A new, discriminatory directive from the Road Accident Fund (RAF) is currently being challenged in the Pretoria High Court which is still to address the matter of whether all foreigners – or only those able to provide proof of being in the country legally at the time of injury – can claim RAF compensation in South Africa.
This is according to Kirstie Haslam, partner at DSC Attorneys, who says that up to 2022, RAF compensation was available to any person injured in a road accident in South Africa regardless of immigration status.
This principle is stated clearly by the National Government. It says, “The Road Accident Fund (RAF) provides compulsory cover to all users of South African roads, citizens and foreigners, against injuries sustained or death arising from accidents involving motor vehicles within the borders of South Africa.”
It also states, “The client base of the RAF comprises not only the South African public, but all foreigners within the borders of the country.”
However, in June 2022, the RAF published a new directive stating that a RAF claim by a foreigner would be rejected if the claimant couldn’t show documentary proof that he or she was legally in South Africa.
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.”
“Before this new directive, the legality of their residence in South Africa did not preclude foreigners from claiming from the RAF,” Haslam explains. “In July, the Minister of Transport gazetted a new claim form, known as RAF 1 form, that expressly requires foreigners to prove that they were legally in South Africa when the road accident occurred.”
She points out that It’s difficult to say exactly how many undocumented immigrants there are in South Africa who could be affected by the new directive.
According to Stats SA, South Africa is home to at least 3.95 million immigrants. Many of these people have papers to verify that they’re “legal”; others do not.
Haslam says that It’s important to acknowledge the reality that dysfunction on the part of South African Home Affairs departments exacerbates many immigrants’ efforts to obtain legal status in South Africa.
“This is made worse by the significant time, costs and risks involved in crossing out of and returning over South African borders,” she adds.
The directive and new form are currently being challenged in the Pretoria High Court by a Zimbabwean victim of a road traffic accident.
Adam Mudawo suffered serious facial disfigurement when the motorcycle he was driving was smashed into by a vehicle that swerved into his lane while overtaking in the other side of the road.
Mudawo came to South Africa as an asylum seeker in 2020 but his permit has lapsed. The new directive precludes him from being eligible to lodge a RAF claim.
In his court application, Mudawo pointed out that the RAF Act doesn’t differentiate between South Africans and foreigners.
“The RAF is clear and provides that the RAF will be liable to compensate any person who is a victim of a motor vehicle accident within the Republic of South Africa.”
His legal team argues that the new directive is unconstitutional and not in line with the Promotion of Equality and Prevention of Unfair Discrimination Act.
They say that the RAF Act is as “a social security measure which assists the state in fulfilling its constitutional duty to protect the social security of road users.”
Haslam says that Mudawo has also filed a Rule 16, a notice laying out the constitutional issues the case raises and inviting other interested parties to join the case.
“Regardless of your citizenship or residency status in South Africa, you may qualify for compensation from the RAF,” Haslam explains. “If you have a claim, it’s important not to wait. Certainly don’t wait for an outcome to the current court proceedings concerning whether foreigners can claim RAF compensation.”
Specific deadlines, or prescription periods, apply to road accident claims.
Also, she says that a lengthy delay could make it more challenging to obtain supporting evidence, such as witness statements and police and medical reports.
“The best first step is to contact a suitably experienced firm of South African personal injury attorneys who will be able to assist road accident victims regardless of nationality to help get the compensation they deserve,” she concludes.
