The high court in Pretoria has found the minister of transport and the Road Accident Fund (RAF) overreached their powers by issuing a directive that excludes illegal foreigners involved in accidents from accessing the fund’s benefits.
That puts in legal doubt proposed amendments to the RAF Act.
A full bench of the court set aside the directive, arguing the minister and RAF could not unilaterally interfere with the act outside the parameters of the legislature.
“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 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 sections 17 of the act,” the judgment read.
“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. To do so would be beyond their powers.”
The provisions of the management directive that have been set aside include those requiring foreign claimants to prove that they were in the country legally when the accident happened, and provide copies of their passports with an entry stamp.
The fund’s CEO, Collins Letsoalo, told the court that both the RAF and the management directive sought to exclude illegal foreign nationals from accessing the fund’s benefits.
“These two instruments only require foreign claimants to produce proof that they were lawfully in the republic when their claims arose,” Letsoalo stated in his affidavit.
“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 SA citizens, permanent residents and those who are lawfully in the republic,” he said.
The RAF’s central argument was that allowing illegal foreign nationals to claim from the RAF in terms of the act would offend “against the provisions prohibiting the aiding and abetting” of an illegal foreigner to contravene either the Immigration Act or the Refugees Act.
The court found this argument to be lacking in substance.
“The RAF is obliged to compensate victims of motor vehicle accidents as provided for in section 17 of the act and the discharge of such obligations cannot be interpreted to constitute ‘aiding’ and ‘abetting’. The proposition that it would do so needs only to be stated to illustrate its absurdity,” the judgment reads.
“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.”
The matter was brought to court by four foreign nationals whose claims were rejected due to their legal status in the country.
The rights enjoyed by illegal foreign nationals are likely to make their way back to the courts as they are covered by one of the proposed changes brought forward by the fund in the draft RAF Amendment Bill published in September for public comments.
The bill proposes the banning of compensation for any person who is not a SA citizen or a permanent resident and that all future medical claims must be pre-authorised by the RAF or they will not be paid.
RAF spokesperson McIntosh Polela said the fund would appeal against the decision of the high court.
“It is our duty to adhere to all directives of the Immigration Act. Section 42 of the Immigration Act requires anybody dealing with an immigrant to determine the status of such person in the country and report to home affairs,” Polela said.
“Further, anyone who pays money to an illegal immigrant is aiding and abetting illegality. The amendment of the RAF Act is a separate process that is subject to parliamentary approval.”
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