Illegal foreigners cannot be excluded from claiming road accident compensation – SCA

Neither the transport minister nor the fund was empowered to amend or limit the ambit of the RAF Act, and doing so constituted a reviewable irregularity. Picture: Moneyweb. The Supreme Court of Appeal (SCA) has dismissed with cost an appeal by the Road Accident Fund (RAF) against a high court ruling that the RAF Act does not exclude illegal foreigner road accident victims from claiming compensation for loss or damage.

Judge Ashton Schippers, with Judge Yvonne Mbatha and Acting Judge Maake Kganyago, said in a judgment handed down on Thursday the central issue in the first appeal concerns the meaning and effect of Section 17(1) of the RAF Act – and more specifically whether “any person” entitled to claim compensation for loss or damage as contemplated in that provision excludes illegal foreigners. A full bench of the High Court in Pretoria ruled in July 2024 this section of the RAF Act does not exclude illegal foreigners. The second appeal is against an order by the same high court dismissing an RAF application to interdict the respondents in that case from proceeding with a warrant of execution against the fund’s assets, pending a decision by the SCA on the first appeal.

The respondents in both appeals are foreign nationals who were all involved in motor vehicle accidents at various places in this country in which they sustained multiple injuries. They claimed compensation from the fund in terms of the RAF Act for the losses and damages they suffered because of their injuries. The RAF’s chief operations officer on 21 June 2022 issued a management directive titled “Critical Validations to Confirm the Identity of South African Citizens and Claims Lodged by Foreigners”.

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This directive, among other things, states that in instances where the claimant or injured is a foreigner, proof of identity must be accompanied by documentary proof that the claimant was legally in South Africa at the time of the accident. It said a copy of the foreign claimant’s passport showing the entry stamp and/or exit stamp must be submitted and, where the passport does not have any stamp, the RAF will not be lodging such a claim. The Minister of Transport in July 2022 published a new RAF1 claim form in the Government Gazette, which for injury claims required a claimant to provide a certified copy of their identity document and, if a foreigner, proof of identity must be accompanied by documentary proof the claimant was legally in South Africa at the time of the accident. A similar provision is contained in another paragraph of the claim form in relation to death claims.

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