Road Accident Fund v Chipofya (22125/18) [2025] ZAWCHC 235 (2 June 2025)

---

IN
THE HIGH COURT OF SOUTH AFRICA

WESTERN
CAPE DIVISION, CAPE TOWN

Case No: 22125/18

 

In
the matter between:

 

THE
ROAD ACCIDENT FUND                                                 

Applicant

 

and

 

CHARLES
JEKA CHIPOFYA                                                   

Respondent

 

Neutral
citation: The Road Accident Fund v Charles Chipofya (Case
no 22125/2018) [2023] ZAWCHC (02 June 2025)

Coram:
LEKHULENI J

Heard:
29 January 2025

Delivered:
02 June 2025

Summary: 
The respondent claimed damages against the Road Accident Fund
arising from injuries he suffered in a motor vehicle accident. The

matter was settled, and a draft order was by consent made an order of
court. The applicant now seeks rescission of that order as
it alleges
that when the order was made, it was unaware that the respondent was
an illegal immigrant. The court found these allegations
to be
misleading and demonstrably false. The application for rescission of
judgment is dismissed. The applicant is ordered to pay
costs of the
application including the costs of counsel on scale B.

ORDER

1             
The application for the rescission of judgment is
dismissed.

2             
The applicant is ordered to pay the costs of the
application
including the costs of counsel on scale B.

 

JUDGMENT

 

LEKHULENI
J

 

Introduction

 

[1]       
This is an application for the rescission of judgment. The applicant
seeks an order
that the court order granted by consent on 12 January
2023 by Goliath AJP, as she then was, be rescinded and set aside. The
relief
is being brought under the common law ground of justus
error in that the court order was erroneously granted. The
applicant asserts that it was not aware that the respondent was an
illegal
foreigner whose presence in the Republic violates the
Immigration Act 18 of 2002 (‘the Immigration Act’), at the
time it settled his road accident fund claim. The applicant now seeks
an order to set aside the court order of 23 January 2023,
which
directed it to pay the respondent damages in the sum of R1 461750 00.

 

[2]       
The respondent opposed the application and raised a preliminary point
that there has
been a gross delay in bringing the rescission
application. The respondent contended that the applicant has not
provided a satisfactory
explanation for the considerable delay, which
serves as a basis for dismissing the application. On the merits of
the application,
the respondent asserted that the averments in the
founding affidavit are false and misleading and that the applicant
has failed
to show any form of justus error which vitiated
consent or that the order was erroneously sought or granted.

 

The
applicant’s case

 

[3]       
On 30 November 2018, the respondent, instituted an action against the
applicant flowing
from a motor vehicle accident which is alleged to
have occurred on 19 September 2016, between Plettenberg Bay and the
Crags wherein
the plaintiff sustained serious bodily injuries. The
applicant initially defended the case, but a settlement was reached
when the
respondent accepted the applicant’s offer. On 12 January
2023, Goliath AJP issued an order by mutual consent that directed the
applicant to pay R1 461750 in damages to the respondent.

 

[4]       
The applicant asserted that when the respondent instituted the legal
action, he identified
himself as Charles Jeka Chipofya, without
providing any other details about his identity. Following the
issuance of the court order,
the respondent requested payment from
the applicant. However, when payment was requested, the applicant
required specific documents
from the respondent. The applicant
pointed out that this requirement is in accordance with treasury
regulations, mandating the
submission of stamped passports indicating
entry and exit before the payment can be processed. This is done to
ensure compliance
with various laws and regulations applicable to
claims against the fund. The applicant posits that it is only when
payment is sought
to be made that the applicant requires a stamped
passport which shows or proves that the respondent was legally in the
Republic
at the time of the accident.

