injury ruling could knock accident fund
10 March 2008

A landmark ruling by the Supreme Court of Appeal could have serious implications for the Road Accident Fund (RAF) as it has opened the way for claimants to include injuries that become evident years later.

The judgment came a day after RAF CEO Jacob Modise appealed to Parliament’s transport committee for more money, saying the fund might have to refuse to pay accident victims’ claims as its reserves were dangerously low.  Modise warned that the income of R8bn forecast for the current financial year from fuel levies would be outstripped by expenses (including outstanding claims) of R13,7bn.

This would leave a shortfall of R5bn.

The judgment could see the fund flooded with claimants who discover injuries linked to accidents years ago, while the fund is trying to cope with claims from victims of recent accidents. The court ruled that claimant Nonkwali Bulelwa was entitled to add a head injury to her initial claim, even though the amendment was made almost four years after the collision.

It rejected the argument by the RAF that the claim was invalid because the injury had to be listed in the original claim, and was no longer covered because of a five-year limit.  The fund said adding an injury constituted a new claim.  Claimants have until three years after an accident to claim. A claim on the RAF expires after five years.

Bulelwa was involved in an accident in October 2001 and the matter was heard in the Mthatha High Court. In June 2005, she amended damages to include a head injury.  Bulelwa’s legal team argued that she had “substantially complied with the provisions” and that she had “completed the claim form in good faith and filled in all such details as were available to her at the time”.  Bulelwa went to the appeal court after losing the case.

Judge Mandisa Maya said that a claim for damages relating to Bulelwa’s head injury did not “constitute a new course of action, but was merely an additional item to her original course of action”.  Claims on the fund are made not only by South African citizens but by foreign visitors claiming loss of income.

Modise has been pushing for the Road Accident Fund Amendment Act 2005 to be promulgated and published as it effectively puts a cap of R160000 on claims by foreigners for loss of earnings.

The fund has a R90m claim from a multimillionaire Swiss national who was injured during a biking holiday.

Chantelle Benjamin, www.businessday.co.za