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Johannesburg - The Constitutional Court has upheld an order by a lower court declaring a section of the Road Accident Fund Act of 1996 unconstitutional and invalid.

Judge Johan Froneman said in a unanimous ruling on Thursday: “The order made by the Free State High Court, Bloemfontein, is confirmed.

“The order balances the rights of road accident victims with the financial consequences for the RAF.”

The court declared section 19(b)(ii) of the old RAF Act invalid.

Froneman found that restrictions in this section discriminated unfairly between two categories of people - those who had a close “familial relationship” with the driver and those who did not.

The section excludes the RAF from liability when the claimant is a passenger in a vehicle driven by a member of the same household, or when the claimant is responsible for the “maintenance” of the driver.


The Road Accident Fund Amendment Act of 2005 abolished section 19(b)(ii) of the old act but the amending provision only came into effect on 1 August 2008. Claims before this date continued to fall under the old act.

In April 2006, Vanessa da Silva was injured while a passenger in a car driven by her husband.

It was found that the collision was caused by the negligence of her husband who collided with a horse.

Da Silva's accident took place before the amendment came into effect, and section 19(b)(ii) of the old act applied to her claim.

She challenged the constitutionality of the section in the high court on the grounds that it violated her right to equality.


The Constitutional Court followed its own ruling in an an earlier Road Accident Fund case, made in 2011, in upholding Da Silva's challenge on Thursday, and ordered that all unfinalised claims under that section of the old act be governed by the Transitional Provisions Act of 2012.

The earlier case involved Anele Mvumvu and resulted in the passing of the Transitional Provisions Act to broaden the categories of claims which could be brought against the Road Accident Fund.


Mvumvu and two others sustained injuries in car accidents on different dates before 1 August 2008. They sought a declaration of invalidity against an order limiting the amount of compensation they could claim, and in 2011 launched a constitutional challenge to legislative provisions of the old act.

In the Mvumvu case, the Constitutional Court declared two sections of the RAF Act of 1996 inconsistent with the Constitution and invalid. It asked Parliament to amend the those provisions of the act.