In yet another legal blow for the Road Accident Fund, the Gauteng High Court, Pretoria struck down a directive issued by the fund that only those foreign nationals who can prove that they are legally in the country at the time of injury, can claim for compensation.
A full bench of three judges, led by Judge Norman Davis, set aside the directive to the extent that in respect of foreign claimants, it requires that proof of identity must be accompanied by documentary proof that the claimant was legally in South African at the time of the accident.
This includes that they are required to provide copies of their passports with an entry into the country stamp and proof of an approved visa, before they are allowed to lodge a claim.
Another requirement which was struck down, is that copies of the passports of foreign claimants may only be certified by the police before it would be accepted by the RAF.
Judge Davis said the court can 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 it to conclude that illegal foreigners should be excluded from claiming following a road accident.
Up to 2022 RAF compensation was available to any person injured in a road accident in South Africa, regardless of their immigration status.
In the application, brought by a group of foreign nationals who were injured in road accidents but were precluded from claiming due to the directives, argued that in terms of the law, the RAF has to provide 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.
They said that 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 22, 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.
In the opening to the judgment, Judge Davis noted that according to the Road Traffic Management Corporation, 12 436 people had died in 2022 when this application was lodged, and thousands more were injured in road accidents in South Africa.
“These accidents don't discriminate in respect of the victims thereof between race, gender, age or between illegal foreigners and citizens of this country,” the judge said.
The RAF maintained that the directive issued in 2022 was valid and its CEO, Collins Letsoalo, denied that it discriminated against any person. He said the directive and claim form was simply to ensure that illegal foreigners did not benefit from the RAF scheme, which was implemented for the benefit of South Africans and those legally in the country.
But Judge Davis said the court can find nothing in the Act which can be interpreted as to exclude foreign nationals from claiming.
“Neither the (transport) 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. To do so would be beyond their powers,” Judge Davis said.
He concluded that the impugned decisions therefore fall foul of section 6(2)(a)(i) of the Promotion of Administrative Justice Act 3 of 2000 and they are to be reviewed and set aside to the extent necessary.
Pretoria News