Is there a just cause to claim from the Road Accident Fund (RAF) when a deceased breadwinner was the sole cause of an accident?

The common law stipulation of the law of delict, (section 3, ss 17, 19 and 21) of the Road Accident Fund Act can help explore this question. According to the law, you must be able to prove that all the elements of a delict (a civil wrong that inflicts loss or harm on another) exist in order to succeed with a claim.

The South African law of delict kicks in when you’ve suffered loss or harm and want to claim compensation from the person who caused it. But before you can lodge a claim, you must find out if the civil wrong is sufficient reason to take action. If so, the wrongdoer will be liable to compensate you for damages.

So, how would you find out if you have enough reason to claim?

The law of delict has rules and guidelines to help you determine if your loss gives you the right to claim compensation for damages. The Aquilian action would apply if you suffer patrimonial loss – if you’ve lost money because of physical damage to your person or property.

In Evins v Shield Insurance Co Ltd, the court illustrated the difference between a defendant’s claim and a damages action for bodily injuries. In the case of an Aquilian action for damages for bodily injury, the basic elements of liability are:

  1. a wrongful act by the defendant causing bodily injury
  2. accompanied by fault, showing the defendant acted with negligence or malice, and
  3. caused the plaintiff to lose money because of the injury.

To sue the defendant, the plaintiff must be able to prove the material facts as they relate to these three basic elements. If harm occurred under these circumstances, the plaintiff has just cause to take legal action.
But what if someone you love, the breadwinner, dies in a car accident? Can you claim from the RAF on their behalf? What if they caused their own death?

In the usual case of bodily injury arising from a motor accident, the concurrence would take place at the time of the accident. On the other hand, you would have cause to take legal action on behalf of the deceased if:

  1. a wrongful act by the defendant caused the death of the deceased,
  2. the defendant acted in negligence or malice,
  3. you (the plaintiff) had a legal right to be supported by the deceased, and
  4. their death has resulted in real deprivation of anticipated support.

However, you can only sue the defendant if you can prove that all these elements occurred. The unlawful killing of the deceased is an essential requirement.

In terms of section 17 of the Act, the defendant or an agent is obliged to compensate any person for any loss or damage suffered as a result of the death of any person caused by or arising from the driving of a motor vehicle. Common law dictates that if you (an insured driver) were negligent and your negligent driving of your motor vehicle caused the death of another person, you are liable to compensate the injured.

This is where the Road Accident Fund came into place. Many motor vehicle owners are not insured and therefore could not compensate the dependants of the deceased breadwinner or even an injured person suffering loss. The RAF function is to indemnify the guilty driver; in other words, it steps into the shoes of the guilty driver’s insurer and meets all claims they would have been responsible for by law. If you cause a motor vehicle accident, the persons suffering loss as a result of your mistake can claim from the RAF. But when you are the wrongdoer you cannot claim from the Fund.

The matter of Brooks v Minister of Safety and Security illustrated that should the dependants be able to claim even if the breadwinner was the sole cause of the accident, the wrongdoer could by his own intentional wrongful act create a cause of action in favour of his dependants that would otherwise not exist. This implies that a person could benefit from their own wrongful act.

If the common law is to be developed, it must be done in a way that meets the section 39(2) objectives, which states that “when interpreting any legislation, and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights”. This means that the state must respect your fundamental rights and may not infringe them, except insofar as such infringement is reasonable and justifiable according to the limitation clause. Faced with this task, a court would have to undertake a two-stage enquiry. It should ask itself whether, given the objectives of section 39(2), the common law should be developed beyond the existing precedent. If the answer to this question is no, the enquiry would end. However, if the answer is yes, the next enquiry should be into how the development should occur and which court should perform this exercise.

The answer in this case is no, therefore such a development would amount to relinquishing an essential element of the law of delict – wrongfulness. Wrongfulness can be proved with the help of the following two criteria:

  1. Whether the defendant’s act was in fact the cause of a harmful result to another person; and
  2. Whether the causing of harm took place in an unreasonable or legally reprehensible way.

Therefore, the dependant’s rightful action will be against a third party who unlawfully caused the death of a breadwinner and if there is no wrongdoer, the action should be against the estate of the deceased. In this instance, the wrongdoer is the deceased himself and loss of support is claimed from his life insurance, policies, etcetera. This is a liability which exists regardless of how the deceased died. Finally, to claim from the Road Accident Fund, a third party must be responsible for the death of the deceased.

By Nonhlanhla Mahlangu

LindsayKeller Associate