Personal Injury : Unravelling Complex liability of the Road Accident Fund.

Definitions

1. RAF- Road Accident Fund
2. Juristic person – a legal standing of an entity that allows it to have legal rights and responsibilities similar to a natural person, which means it can conclude contracts, incur debts and to sue and/or be sued.
3. RAF levy – a portion of percentage that is taken from the fuel price that funds the RAF
4. Third party – any person who was in any loss or damage 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 employee. [1]
5. Dolus eventiualis – an intended act that is criminal in nature where the person foresees the possibility of harm that will result from their action.

Personal Injury : Unravelling Complex liability of the Road Accident Fund.

Road accidents hold a high percentage of personal injuries sustained by individuals compared to other divisions of personal injuries, in particular slip and falls and injuries on duty. During the 2025/26 Festive Season Road Safety Campaign, a total of 1 427 fatalities were recorded from 1 172 road accidents.[2]

As high as these numbers may appear, the 2025/26 data have recorded the lowest number of crutches in the past five years. [3] This data is an authentication that during the festive seasons, that  typically run from late November to early January, the number of accidents is drastically increase compared to any other period during the year.

The Scale of the issue: Statistic evidence  

The  Road Traffic Management Corporation which was established in April 2005 in terms of Section 3 of the Road Traffic management Corporation Act No. 20  of 1999, with an objection to regulate law enforcement on national, provincial and municipal roads, on the 2023 report they recorded the top 5 provinces that contributed 76% of the road accidents nationally. Gauteng accounted for 23%, KwaZulu-Natal at 19%, Western Cape at 12%, and Limpopo and Eastern Cape at 11% each.[4] 

The Road Accident Fund : The Aid

The South African government initiated an insurance to compensate all the road accident victims within the boarders of the country. The main purpose of it is that the victims are awarded with a fair  compensation for the injuries suffered or death , loss of income and other losses that they incurred as a consequence of the delictual damage suffered such as funeral costs, loss of support, past and future medical expenses but for only the injuries  that have a nexus to the accident and past and future loss of income,  however, the RAF does not pay for any losses or damage to property, this may include the motor vehicle itself that was in the accident, cell phones and laptops that got damaged consequently due to the accident and general goods that were conveyed in a motor vehicle.   This insurance was established in terms of Section 21 of the Road Accident Fund Act, No. 56 of 1996 as amended , as a juristic person who bears the liability of such delictual damage that arises from the negligent driving of motor vehicles by insured drivers[5].

The objective of this insurance is to insure all road users within the borders of South Africa, to offer rehabilitation to persons injured, compensate for injuries suffered or death that may arises. This juristic person indemnifies wrongdoers for negligent driving that may result to a  motor vehicle accident. This insurance is mainly funded by the fuel levy that in already included in the petrol and diesel price, which means that all motorists contributed to its business operation known as the RAF Fuel Levy. The income of the RAF depends on the quantity of petrol and diesel sold  per annum and the rate of the levy.[6] In the 2026 budget, the RAF fuel levy is at R2.25 per litre.[7]

The RAF is fault based. In order for this insurance to be able to compensate you, negligence or /and a wrongful act of an insured driver or the owner of the motor vehicle must or his or her employee in the performance of the employee’s duties as an employee must be established. In layman terms, the claimant must proof that the accident was solemnly caused by a wrongful act of another person that contributed to the cause of the accident and they were at fault either fully or partially. This is terms of the Section 17 of the Road Accident Fund act 56 of 1996 as amended. The third party must alleged and prove 1% negligence from the insured to prove liability of the RAF,[8] if negligence is not proven by the plaintiff, the liability of the RAF does not arise.[9] In the legal space, negligence is defined as the failure to exercise the degree of care that a reasonable person would use in similar circumstances, which results in harm to another. It is not intentional wrongdoing, but a careless act or omission.[10]

