The SCA has dismissed with costs 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, yesterday said 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 Gauteng High Court (Pretoria) in July 2004 ruled this section of the RAF Act does not exclude illegal foreigners.

Moneyweb reports that the second appeal is against an order by the same 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 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 COO on 21 June 2022 issued a management directive titled ‘Critical Validations to Confirm the Identity of SA Citizens and Claims Lodged by Foreigners’. This directive, inter alia, 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 SA 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 SA at the time of the accident.

Moneyweb notes that a similar provision is contained in another paragraph of the claim form in relation to death claims.

The respondents in the first appeal launched an application in the High Court in August 2022 to review and set aside these decisions on the grounds they violated the principle of legality, infringed the respondents’ rights enshrined in the Constitution, and are unreasonable, substantively and procedurally unfair, and irrational.

The Minister of Transport initially opposed the review application but subsequently delivered a notice to abide by the decision of the court.

Moneyweb notes that the RAF opposed the review application, with former CEO Collins Letsoalo stating in an answering affidavit that the purpose of the decision was not to deny qualifying legal foreign claimants access to the social benefit scheme in the RAF Act but rather to satisfy the fund.

Schippers, in yesterday’s SCA judgment, said that on a proper construction of section 17(1) of the RAF Act, the obligation of the fund to compensate ‘any person’ for loss or damage suffered because of bodily injury to the third party, or the death of or bodily injury to any other person caused by the driving of a vehicle, does not exclude illegal foreigners.

Moneyweb notes that he said the fund’s contention that they are excluded because the Immigration Act prohibits foreign nationals from being in SA illegally – and that investigating claims lodged by illegal foreigners amounts to aiding and abetting them in contravention of the RAF Act – is incorrect.

Schippers said the RAF has failed to make out a case for suspension of the orders and the stay of the warrants of execution in favour of the respondents. 

‘The fund is bound by the settlement agreements concluded with those respondents and the orders of court made pursuant thereto,’ he said.

Full Moneyweb report