01tunity so to do.

Corruption of witnesses

39. (1) A person commits an offence who, directly or indirectly, corruptly offers or gives or agrees to give any gratification to any person, whether for the benefit of that person or any other person, with the intent to -

(a) influence the testimony of that person or another person as a witness in a trial, hearing or other proceedings before any court, judicial officer, committee, commission or any officer authorised by law to hear evidence or take testimony; or


(b) influence that person or another witness to absent himself or herself from such trial, hearing or other proceedings or to withhold true testimony.

(2) A person commits an offence who, directly or indirectly, corruptly solicits or accepts or agrees to accept any gratification, whether for the benefit of himself or herself or any other person, in return-

(a) for testifying in a particular or untruthful manner in a trial, hearing or other proceedings before any comt, judicial officer, committee, commission or officer authorised by law to hear evidence or take testimony; or

(b) for not testifying at any such trial, hearing or proceedings.

Bribery of foreign public officials

40. (1) A person commits an offence who, in order to obtain or retain business or an advantage in the course of business, directly or indirectly, corruptly offers or gives or agrees to give any gratification to a foreign public official -

(a) as a reward for an act or omission by the official in connection with the performance of the official's duties or functions; or

(b) as an inducement to use his or her position to influence any act or decision ofthe foreign state or public international organisation for which the official performs duties or function.

(2) For the purposes of subsection (1), "foreign public official" means-

(a) a person holding any legislative, administrative or judicial office at any level or subdivision of government of a foreign state;

(b) any person performing public functions for a foreign state, or any board, commission, corporation or other body or authority performing a duty or function on behalf of the foreign state; or

(c) an official or agent of a public international organisation formed by two or more states or by two or more public international organisations.

Bribery in relation to auctions

41. A person commits an offence who, directly or indirectly, corruptly-

(a) offers or gives or agrees to give any gratification to any other person as an inducement to refrain, or as a reward for having refrained, from bidding at any auction; or

(b) solicits or accepts or agrees to accept any gratification as an inducement or a reward of his or her refraining or having refrained from bidding at any auction.

Bribery for giving assistance in relation to contracts

42. ( 1) A person commits an offence who corruptly offers or gives or agrees to give any gratification to any other person whether for the benefit of that person or any other person, as an inducement or a reward for giving assistance or using influence, or having given assistance or used influence, in -

(a) the promotion, execution or procuring, or the amendment, suspension or cancellation, of any contract with a public body, private organisation, corporate body or other organisation or institution; or

Act No. 8, 2003 ANTI-CORRUPTION ACT, 2003

(b) the payment of the price, consideration or other moneys stipulated or otherwise provided for in any such contract.

(2) A person commits an offence who corruptly solicits or accepts or agrees to accept, whether for the benefit ofhimself or herself or any other person, any gratification as an inducement or as a reward of his or her giving assistance or using influence, or having given assistance or used influence, in -

(a) the promotion, execution or procuring of any contract with a public body, private organisation, corporate body or other organisation or institution; or

(b) the payment of the price, consideration or other moneys stipulated or otherwise provided for in any such contract.

Corruptly using office or position for gratification

43. (1) A public officer commits an offence who, directly or indirectly, corruptly uses his or her office or position in a public body to obtain any gratification, whether for the benefit of himself or herself or any other person.

(2) For the purposes of subsection (1 ), proof that a public officer in a public body has made a decision or taken action in relation to any matter in which the public officer, or any relative or associate of his or hers has an interest, whether directly or indirectly, is, in the absence of evidence to the contrary which raises reasonable doubt, sufficient evidence that the public officer has corruptly used his or her office or position in the public body in order to obtain a gratification.

