Independant On-line, Boy may lose RAF claim because of Aids stats, 27 January 2004

By Tania Broughton

Three days after his seventh birthday, Zakhele Khumalo of Hammarsdale was struck by a car while standing on the pavement outside his house.

His grandmother was killed. He was flung some distance away into a neighbour's garden.

Forty-four days later he was discharged from hospital in a wheelchair where he will spend the rest of his life.

While the Road Accident Fund has accepted liability for the accident, lawyers acting for it are trying to lop off a chunk of his claim by arguing that he is a black male and "statistically" he will contract HIV and Aids and die before he is 40.

The accident permanently paralysed him
The fund's reluctance to compensate the boy in what should have been a clear-cut case, had also resulted in costly litigation.

The civil trial ran for three days in the Pietermaritzburg High Court last year and is set down for another five days in April.

According to evidence placed before acting Judge Adrian Rall, Zakhele, who turns 10 in March, was standing outside his home with his grandmother and uncle on that Sunday evening when a car ploughed into them. He was found by his mother in a garden, three houses away.

The accident permanently paralysed him. He is at a school for physically handicapped children and is a bright child. But he is overweight and emotionally disturbed.

After Zakhele's lawyer, Clive Ryley (of Berkowitz, Kirkel, Cohen, Wartski) filed a claim, the fund accepted liability and agreed to settle a part of the claim relating to past and future medical expenses.

Research had been discounted by the ANC and government officials as being exaggerated
But it refused to pay the R1-million claim for general damages and pain and suffering, and a further R1,4-million for future loss of earnings.

The R1,4-million was calculated by an actuary using a 1985 life table (the latest available) which gave Zakhele a life expectancy of about 61 years.

However, speaking to the court, Zakhele's advocate, Steve Mullins SC, said this was being disputed by the fund's lawyers, who were citing other statistics, from Prof Rob Dorrington (professor of actuarial science at the University of Cape Town).

Dorrington is the author of much research into the impact of HIV and Aids in South Africa and had predicted the average life expectancy of black males to be 40 years or less.

Ironically, in the past Dorrington's research had been discounted by the ANC and government officials as being exaggerated.

Now the government-run fund has given notice that they intend calling Dorrington to give evidence in April.

Zakhele's lawyers have argued that one cannot assume he would have engaged in risky practices and contracted the disease.

They said the HIV and Aids issue is not relevant to the case.

But if the risk of him catching the disease was relevant, then this risk is minimal because he is a paraplegic.

They also said that public education will reduce the pandemic.

Legal sources, who regularly deal with Road Accident Fund cases, said they have never been confronted with this argument before.

They said this could be a test case which, if it succeeds, will mean the fund will pay out less and less to road accident victims, particularly those in "high risk" HIV and Aids groups.

But the funds Senior Corporate Communications Manager, Themba Mhambi, said "under no circumstances" would the fund adopt this stance.

"I cannot get hold of the attorney in this matter. But we would not dispute a claim on that basis. It is discrimination and fundamentally against the Constitution."

He said information in Zakhele's case file reflected that he would have a normal life expectancy "and that is certainly not 40 years for black males".

This article was originally published on page 1 of The Mercury on January 27, 2004