Howard Dembovsky writes...
It has become common for insurance companies to include
clauses in their policies where it is held that if a person drives under the
influence of alcohol or drugs having a narcotic effect, their claim will be
repudiated in the event of a claim.
When I first heard that this was the case, I thought “good –
at least someone is doing something and there will be a consequence which
befalls those who drink and drive”. After all, the current state of affairs
insofar as it relates to the prosecution of driving under the influence of
alcohol is shambolic and both, I personally and JPSA have a long and vociferous
history in trying to actively address this problem.
The current conviction rate in our criminal courts is around
6% nationally and those convictions typically take ages to achieve. Even where
convictions are gained, sometimes the sentences handed down can appear to
represent little more than a slap on the wrist. And those who drive under the
influence of drugs are rarely screened for drugs, let alone prosecuted.
There are however very good reasons why the conviction rate
is and remains low and it is my assertion that the root cause of this
phenomenon should be urgently addressed since part of the reason why people
drive under the influence of alcohol is the fact that they stand an extremely
low chance of being convicted.
The two primary problems with convicting those who are
accused of driving under the influence of alcohol are that procedure is often
not properly followed by authorities and when it is, the entire process falls
to pieces because State laboratories do not furnish blood alcohol test results
I am led to believe that the latter is set to be partially addressed
shortly, when evidential breath testing is reintroduced after it was halted in
2011. This happened because the Court found that, amongst other things,
authorities and suppliers had not provided sufficient training to operators,
had failed to properly calibrate equipment and had failed to operate that
equipment in accordance with the manufacturer’s specifications.
Evidential breath alcohol testing is widely utilised
elsewhere in the world and results from such equipment are so reliable that
courts are put in a position of knowing that when they do convict people, they
do so on a scientifically sound basis, comfortable in knowing that they will
not wrongfully convict an innocent
South African road traffic law has several provisions and
safeguards built into it in order to ensure that no person is wrongfully
convicted of driving under the influence of alcohol, and this should be applauded
since conviction under this offence is a very serious matter indeed.
Amongst these safeguards are scientifically provable levels
of alcohol below which a person may not be regarded as being under the
influence of alcohol, only allowing accredited laboratories to test blood
samples and stringent quality standards which are applicable to evidential
breath alcohol testing equipment.
The standard for evidential breath alcohol testing equipment
is prescribed in “SANS 1793:2013 Evidential breath analysers” and in terms of
the National Road Traffic Act and Regulations, no other evidential breath
testing equipment is authorised for obtaining the breath alcohol concentration
of a driver for purposes of prosecution. Currently, only one model of evidential breath testing equipment available in South
Africa meets the standard. This is the Dräger Alcotest®
It is important to note that Dräger is a company name and not a particular piece of equipment as
people including but not limited to the Minister of Transport have repeatedly
confused it to be.
Dräger manufactures a wide array of electronic equipment and
its handheld breath alcohol screening devices, like all other handheld breath
alcohol screening devices which are typically referred to as “breathalysers”
are not compliant with SANS 1793 and
therefore may not be used to convict
anyone. Nor are older models of their evidential breath analysers.
Handheld breath alcohol screening devices are designed to
act merely as an indication to a law enforcement official as to whether alcohol
use should be investigated properly.
However, in spite of the clearly prescribed procedures and
standards which exist in law it would appear that insurance companies regard
these as a pesky unnecessary
inconvenience and have therefore made up their own rules which better suit
them to deal with the problem.
It is my view that this is unlawful on so many levels that
it’s simply not funny. In fact, there is nothing “funny” about this at all.
On 29 March 2016, the Ombudsman for Short-Term Insurance authored
release wherein it actively went about justifying the practice of
repudiation of insurance claims where alcohol use is suspected, and wherein it was correctly stated that criminal law
and civil law have different requirements insofar as the burden of proof goes.
The release says: “In criminal cases, in order to meet a
charge of drunken driving or driving under the influence, the State is required
to demonstrate beyond reasonable doubt
that a driver was indeed driving in such a state. In civil cases, however, such
as claims under an insurance policy, the insurer need only show that the
insured was, on a balance of
probabilities, driving under the influence.”
Now whilst I have to concede that the rules surrounding
evidence and the burden of proof in civil law are incredibly loose and do
indeed allow for a balance of probabilities, I do not for one second concede
that this should be the case. In fact, it is my view that this peculiar
phenomenon represents a huge miscarriage of justice as well as a violation of
the Constitution and other laws, and should be urgently reviewed and indeed,
The consequences of incurring a criminal record are dire and
it is for this precise reason that criminal law requires that the State prove
its case beyond a reasonable doubt. Note that I say “beyond a reasonable doubt” and not “beyond all doubt”. There is a huge difference between the two and our
criminal law does not require proof beyond all doubt.
Criminal law does in fact allow for two versions to be
weighed up and for the Court to accept the version which is most “reasonably
possibly true”, as everyone, including but not limited to the insurance
industry got exposed to in the much publicised Oscar Pistorius trial.
As much as incurring a criminal record has dire consequences
associated with it, so too does financial loss and indeed in some cases, ruin and
that's without even beginning to contemplate the reputational damage which
typically accompanies it.
What amazes me is that the Ombudsman for Short-Term
insurance acknowledges this fact in its media release yet chooses to allow,
enable and support insurance companies to impose these things on people, based
on insanely loose standards of evidence. This, in my view, is most probably
going to call the credibility of this Ombudsman into serious question.