(3) For the purposes of subsection (2)-

(a) "relative" includes-

(i) a spouse or fiance, including a partner living with the public officer on a permanent basis as if they were married or with whom the public officer habitually cohabits;

(ii) a child, including a stepchild or fosterchild;

(iii) a parent, including a step-parent or fosterparent;

(iv) a brother or sister of the public officer or of his or her spouse; or

(v) the spouse of any of the persons mentioned in subparagraphs (ii), (iii) or (iv); and

(b) "associate" includes -

(i) an employee, agent or nominee of the public officer;

(ii) a business partner or any company or other corporate body of which the public officer is a director or is in charge or control of its business or affairs, or in which the public officer, alone or together with any nominee of his or her, has or have a controlling interest;

(iii) a trust controlled and administered by the public officer;

Corruption in relation to sporting events

44. ( 1) A person commits an offence who, directly or indirectly, corruptly -


(a) solicits or accepts or agrees to accept any gratification, whether for the benefit of himself or herself or any other person, as an inducement or a reward of his or her influencing or having influenced the run of play or the outcome of any sport event; or

(b) offers or gives or agrees to give to any other person any gratification as an inducement to influence or as a reward for influencing or having influenced the run of play or the outcome of a sporting event.

Dealing with, using, holding, receiving or concealing gratification in relation to any offence

45. A person commits an offence who, directly or indirectly, whether on behalf of himself or herself or on behalf of any other person-

(a) enters into, or causes to be entered into, any dealing in relation to any property; or

(b) uses or causes to be used, or receives, holds, controls or conceals any property or any part thereof,

which was obtained as gratification, or derived from the proceeds of any gratification obtained, in the commission of an offence under this Chapter.

(2) For the purposes of subsection (1 ), "dealing" includes -

(a) any purchase, sale, loan, charge, mortgage, lien, pledge, transfer, delivery, assignment, subrogation, transmission, gift, trust, settlement, deposit, withdrawal, transfer between accounts or extension of credit;

(b) any agency or grant of power of attorney; or

(c) any act which results in any right, interest, title or privilege, whether present or future or whether vested or contingent, in the whole or in part of any property being conferred on any person.

Attempts and conspiracies

46. A person who -

(a) attempts to commit an offence under this Chapter;

(b) conspires with any other person to commit an offence under this Chapter; or

(c) abets, induces, incites or commands another person to commit an offence under this Chapter,

commits an offence and is, on conviction, liable to the punishment prescribed for that offence by this Act.

Fraudulent concealment of offence

47. A person commits an offence who, with intent to defraud or to conceal the commission of an offence under this Chapter or to obstruct an authorised officer in the investigation of any such offence -

(a) destroys alters, mutilates or falsifies any book, document; valuable security, account, computer system, disk, computer printout or other electronic device which belongs to or is in the possession of his or her employer, or has been

No. 3970 Government Gazette 28 December 2007 17

Act No.10, 2007 MOTOR VEHICLE ACCIDENT FUND ACT, 2007

(ii) has the right to remain in Namibia in accordance with section 14 of the Namibia Refugees (Recognition and Control) Act,

is limited to providing the funeral benefit as specified in section 25(1)(h) .

(7) The liability of the Fund where an accident involves a motor vehicle and an aircraft, locomotive or carriages being drawn by such locomotive is limited to awarding benefits to occupants of the motor vehicle involved.

(8) The Minister, by regulation, may amend any of the limitations of liability of the Fund prescribed by this section.

PART VI

BENEFITS

Benefits

25. (1) The benefits to be provided by the Fund are confined to the following categories -

(a) reimbursement of income lost as a result of being unable to secure employment or generate income on account of injuries sustained in a motor vehicle accident which benefit is the aggregate of a capital sum, together with interest accruing on any unpaid portion and where the benefit is to reimburse future income loss it is payable by instalments-

(i) subject to periodic assessment in terms of subsection (6), until the injured person attains the age of 60 years or dies, whichever occurs first;

(ii) which is calculated and paid as such portion of the benefit as can be paid over the period over which the injured party attains the age of 60 years and escalated annually by the rate of inflation as set by the Consumer Price Index at the time of the accident;

(iii) in the event of the injured person dying before attaining the age of 60 years payment by instalment ceases and the Fund is not liable to make any further payments in respect of the benefit;

(b) reimbursement of financial support lost by a dependent as a result of the death of a person caused by a motor vehicle accident which benefit is an aggregate of a capital sum, together with interest accruing on any unpaid portion, and if -

(i) the dependent is a spouse and the benefit is to reimburse future support lost, it is payable by instalments until the dependent attains the age of 60 years or dies, whichever occurs first, which instalments are-

