The Supreme Court of Appeal (SCA) has ruled that the Road Accident Fund (RAF) cannot refuse to pay compensation to people even if they are in South Africa illegally.
The SCA on Thursday dismissed two appeals by the RAF concerning section 17(1) of the RAF Act, more specifically, whether “any person” entitled to claim compensation for loss or damage, as contemplated in that provision, excluded illegal foreigners.
In the first appeal, a full bench of the Pretoria high court held that the section did not exclude illegal foreigners.
The second appeal is against an order by the Pretoria high court, which dismissed an application by the fund to interdict a number of claimants from proceeding with a warrant of execution against the fund’s assets, pending a decision by the SCA on the first appeal.
The respondents in both appeals are foreign nationals who were involved in motor vehicle accidents in which they sustained multiple injuries.
They claimed compensation from the fund in terms of the act, for the losses and damages they suffered because of their injuries.
On June 21 2022, the RAF’s COO issued a management directive which required that “in instances where the claimant or injured 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.”
In July 2022, the transport minister published a new RAF claim form in the Government Gazette that required proof of legal status to process claims.
In August 2022, the claimants in the first appeal launched an application in the high court to review and set aside the decisions by the RAF and the minister.
The review grounds were that the decisions violated the principle of legality, infringed their rights to equality, human dignity, freedom and security of the person, healthcare, just administrative action and access to courts.
The fund opposed the review application. The answering affidavit by its CEO stated that the purpose of the challenged decisions was not to deny qualifying legal foreign claimants access to the social benefit scheme in the act.
The CEO contended that the social benefit scheme in the act was neither designed nor intended “to benefit people who are in South Africa illegally”.
Thus, on its plain language, section 17(1) cannot be construed as excluding illegal foreigners.
— Judge of appeal Ashton Schippers in a unanimous judgment
The full court reviewed and set aside the challenged decisions, with costs. It found that there was nothing in the act or the compensation scheme administered by the fund to justify the conclusion that the words “any person” excluded illegal foreigners.
On appeal, the RAF said the phrase “any person” did not include illegal foreigners. It said the section should be interpreted with due regard to the provisions of the Immigration Act, which prohibited foreign nationals from entering and being in South Africa illegally.
The RAF argued that section 25 of the Immigration Act drew a distinction between illegal foreigners and permanent residents. It provided that permanent residents have all the rights, privileges and benefits granted to citizens.
The fund said section 44 of the Immigration Act stated that organs of state must ascertain the status or citizenship of persons receiving their services and report illegal foreigners; and section 49(4) made it an offence to intentionally facilitate public services to illegal foreigners.
The claimants contended that the RAF Act must be interpreted to give the greatest possible protection to third parties; that the phrase “any person” included illegal foreigners.
In its judgment, the SCA said it was a settled principle that statutory interpretation was a unitary exercise, considering the text, context and purpose of a provision to render a sensible interpretation.
“Unlike other legislation which specifically excludes foreign nationals from its ambit, such as the Social Assistance Act 13 of 2004 which limits beneficiaries to South African citizens, permanent residents and refugees, the act contains no such limitation,” said judge of appeal Ashton Schippers in a unanimous judgment of the full bench on Thursday.
He said section 17(1), on its plain wording, stated that the fund was obliged to compensate “any person” for any loss or damage suffered as a result of bodily injury to themselves, or the death of or bodily injury to another person, caused by or arising from the driving of a motor vehicle.
“Thus, on its plain language, section 17(1) cannot be construed as excluding illegal foreigners.”
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