As state above that the liability only arises from the negligence or a wrongful act of the insured driver. In order to prove liability the claim must meet the 5 elements of a delictual claim in the South African Law, which are conduct – there must be an action done, wrongfulness- the conduct that was done should be unjustified or unwarranted, fault- the should be accountability from the responsible personnel , causation- the causa of the action should be linked to the act and lastly damage there harm that is suffered as a result of the act. The RAF specifically covers the culpa or the negligent part of fault as stated in Section 17 (1) of the RAF Act No.56 of 1996. Therefore, it is duly excluded from the conducts that were intentional. Provided the insured driver intentionally uses the motor vehicle as a weapon and to grossly cause harm to the third party, the Raf is excluded as the act was not negligent and the claim shall be brought against that person and not the RAF since that act is dolus eventualis  and criminal in nature rather than civil due to the fact that physical assault was used and it doesn’t amount to an accident.[11]  This is support by the case of Garnier v Kilkenny and ICBC, made the following which submission “where there is an intentional act with intent to bring about the loss or damage, as in the case at bar, public policy precludes recovery under automobile liability coverage.[12] In the case of Messersmith v American Fidelity Co. they explained accident as a fortuity action and not an intentional action. [13]

Third Party’s fault : Apportionment and limited liability

Apportionment comes to play where an individual  suffers damage which is caused partly by their own fault and partly by the fault of any other person, in a way they directly contributed to the accident which consequently led to the damages they suffered. A claim in respect of that, damage shall not be defeated by reason of the fault of the third party  but the damages recoverable in respect thereof shall be reduced  to such extent as that it  may deem just and equitable having regard to the degree in which the claimant was at fault in relation to the damage. [14] The damages should only be partly caused by the third party notwithstanding that the involved insured driver had the duty and an opportunity of avoiding the consequences that may arises ang they negligently failed to act timeously and in a proper manner. [15] In the case of De Kock v Road Accident Fund which involves a collision between a plaintiff in her motorcycle and an insured driver, it was found that the plaintiff was negligent by not keeping proper lookout and contributed indirectly to the accident, leading to a 50%  apportionment.[16]

The keyword being “partly”, this is due to the fact that where in any case the individual had suffered damages caused solemnly by their very own negligence without an involvement of insured driver or any motor vehicle, these warrants excluded liability. This liability is excluded in specific cases. In cases where the third party was involved in a single motor vehicle collision, negligence solemnly lies on the victim who is the driver at that point in time, and they are presumed to have solemnly caused the accident on their own accord unless it can be proven otherwise. In instances like a wrongful act of an insured driver that was not present at the moment however there is a nexus that link the negligent actions of the insured driver and/or owner of the motor vehicle  to the causation of the accident.[17]

The liability of the RAF for loss or damage is excluded in specific instances provided for in terms of section 19 of the RAF Act. In respect of claims governed by the RAF Act, as amended, liability is excluded in circumstances where:​

a) The person who suffered the loss or damage, the third party at common law cannot hold the wrongdoer liable for the damage as they are indemnify by the RAF.

b) A paying motorcycle passenger is injured or killed by the exclusive negligence of the driver of the motorcycle.

c) A person is a member of the same household as the driver of the motor vehicle in which such person was conveyed, and the collision resulted solely from the negligence or unlawful act of such driver.

d) A person was a passenger in a motor vehicle and was responsible for the maintenance of the driver of such motor vehicle and the collision resulted solely from the negligence or unlawful act of such driver

e) A third party does not institute a third party claim against the RAF personally or through an admitted and practicing attorney or other authorised official;

f) A third party enters into an agreement with any person other than an admitted and practicing attorney or other authorised official in terms of which such a person receives a portion of the compensation recovered, or any amount for services rendered in respect of a third party claim;

g) A third party unreasonably refuses or fails to submit to a medical examination by a medical practitioner appointed by the RAF on request of the RAF and at its cost; and

h) A third party  refuses or fails to:

(i)    Submit to the RAF (at the latter’s cost) copies of all relevant medical reports in their possession;
(ii)   Allow inspection of their medical records held by a medical practitioner or a hospital;
(iii)  Submit an affidavit setting out full particulars of the accident together with a claim form;
(iv) Supply within a reasonable time from obtaining possession thereof, copies of all relevant statements and documents in respect of the collision.

