The Road Accident Fund

Do you remember when you got your driver's license? At 18 (for most of us), getting our license was a big deal. It represented freedom, adulthood and being able to drive on a road to nowhere just to clear your thoughts.

In Hollywood, driving has always been represented as this ticket to adventures galore, whether you’re on a joy ride by yourself, with your mates, partner or even pets – with their heads out the window and tongues flapping in the wind.

Positive things. Happy things. Things to strive for. Places to visit. Memories to make.

And for the most part, that is the case – whether it’s getting from A to B or A to Z with all the stops in-between, driving has its purpose in the world. One we often take for granted. One we forget comes with strings attached.

Because driving is – of course – a responsibility, thwart with danger and something (joy rides aside) that needs to be taken seriously. Hundreds of people are killed on the South African roads every year. In fact, according to Automobile Association (AA) –

“Released at the end of May, the Road Traffic Management Corporation’s (RTMC) State of Road Safety in South Africa (January 2022 to December 2022) notes that 12436 people died on South African roads last year. Of these fatalities, 5347 (or 43%) were pedestrians. Last year’s road fatality rate is marginally lower than the 12541 deaths recorded in 2021”.

Those are staggering numbers.

And with those numbers in mind, the natural follow through is concern over what happens if you’re in an accident? Who helps you? Who protects you? Who sees that justice is done?

Personal injury legal practices aside, the Road Accident Fund has always been the body that provides a modicum of support.

What is the Road Accident Fund?

The Road Accident Fund is a public juristic entity that was setup to compensate individuals (whether drivers or pedestrians) who have been injured (seriously or otherwise) in motor vehicle accidents.

It was established by an Act of Parliament, namely, the Road Accident Fund Act 56 of 1996 as amended by the Road Accident Fund Amendment Act 19 of 2005 (the “RAF Act”) to provide appropriate cover

“to all road users within the borders of South Africa; rehabilitating and compensating persons injured as a result of motor vehicles in a timely and caring manner; and actively promoting the safe use of all South African roads. The client base of the RAF, therefore, comprises not only the South African public, but all foreigners within the borders of the country”. (Road Accident Fund).

According to Section 3 of the RAF Act, the object of the fund shall be –

“the payment of compensation in accordance with this Act for loss or damage wrongfully caused by the driving of motor vehicles”.

Who funds the Road Accident Fund (RAF)?

According to the RAF website, “Contributions to the RAF are done by way of a levy on fuel used for road transportation”.

Section 5 of the RAF Act sets out as follows –

“The Fund shall procure the funds it requires to perform its functions- (a) by way of a fuel levy in respect of all fuel sold within the Republic;”

This fuel levy according to the AA is as follows –

“The costs are calculated using May fuel price data which incorporates the two main taxes paid on every litre of fuel namely the General Fuel Levy (GFL) and the Road Accident Fund (RAF) levy. Increases to these levies are usually announced in February during the Finance Minister’s annual Budget speech and come into effect in April. In 2023, no increases to these levies were affected, but they remain significant contributors to the overall prices of fuel.

In May 2023, the total cost of the two main levies stands at R6.14 (R3,96 for the GFL and R2.18 for the RAF levy), which is levied on every litre of petrol sold in the country. The GFL is lower for diesel at R3.82 while the RAF levy remains the same”.

Essentially every single person who puts fuel in their vehicles makes contributions to the RAF. And if you think about it R2.18 for every litre of petrol, put into a vehicle by each person that puts in fuel tallies up to a hefty sum at the end of the day. In fact, and according to the Law Society of Southern Africa (the “LSSA”) –

“The Fund receives more than R45 billion per year via the fuel levy”.

Who may claim from the fund?

From the above it would seem that both driver and pedestrian involved in a motor vehicle collision would be able to claim from the RAF.

According to the RAF website, the following are able to claim from the fund –

·      “A person who sustained a bodily injury in the accident (except a driver who was the sole cause of the accident);

·      A dependent of a deceased breadwinner;

·      A close relative of the deceased who paid for​ the funeral; and

·      A claimant under the age of 18 years must be assisted by a parent, legal guardian or curator ad litem”.

When must a claim be submitted?

The time period to submit a claim is set out by the RAF website as follows –

·      “Identified claims (claims where the identity of the driver or owner of the guilty motor vehicle is known) must be lodged with the Fund within 3 years from the date of the accident and must be finalised within 5 years from the date of accident.

·      Hit and Run claims (claims where the identity of the driver or owner of the guilty motor vehicle is unknown) must be lodged with the Fund within 2 years from the date of the accident and must be finalised within 5 years from the date of accident.

·      Claims in terms of an undertaking certificate issued in terms of section 17(4)(a)(ii) of the Act must be lodged and finalised within 5 years from the date on which services were rendered to the injured”.

