2023 update: RAF challenged in court over claims by foreigners

20 Sep 2023

The Road Accident Fund (RAF) was set up to compensate all victims of road accidents on South African roads whether they are citizens or foreigners.

A recent directive from the RAF has excluded foreigners without valid documentation from claiming.

This directive is being challenged in the Pretoria High Court by a Zimbabwean asylum seeker who was the victim of a road traffic accident.

Latest update on the 2023 High Court challenge against the RAF

The challenge against a new directive that aims to block undocumented immigrants from claiming from the RAF has come from Zimbabwean asylum seeker Adam Mudawo.

Mudawo was riding a motorcycle when a car swerved into his lane while overtaking. The motorcycle was hit by the car and Mudawo suffered serious facial disfigurement.

He has been an asylum seeker in South Africa since 2020, but his permit has lapsed. The RAF’s new directive means he can no longer claim compensation to cover medical bills and general damages.

The directive is being challenged in the Pretoria High Court under the claim that it is unconstitutional and does not align with the Promotion of Equality and Prevention of Unfair Discrimination Act.

Mudawo has also filed a Rule 16 Notice, laying out the constitutional issues the case raises. Other interested parties are invited to join the case.

At the time of writing, the case of Adam Mudawo versus the Minister of Transport and the RAF (11795/22) is still pending.

At least one other foreigner has successfully cited this case to seek a postponement of their own RAF case, as the outcome could significantly impact the ruling.

What the law says about RAF compensation for foreigners

Before the RAF’s new directive, all victims of road accidents in South Africa were entitled to try and claim compensation from the fund, irrespective of their immigration status.

To quote the principle as laid out by the National Government, “The Road Accident Fund (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.”

In short, all road users – citizens, tourists, immigrants and refugees – are able to submit a claim if they’re injured on South African roads and the fault is not entirely their own.

More about the 2022 RAF directive to exclude undocumented foreigners

The 2022 RAF directive states that any claim by a foreigner would be rejected if he or she can’t show documentary proof that they were in South Africa legally.

It reads, “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.”

The Minister of Transport gazetted a new RAF claim form that means foreign claimants have to prove they were legally in South Africa when the road accident in question occurred.

What to do if you have a road accident claim

No matter your immigration status, if you believe you have a road accident claim, it’s important to consult an attorney as soon as possible to see if your claim is valid.

RAF claims have an expiry date. You must claim within a prescribed time period or you may lose the opportunity forever.

Find a legal firm that has extensive experience dealing with the Road Accident Fund. Its attorneys will help you navigate the lengthy and sometimes frustrating process.

Even a valid claim with supporting evidence can take months or years to complete. An experienced attorney will ensure no deadlines are missed and all the correct documents are submitted.

DSC Attorneys is a Cape Town-based legal firm that specialises in personal injury claims, including Road Accident Fund claims. Contact the firm for expert legal advice and representation.

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(This article is provided for informational purposes only and not for the purpose of providing legal advice. For more information on the topic, please contact the author/s or the relevant provider.)
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