Members of public are increasingly making use of the convenient service offered by Uber. While this is undeniably an essential service, questions arise as to its legitimacy and whether this service is not already on offer by existing legitimate transportation services. The latter consideration sparked conflict between Uber service providers and the metered taxi industry and the issue was also recently debated in National Parliament.

Does the Uber passenger face risks of prejudice in the event of injuries or death resulting from an accident if such accident was caused by the exclusive negligence of the Uber driver? In answering this, one must first look at the legislative background. 

Prior to 1st August 2008, the Road Accident Fund Act 56 of 1996 provided for certain categories of passengers who were either limited in what they could claim or excluded from claiming altogether. One such category was the passenger 'conveyed for reward'. If the vehicle upon which the conveyance took place was not properly licenced to convey passengers for reward, the conveyance was deemed to be unlawful and the passenger had very little legal protection compared to a passenger who was conveyed for lawful reward. The legal transport operator has to have a valid public road carrier permit,  has to have passenger liability insurance and the vehicle has to be driven by a person with a valid professional driving permit. These vehicles also have to undergo an annual roadworthy test failing which the authorities refuse to renew its licensing.

The Road Accident Fund Amendment Act, No 19 of 2005 which came into operation on 1st August 2008, removed the distinction between various categories of passengers. It also excluded claims by passengers against the owner or driver of a vehicle in personal capacity, except claims for emotional shock. This created a loophole in that the passengers in a licensed taxi and those in unlicensed vehicles, such as an Uber vehicle were placed in the same position insofar as claims for compensation against the Road Accident Fund were concerned. A further, presumably unintended consequence of the aforesaid Amendment Act, was to render the passenger liability insurance, which is compulsory for licensed operators, inconsequential. A passenger can only benefit from the passenger liability insurance if it has the right to sue the owner or driver of the vehicle. As stated earlier, this right does not exist anymore.

The Road Transportation Legislation and the provisions of the Road Accident Fund Act are therefore not in sync. The reality is that the passenger in the Uber vehicle is in the same position as a passenger in a fully licensed vehicle insofar as the right to compensation (arising from injury or death caused by the exclusive negligence of the driver of the vehicle in which the passenger is conveyed) is concerned. Legislative intervention is urgently required to address this position.