The Supreme Court of Appeal (SCA) has clarified that the statutory obligation of the Road Accident Fund (RAF) to compensate “any person” extends to all road users, including foreign nationals unlawfully present in South Africa, and that attempts to exclude such claimants through administrative measures are unlawful.
The judgment, handed down on 16 April, dismissed two appeals by the RAF arising from challenges to measures that required foreign claimants to prove they were lawfully in South Africa at the time of a motor vehicle accident.
The SCA dealt with two distinct but related issues:
- whether section 17(1) of the Road Accident Fund Act excludes illegal foreigners from claiming compensation; and
- whether the RAF could suspend court orders and warrants of execution obtained by foreign claimants pending the outcome of that interpretation dispute.
From directive to litigation
On 21 June 2022, the RAF issued a directive requiring foreign claimants to provide proof that they were legally in South Africa when the accident occurred. In July 2022, the then Minister of Transport, Fikile Mbalula, published an amended RAF 1 claim form incorporating the same requirement.
Foreign nationals injured in motor vehicle accidents challenged these measures in the High Court in Pretoria, arguing that they unlawfully excluded a category of claimants from a statutory compensation scheme.
The High Court set aside the measures. The RAF appealed.
Separately, the RAF refused to honour certain settlements and court orders in favour of foreign claimants and sought to stay execution. That application was also dismissed, giving rise to the second appeal.
The statutory question: who is ‘any person’?
The SCA approached the first appeal as a question of statutory interpretation.
It held that section 17(1) of the RAF Act obliges the RAF to compensate “any person” for loss or damage arising from bodily injury or death caused by the driving of a motor vehicle.
Emphasising the breadth of the language, and citing the Constitutional Court in Road Traffic Management Corporation v Waymark, the SCA stated that: “‘Any’ is upon the face of it, a word of wide and unqualified generality. It may be restricted by the subject matter or the context, but prima facie it is unlimited.”
On this basis, the Court held that, on its plain language, section 17(1) cannot be construed as excluding illegal foreigners.
No express exclusion
The SCA did not treat the issue as purely textual. It interpreted the provision in light of the Constitution and the purpose of the Act.
It held: “Sections 9(1) and 12(1) of the Constitution, and section 17(1) of the Act itself, draw no distinction between any persons, let alone between South African citizens and illegal foreigners. Consequently, the Act covers all road users. Had the legislature intended that a category of claimants should be excluded from claiming compensation under the Act, it could, and would, have said so.”
The absence of an exclusion was read together with the purpose of the Act. In this regard, the SCA cited the Constitutional Court in Mvumvu and Others v Minister for Transport and Another: “The Act constitutes social security legislation whose primary object has been described as ‘to give the greatest possible protection … to persons who have suffered loss through a negligent or unlawful act on the part of the driver or owner of a motor vehicle’.”
Immigration Act argument and fraud concerns rejected
The RAF argued that allowing claims by illegal foreigners would conflict with the Immigration Act.
The SCA rejected this argument, holding that the Immigration Act does not override entitlements created by other legislation and does not prevent the RAF from processing claims.
The RAF also justified the directive on the basis that it was necessary to prevent fraudulent claims, including claims arising from accidents outside South Africa.
The Court found no evidential basis for this assertion and pointed to existing safeguards in the claims process:
“Paragraph 3 of the claim form requires a claimant to provide details of the date, time and place of the accident, and the name and address of the police station to which the accident was reported. That report contains details of persons killed or injured. Given this information, which is compulsory, it is inconceivable that the Fund has no way of knowing whether a foreign national sustained injury in an accident in this country. And there is simply no evidence of any fraudulent claims by illegal foreigners.”
Directive and claim form: unlawful limitation of the Act
Having determined that section 17(1) includes illegal foreigners, the SCA found that the directive and amended claim form impermissibly sought to narrow the scope of the Act.
It held: “The Minister has no power to exclude any category of claimants from the social benefit scheme created by the Act.”
The SCA further found that prohibiting such claims “has nothing to do with the Fund’s power to determine the terms and conditions on which claims for compensation shall be administered; nor the investigation and settling of claims. For these reasons, the impugned decisions are arbitrary.”
It concluded that the exclusion of illegal foreigners in terms of the impugned decisions violated the principle of legality.
Second appeal: no basis to suspend court orders
The second appeal concerned whether the RAF could suspend the execution of court orders and settlements in favour of foreign claimants.
That case depended entirely on the RAF’s interpretation of section 17(1). Once that interpretation was rejected, the application could not stand. The SCA held that the RAF had failed to establish grounds for a stay of execution, which requires “real or substantial justice”.
Settlements, retrospectivity, and outcome
The SCA further held that the directive and amended claim form do not operate retrospectively and therefore do not affect claims lodged or settled before their introduction.
In relation to claims already resolved, the Court reaffirmed the binding nature of settlement agreements and court orders.
Both appeals were dismissed with costs, including the costs of two counsel.
The judgment confirms that the RAF Act’s reference to “any person” applies without limitation based on immigration status, and that administrative measures cannot be used to alter the scope of statutory entitlements.
