The High Court in Pretoria has dismissed with costs an application by the Road Accident Fund (RAF) for leave to appeal a judgment that declared invalid regulation and directive excluding illegal foreigners from claiming against the RAF.
Judge Norman Davis, along with acting judges BF Mnyovu and A Kok, concurred in the decision handed down on Tuesday.
The dispute originated in June and July 2022, when the Minister of Transport and the RAF sought to implement measures that would exclude illegal foreigners from the Road Accident Fund Act’s provisions through a new RAF 1 claim form.
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This led to a review by the High Court in Pretoria on 26, 2024, which set aside these exclusionary measures. Subsequently, the RAF lodged an application for leave to appeal this judgment to the Supreme Court of Appeal (SCA).
Judge Davis stated that none of the requirements for granting leave to appeal had been satisfied. He further mentioned, “Having reached this conclusion, we also find no reason why costs should not follow this event.”
The court found that the term “any person” in the RAF Act includes individuals present in South Africa, contrary to the Immigration Act at the time of their motor vehicle accident.
To bolster their position, Advocate Kennedy Tsatsawane SC for the RAF referred to the Constitutional Court judgment in Chakanyuka and others v Minister of Justice and Correctional Services.
In these consolidated cases, the Constitutional Court declined to confirm a finding that a section of the Legal Practice Act was unconstitutional and invalid to the extent that it does not allow foreigners to be admitted and authorized to be enrolled as legal practitioners.
“He said the RAF argued that, similarly, it was justified in denying illegal foreigners access to the benefits of the RAF Act.”
However, Davis said the statutory provisions of the Legal Practice Act are distinguishable from the provision under consideration in the RAF Act.
Section 24(2)(b) of the Legal Practice Act expressly provides that a high court must admit “any person who … satisfies the court that he or she is a (i) South African citizen or (ii) permanent resident in the Republic”.
He said the RAF Act contains no similar qualifications when it provides that “any person” is entitled to claim damages in terms of the scheme of the RAF Act.
“Contrary to the limitations imposed by the legislature in the Legal Practice Act on applicants who wish to practice law in this country, the legislature imposed no such limitations on claimants who suffered damages due to motor vehicle accidents which occurred in the country,” he said.
“The decision in Chakanyuka is therefore not only against the RAF, but supports the finding of this court that, absent any limitation in the RAF Act itself, the words “any person” must be interpreted to be inclusive and without any qualification or limitation.”
Davis added that apart from this argument, the RAF’s application for leave to appeal takes the matter no further. He said the RAF’s notice of application “consists of three paragraphs only”.
Davis said the first paragraph consists of a proverbial “one-liner”, which simply and without foundation proclaims that “there is a reasonable prospect of success”.
He said the second paragraph simply lists the elements of this court’s findings while simultaneously alleging the court had erred in respect of these findings.
“No grounds have been set out substantiating these allegations or criticisms.”
Davis added that in two paragraphs of the RAF’s application, the fund repeated the argument that Section 4 of the RAF Act granted the Minister of Transport and the RAF “the power to prescribe the manner in which the RAF deals with claims [and] empowers them to exclude illegal foreigners from the operation of the RAF Act by requiring proof of the legality of their foreigner status before entertaining their claims”.
“The argument that the Minister [of Transport] or the RAF may, by the use of subordinate regulation, change or amend the ambit of a statute itself, needs only to be stated to show its fallacy.
“It is trite that this cannot be done,” he said.
Judge Davis said in another two paragraphs in the RAF’s notice, that the argument is again advanced that because the Immigration Act prescribes who may legally enter the country, the persons referred to in the RAF Act must be interpreted to only refer to such persons.
“Again, the RAF Act does not provide for such limitation and there is, in the absence of qualifications, no indication that the wide provisions of the RAF Act should be restricted to a narrower interpretation than the actual words used.
“In contrast to the RAF’s argument, the fact that the Supreme Court of Appeal has held that the provisions of the RAF Act must be interpreted ‘as extensively as possible in favour of claimants’ has in fact been conceded by the RAF in para 2.15 of its notice of application for leave to appeal.”
Davis said in paragraph 2.16 and its sub-paragraphs in the fund’s notice, “this court is criticised for having mentioned in its judgment that the RAF Act has always been interpreted as conferring benefits on illegal foreigners”.
“Again, the RAF Act does not provide for such limitation and there is, in the absence of qualifications, no indication that the wide provisions of the RAF Act should be restricted to a narrower interpretation than the actual words used.
“In contrast to the RAF’s argument, the fact that the Supreme Court of Appeal has held that the provisions of the RAF Act must be interpreted ‘as extensively as possible in favour of claimants’ has in fact been conceded by the RAF in para 2.15 of its notice of application for leave to appeal.”
Davis said in paragraph 2.16 and its sub-paragraphs in the fund’s notice, “this court is criticised for having mentioned in its judgment that the RAF Act has always been interpreted as conferring benefits on illegal foreigners”.
He said the basis of the criticism was that this was not an issue raised in the papers.
However, Davis said the respondents – Adam Mudawo, Wenile Simon Ndlovu, Bruce Mthokozi Sibanda and Oyetunde Oneniyi Areo, all of whom are foreign nationals – pointed out that this criticism was not justified as Ndlovu in his founding affidavit in the main application expressly stated that the exclusion of claims by illegal foreigners has “never” existed before.
He said the point was expressly made by the fund that the new requirements constituted “novel barriers”.
“Based on the above, we find that there are no reasonable prospects of success on appeal. The RAF has therefore not satisfied the requirements of section of the Superior Courts Act.”
Judge Davis added that in an attempt to satisfy the requirements of Section 17(1)(a)(ii) of the Superior Courts Act, the fund simply in the concluding paragraph of its notice of application for leave to appeal avers “that the matter is of significant public importance and interest and that therefore leave to appeal should be granted”.
“It is trite that the absence of a reasonable prospect of success is a relevant factor in considering whether, despite this absence, another ‘compelling reasons’ exist justifying the granting of leave to appeal.
“One can readily conceive a situation where a notionally large (but unknown) number of persons who has previously been able to claim damages from the RAF, had that right curtailed by an order of court, could argue that such termination constituted a ‘compelling reasons’ to consider the granting of leave to appeal.
“But here the position is the opposite,” he said.
“The order of this court effectively maintained the status quo of claimants whose claims have consistently been recognised by the RAF.
“The RAF has not even described what ‘compelling reasons’ would be in its favour which would justify the granting of leave to appeal in these circumstances.”
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