Can illegal foreigners claim from the RAF after a car accident

22 November 2022 542
“Can foreigners who travel in South Africa and are involved in a motor vehicle collision claim from the Road Accident Fund if they cannot show that they are legally in the country?”

During June 2022, the Road Accident Fund (“RAF”) published a new directive in terms of which a claim by a foreigner for compensation following a motor vehicle collision will be rejected if they cannot prove that they were legally in the country. The newly gazetted RAF 1 Form expressly requires that foreigners prove that they were legally in South Africa at the time that the collision occurred.

Before this, foreign claimants were allowed to claim compensation from the RAF regardless of the legality of their residence in South Africa. Now, a foreigner can only claim if they can provide proof that they are legally in the country. 

These new provisions will receive the attention of the Pretoria High Court in the matter of Mudawo v Road Accident Fund where the new RAF 1 Form and directive published by the Fund are being challenged on the basis that it violates the rights of a foreign claimant to equality in terms of the Constitution of the Republic of South Africa and in terms of the Promotion of Equality and Prevention of Unfair Discrimination Act. The claimant also argues that the Road Accident Fund Act (“the Act”) provides that all persons could claim from the Fund and that no distinction is made between South Africans and foreigners and that citizenship or residency is not a pre-requisite to an entitlement to claim compensation from the Fund. 

Prior to the new provisions, the Pretoria High Court previously in the case of Rumbidzai v Road Accident Fund found that the spouse of a deceased foreigner was entitled to claim from the RAF even though the deceased foreigner was employed without a work permit in South Africa. 

Accordingly, the outcome of the Mudawo-case will be very relevant in determining whether the new directive of the RAF will pass constitutional muster or be found to violate the rights of foreigners.

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