Pretoria - In yet another legal challenge against the embattled Road Accident Fund (RAF), its new, discriminatory directive is being challenged in the Gauteng High Court, Pretoria.
The matter involves whether all foreigners – or only those able to provide proof of being in the country legally at the time of injury – can claim compensation here.
Kirstie Haslam, a partner at DSC Attorneys, said that up to last year, RAF compensation was available to any person injured in a road accident in South Africa, regardless of their immigration status.
This principle is stated clearly by the government, who holds that the 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 last year, the RAF published a new directive, stating a claim by a foreigner would be rejected if the claimant couldn’t show documentary proof they were in South Africa legally.
The directive reads that 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 said.
However, last July, the Minister of Transport gazetted a new claim form, known as the RAF 1 form, that requires foreigners to prove they were legally in South Africa when the road accident occurred.
She said it was difficult to say exactly how many undocumented immigrants in South Africa could be affected by the new directive. According to Statistics SA, South Africa is home to at least 3.95 million immigrants. Many of them have papers to verify they’re “legal”; others do not.
Haslam said it was important to acknowledge the reality that dysfunction on the part of South African Home Affairs departments exacerbated 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 said.
The directive and new form are being challenged in court by a Zimbabwean victim of a road traffic accident.
Adam Mudawo suffered serious facial disfigurement when a vehicle swerved into his lane and crashed into his motorcycle.
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 said the RAF Act did not differentiate between South Africans and foreigners.
“The RAF is clear and provides that it will be liable to compensate any person who is a victim of a motor vehicle accident within South Africa.”
His legal team will argue the new directive is unconstitutional and not in line with the Promotion of Equality and Prevention of Unfair Discrimination Act. The RAF Act is a “a social security measure which assists the state in fulfilling its constitutional duty to protect the social security of road users”.
Haslam said Mudawo had also filed a notice laying out the constitutional issues the case raised and was 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 said.
If you had a claim, it was important not to wait, she said. “Don’t wait for an outcome to the current court proceedings concerning whether foreigners can claim RAF compensation.”
That as because specific deadlines, or prescription periods, applied to road accident claims.
Haslam said a lengthy delay could make it more challenging to obtain supporting evidence, such as witness statements and police and medical reports.