Written by Tshifhiwa Nemulalate
Navigating the legal process after being injured in a car accident can be stressful. Many claimants believe that lodging a Road Accident Fund (“RAF”) claim is as simple as filling out a form and waiting for compensation. In reality, achieving a successful outcome takes meticulous planning, strict adherence to statutory deadlines, thorough evidence collection and progression through a strictly formalised litigation process.
This article seeks to demystify the RAF claim process by providing a clear overview from initial attorney consultation through to resolution of your claim, whether by settlement, default judgment hearing (an unopposed court hearing where the RAF doesn’t defend), or trial. It is important to note that, even with expert legal assistance, the process of securing compensation from the RAF is a time consuming one.
Section 17(1)(a) reveals the following requirements:
- the claimant (being “any person whomsoever” or “third party”) must have suffered damage or loss in the form of bodily injury to him or herself or by virtue of the death of another person;
- there must have been negligent driving of a motor vehicle or another wrongful act resulting in;
- damage or loss flowing from personal injury or loss of maintenance to the third party;
- the damage or loss must have been caused by or arisen from the negligent driving of a motor vehicle; and
- the collision must have occurred within the borders of the Republic of South Africa.[1]
Can foreign nationals claim?
- the RAF issued a directive which sought to exclude foreign nationals without valid papers in their July 2022 directive. The High Court ruled this directive invalid in Mudawo v Minister of Transport.[2] An appeal by the Supreme Court of Appeal (hereinafter “the SCA”) is pending, however the High Court ruling stands until the SCA decides otherwise.
- Practical Impact: foreign-national clients can claim despite the RAF’s unlawful 2022 directive blocking undocumented claimants.
Phase 1: The First Consultation and Preparing Your Claim
The process begins with your first appointment with an attorney.
The potential merits of your RAF claim is assessed and the evidence required to substantiate it is determined.
At this stage your attorney:
- will gather a detailed account from you about the circumstances of the accident;
- explain to you the RAF claim procedure and types of compensation available; and
- obtain your signed mandate and relevant authorisations to permit
The process also includes gathering of important documentation, such as:
- accident report form;
- witness details and statements;
- your personal documents (including, but not limited to a certified copy of your ID and proof of residence);
- medical records; and
- employment, income verification documents and academic results (if applicable).
The team will begin preparing what is often referred to as a Merits Assessment, which is a document that assesses whether the RAF is liable for your accident-related injuries and losses and what evidence is needed to support your claim.A strong RAF claim is supported by expert evidence. Your attorney will handle the process of appointing and organising these expert assessments, which may include medical and other professional assessments.
The experts will, among other things, evaluate the seriousness and extent of your injuries, your recovery prospects, and whether the accident affects your long-term earning potential and quality of life. Furthermore, an actuarial report is used to determine the financial loss suffered where there is a loss of income / earning capacity (or loss of support in cases involving the death of a breadwinner).
Phase 2: Lodging the Claim With the Road Accident Fund
What your attorney does at this point:
- prepares the official RAF Lodgement documents;
- ensures that all supporting documents are attached and duly certified (if applicable);
- submits the claim through the proper channels (often more than one method for proof and tracking); and
- tracks the claim reference and retains evidence of submission.
This is an important step because the RAF has strict requirements for submitted documents. If any documents are missing or incomplete, the claim may be denied or delayed. Unfortunately, one of the most common results at this point is that the RAF issues an objection letter, which lists additional information and documents which the RAF requires, sometimes requiring attorneys to re-lodge or supplement the pack in order to obtain acceptance.
Phase 3: RAF Statutory Investigation Period
Following lodgement, the RAF is entitled to a prescribed 120-day period to investigate the claim and decide whether they accept liability.
In this phase, the RAF may:
- request further documentation (e.g additional medical reports or updated income statements);
- contest the accident circumstances;
- conduct its investigation to accept or repudiate liability; and
- arrange their own medical assessments of your injuries.
Phase 4: Issuing Summons (Starting The court Process)
If the RAF disputes your claim or the 120-day period expires without a response, your attorneys may start the formal litigation process by issuing summons.
What your attorneys do:
- draft the combined summons and particulars of claim;
- issue the matter in the applicable court system (depending on jurisdiction); and
- arrange for the Sheriff to serve the summons on the RAF.
Phase 5: RAF Response to Summons (Notice of Intention to Defend and Plea)
The RAF is required to respond to summonses once they are served. This includes:
- filing a Notice of Intention to Defend within 10 days; and thereafter
- delivering a Plea within 20 days (a Plea is a document setting out the RAF’s defence).
If the RAF doesn’t respond your attorneys will:
- serve follow up letters;
- file a Notice of Bar if the RAF filed their notice of intention to defend and not their Plea; and
- apply for Judgement by Default.
Phase 6: What happens after the Plea is received?
The legal team will evaluate:
- what facts the RAF admits and denies;
- whether the RAF introduces new allegations or defences; and
- whether a replication needs to be filed.
If something material warrants a response, your attorneys may submit a Replication within the court’s timelines. If not, pleadings close and the case progresses to the next stage.