I could, and indeed do argue that on “a balance of
probabilities” insurance assessors whose income are largely dependent on how
much money they can save the insurance companies they work for or contract to
have a very real and compelling motivation to engage in questionable conduct in order to boost their own incomes. After all,
what safeguards have been put in place to prevent them from doing so?
Similarly, insurance companies who repudiate claims
naturally boost their own profits by not having to pay claims for which they
have received premiums. Money is and always will be a very powerful motivator
indeed and anyone who wishes to claim that corruption is not commonplace in
South Africa is on a hiding to nowhere.
A specific example comes from a recent matter I was asked to
consult on where the insurer repudiated the claim on the basis that it held
that the driver of the vehicle in question was driving under the influence of
alcohol. It did so despite the fact that the other driver admitted in her own
version that she had failed to stop at a “stop street”, thus causing the
collision. Incidentally, that driver’s claim for damages to her car was paid in
full by her insurer.
The most glaringly obvious problem with this matter comes
from the accident report which was filed by the Metro Policeman who attended
the scene. On that accident report, next to the section “liquor use suspected”
for “driver A”; there was a recordal of “0.00” which was crossed out without initialling,
and in a clearly different pen and handwriting, a new recordal of “0.50” was
written. There also appeared a third notation of “0.” with nothing else written
after the point and this was not crossed out and the recordal next to “driver
B” was “0,00”. You don’t need to be a forensic handwriting analyst to recognise
these obvious discrepancies either.
"Driver A”, who was accused of being suspected of
driving under the influence of alcohol was not
charged with operating a motor vehicle while a sample of breath which was
not below 0,24mg/1000ml (which would be 0,10mg/1000ml if she was a professional
driver). No blood samples were
taken. She was not subjected to an
evidential breath test. Absolutely nothing.
The most obvious questions which must be asked are “who
altered the accident report and when and why did they do it?” as well as “if
the driver produced such a result on a handheld breathalyser, why didn’t the
Metro cop do his duty and register a criminal case?”
Is it not reasonable to presume that on the “balance of
probabilities” civil law is so fond of that the person who altered this report
was encouraged and/or bribed to do so
by the insurance assessor, insurance company or any other person with a
material interest in creating the impression that the driver was under the
influence of alcohol?
After all, this has apparently, in their opinion, swayed the
“balance of probabilities” in their favour and given them grounds to repudiate
the claim. I would suggest that this is an entirely reasonable and plausible
conclusion to reach but in criminal law, I would have to prove my allegations.
In this particular case, I would wager and therefore submit
that had a blood sample have been taken and/or an evidential breath test been
conducted, the driver would have been exonerated, but the insurance company not
only repudiated the claim, but further went on to stick to its repudiation when
a dispute was lodged.
It also failed to furnish any of the evidence which was requested in the dispute letter, responding
that it would only do so “if the matter
proceeded” and made the preposterous statement that “Please note that the above mentioned reason(s) for rejection may not
necessarily be exhaustive and [insurance company name] strictly reserve its
rights to alter these reasons at any time”.
This is a very serious violation of the Promotion of
Administrative Justice Act (PAJA) not to mention that such obfuscation would
never be allowed in criminal law, but it would appear that the insurance
company concerned is not bothered about that; most probably because it feels
that it has the upper hand and can financially frustrate the insured into not
pursuing a costly and tedious judicial review against it.
This matter will now go before the Ombudsman for Short-Term
Insurance and it will be interesting to see what comes of that. I am however
prepared to say that if the Ombudsman upholds this repudiation, it will go before
a properly constituted Court, which
is not reliant on funding by the
insurance industry for its existence, and which is where I would have preferred
to see it go from the outset.
Now that I have made out a case for why I feel that
insurance companies should not be
allowed to act in this manner, let’s talk about what they could do to lawfully make a difference. After all, levelling criticism
without offering any solutions doesn’t help anyone.
In her address at the launch of the National Road Safety
Strategy in March 2016, the Minister of Transport, Dipuo Peters said that her
department was working with the Department of Health to allocate budget for
more staff in State laboratories to clear the backlog and reduce the massive delays
in the processing of blood alcohol test results.
Now while there is no delay associated with evidential breath testing, sometimes it
is necessary to draw blood samples – for example where a person is injured and
a breath sample would not be practical. It would therefore be beneficial to
have blood samples processed without delay. Private accredited pathology
laboratories can provide these results inside 24 hours, so why can’t State
The elephant in the room however is that there is no law in
South Africa which prescribes that all drivers involved in collisions must be tested for alcohol (and drugs)
and there really should be.
Both, South Africans
Against Drunk Driving (SADD) and Justice
Project South Africa (JPSA) have been actively lobbying for mandatory
testing of all drivers involved in collisions for ages now. Interestingly, neither
of these two organisations receives a red cent from any short-term insurance
company, despite the fact that SADD’s core function is combatting “drunk
My question therefore is why don’t insurance companies get
actively involved, invest in initiatives which could make a difference in road
safety and lobby for mandatory testing? After all, the investment they would
need to make would pale in comparison money they could save from lawfully and ethically repudiating
Well, I would suggest that there is a very good reason why they
are acting this manner and that reason is “why should they when they can get
away with their current practices and thus ensure their own profitability
without making any investment”?
I therefore suggest that for as long as short-term motor
insurers are allowed the latitude (and backing of their Ombudsman) to employ
the ridiculous notion of the “balance of probabilities” evidential standard in
repudiating claims they will continue to do so and there is absolutely no
motivation for them to actively contribute to tackling the very real scourge of
intoxicated driving in the wider interest of road safety and the broader South
African public. They are therefore, in my view, part of the problem and not part of the solution, and that is
both, sad and shameful.