Published Date: November 23, 2022

It is that time of the year where there is ordinarily a worrying rise in motor vehicle accidents. As expected, road accidents awareness campaigns by the Department of Transport and other relevant agencies are in full swing. It is therefore apt that the public be informed or reminded about some of the realities with regard to Road Accident Fund claims. There is a general perception that a victim of a road accident can recover all his or her losses from the Road Accident Fund (“the RAF” hereinafter). This is an incorrect perception. The only losses that can be recovered from the RAF are those provided for in the Road Accident Fund Act (“the Act” hereinafter). Therefore, any loss that is not provided for by the Act cannot be claimed from the RAF. A single motor vehicle accident can result in huge losses – all depending on the extent of the accident. For example, in a single motor vehicle accident there may be loss of life, serious bodily injuries, serious damage to the motor vehicle, serious damage to belongings – for example, expensive personal items, work items including documents and data, sentimental items, etc. In this example, not all losses can be recovered from the RAF. In some instances, a victim may have to recover his or her losses from their private insurer and/or the wrongdoer. With this, there comes timelines relating to the reporting of incidents and lodging your claims or even suing for recovery. It is, thus, crucial that people are made aware of what they can recover from the RAF and what they cannot. And, where they cannot, from where do they seek recourse.

Section 17 of the RAF Act stipulates that the “Fund is 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 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, if the injury or death is due to the negligence or other wrongful act of the driver or of the owner of the motor vehicle…”. From this provision, it is evident that any claim for loss in terms of the RAF Act has to relate to bodily injury or death. In addition, such death or bodily injury has to result from the negligence or other wrongful act of the driver or the owner of the motor vehicle. Therefore, where you, the claimant, cannot prove negligence or some wrongful act, you cannot claim successfully from the RAF.

From the above, it is clear that any other losses other than those specified above cannot be recovered from the RAF. For these losses (damage to motor vehicles, items damaged or destroyed during the accident, etc), the victim will have to claim from his or her insurer or the common law wrongdoer. There are benefits to exploring the other available options, particularly because of time it may take to eventually receive your compensation from the RAF. Where the items are not insured or the claim is rejected, the victim will have to sue the common law wrongdoer. Where the victim successfully claims from their private insurer, he or she cannot subsequently sue the wrongdoer (except in limited instances e.g., where apportionment was applied by the insurer). Instead, the victim’s common law right to sue the wrongdoer gets transferred to the insurer who can then pursue a claim against the wrongdoer. In insurance law, this is referred to as subrogation. There are instances where, due to the nature and extent of injuries sustained in the accident, it is worthless to pursue a claim against the RAF. A good example would be where a victim only has a claim for insignificant past medical expenses and these are covered by the medical aid. The medical aid in question gets the right to sue the RAF for such expenses. In cases where the claim is rejected by the insurer or the vehicle/items are uninsured, and the victim cannot prove any negligence or wrongful act by the driver or owner of the vehicle, then there is no recourse for the victim. Thus, there are instances where a car accident victim may have no recourse for some or all his or her losses suffered as a result of a car accident.

It is therefore critical that victims of car accidents get expert advice on what losses suffered can be recovered from the RAF, and where there are losses that cannot be recovered from the RAF they get an insurance law expert to advise on how to go about getting recourse.

Mtho Maphumulo
Senior Associate | Litigation Attorney