SHOULD RAF BE IMPOSING A REQUIREMENT ON FOREIGN NATIONALS TO PRODUCE STAMPED PASSPORTS AFTER FINALISATION OF THE MATTER?

Published Date: May 18, 2023

The Minister published an amendment to the Regulations on 27 May 2022 which replaced the RAF1 claim form as previously published. However, this amendment has had further reaching effects than probably anticipated.

The effects of the amendment are going to be discussed hereunder the following headings:

A. At lodgement of the claim;

B. At trial;

C. After judgment

 A . At the lodgement of the claim

There are various articles written on this matter with many crying out that this regulation infringes on the rights of foreign nationals who are in South Africa and who are unable to lodge claims with the Road Accident Fund because of the requirement as set out in Section 6.1[1] of the new RAF1 claim form.

This matter is currently before the courts as brought by Adam Mudawo, a foreign national who was involved in a motor vehicle accident who is unable to file a claim with the Road Accident Fund as at the time of the accident his work permit had expired, and we await judicial guidance.

B. At trial

The courts have had to decide on whether the lack of proof that a Plaintiff was in South Africa legally exonerates the RAF from liability to compensate such Plaintiff for personal injuries sustained as a result of a motor vehicle accident. In the following cases, the presiding officers concluded as follows:

  • Madima AJ, in Rumbidzai vs RAF[2] found that the Road Accident Fund was liable to compensate Plaintiff even though her deceased husband was employed with no work permit, however, proposed that the compensation to be awarded, be subjected to a higher contingency deduction;
  • Mhlambi AJ in Lesaoana v RAF[3] ruled that the Plaintiff, a foreign national with no work permit, was entitled to compensation, however, he recommended that a higher contingency deduction be applied;
  • In Dlamini v Multilaterale Motorvoertuigongelukkefonds[4], the presiding officer found the Defendant to be liable to compensate an illegal taxi-driver, but recommended that a 30% deduction should be imposed on the award.

So, from the above Case law, the courts do not disqualify a Plaintiff for their entitlement to compensation merely because they are foreign nationals, who were in South African illegally at the time of the accident, however, suggests that a higher contingency percentage be applied.

C. After judgment and/or offer and acceptance

The following response was received from the Road Accident Fund to follow-up correspondence, enquiring why the capital of a foreign national was not included on the latest RAF payment list:

“…in terms of the RAF internal finance department … all foreign claimants must provide stamped passports, showing entry and exit dates into the country, to indicate that they were in the country legally at the time of the accident…Payment won’t be processed until we have received the abovementioned documents.”

Can the Road Accident Fund impose on a Plaintiff this regulation when the Plaintiff has obtained a judgment in the form of a court order or where an acceptance of offer has been signed?

The decision by the RAF’s internal finance department to extend this requirement, arising out of a regulation, to matters that have already been adjudicated and/or finalised is ambitious and their action borders on breach of a court order. This is an unfair requirement considering that the issue of liability to compensate would have already been decided, either by the courts or by RAF itself. The RAF has many opportunities to raise an objection to a claim for non-compliance:

  • At lodgment, the Fund could have notified the claimant of its objection in terms of Section 24(5)[5];
  • At issuing of Summons, the Fund could also have raised a Special Plea on non-judicio locus standi;
  • At trial, the Fund could have raised an issue at law that it is not liable to compensate the Plaintiff if they do not provide prove that at the time of the accident they were in South Africa, legally;
  • After judgment, the Fund could have appealed the judgment and/or applied for the variation of a court order and/or applied for the rescission of judgment.

The RAF did not choose any of these remedies and once compliance with the court order and/or a settlement agreement, is requested, they impose another hurdle for claimants to jump through.

The purpose of the Act was clearly not to discriminate between locals and foreign nationals as stated in Section 17(1)[6], the introduction of the amended RAF1 form, especially the requirement under paragraph 6.1 of the form is no longer enhancing the purpose of the Act, according to Section 26(1)[7], instead it is providing an exclusion of liability to the RAF. This amendment of the RAF1 claim form would have been better served through a legislative amendment to Section 17(1) of the Act, which requires a debate in Parliament of the proposed changes instead of introducing it as a regulation, where, the only requirement is that the interested parties should be offered the opportunity to comment with no requirement to account on whether the comments were considered and to what extent were they incorporated into the final amendment.

[1] Certified copy of claimant’s identity (if claimant 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).

[2] 83879/14 [2015] ZAGPPHC 1071 (2 SEP 2015).

[3] 1135/2011 [2013] ZAFSHC 39 (7 March 2013).

[4] 1992 (2) ISA 802 (T).

[5] If the Fund or the agent does not, within 60 days from the date on which a claim was sent by registered post or delivered by hand to the Fund or such agent as contemplated in subsection (1), object to the validity thereof, the claim shall be deemed to be valid in law in respects.

[6] “the Fund…shall be obliged 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 … if the injury or death is due to the negligence or other wrongful act of the driver…”

[7] The Minister shall or may make regulations to prescribe any matter which in terms of this Act shall or may be necessary or expedient to prescribe in order to achieve or promote the object of this Act.

[2] 83879/14 [2015] ZAGPPHC 1071 (2 SEP 2015).

[3] 1135/2011 [2013] ZAFSHC 39 (7 March 2013).

[4] 1992 (2) ISA 802 (T).

[5] If the Fund or the agent does not, within 60 days from the date on which a claim was sent by registered post or delivered by hand to the Fund or such agent as contemplated in subsection (1), object to the validity thereof, the claim shall be deemed to be valid in law in respects.

[6] “the Fund…shall be obliged 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 … if the injury or death is due to the negligence or other wrongful act of the driver…”

[7] The Minister shall or may make regulations to prescribe any matter which in terms of this Act shall or may be necessary or expedient to prescribe in order to achieve or promote the object of this Act.At trial

Thembi Zondo
Senior Associate | Litigation Attorney

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