(aa) calculated and paid as such portion of the benefit as can be paid over the period over which the dependent attains the age of 60 years; and

18 Government Gazette 28 December 2007 No. 3970

Act No. 10,2007 MOTOR VEHICLE ACCIDENT FUND ACT, 2007

(bb) escalated annually by the rate of inflation as set by the Consumer Price Index at the time of the accident;

(ii) the dependent is a minor and the benefit is to reimburse future support lost, it is payable by instalments unti I the dependent attains the age of majority or completes his or her course of education after attainment of the age of mqjority, becomes financially self sufficient or dies, whichever occurs first, which instalments are -

(aa) calculated and paid as such portion of the benefit as can be paid over the period over which the dependent attains the age of mqjority; and

(bb) escalated annually by the rate of inflation as set by the Consumer Price Index at the time of the accident;

(iii) the dependent dies before attaining the stipulated age of majority, payment by instalment ceases and the Fund is not liable to make any further payments in respect of the benefit;

(c) a cash grant as compensation for injury, including loss of earning capacity, as a result of physical injury suffered in a motor vehicle accident, which is determined in accordance with the prescribed procedure;

(d) reimbursement of the costs of medical treatment for physical injury suffered in a motor vehicle accident, calculated in accordance with the prescribed tariff;

(e) an undertaking to pay for medical treatment or injury management in accordance with a treatment plan as prescribed subject to periodic assessment in terms of subsection (6);

(f) an undertaking to pay for rehabilitation of a person injured in a motor vehicle accident in accordance with a rehabilitation plan as prescribed subject to periodic assessment in terms of subsection (6);

(g) an undertaking to pay for life enhancement assistance in accordance with a life enhancement plan as prescribed where the injured person has suffered permanent physical or mental incapacity subject to periodic assessment in terms of subsection (6);

(h) a cash grant for funeral benefit in respect of the burial of a person killed in a motor vehicle accident as specified by section 24(4)(e);

(i) reimbursement of any costs reasonably incurred in the provision of a service to a person entitled to an award of a benefit other than costs that may be reimbursed in terms of the other subsections hereof; and

U) such other benefits as the Minister, on the recommendation of the Board, may prescribe.

(2) Subject to the limits prescribed by this Act, monetary awards in terms of subsection (1) (a) and (b) must reasonably equate to the loss suffered or to be sufferred taking into account the employment history and situation of the injured party or deceased as the case may be;



(3) For the purposes of determining loss under subsection (1 )(a) or (b) the income of the person or the deceased, as the case may be, is considered exclusive of tax payable on such income.

(4) The neg I igence of the driver or owner is not considered for the purposes of determining an award under subsection (1) (b).

(5) If an award of a benefit is made, any costs incurred in respect ofthe claimant under section 24 are deducted.

(6) If any undertaking has been awarded as a benefit in terms of either or all of subsection (1 )(a), (e), (f), (g) or (i) -

(a) the condition of the person is thereafter assessed at least once annually by a medical practitioner or practitioners appointed by the Fund having relevant expertise regarding the person's condition; and

(b) after having received written reports from such medical practitioners under paragraph (a), the Fund must review the appropriateness of continuing the benefit, and must determine whether to-

(i) continue provide the benefit with or without changes; or

(ii) discontinue providing the benefit,

and inform the person of such determination in terms of a notice as prescribed.

(7) When an undertaking to pay for a benefit in terms of a plan is provided as an award and where a claimant accepts such medical treatment, injury management or rehabilitation that requires changes thereto, which changes may not be unreasonably refused, further expenses not included in the award must be paid by the claimant.

(8) If a person is dissatisfied with a plan offered as an award in terms of subsection (1)(e), (f) or (g), or with a determination to change or discontinue a benefit made in terms of subsection (6), the person may, within 30 days of receiving the offer or notice of the determination, deliver a written notice to the Fund setting out reasons for such dissatisfaction, and -

(a) the Fund, within 21 days of receiving the notice, may-

(i) deliver an amended offer of an award or determination to the person; or

(i i) refer the matter to the Medical Review Committee for its consideration and, in writing, inform the person of the date, time and venue set for the matter to be considered by the Committee,

but the Fund may, at its own cost, require the person to undergo further examination by a medical practitioner before making such decision.

