Illegal foreigners cannot be excluded from claiming road accident compensation – SCA

The Supreme Court of Appeal (SCA) has dismissed with cost an appeal by the Road Accident Fund (RAF) against a high court ruling that the RAF Act does not exclude illegal foreigner road accident victims from claiming compensation for loss or damage.

Judge Ashton Schippers, with Judge Yvonne Mbatha and Acting Judge Maake Kganyago, said in a judgment handed down on Thursday the central issue in the first appeal concerns the meaning and effect of Section 17(1) of the RAF Act – and more specifically whether “any person” entitled to claim compensation for loss or damage as contemplated in that provision excludes illegal foreigners.

RAF Act does not exclude illegal foreigners

A full bench of the High Court in Pretoria ruled in July 2024 this section of the RAF Act does not exclude illegal foreigners.

The second appeal is against an order by the same high court dismissing an RAF application to interdict the respondents in that case from proceeding with a warrant of execution against the fund’s assets, pending a decision by the SCA on the first appeal.

The respondents in both appeals are foreign nationals who were all involved in motor vehicle accidents at various places in this country in which they sustained multiple injuries.

They claimed compensation from the fund in terms of the RAF Act for the losses and damages they suffered because of their injuries.

Contentious directive

The RAF’s chief operations officer on 21 June 2022 issued a management directive titled “Critical Validations to Confirm the Identity of South African Citizens and Claims Lodged by Foreigners”.

This directive, among other things, states that in instances where the claimant or injured 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.

It said a copy of the foreign claimant’s passport showing the entry stamp and/or exit stamp must be submitted and, where the passport does not have any stamp, the RAF will not be lodging such a claim.

The Minister of Transport in July 2022 published a new RAF1 claim form in the Government Gazette, which for injury claims required a claimant to provide a certified copy of their identity document and, if a foreigner, proof of identity must be accompanied by documentary proof the claimant was legally in South Africa at the time of the accident.

A similar provision is contained in another paragraph of the claim form in relation to death claims.

The respondents in the first appeal launched an application in the high court in August 2022 to review and set aside these decisions on the grounds they violated the principle of legality, infringed the respondents’ rights enshrined in the Constitution, and are unreasonable, substantively and procedurally unfair, and irrational.

The Minister of Transport initially opposed the review application but subsequently delivered a notice to abide by the decision of the court.

RAF didn’t want to ‘contravene’ the Immigration Act

The RAF opposed the review application, with former CEO Collins Letsoalo stating in an answering affidavit that the purpose of the decision was not to deny qualifying legal foreign claimants access to the social benefit scheme in the RAF Act but rather to satisfy the fund:

• That the loss or damage that is the subject of the claim is caused by the driving of a motor vehicle within South Africa; and
• To ensure the fund does not contravene the Immigration Act when processing claims submitted by foreign claimants.

Letsoalo further stated that a number of these claims are fraudulent because the loss or damage was sustained in accidents outside South Africa and unless claimants are asked to state where it was caused, the fund has no way of knowing whether it was caused by the driving of a vehicle within South Africa.

He also claimed the social benefit scheme in the RAF Act was neither designed nor intended “to benefit people who are in South Africa illegally”.

The full court reviewed and set aside these decisions with costs, ruling that there is nothing in the RAF Act nor the compensation scheme administered by the fund to justify the conclusion that the words “any person” exclude illegal foreigners.

It further ruled that neither the Minister of Transport nor the RAF were empowered to amend or limit the ambit of the RAF Act and the amendment or limitation constituted a reviewable irregularity as envisaged in the Promotion of Administrative Justice Act.

RAF refuses to make court-order compensation payments

In the second appeal, 13 foreign nationals successfully prosecuted claims for damages against the fund arising from motor vehicle accidents and concluded settlement agreements with the RAF, some of which were made orders of court.

However, when they sought to enforce those orders, some through writs of execution, the RAF refused payment.

The RAF in November 2023 launched an urgent application in the high court for an order suspending the operation and execution of the orders and warrants of execution issued by that court, and interdicting the Sheriff in Pretoria East and Sheriff in Centurion East from enforcing warrants of execution against the fund’s assets.

The RAF’s reasons for refusing payment and seeking a stay of the orders and warrants were that the respondents are illegal foreigners and the first appeal was pending before the full court, which would decide whether they could submit claims for compensation under the RAF Act.

Application dismissed

Judge Mandlenkosi Motha concluded in the High Court in Pretoria that this application was unmeritorious and dismissed it with costs.

Judge Schippers, in Thursday’s SCA judgment, said that on a proper construction of Section 17(1) of the RAF Act, the obligation of the fund to compensate “any person” for loss or damage suffered because of bodily injury to the third party, or the death of or bodily injury to any other person caused by the driving of a vehicle, does not exclude illegal foreigners.

He said the fund’s contention that they are excluded because the Immigration Act prohibits foreign nationals from being in South Africa illegally – and that investigating claims lodged by illegal foreigners amounts to aiding and abetting them in contravention of the RAF Act – is incorrect.

Schippers said the RAF has failed to make out a case for suspension of the orders and the stay of the warrants of execution in favour of the respondents.

“The fund is bound by the settlement agreements concluded with those respondents and the orders of court made pursuant thereto,” he said.

“It has not attacked the existing underlying judgments.”

This article was republished from Moneyweb. Read the original here.