The Road Accident Fund has a statutory obligation in terms of section 17(1) of the Road Accident Fund Act to " compensate any person (the third party) for any loss or damage which the third party has suffered as a result of any bodily injury to himself or herself or the death of or any bodily injury to any other person, caused by or arising from the driving of a motor vehicle by any person at any place within the Republic". As it stands, the Road Accident Fund Act does not contain an explicit exclusion where the victim is an illegal foreigner, but extends liability to compensate to "any person".
In June 2022, the Road Accident Fund sought to put measures in place to exclude illegal foreigners from receiving compensation from the Fund. The Road Accident Fund published a new directive stating that a Road Accident Fund claim by a foreigner would be rejected if the claimant could not produce documentary proof that he or she was legally in South Africa at the time of the collision. The directive reads, "A copy of the foreign claimant's passport showing the entry and/or exit stamp must be submitted. Where the passport does not have any stamp the RAF will not be lodging such a claim". In July 2022, the Minister of Transport gazetted a new claim form, known as a RAF 1, that expressly requires foreigners to prove their legal status.
Implications if illegal foreigners cannot claim from the Road Accident Fund
- In the case of F M v Road Accident Fund (2022/1093) [2024] ZAGPJHC 1572 (7 March 2024) the Honourable Justice Pienaar AJ opined that "It follows that if illegal foreigners are excluded from claiming against the Fund, such foreigners would be required to pursue their claims under the common law against the driver personally as the Fund is unable to pay the compensation in terms of section 21(2)(a) of the RAF Act" Such an interpretation would be untenable and defeat the Fund's purpose, which is "...the payment of compensation ... for loss or damage wrongfully caused by the driving of motor vehicles" (section 3 of the Act). There is no justifiable reason why the spirit, purpose, and objectives of the Bill of Rights, that everyone is equal before the law, should not be followed. To exclude certain victims from claiming compensation, would be contrary to the clear objective of the Act and the Constitutional principle that "Everyone is equal before the law and has the right to equal protection and benefit of the law".
- Should illegal foreigners be excluded from claiming compensation from the Fund, then there ought to be a clear distinction between claims lodged before and after the directive which excludes illegal foreigners. The directive cannot have retrospective effect. This will have a severely negative impact, as there will be thousands of claims that will be dismissed and legal costs that will be unrecoverable.
The challenge against the directive to exclude illegal foreigners was recently raised in the case of Adams Mudawo v Minister of Transport and Road Accident Fund. On 26 January 2022, Mr Mudawo was riding a motorcycle when a car swerved into his lane and collided into him. Mr Mudawo suffered serious facial disfigurement. He has been an asylum seeker in South Africa since 2020, but his permit has lapsed. In essence, the Road Accident Fund's new directive means he can no longer claim compensation.
A full bench of the High Court declared that the Road Accident's Fund exclusion of illegal foreigners was invalid and unconstitutional. The Road Accident Fund lodged an application for leave to appeal and the Supreme Court of Appeal has now granted the Road Accident Fund leave to appeal. The decision of the Supreme Court of Appeal will be a noteworthy judgment.
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