(b) the Medical Review Committee, after having afforded the person and the Fund opportunity to make representations, if any, must consider the matter, and may-



(i) uphold the award or determination and give reasons in summary;

(ii) remit the matter to the Fund with a directive for action to be taken; or

(iii) amend the award or determination and give reasons in summary,

and, within 21 days, inform the person of its decision by notice as prescribed.

{9) A decision by the Medical Review Committee -

(a) is subject to the exclusions and limitations provided in this Act; and

(b) is binding on the Fund and section 32{4), {5) and {6) apply thereto with the necessary changes.

PART VII

EXCLUSIONS AND LIMITATIONS

Exclusions

26. The Fund may not award benefits to a person injured in a motor vehicle accident or claiming under section 25 -

(a) if the person unreasonably refuses or fails-

(i) to submit a duly completed claim to the Fund in the prescribed form;

(ii) on request by the Fund, to give particulars of the occurrence that are required in order for the Fund to make a determination in terms of section 24{1) or (2);

(iii) on request by the Fund, to furnish a document or information relevant to the claim;

(b) if the person who was injured unreasonably refuses or fails-

(i) to furnish the Fund with any medical report in his or her possession that is relevant to the claim;

(ii) permit the Fund, or a person authorised in writing by the Fund, to inspect medical records relating to the person; or

(iii) at the cost of the Fund, to undergo medical examination or assessment by a medical practitioner or expert appointed by the Fund regarding the injury and condition of the person;

(c) if the person is guilty of driving the motor vehicle involved in the accident in contravention of section 82(1) of the Road Traffic and Transport Act, 1999 (Act No. 22 of 1999);



(d) if the person did not hold a license issued under the law governing the licensing of drivers of motor vehicles or he or she being the holder of a learner's license or other restricted license issued under that law, failed to comply with conditions or requirements of that learner's licence or restricted licence;

(e) if the person is the owner of a motor vehicle involved in an accident being driven by a person who is not the holder of a licence issued under any law governing the licensing of drivers of motor vehicles or not in compliance with the terms and conditions of such licence;

(f) if the person has wilfully driven the motor vehicle involved in the motor vehicle accident knowing that it has been stolen;

(g) if the person has driven the motor vehicle or is being conveyed in the motor vehicle during the course of the commission of, or in furtherance of, a serious criminal offence referred to in Schedule 1 of the Criminal Procedure Act, 2004 (Act No. 25 of 2004), unless such person -

(i) has driven the vehicle or is being conveyed in the vehicle against his or her will; and

(ii) did not take part in the commission of such offence, or did take part in the commission of such offence by coercion;

(h) if the person is in Namibia in contravention of the Immigration Control Act, unless the person -

(i) wishes to remain in Namibia as a refugee in compliance with section 13 of the Namibia Refugees (Recognition and Control) Act, 1999 (Act No.2 of 1999); or

(ii) is the person contemplated in section 14 of the Namibia Refugees (Recognition and Control) Act, 1999 (Act No.2 of 1999);

(i) in respect of a claim for shock, nervous, emotional, psychological, neurological or other form or condition induced by that person witnessing, hearing or becoming aware of a motor vehicle accident;

0) if the claim in question has not been instituted or prosecuted -

(i) by the claimant;

(ii) on behalf of the claimant, by a person who is entitled to practise as legal practitioner in Namibia; or

(iii) on behalf of the claimant, by the claimant's legal representative if the claimant is under a legal disability,

before the claim becomes prescribed in terms of section 34;

(k) if the claimant in making the claim provides false information, or withholds information, calculated to mislead the Fund in making a determination on the claim;


Act No.10, 2007 MOTOR VEHICLE ACCIDENT FUND ACT, 2007

(I) if the claimant and another person who is not a legal practitioner referred to in paragraph 0) have entered into an agreement wherein that other person-

(i) receives payment for providing advice or assistance in making a claim; or

(ii) receives any money in respect of investigation of the claim or any expenses incurred in the hand I ing of the claim.

