If illegal foreigners cannot be admitted as legal practitioners, as per a constitutional judgment earlier, then they are also excluded from claiming compensation from the Road Accident Fund (RAF), the latter argued in an attempt to overturn a judgment which ruled that anyone in the country can claim following an accident.
In March, three judges of the Gauteng High Court, Pretoria, put an end to a directive issued by the transport minister and the fund, which declared that foreign nationals who were illegally in the country, were barred from claiming compensation if they were in a vehicle accident here.
The RAF, however, would not relent and turned back to court for leave to appeal the judgment before the Supreme Court of Appeal.
But Judge Norman Davis this week concluded that the RAF had no prospects of success on appeal and he refused leave to appeal. He also slapped the already cash-strapped fund, who are facing many other cost orders in other cases, with the legal bill.
Three judges, led by Judge Davis, in March, set aside the directive to the extent that in respect of foreign claimants, it requires that proof of identity must be accompanied by documentary proof that the claimant was legally in South African at the time of the accident.
This includes that they are required to provide copies of their passports with an entry into the country stamp and proof of an approved visa, before they are allowed to lodge a claim.
Another requirement which was struck down, was that copies of the passports of foreign claimants may only be certified by the police before it would be accepted by the RAF.
Judge Davis said the court can 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 it to conclude that illegal foreigners should be excluded from claiming following a road accident.
In their application for leave to appeal, the RAF argued that the main issue was whether the word “any person” in the RAF Act included foreign nationals. To motivate its position, counsel for the fund referred to the Constitutional Court judgment in which it was said that the Legal Practice Act precluded foreign nationals to be enrolled as legal practitioners.
The RAF argued that similarly, it was justified in denying foreign nationals from benefiting from the RAF Act.
But Judge Davis said the provisions of the Legal Practice Act are distinguishable from the RAF Act. The Legal Practice Act provides that a high court must admit “any person who satisfies the court that he or she is a South African citizen or a permanent resident in South Africa.”
The RAF Act contains no similar qualifications when it provides that “any person” is entitled to claim damages under the RAF Act, the judge said.
He said contrary to the law placing limitations on who can practice law here, it does not place any limitations on who can claim following a vehicle accident.
Judge Davis said apart from this argument, the RAF did not take the matter any further in its bid to obtain leave to appeal.
Up to 2022, RAF compensation was available to any person injured in a road accident in South Africa, regardless of their immigration status.
In the earlier main application, brought by a group of foreign nationals who were injured in road accidents but were precluded from claiming due to the directives, it was argued that in terms of the law, the RAF has to provide 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.
They said that the client base of the RAF comprises not only the South African public, but all foreigners within the borders of the country.
In the opening to the judgment, Judge Davis noted that according to the Road Traffic Management Corporation, 12 436 people had died in 2022 when this application was lodged, and thousands more were injured in road accidents in South Africa.
“These accidents don’t discriminate in respect of the victims thereof between race, gender, age or between illegal foreigners and citizens of this country,” the judge said.
Pretoria News