What can be claimed from the fund?

The liability of the fund is set out in Section 17 of the RAF Act (as amended) as follows –

“17. (1) The Fund or an agent shall- (a) subject to this Act, in the case of a claim for compensation under this section arising from the driving of a motor vehicle where the identity 45 of the owner or the driver thereof has been established; (b) subject to any regulation made under section 26, in the case of a claim for compensation under this section arising from the driving of a motor vehicle where the identity of neither the owner nor the driver thereof has been established, be obliged 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, if the injury or death is due to the negligence or other wrongful act of the driver or of the owner of the motor vehicle or of his or her employee in the performance of the employee’s duties as referred to in subsection (4)(c) quarterly, in order to counter the effect of inflation.  Provided that the obligation of the Fund to compensate a third party for non-pecuniary loss shall be limited to compensation for a serious injury as contemplated in subsection (1A) and shall be paid by way of a lump sum. (1A) (a) Assessment of a serious injury shall be based on a prescribed method adopted after consultation with medical service providers and shall be reasonable in ensuring that injuries are assessed in relation to the circumstances of the third party. (b) The assessment shall be carried out by a medical practitioner registered as such under the Health Professions Act, 1974 (Act No. 56 of [(2) Upon acceptance of the amount offered as compensation in terms of subsection (1) the third party shall be entitled to the agreed party and party costs or taxed party and party costs in respect of the claim concerned.] (3) (a) No interest calculated on the amount of any compensation which a court awards to any third party by virtue of the provisions of subsection (1) shall be payable unless 14 days have elapsed from the date of the court’s relevant order. (4) Where a claim for compensation under subsection (1)- includes a claim for the- costs of the future accommodation of any person in a hospital or nursing home or treatment of or rendering of a service or supplying of goods to him or her, the Fund oran agent shall be entitled, after furnishing the third party concerned with an undertaking to that effect or a competent court has directed the Fund or the agent to furnish such undertaking, to compensate the third party in respect of the said costs after the costs have been incurred and on proof thereof: or -, -(ii) the provider of such service or treatment directly, notwithstanding section 19(c) or (d), in accordance with the tariff contemplated in subsection(4B); includes a claim for future loss of income or support, [ the Fund or the agent shall be paid by way of a lump sum or in instalments as agreed upon; includes a claim for loss of income or support, the annual loss, irrespective of the actual loss, shall be proportionately calculated to an amount not exceeding- (i) R160 OOO per year in the case of a claim for loss of income; and(ii) R160 000 per year, in respect of each deceased breadwinner, in the case of a claim for loss of support. Any place within the Republic, if the injury or death is due to the negligence or other wrongful act of the driver or of the owner of the motor vehicle or of his or her employee in the performance of the employee’s duties as referred to in subsection (4)(c) quarterly, in order to counter the effect of inflation.

These claims essentially amount to the following (as succinctly set out by Legalwise) -

“A person that suffers bodily injury or death may claim damages for:

 
• past and future income and earning capacity;
 
• past and future traveling expenses to get medical treatment;
 
• medical and hospital costs;
 
• the cost of employing an assistant and/or a nurse as a result of an injury; and
 
• general damages, for example, an amount for pain, suffering, inconvenience, disfigurement and loss of amenities of life.

Examples of damage that can be claimed as a result of death are:

 
• loss of earnings and support;      and
 
• funeral costs”.

But these claims are limited by Section 18 of the RAF Act which at a) states that “the liability of the Fund or such agent, in respect of the bodily injury to or death of any one such employee, shall be limited in total to the amount representing the difference between the amount which that third party could, but for this paragraph, have claimed from the Fund or such agent or the amount of R25 000 (whichever is the lesser)] and any lesser amount to which that third party is entitled by way of compensation under the said Act;”

And that’s the RAF – in a nutshell – for you.

However, on 8 September 2023 the Department of Transport published a draft Road Accident Fund Amendment Bill 2023 for public comment and it has created quite a stir. Should this Bill be passed, it could pose severe consequences. According to the LSSA–

“If the draft Bill becomes law the rights of all drivers, passengers, and pedestrians to claim compensation for injuries they suffer in a motor vehicle accident will be taken away. In its place will be significantly reduced “social benefits”.

We will be looking at this Bill in our next article. Lookout for it!

(Sources used and to whom we owe thanks: Moonstone; Road Accident Fund; LSSA; GroundUp; Legalwise and the South African Government).  

In the meantime, if you have any questions on the information we have set out above or have a personal issue which you want to discuss with us, please don’t hesitate to contact us at NVDB Attorneys.

We are a law firm that considers honesty to be core to our business. We are a law firm that will provide you with clear advice and smart strategies - always keeping your best interests at heart!