Chapter 38 law of delict

Chapter 38: Road Accident Fund Act 56 of 1996

38.1 Introduction

  • The RAF Act aims to compensate road users for harm from motor vehicle accidents.

  • Established a statutory compensation fund financed by fuel levies.

  • Transfers liability from the negligent driver/owner to the Road Accident Fund.

  • Initiated as a replacement for prior compensation statutes with the same objective.

  • Retains fault as the basis for liability, contrasting with COIDA.

  • The RAFA Act (19 of 2005) amended the RAF Act to simplify claims processes.

38.2 Operation of the RAF Act

  • Liability to compensate arises if a third party suffers injury or death from negligent driving.

  • The Fund compensates instead of the negligent driver, unless insolvent.

  • Claimants can sue the Fund for limited damages (patrimonial and non-patrimonial).

  • Claims must be filed using a prescribed statutory claim form.

  • Claims are deemed valid unless challenged within 60 days.

  • Summonses cannot be served until 120 days after lodging the claim, barring written repudiation.

38.3 Scope of liability under the RAF Act

38.3.1 The Liability of the Fund

  • Section 17(1) mandates the Fund compensates for bodily injuries or death caused by negligent driving.

  • Liability is restricted to serious injuries and lump-sum payments for non-pecuniary losses.

  • Claimants may face deductions for any negligence contributing to injuries.

  • "Third party" refers to anyone eligible for claims based on injury or death.

  • The Fund excludes property damage from its liability.

38.3.2 Limitations of the Fund's liability

  • Section 17 outlines specific limitations, including caps based on prescribed assessments.

  • Non-pecuniary claims are limited to serious injuries assessed by registered medical professionals.

  • Constitutional challenges were raised on limitations, but found constitutionally valid.

  • Section 18 details deductions for victims eligible for compensation under COIDA.

38.3.3 Exclusions of the Fund's liability

  • Exclusions include scenarios where claims weren't properly filed or prosecuted.

  • Claims for secondary emotional shock are excluded; these must be filed as common law claims.

  • Revisions to the RAF Act limit compensation solely to claims against the Fund.

38.4 Damages

  • The Fund only covers bodily injury/death damages; property damage is excluded.

  • Compensable patrimonial damages include:

    • Hospital and medical expenses

    • Loss of income

    • Loss of support

    • Funeral costs

  • Non-patrimonial damages limited to compensation for serious injuries paid in lump sums.

38.5 Causation of harm, locality, 'driving' and 'motor vehicle'

  • Causation can be direct or indirect, covering a range of accident scenarios.

  • Liability can arise from accidents anywhere in South Africa, not limited to public roads.

  • A 'motor vehicle' is defined broadly, covering all vehicles designed for road travel.

38.6 Liability fault-based

  • Fund operates on a fault-based liability model, requiring proof of negligence.

  • Liability can stem from negligent actions of the driver, owner, or employee.

38.7 Delimitation of RAF claims

  • Claims not fitting within 'driving' or fault parameters give rise only to common law delictual claims.

38.8 Prescription, procedure and right of recourse

  • Claims are subject to prescription as outlined in section 23 and must follow procedural guidelines in section 24.

  • In certain instances, the Fund may recourse against negligent parties if they acted unlawfully.

38.9 The proposed RABS

  • Critiques of the RAF Act highlight it as unreasonable and unsustainable.

  • The proposed RABS aims to introduce a social security scheme for road accident victims, focused on set defined benefits without fault.

  • RABS simplifies claim procedures and aims to reduce disputes related to negligence claims.