Phase 6.2: General Damages and RAF 4 Serious Injury Process
You’ll be assessed by multiple specialists who prepare detailed reports (called Medico-Legal reports) assessing your injuries and losses. The RAF should appoint their own experts, but in practice rarely do. In the event that they appoint experts, both sides’ experts produce Joint Minutes (a document listing issues which are agreed and disagreed upon, between the respective corresponding experts).
Many claimants hear the term “general damages” but don’t comprehend what the term means.
General damages are compensation for non-financial losses, such as:
- pain and suffering; and
- loss of enjoyment of life, incapacity and decreased quality of life.
To claim general damages, the claimant must submit a RAF 4 Serious Injury Assessment Report, completed by a qualified medical practitioner. This is required because not all claimants qualify, only those with a ‘serious injury’ (as defined by RAF guidelines) are to be compensated for their general damages.
What the RAF does after receiving the RAF 4
The RAF has 90 days to:
- accept the serious injury assessment; or
- reject it and/or require its own independent medical assessments.
If the RAF rejects the RAF 4, the dispute can be referred to the Health Professions Council of South Africa (HPCSA) for an independent medical determination. If the HPCSA confirms that your injuries do not qualify as serious and your attorney feels that the process was unfair or irrational, judicial review steps may be considered.
Phase 7: Discovery (Exchanging Documents)
Following the close of pleadings, namely when the RAF has filed its Notice to Defend and Plea, the parties are required to effect discovery. This process mandates that both sides disclose all relevant documents they intend to rely on in court, ensuring mutual awareness of each other’s materials to promote transparency and prevent trial surprises from unknown documents.
What your attorneys do during the discovery process:
- draft and serve discovery notices on the RAF (requesting the RAF attends to discovery);
- prepare your discovery affidavit (listing all documents you intend to rely on in court); and
- upon receipt of the defendant’s discovery affidavit, your attorney will review documents produced by the RAF.
If the RAF fails to adequately disclose their documents or fails to discover at all, your attorneys will bring a formal application to compel discovery to ensure the RAF complies with their legal obligations.
Phase 8: Pre-Trial Conference and Preparation
A Pre-Trial Conference is a meeting held between your attorneys and the RAF’s legal representatives, aimed at agreeing on certain timelines / deadlines in order to streamline the legal process, as well narrowing the issues in dispute between the parties, to limit those issues which are required to be determined at trial. Multiple Pre-Trial Conferences often occur.
The Pre-Trial Conference phase falls into the trial preparation stage, which is a broader phase aimed at ensuring your matter is trial ready. This stage may include steps such as: consultations with yourself, expert and lay witnesses and counsel, ensuring all substantiating documents are to hand for trial, medico-legal reports are up to date etc. A case must be determined “trial-ready’ before a court may allocate a trial date.
Phase 9: Mediation
Mediation is a formal process where both parties attempt to to settle certain aspects of the claim or limit the issues in dispute before proceeding to trial. Mediation requires detailed preparation by your attorney and careful assessment of what constitutes a reasonable settlement.
Mediation process:
The parties appoint a neutral mediator, agree to mediation rules, exchange settlement offers in advance, and then meet (sometimes over multiple sessions or days) to attempt to negotiate a settlement of the whole claim or certain portions thereof.
If mediation fails
If no agreement is reached, the matter continues through the litigation process until your claim is either:
- settled between the parties, or
- determined by a court judgment
Phase 10: Settlement or Judgment
RAF matters can settle before trial, with some instances of settlement offers being received on the day of the trial. If a fair settlement is reached, your attorneys will negotiate the best possible terms on your behalf, get your approval, prepare all necessary paperwork, and ensure the settlement is legally binding (including making it an order of court if required).
If no settlement is reached, the matter proceeds to trial where your attorneys will prepare all evidence, work with your experts and witnesses, and present your case in court.
Conclusion
In practice, a RAF claim is a time consuming and labour intense legal process, fraught with delays occasioned by, not only the RAF as a dilatory defendant, but also by the court system itself (with trial dates in some jurisdictions such as Pretoria, being set down years in advance). In addition to the aforementioned, once judgement is obtained in a client’s favour, payment from the RAF can take many months, if not years to obtain.
This is why your attorneys’ dedication, thorough investigation, management and legal expertise will play an important role behind the scenes in navigating your claim efficiently towards achieving finalisation and fair compensation.
Need help navigating the RAF process?
Reach out to our team of experts for step-by-step assistance or click here to fill in your details.
Disclaimer: This article is for information purposes only and does not constitute legal advice.
Legal citations: Stegen v Shield Insurance Co Ltd 1976 (2) SA 175 (N), Smith v Road Accident Fund 2006 (4) SA 590 (SCA) and Mudawo v Minister of Transport and RAF (11795/2022) ZAGPPHC 258
LexisNexis RAF Practitioners’ Guide 7.3.5, A-33.
[1] LexisNexis RAF Practitioners’ Guide 7.3.5, A-33.
[2]Mudawo v Minister of Transport and RAF (11795/2022) ZAGPPHC 258