Liability can also be excluded by the RAF Act as amended where the loss or damage results from secondary emotional shock. A person suffered shock as result of witnessing or hearing of such accident, and the person suffered losses consequent to the shock, the RAF would not be liable for these losses.

Conclusion

In conclusion, the liability of the RAF is rooted in its statutory mandate to compensate victims of motor vehicle accidents where negligence can be established. By covering medical expenses, loss of income, and, in certain cases, general damages, the RAF plays a pivotal role in balancing the rights of victims with the principles of fairness and accountability. However, its liability is not absolute—statutory exclusions, contributory negligence, and procedural requirements limit the scope of claims. Ultimately, the RAF remains a cornerstone of South Africa’s social compensation insurance, ensuring that those harmed on the roads are not left without recourse.

As is the thin skull principle that says -take your victim as you found them. The RAF heavy uses this legal doctrine when it comes to liability for the full extent of the third parties damages and loss.

Bibliography

Websites and Online Sources

1. Arrive Alive Report on the 2025/26 Festive Season Safety Campaign, 15 January 2026
2. Road Traffic Management Corporation, State of Road Safety : 1 Jan 2023 – 31 December 2023
3. Road Accident Fund website
4. ElyForma Tax Desk ‘ Fuel Levy v RAF Levy : What’s in your petrol

Legislation

5. Road Accident Fund Act No. 56 of 1996, as amended, section 17
6. Road Accident Fund Act No. 56 of 1996, as amended, section 19
7. Road accident Fund Act No.56 of 1996, as amended, section 21
8. Apportionment of Damages Act 34 of 1956

Case law

9. Motladile V Road Accident Fund [2025] ZAGPPHC 229.
10. Garnier v Kilkenny and ICBC 2006 bcpc 357( Can LII)
11. Messersmith v American Fidelity Co. 133 N.E 432 (N.Y. C.t Apps. 1921)
12. Mashengani v Road Accident Fund ZAGPPHC 2025
13. Kruger v Coetzee 1966 (2) SA 428
14. Road Accident Fund v Abrahams (276/2017) [2018] ZASCA 49 (29 March 2018)
15. De Kock v Road Accident Fund (17211/2018) [2024] ZAWCHC 86 (20 March 2024)

[1] The Road Accident Fund Act 56 of 1996, as amended

[2] Arrive Alive, Report on the 2025/26 Festive Season Road Safety Campaign, (15 Jan 2026 ) https://www.arrivealive.co.za/news.aspx?s=1&i=76138&page=report-on-the-2025-26-festive-season-road-safety-campaign

[3] Ibid

[4] Road Traffic Management Corporation, State of Road Safety : 1 Jan 2023 – 31 December 2023 https://www.rtmc.co.za/

[5] Road Accident Fund Act 1996, as amended.

[6] Road Accident Fund https://www.raf.co.za/About-Us/pages/fuel-levy.aspx

[7] ElyForma Tax Desk ‘ Fuel Levy v RAF Levy : What’s in your petrol https://www.elyforma.com/blog/fuel-levy-vs-raf-levy-whats-in-your-petrol-price

[8] Road Accident Fund Act 1996, as amended.

[9] Motladile v Road Accident Fund  [2025] ZAGPPHC 229.

[10] Mashengani v Road Accident Fund ZAGPPHC 2025

[11] Downer v The Personal Insurance Company 2012 ONCA 302 (CanLII)

[12] Garnier v Kilkenny and ICBC 2006 bcpc 357( Can LII)

[13] Messersmith v American Fidelity Co. 133 N.E 432 (N.Y. C.t Apps. 1921)

[14] Section 1 of Apportionment of Damages Act 34 of 1956

[15] Kruger v Coetzee 1966 (2) SA 428 (A)

[16] De Kock v Road Accident Fund (17211/2018) [2024] ZAWCHC 86 (20 March 2024)

[17] Road Accident Fund v Abrahams (276/2017) [2018] ZASCA 49 (29 March 2018)