Limitation of awards

27. (1) If a person claiming benefits under section 25 -

(a) is wholly responsible for the accident giving rise to the claim, the benefits awarded are limited to reimbursement, medical treatment, rehabilitation, life enhancement or injury management in terms of section 25(1)(d), (e), (f), (g) and (i) as may be required;

(b) has contributed to the accident, injury or death giving rise to the claim, any monetary award in terms of section 25(1)(a) and (c) otherwise payable is reduced in proportion to such contribution;

(c) was a driver of a motor vehicle involved in the accident in contravention of section 82(2) of the Road Traffic and Transport Act, 1999 (Act No. 22 of 1999), the benefits awarded are limited to reimbursement, medical treatment, rehabilitation, life enhancement or injury management in terms of section 25(1)(d), (e), (f), (g) and (i) as may be required;

(d) was injured when he or she was not, at the time of the accident, utilising a seat belt fitted to the motor vehicle for use by a person in the position of the claimant, the monetary benefits in terms of section 25(1 )(a) and (c) otherwise payable is reduced by 25%;

(e) was injured when he or she was being conveyed otherwise than in or on a seat properly constructed and affixed to the motor vehicle for the purpose of the conveyance of persons, the monetary benefits in terms of section 25(1)(a) and (c) otherwise payable is reduced by up to 50%;

(f) not being a minor was injured when he or she was being conveyed in a motor vehicle which was, to the knowledge of such person, unlawfully conveying passengers or goods, and such person had a reasonable option to disembark from the vehicle, the monetary benefits in terms of section 25(1)(a) and (c) otherwise payable is reduced by up to 50%;

(g) is entitled to an award in terms of section 25(1)(a) or (c) monetary benefits or payment, other than as a funeral benefit, under a public social security scheme, pension fund, workmans compensation or benefits, the award is limited to such sum as represents the difference as a loss between the amount payable in terms of such entitlement and the amount otherwise payable in terms of this Act;

(h) has suffered an injury to the neck and there is no evidence of a fracture to, or displacement of the vertebrae of the spinal column, the benefits awarded


Act No. 10, 2007 MOTOR VEHICLE ACCIDENT FUND ACT, 2007

are limited to reimbursement and medical treatment or injury management in terms of section 25(1)(d), (e) and (i) as may be required;

(i) suffers post traumatic stress disorder or other problem or disorder primarily evidenced by statements by the person without proof of physical injury, the benefits awarded are limited to reimbursement and medical treatment or injury management in terms of section 25(1)(d), (e) and (i) as may be required;

U) claims in terms of section 25(1) the award does not reimburse any loss comprising or involving loss of profits, outlay, investment or expense, including expense involving the recruitment, hiring or replacement of any member of staff; or

(k) was the owner or driver of the motor vehicle involved in the accident giving rise to the claim and at the time of driving, the vehicle was defective, and such defect -

(i) contributed to the cause of the accident; or

(ii) contributed to the death or injury of any person,

unless such person is able to show that the defect became manifest without knowledge of such person during the course of travel in which the accident giving rise to the claim occurred, the benefits awarded are limited to reimbursement, medical treatment, rehabilitation, life enhancement or injury management in terms of section 25(1)(d), (e), (f), (g) or (i) as may be required.

(2) The liability of the Fund to the driver of a motor vehicle in terms of this Act must, in respect of claims arising out of a motor vehicle accident in which cause is ascribed to the negligence of the driver of an unidentified motor vehicle, exclude the award of benefits in terms of section 25(1 )(a), (c) or (i), unless there is -

(a) proof, involving physical evidence, of a collision between the unidentified motor vehicle and the injured party or the deceased, or the vehicle in which either was travelling or being conveyed at the time of the accident;

(b) proof of reasonable steps taken to identify the motor vehicle in question; or

(c) proof that the motor vehicle accident in question was reported to the police as soon as was reasonably possible.

PART VIII

CLAIM PROCEDURE

Procedure for making claims

28. (1) A claimant for benefits and a person or entity claiming in terms of section 24(3) must do so in the manner and on the form, as prescribed.

(2) If the Fund, within 60 days of receipt of a claim which was sent or delivered to it as prescribed, does not objectto the validity of the claim, the claim is, for all purposes, deemed to be valid in law.

namib i a u n ivers ityexampapers.nust.na/greenstone3/sites/localsite/collect...briefly answer the...

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