Can Foreigners Claim RAF Compensation in South Africa?

South African courts have set aside attempts by the Minister of Transport and Road Accident Fund to exclude undocumented and illegal foreign nationals from qualifying for compensation for road accident injuries in South Africa.

Precedent-setting rulings have made it clear that no-one within South Africa’s borders may be legally excluded from the provisions in the Road Accident Fund Act 56 of 1996, regardless of nationality or immigration status.

RAF compensation for foreigners: general principle

Up to 2022, RAF compensation was available to any person injured in a road accident in South Africa. This was regardless of immigration status.

This principle is stated clearly by the National Government. It says, “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.”

It also states, “The client base of the RAF comprises not only the South African public, but all foreigners within the borders of the country.”

RAF direction excluding illegal foreigners in 2022

However, in June 2022, the RAF published a new directive stating that a RAF claim by a foreigner would be rejected if the claimant couldn’t show documentary proof that he or she was legally in South Africa on the date of the relevant collision.

In July 2022, the RAF introduced a new claim form (the RAF 1 form) specifically requiring claimants to furnish proof of their legal status in South Africa – through a passport stamp – at the time of the accident.

The directive 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.”

Before this new directive, the legality of their residence in South Africa did not preclude foreigners from claiming from the RAF.

How many people could be affected?

It’s difficult to say exactly how many undocumented immigrants there are in South Africa. According to Stats SA, South Africa is home to at least 3.95 million immigrants. Many of these people have papers to verify that they’re “legal”; others do not.

It’s important to acknowledge the reality that dysfunction on the part of South African Home Affairs departments exacerbates many immigrants’ efforts to obtain legal status in South Africa.

This is made worse by the significant time, costs and risks involved in crossing out of and returning over South African borders.

Court rulings overturning the RAF’s attempt to exclude foreign nationals

In the cases below, the court overturned all attempts by the RAF to exclude undocumented and illegal foreign nationals from claiming compensation after being injured in road accidents.

AM and others v Minister of Transport and Another

In March 2024, in a precedent-setting case brought by four applicants, the High Court in Pretoria found that the minister’s administrative actions effectively resulted in an amendment of a statutory provision. The court stated that this “policy decision” was unconstitutional and “beyond the powers of a minister”.

The applicants included Zimbabwean Adam Mudawo, who suffered serious facial disfigurement when the motorcycle he was driving was smashed into by a vehicle that swerved into his lane while overtaking on the other side of the road.

Mudawo came to South Africa as an asylum seeker in 2020, but his permit had lapsed. The new directive precluded him from being eligible to lodge a RAF claim.

FM vs. RAF

Also in March 2024, the Gauteng High Court found that a Zimbabwean national was entitled to claim compensation from the RAF despite the fact that his temporary asylum seeker permit had expired.

The court stated, “To exclude certain victims from claiming compensation would be contrary to the clear objective of the Act and the Constitutional principle that “Everyone is equal before the law and has the right to equal protection and benefit of the law”.”

The man, who worked as a painter, sustained a life-altering ankle injury after being hit by a bakkie as he walked on a sidewalk in Cosmo City, Randburg, in 2020.

The court awarded R960,000 for loss of earnings and an undertaking for future medical and related expenses. It postponed the determination of general damages sine die to be referred to the Health Professions Council of South Africa. The RAF was found liable for 100% of the victim’s costs.