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By Roy Cokayne

Moneyweb: Freelance journalist


RAF appeals ruling on claims by illegal foreigners

The RAF further claims the court erred in interpreting the phrase 'any person' in a manner that is inconsistent with the Immigration Act.


The Road Accident Fund (RAF) has lodged an application for leave to appeal a high court judgment that declared invalid a Department of Transport regulation and RAF management directive that excluded illegal foreigners from submitting claims against the RAF.

This follows Judge Norman Davis in March this year reviewing and setting aside the provisions of the substituted RAF1 claim form prescribed by a government notice published in the Government Gazette on 4 July 2022 that was issued by former minister of transport Fikile Mbalula in terms of the RAF Act.

ALSO READ: High Court orders Road Accident Fund to pay costs in contempt case

The judgment to review and set aside the regulation and management directive was brought by Adam Mudawo, Wenile Simon Ndlovu, Bruce Mthokozi Sibanda and Oyetunde Oneniyi Areo, all of whom are foreign nationals.

RAF head of corporate communications McIntosh Polela confirmed on Tuesday the RAF has lodged an application for leave to appeal this judgment but has not yet been allocated a date on which it will be heard.

In its application, the RAF claims the High Court in Pretoria erred in granting the order and there is a reasonable prospect the RAF will be successful on appeal.

The RAF claims the court erred in not:

  • Finding that Form RAF1 and the RAF management directive of 21 June 2022 did not violate any of the applicants’ rights simply because they require foreign claimants to submit evidence that they were lawfully in South Africa when their claims arose;
  • Not finding that the phrase “any person” excludes illegal foreigners whose presence in South Africa constitutes a criminal offence;
  • Finding that the benefits provided for in the RAF Act are not intended to be extended to illegal foreigners whose presence in SA constitutes a criminal offence; and
  • Reading and interpreting the phrase “any person” with due regard to the provisions of the Immigration Act, which regulates the entry into SA by foreign nationals.

The RAF further claims the court erred in interpreting the phrase “any person” in a manner that is inconsistent with the Immigration Act, which prohibits illegal foreigners from being in South Africa – adding that the court’s interpretation permits illegal foreigners to be in SA, and to submit claims to the RAF without providing evidence that they were in SA when their claims arose and they were legally in SA when their claims arose.

In addition, the RAF claimed the court erred in:

  • Concluding that the RAF management directive conflicts with the RAF Act in circumstances where what is provided for in the directive falls within what the RAF is empowered to prescribe in terms of the RAF Act;
  • Not finding that the fact that Section 17 of the RAF Act applies to loss suffered because of the driving of a motor vehicle “at any place within the Republic” empowered the RAF and the minister of transport to prescribe a requirement that foreign claimants provide evidence that they were in fact in South Africa when their claims arose;
  • Not finding that the fact the Immigration Act prohibits foreign nationals from entering into and being in South Africa illegally empowered the RAF and the minister of transport to prescribe a requirement that foreign claimants provide evidence that they were in fact lawfully in South Africa when their claims arose;
  • Not finding that Section 44 of the Immigration Act requires the RAF to ascertain the status of any person receiving its services and the requirement that foreign claimants must submit proof of their status is accordingly not unlawful;
  • Not finding that Section 42(2) of the Immigration Act requires the RAF to ascertain the status of any person receiving its services and the requirement that foreign claimants must submit proof of their status is accordingly not unlawful;
  • Concluding that the RAF and the minister acted ultra vires when both were empowered by the RAF Act to prescribe the terms and conditions on which claims would be adjudicated and the documentary evidence required to substantiate claims;
  • Not finding that on a proper interpretation of Section 17 of the RAF Act, considering its purpose, the Immigration Act and Section 27 of the Constitution, that the phrase “any person” excludes illegal foreigners whose presence in South Africa constitutes a criminal offence;
  • Concluding that upholding the RAF’s and the minister of transport’s interpretation of the phrase “any person” would amount to an amendment of the RAF Act when the RAF’s and the minister’s interpretation is not in conflict with the RAF Act;
  • Not concluding that while 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, there is no room to justify an interpretation that results in illegal foreigners benefitting from the RAF Act when the Immigration Act says that they must not be in South Africa; and
  • Relying on the fact that the RAF has always interpreted the RAF Act as conferring benefits on illegal foreigners when:
    • That was not an issue before the court and the RAF was not given a reasonable opportunity to deal with this issue; and
    • There was no basis for the RAF to continue to interpret the RAF Act incorrectly as to confer benefits upon illegal foreigners when that incorrect interpretation conflicts with the provisions of the Immigration Act.

The RAF stressed “this matter is of significant public importance and interest and this constitutes a compelling reason to grant leave to appeal to the Supreme Court of Appeal”.

RAF ‘has an obligation’ – judge

Judge Davis said in his judgment to the application lodged by the four foreign nationals that the RAF has an obligation in terms of the RAF Act 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 …”.

ALSO READ: Road Accident Fund: Mbalula can’t use sub judice excuse to evade accounting any longer

He said until recently “any person” was treated and interpreted by the RAF to include illegal foreigners injured or killed in road accidents that occurred in South Africa.

Judge Davis said they find nothing in the text of the RAF Act, the context of the RAF scheme as a whole, and the purpose of the act which leads them to conclude that the words “any person” in the RAF Act should be restrictively interpreted so as to exclude illegal foreigners.

“We find that the administrative actions of the RAF in prescribing the management directive of 21 June 2022 and that of the Minister in publishing the new RAF 1 form on 4 July 2022, insofar as those actions in the way they have been formulated and are to be enforced to exclude claims by illegal foreigners, offend against the provisions of section 17 of the [RAF] Act.

“Neither the Minister, nor the RAF, are in law permitted, either by way of a ‘policy decision’ or by way of a novel interpretation of the Act, to amend or limit the ambit of the Act.

ALSO READ: RAF ‘crisis’: Lawyers claim accident victims ‘literally prevented from lodging claims’

“To do so would be beyond their powers,” he said.

Judge Davis said these decisions therefore fall foul of the Promotion of Administrative Justice Act and are to be reviewed and set aside to the extent necessary.

“Having reached the above conclusions, we find it unnecessary to deal with the Constitutionality arguments relating to the attempted exclusion of illegal foreigners as claimants against the RAF.”

This article was republished from Moneyweb. Read the original here

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