Undocumented foreign nationals are entitled to claim compensation from the Road Accident Fund (RAF), the Supreme Court of Appeal (SCA) has ruled, striking down a controversial attempt by the fund and the transport minister to restrict payouts to people who can prove they are in South Africa legally.
Undocumented foreign nationals are entitled to lodge claims at the Road Accident Fund, the Supreme Court of Appeal has ruled.
The Supreme Court of Appeal has ruled that undocumented foreigners can claim from the RAF.
The appeal court found that the RAF Act does not exclude said foreigners from receiving compensation.
It also said the RAF and the transport minister did not have the power to exclude claimants and that there was no evidence of undocumented foreigners having submitted fraudulent claims.
The judgment means that the RAF must process and pay qualifying claims from undocumented foreigners injured in road accidents in South Africa, and cannot insist on proof of lawful entry – such as visa stamps – as a condition for compensation.
How the dispute started
In 2022, the RAF introduced a requirement that claimants provide proof of legal entry into the country. Then-transport minister Fikile Mbalula published the change in the Government Gazette, tying it to a new, stricter RAF 1 claim form.
In 2022, the fund introduced a rule that claimants must show evidence of legal entry into South Africa, such as a visa stamp. Then-Transport Minister Fikile Mbalula gazetted the change, which required claimants to complete a new, strict RAF 1 Form when claiming compensation.
RAF executives argued at the time that the scheme was never meant to benefit people who entered the country illegally and that the new rules were necessary to combat fraud, including instances where foreign claimants allegedly tried to claim for accidents that occurred outside South Africa.
At the time, RAF executives said the scheme was not intended to benefit people who came into South Africa illegally and that the new requirements would prevent fraudulent claims where foreigners had claimed for accidents outside of South Africa’s borders.
Civil society groups and affected claimants challenged the legality of the new requirements. In 2024, the Pretoria High Court ruled that undocumented foreign nationals could not be excluded from RAF cover and declared the ministerial amendments invalid.
Following a legal challenge, the Pretoria High Court ruled in 2024 that undocumented foreign nationals should be allowed to claim from the RAF. The fund was granted leave to appeal this ruling in the SCA.
This week, the SCA upheld that decision, delivering a clear rebuke to the RAF and the transport ministry’s attempt to unilaterally narrow who can benefit from the statutory scheme.
This week, the Supreme Court upheld the High Court ruling.
‘Any person’ means exactly that
Writing for the SCA, Judge Ashton Schippers found that the wording of the RAF Act is decisive: it obliges the fund to compensate “any person” who suffers loss or damage because of bodily injury or death caused by the driving of a motor vehicle in South Africa. There is no limitation to citizens, permanent residents or documented migrants.
SCA Judge Ashton Schippers found that:
“Unlike other legislation which specifically excludes foreign nationals from its ambit, such as the Social Assistance Act [to pay social grants], which limits beneficiaries to South African citizens, permanent residents and refugees, the [RAF] Act contains no such limitation. Instead, in its plain wording, it states the fund is obliged to compensate ‘any person’ for loss or damage suffered as a result of bodily injury to themselves, or the death or bodily injury to another person, caused by or arising from the driving of a motor vehicle.”
He stressed that the Act is designed to cover all road users – not just those with valid immigration status.
He added: “The [RAF] Act covers all road users. Had the legislature intended that a category of claimants should be excluded from claiming compensation under the act, it could, and would, have said so.”
The court held that neither the RAF nor the transport minister has the power, via regulation or administrative policy, to read into the Act a limitation that Parliament itself did not include.
In effect, the SCA found that Mbalula and the RAF had overstepped by trying to use subordinate legislation and claim forms to create a new class of excluded people, something only the legislature can do.
Fraud argument rejected
The RAF had tried to justify its restrictions on the basis that they would help to combat fraudulent claims by foreign nationals. The SCA was not persuaded.
Schippers also dismissed the argument from the RAF that stricter requirements would help prevent fraudulent claims.
He pointed out that the RAF 1 form and existing procedures already require detailed information about the accident.
“Paragraph 3 of the claim form requires a claimant to provide details of the date, time and place of the accident, and the name and address of the police station to which the accident was reported. That report contains details of persons killed or injured. Given this information, which is compulsory, it is inconceivable that the fund has no way of knowing whether a foreign national sustained injury in an accident in this country,” he said.
He added that there was simply no evidence before the court that undocumented foreigners had been lodging fraudulent RAF claims.
…“adding that there was no evidence that undocumented foreign nationals had lodged fraudulent RAF claims.”
Court orders against RAF stand
The SCA ruling also has immediate consequences for 13 foreign nationals who had already obtained court orders and warrants of execution against the RAF, but had not been paid.
Schippers also ruled that warrants of execution and court orders issued against the RAF by 13 foreign nationals were valid. The RAF had sought a stay of execution and refused to pay, saying verification documents were not provided and that it was not obligated to compensate foreigners or fraudulent claims.
The RAF had asked the courts to suspend those orders, again arguing that it was not obliged to compensate undocumented foreigners, and that these claims were potentially unlawful or fraudulent.
Schippers rejected that interpretation outright.
“The fund’s interpretation that the [RAF] Act excludes [undocumented] foreigners from claiming compensation is wrong. Consequently, the basis of the application to suspend the court orders and warrants falls away. Solely for this reason, the second appeal must fail,” Schippers ruled.
In practical terms, this confirms that those 13 claimants are entitled to payment, and that the RAF cannot hide behind its own unlawful policy to avoid satisfying court judgments.
Wider impact
The ruling reinforces that the RAF is a delictual compensation scheme for everyone injured on South African roads, regardless of nationality or immigration status – provided the accident occurred within the country and meets the usual requirements.
It also sends a strong message that statutory bodies and ministers cannot unilaterally change who is covered by an Act of Parliament through regulations or internal forms, especially where such changes have the effect of undermining rights.
For undocumented foreign nationals injured in crashes, the judgment removes a major barrier to compensation for medical expenses, loss of income and support. For the RAF, it means a return to processing such claims within the existing legal framework – with fraud to be tackled through proper investigation and verification, not blanket exclusion.