Former transport minister Fikile Mbalula’s attempt to restrict Road Accident Fund payouts to foreign nationals has been decisively struck down in a ruling that not only overturns his policy but also sharpens the legal limits on ministerial power.
Mbalula, now ANC secretary-general since December 2022, now finds one of his signature policy interventions of July 22 tested – and rejected – at the highest level.
In The Road Accident Fund v Mudawo and Others, the Supreme Court of Appeal found that the measures introduced during Mbalula’s tenure – aimed at blocking undocumented migrants from claiming – were unlawful because they effectively rewrote the Road Accident Fund Act.
Policy shift under Mbalula
The case stems from a 2022 policy shift driven under Mbalula. A new RAF 1 claim form was published in the Government Gazette requiring foreign nationals to prove they were legally in South Africa at the time of an accident. This was backed by a management directive forcing claimants to produce passports, visas or entry and exit stamps before their claims could even be processed.
The policy was justified at the time as a way to curb fraud and protect a fund under financial strain, with officials arguing that payouts should prioritise citizens, permanent residents and lawful foreign nationals.
Exclusion of illegal foreigners ‘unconstitutional’
But the court found that approach crossed a constitutional line.
“The obligation of the Fund to compensate ‘any person’… does not exclude illegal foreigners,” the judgement states, rejecting the core premise of the policy. It added that “in its plain language, s 17(1) cannot be construed as excluding illegal foreigners”.
More significantly, the court said neither the minister nor the RAF had the authority to introduce such a limitation at all. By doing so through directives and forms, they had bypassed Parliament. That, the court held, “is a violation of the principle of legality” because public power must be exercised within the law.
The court emphasised that the RAF Act is “social security legislation” designed to provide “the greatest possible protection” to people injured on the roads. Excluding a category of victims based on immigration status, it said, undermines that purpose.
Case law sheds light
In reaching its decision, the court relied on established case law.
It applied the approach in Natal Joint Municipal Pension Fund v Endumeni Municipality, which requires courts to interpret legislation by looking at its wording, context and purpose together. That approach supported a broad reading of “any person”.
It also drew on Road Traffic Management Corporation v Waymark Infotech (Pty) Ltd, where the Constitutional Court confirmed that the word “any” is “a word of wide and unqualified generality”.
Earlier cases reinforced that point. In Hayne & Co v Kaffrarian Steam Mill Co Ltd, “any” was held to include all things to which it relates, while R v Hugo described it as a term of broad and unlimited scope.
The judges also relied on Mvumvu v Minister for Transport, which confirmed that the RAF scheme is intended to give the “widest possible protection” to road accident victims – something the court said would be defeated by Mbalula’s policy.
‘Anyone can claim from RAF’
For ordinary people, the implications are immediate.
Anyone injured in a road accident in South Africa can claim from the RAF regardless of immigration status. Claims cannot be rejected simply because a person cannot produce a passport or visa. The focus must remain on the accident and the injuries.
The judgment also strengthens the position of those already awarded compensation. The court rejected the RAF’s attempt to delay payments, finding that it had “failed to establish a stay of execution on a ground of real or substantial injustice”. In simple terms, if a court has ordered payment, the RAF must pay.
Any change to who qualifies for RAF compensation must now go through Parliament, not through directives issued from the department.
- Former transport minister Fikile Mbalula’s 2022 policy restricting Road Accident Fund (RAF) claims for undocumented foreign nationals was ruled unlawful by South Africa’s Supreme Court of Appeal.
- The policy required claimants to prove legal immigration status to access RAF payouts, aiming to curb fraud and protect the fund financially.
- The court found this exclusion unconstitutional, emphasizing that the RAF Act covers “any person,” including illegal foreigners, and such limitations cannot be imposed without parliamentary approval.
- The ruling reinforced legal principles that public power must be exercised within the law and that social security legislation should broadly protect all road accident victims.
- Practically, the judgment means anyone injured in South Africa can claim from the RAF regardless of immigration status, and changes to eligibility must happen through Parliament, not ministerial directives.
Former transport minister Fikile
In
But the court found that approach crossed a constitutional line.
“
More significantly, the court said neither the minister nor the RAF had the authority to introduce such a limitation at all. By doing so through directives and forms, they had bypassed Parliament.
In reaching its decision, the court relied on established case law.
It applied the approach in Natal Joint Municipal Pension
It also drew on Road Traffic Management Corporation v Waymark Infotech (Pty) Ltd, where the Constitutional Court confirmed that the word “any” is “a word of wide and unqualified generality”.
Earlier cases reinforced that point. In Hayne & Co v Kaffrarian Steam Mill Co Ltd, “any” was held to include all things to which it relates, while R v Hugo described it as a term of broad and unlimited scope.
For ordinary people, the implications are immediate.
