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Attempts to exclude illegal foreigners from submitting road accident claims invalid

Source: Moneyweb, 02/04/2024

Four foreign nationals succeed in case against Department of Transport regulation and Road Accident Fund management directive.

The minister and the fund exercised powers they don’t have, making it unnecessary for judges to deal with the ‘constitutionality arguments’ related to the case. Image: AdobeStock
A Department of Transport regulation and Road Accident Fund (RAF) management directive that attempted to exclude foreigners who are illegally in South Africa from submitting claims against the RAF has been declared invalid by the High Court in Pretoria.
Judge Norman Davis, with acting judges BF Mnyovu and A Kok concurring, reviewed and set aside the provisions of the substituted RAF 1 claim form issued by former minister of transport Fikile Mbalula in terms of the RAF Act and prescribed by a notice published in the Government Gazette on 4 July 2022.
The order specifically applied to two parts of the form �` those dealing with substantial compliance injury (Part 6.1) and death (Part 12.1) claims �` which required that if a claimant is a foreigner, proof of identity must be accompanied by documentary proof that the claimant was legally in South Africa at the time of the accident.
The provisions of the RAF management directive dated 21 June 2022, titled Critical Validations to Confirm the Identity of South African Citizens and Claims Lodged by Foreigners, was reviewed and set aside to the extent that:
• It requires that proof of identity of foreign claimants must be accompanied by documentary proof the claimant was legally in South Africa at the time of the accident;
• Foreign claimants are required to provide copies of their passports with an entry stamp, and where they have left South Africa, the passport must have an exit stamp, and should they still be in the country, that proof of an approved visa must be submitted before the RAF is prepared to register the claims of such claimants; and
• Foreign claimants are required to provide copies of their passports, which may only be certified by the South African Police Service.
Mbalula withdrew his initial notice of intention to oppose the application and delivered a notice to abide by the decision of the court.
The application was brought by Adam Mudawo, Wenile Simon Ndlovu, Bruce Mthokozi Sibanda and Oyetunde Oneniyi Areo. All of them are foreign nationals.
They applied to review and set aside the requirements of the published new RAF 1 form pertaining to foreigners and the management directive on the basis that these new requirements are unconstitutional and ultra vires (unlawful).
Three claims blocked
Mudawo
Mudawo was issued an asylum seeker permit in terms of the Refugees Act on 20 August 2020, which entitles him to work and study in South Africa.
He sustained severe injuries in a motor vehicle accident on 26 January 2022 when an oncoming overtaking vehicle collided head-on with the scooter he was driving.
Muawo’s asylum seeker permit lapsed on 20 February 2021 and he cannot satisfy the requirements of the new RAF 1 form, nor would the RAF entertain any claim by him in terms of the act because he now has no valid passport stamped to affirm his entry into South Africa nor a valid asylum seeker permit.
Ndlovu
Ndlovu sustained injuries when he was run over by a motor vehicle on 23 November 2021.
He lodged a claim with the RAF on 15 June 2022, which was before the RAF’s management directive was issued and the minister’s new regulation was published.
The RAF assigned a reference number to Ndlovu’s claim but now refuses to register his claim because he is a foreign national without a passport stamped with his entry into South Africa.
Sibanda
Sibanda was a pedestrian when he was injured in a motor vehicle accident on 8 September 2021.
A claim was lodged with the RAF on 30 August 2023 and assigned a reference number but the RAF refuses to register his claim because he is a foreign national in possession of a valid passport but with no stamped proof of entry into South Africa or a valid visa.
And one judgment ignored
Areo sustained injuries in a motor vehicle accident in South Africa on 15 March 2020 and obtained a judgment in the High Court in Pretoria on 24 July 2023 against the RAF for the payment of R2.6 million in compensation for the injuries and loss of earnings suffered by him.
No rescission application is pending against this judgment but the RAF has to date failed or refused to pay it.
Areo claimed his matter pre-dates the management directive and the publication of the regulations, and that payment is being held back by the RAF because he is a foreign national with only a passport and no visa.
Fund obligations
Judge Davis said the RAF has an obligation in terms of the RAF Act to “compensate any person (the third party) for any loss or damage which the third party has suffered as a result of any bodily injury to himself or herself or the death of or any bodily injury to any other person, caused by or arising from the driving of a motor vehicle by any person at any place within the Republic …”.
He said until recently “any person” was treated and interpreted by the RAF to include illegal foreigners injured or killed in road accidents that occurred in South Africa.
Davis said RAF CEO Collins Letsoalo contended in papers before the court that the minister of transport took a policy decision in July 2022 to exclude illegal foreigners from the benefit of claiming damages from the RAF.
He said the minister sought to achieve this by publishing the new RAF 1 form, which among other things, deals with new requirements of nationality and legal entry into South Africa.
Judge Davis said the publication of the regulation followed the management directive issued by the RAF.
He said the new RAF 1 form, and the strict requirement of full compliance with it, and the management directive have been described by the RAF CEO to be constitutionally valid on the following basis:
“The management directive and the RAF 1 form do not discriminate against any person on any of the prohibited grounds. These two instruments only require foreign claimants to produce proof that they were lawfully in the Republic when their claims arose. This is clearly intended to ensure that illegal foreigners do not benefit from the social benefit scheme administered by the Fund which was designed and is implemented for the benefit of South African citizens, permanent residents and those who are lawfully in the Republic.”
Findings
Judge Davis said they 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 them to conclude that the words “any person” in the RAF Act should be restrictively interpreted so as to exclude illegal foreigners.
“We find that the administrative actions of the RAF in prescribing the management directive of 21 June 2022 and that of the Minister in publishing the new RAF 1 form on 4 July 2022, insofar as those actions in the way they have been formulated and are to be enforced to exclude claims by illegal foreigners, offend against the provisions of section 17 of the [RAF] Act.
“Neither the 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,” he said.
“To do so would be beyond their powers.”
Judge Davis said these decisions therefore fall foul of the Promotion of Administrative Justice Act and are to be reviewed and set aside to the extent necessary.
“Having reached the above conclusions, we find it unnecessary to deal with the Constitutionality arguments relating to the attempted exclusion of illegal foreigners as claimants against the RAF,” he said.
The Minister of Transport and RAF were ordered to pay the applicants’ costs.

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