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By Roy Cokayne

Moneyweb: Freelance journalist


Court dismisses RAF appeal: Illegal foreigners can claim against fund

‘None of the requirements have been satisfied’ – high court.


The High Court in Pretoria has dismissed with costs an application by the Road Accident Fund (RAF) for leave to appeal a judgment that declared invalid a Department of Transport regulation and RAF management directive that excluded illegal foreigners from submitting claims against the RAF.

Judge Norman Davis, in a judgment handed down on Tuesday, with acting judges BF Mnyovu and A Kok concurring, found that none of the requirements for the granting of leave to appeal have been satisfied.

“Having reached this conclusion, we also find no reason why costs should not follow this event,” he said.

Comment was requested from the RAF but a response has not yet been received.

ALSO READ: RAF appeals ruling on claims by illegal foreigners

The judgment follows the Minister of Transport and the RAF in June and July 2022 seeking to put measures in place whereby illegal foreigners would be excluded from the operation of the Road Accident Fund Act through the promulgation of a “new RAF 1 claim form”.

A full court of the High Court in Pretoria on 26 March 2024 reviewed and set aside these measures.

This led to the RAF lodging an application for leave to appeal this judgment and order to the Supreme Court of Appeal (SCA).

‘Any person’ means any person …

Judge Davis said that in attempting to illustrate the RAF’s prospects of success on appeal, Advocate Kennedy Tsatsawane SC argued the main issue was whether the use of the words “any person” in the RAF Act includes persons who are present in South Africa contrary to the provisions of the Immigration Act at the time of the motor vehicle accident in respect of which they claim damages.

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He said to motivate the RAF’s position, Advocate Tsatsawane referred the court to the judgment of the Constitutional Court in Chakanyuka and Others v Minister of Justice and Correctional Services.

Judge Davis said in these consolidated cases, the Constitutional Court declined to confirm a finding that a section of the Legal Practice Act was unconstitutional and invalid to the extent that it does not allow foreigners to be admitted and authorised to be enrolled as legal practitioners.

He said the RAF argued that, similarly, it was justified in denying illegal foreigners access to the benefits of the RAF Act.

However, Davis said the statutory provisions of the Legal Practice Act are distinguishable from the provision under consideration in the RAF Act.

Section 24(2)(b) of the Legal Practice Act expressly provides that a high court must admit “any person who … satisfies the court that he or she is a (i) South African citizen or (ii) permanent resident in the Republic”.

He said the RAF Act contains no similar qualifications when it provides that “any person” is entitled to claim damages in terms of the scheme of the RAF Act.

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“Contrary to the limitations imposed by the legislature in the Legal Practice Act on applicants who wish to practice law in this country, the legislature imposed no such limitations on claimants who suffered damages as a result of motor vehicle accidents which occurred in the country,” he said.

“The decision in Chakanyuka is therefore not only against the RAF, but supports the finding of this court that, absent any limitation in the RAF Act itself, the words “any person” must be interpreted to be inclusive and without any qualification or limitation.”

RAF argument not strengthened

Davis added that apart from this argument, the RAF’s application for leave to appeal takes the matter no further.

He said the RAF’s notice of application “consists of three paragraphs only”.

Davis said the first paragraph consists of a proverbial “one-liner”, which simply and without foundation proclaims that “there is a reasonable prospect of success”.

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He said the second paragraph simply lists the elements of this court’s findings while simultaneously alleging the court had erred in respect of these findings.

“No grounds have been set out substantiating these allegations or criticisms.”

RAF ‘measures’ and powers

Davis added that in two paragraphs of the RAF’s application, the fund repeated the argument that Section 4 of the RAF Act granted the Minister of Transport and the RAF “the power to prescribe the manner in which the RAF deals with claims [and] empowers them to exclude illegal foreigners from the operation of the RAF Act by requiring proof of the legality of their foreigner status before entertaining their claims”.

“The argument that the Minister [of Transport] or the RAF may, by the use of subordinate regulation, change or amend the ambit of a statute itself, needs only to be stated to show its fallacy.

“It is trite that this cannot be done,” he said.

Judge Davis said in another two paragraphs in the RAF’s notice, the argument is again advanced that because the Immigration Act prescribes who may legally enter the country, the persons referred to in the RAF Act must be interpreted to only refer to such persons.

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“Again, the RAF Act does not provide for such limitation and there is, in the absence of qualifications, no indication that the wide provisions of the RAF Act should be restricted to a narrower interpretation than the actual words used.

“In contrast to the RAF’s argument, the fact that the Supreme Court of Appeal has held that the provisions of the RAF Act must be interpreted ‘as extensively as possible in favour of claimants’ has in fact been conceded by the RAF in para 2.15 of its notice of application for leave to appeal.”

Davis said in paragraph 2.16 and its sub-paragraphs in the fund’s notice, “this court is criticised for having mentioned in its judgment that the RAF Act has always been interpreted as conferring benefits on illegal foreigners”.

He said the basis of the criticism was that this was not an issue raised in the papers.

However, Davis said the respondents – Adam Mudawo, Wenile Simon Ndlovu, Bruce Mthokozi Sibanda and Oyetunde Oneniyi Areo, all of whom are foreign nationals – pointed out that this criticism was not justified as Ndlovu in his founding affidavit in the main application expressly stated that the exclusion of claims by illegal foreigners has “never” existed before.

He said the point was expressly made by the fund that the new requirements constituted “novel barriers”.

“Based on the above, we find that there are no reasonable prospects of success on appeal. The RAF has therefore not satisfied the requirements of section of the Superior Courts Act.”

Irrelevant factor

Judge Davis added that in an attempt to satisfy the requirements of Section 17(1)(a)(ii) of the Superior Courts Act, the fund simply in the concluding paragraph of its notice of application for leave to appeal avers “that the matter is of significant public importance and interest and that therefore leave to appeal should be granted”.

“It is trite that the absence of a reasonable prospect of success is a relevant factor in considering whether, despite this absence, another ‘compelling reasons’ exist justifying the granting of leave to appeal.

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“One can readily conceive a situation where a notionally large (but unknown) number of persons who has previously been able to claim damages from the RAF, had that right curtailed by an order of court, could argue that such termination constituted a ‘compelling reasons’ to consider the granting of leave to appeal.

“But here the position is the opposite,” he said.

“The order of this court effectively maintained the status quo of claimants whose claims have consistently been recognised by the RAF.

“The RAF has not even described what ‘compelling reasons’ would be in its favour which would justify the granting of leave to appeal in these circumstances.”

This article was republished from Moneyweb. Read the original here

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