- The Constitutional Court refuses the RAF’s leave to appeal and orders it to pay costs.
- The appeal is dismissed because it has no reasonable prospects of success.
- The Supreme Court of Appeal ruling remains binding that undocumented foreign nationals are not excluded from RAF compensation.
The Constitutional Court of South Africa has brought an end to the Road Accident Fund’s attempt to deny compensation to victims of road accidents simply because they were in South Africa without documentation.
In the case of Road Accident Fund v Mudawo and Others, the Constitutional Court refused to grant the RAF permission to appeal, finding the application had no reasonable chance of success. The court also ordered the Fund to cover the respondents’ legal costs, effectively concluding the litigation.
This decision leaves the Supreme Court of Appeal’s judgment in Road Accident Fund v Mudawo; Road Accident Fund v Lyton unchanged. That judgment confirmed that Section 17(1) of the Road Accident Fund Act applies to “any person” and that not having legal immigration status does not disqualify an otherwise eligible claimant from compensation.
RAF challenged the SCA judgment
The dispute began with a 2022 management directive from the RAF’s Chief Operations Officer, requiring foreign nationals to prove they were legally in South Africa before their claims could be processed.
The Minister of Transport later amended the RAF 1 claim form to include the same requirement. This change effectively prevented undocumented foreign nationals from making claims under the Road Accident Fund Act.
Four claimants challenged both measures, arguing that neither the RAF nor the Minister had the legal power to add a requirement that Parliament did not include in the Act.
Constitutional Court refuses leave to appeal
The Constitutional Court considered the RAF’s application before a panel including Chief Justice Mandisa Maya, Justice M Mhlantla, Acting Justice Alan Basson, Justice Steven Dambuza, Justice Mbuyiseli Mathopo, Acting Justice Nuku, Acting Justice Ngcukaitobi, and Justice Ashton Savage.
The court accepted the late filing of the respondents’ answering affidavits, finding that the delay was minimal, well explained, and did not prejudice the RAF.
The court then dismissed the RAF’s application for leave to appeal, ordering it to pay costs, after deciding there was no reasonable prospect of success.
Section 17(1) remains unchanged
The Supreme Court of Appeal held that the wording of Section 17(1) is clear and unqualified. By saying “any person”, Parliament did not distinguish between South African citizens, lawful residents, or undocumented foreign nationals when creating the right to compensation.
The SCA also found that an internal administrative directive and an amended claim form cannot limit the scope of legislation passed by Parliament.
With the Constitutional Court refusing a further appeal, this interpretation is now the definitive legal position.
Litigation comes to an end
The Constitutional Court’s order closes the RAF’s final avenue of appeal and leaves the Supreme Court of Appeal’s judgment fully intact.
Undocumented foreign nationals who qualify under Section 17(1) cannot be excluded from Road Accident Fund compensation simply because they were in South Africa unlawfully.
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