LIABILITY OF THE ROAD ACCIDENT FUND FOR VICTIMS INJURED IN HIT AND RUN MOTOR ACCIDENTS
In earlier articles appearing on this site, we drew to the attention of our readers that when it came to road accident victims having been injured in what is known as a “hit and run” accident, (i.e. where the driver of the vehicle causing the accident failed to stop at the scene with the result that his details and the details of his vehicle could not be obtained), the Supreme Court of Appeals pronounced firmly and decisively on the notion that compliance with regulation 2 (1) © was peremptory.
To refresh your memory regulation 2 (1) © reads
“(1) In the case of any claim for compensation referred to in section 17(1) (b) of the Act, the Fund shall not be liable to compensate any third party unless –
. . . .
the third party submitted, if reasonably possible, within 14 days after being in a position to do so an affidavit to the police in which particulars of the occurrence concerned were fully set out”.
Section 17 (1) (b) reads:
“The Fund . . . shall . . . subject to any regulation made under section 26, in the case of a claim for compensation under this section arising from the driving of a motor vehicle where the identity of neither the owner nor the driver thereof has been established, be obliged to compensate any person (the third party) for any loss or damage which the third party has suffered as a result of any bodily injury to himself or herself . . . caused by or arising from the driving of a motor vehicle by any person . . . , if the injury . . . is due to the negligence or other wrongful act of the driver or of the owner of the motor vehicle . . . .”
Section 26 reads:
“The Minister shall or may make regulations to prescribe any matter which in terms of this Act shall or may be prescribed or which may be necessary or expedient to prescribe in order to achieve or promote the object of this Act.”
We have also drawn our readers' attention to some other High Court judgments which have pronounced on what should happen should it be impossible to furnish the Police with an affidavit setting out how the collision occurred within 14 days from the date of the accident.
The Constitutional Court (the Highest Court on our Country) on 7 th March 2007, finally pronounced on the constitutionality of regulation 2 (1) © in the case of
RENIER ALBERTUS HERMANUS ENGELBRECHT vs. ROAD ACCIDENT FUND AND ANOTHER CASE NUMBER CCT 57/06
In this case it was the unanimous decision of the Court that regulation 2(1) © is ultra vires the Constitution and has in terms of the powers vested in that Court been declared invalid and cannot be enforced.
This means that the Fund cannot repudiate liability by reason of the fact that an affidavit setting out the circumstances of the accident is not furnished to the Police within fourteen (14) days or at all. The decision was declared retrospective and applies to all motor accidents which occurred subsequent to the Act coming into force and which are still pending and which have not become prescribed.
We are fortified by this landmark decision as we believed the regulation was far too restrictive and deprived many victims of road accidents the ability to receive compensation for the injuries they sustained in accidents where through ignorance or through no fault of their own they were unable to furnish such an affidavit.
VICKY BOVE AND LESLIE KOBRIN