 

[5]       
According to the applicant, the respondent submitted a copy of a
passport, which referred
to him as Charles Chipeta and not as Charles
Jeka Chipofya, and this made the applicant suspect foul play. In
response to this
suspicion, the applicant investigated through its
forensic investigation department to ascertain the circumstances
surrounding
the dual identity of the respondent. During the
investigation, it came to light that the respondent, a Malawian
citizen, owns two
passports, one naming him as Charles Jeka Chipofya
and the other as Charles Chipeta. The applicant stated that when the
respondent
was confronted about having two passports, he tried to
attribute the discrepancy to a data capture error. However, in the
applicant’s
view, the respondent’s explanation appears far-fetched,
as it is improbable that such an error could occur.

 

[6]       
Subsequent thereto, the applicant inquired with the Department of
Home Affairs on
the status of the two passports. The information
received showed that the latest passport did not exist at the time of
the alleged
motor vehicle accident on 9 September 2016; the passport
date of the first issue was 29 July 2023. Additionally, the movement
system
record for the other passport revealed that the visa had
expired on 10 December 2012. The applicant contended that the
Department
of Home Affairs’ records do not reflect the respondent’s
exit from the Republic on the old passport or new entry post-December
2012. In the applicant’s view, this discrepancy could imply that the
respondent was either not present in the country on the date
of the
accident or was potentially in the country illegally.

 

[7]       
To this end, the applicant is disputing the respondent’s entitlement
to the payment
of damages granted in terms of the order of court
sought to be rescinded. The applicant explained that as the order was
erroneously
granted, had the court been made aware that the
respondent was an illegal immigrant and that his status in the
country was in contravention
of the Immigration Act, the court would
not have granted the order. Furthermore, as things stands, the
applicant contended that the respondent’s identity remains

questionable. As such, the order directing the applicant to pay
damages to the respondent cannot be enforced as the respondent’s

identity remains a mystery. According to the applicant, the person
who requested payment was not the one who had instituted an
action
against the applicant. The applicant further posited that until the
identity of the claimant is resolved, the applicant
is in no position
to comply with the court order as it stands. To this end, the
applicant sought the rescission of the consent
order.

 

The
respondent’s case

 

[8]       
The respondent opposed the application and asserted that the
application is misconceived
and without any merit whatsoever and
stands to be dismissed with cost on an attorney and client scale. The
respondent contends
that this application is an abuse of the court
process and has been launched solely to obstruct the payment of
damages owed to
him by the applicant. This claim encompasses both
past and future loss of earnings, as well as general damages. The
respondent
opined that the applicant was motivated to launch this
application solely to avoid a warrant of execution being issued
against
it. The respondent stated that the application has nothing to
do with the respondent’s illegal status in the country, which the

applicant was fully cognisant of when it elected to settle the
applicant’s claim.

 

[9]       
The respondent explained that the factual basis and rationale for the
recission application
is a complete fabrication and distortion of the
facts. The respondent asserted that the applicant’s allegations -
claiming that
the applicant was under the misconception that the
respondent was legally in the country when the settlement offer was
made and
that the applicant would not have made this offer had it
known about the respondent’s illegal status, are false and
misrepresent
the truth.

 

[10]     
The respondent asserted that he (respondent) was born and raised in
Malawi. After completing
his military service in Malawi, he came to
South Africa in 1994. He had thus been living in South Africa for
many years when he
was involved in the motor vehicle collision on 9
September 2016. During his time in South Africa, and before being
involved in
the accident, he met and married Elmarie Bezuidenhout, a
South African citizen, in 2008, from which two minor children were
born.

 

[11]     
Following the motor vehicle accident, the respondent’s legal
representatives received instructions
to lodge a claim for
compensation against the applicant. Subsequent thereto, the
respondent’s attorney wrote a covering lodgement
letter to the
applicant on 12 June 2018, advising the applicant that they had
received instructions to lodge a claim on behalf
of Charles Jeka
Chipofya, also known as Charles Chipeta. According to the respondent,
it was explicitly mentioned to the applicant
that the respondent was
also known as Charles Chipeta because this was the name erroneously
inserted in his Malawian passport and
work permit. The respondent
averred that following the institution of the claim, multiple medical
reports were submitted on behalf
of the applicant. The respondent
propounded that from these reports, it is clear that the respondent
holds Malawian citizenship.

 

[12]     
After the respondent’s RAF claim was lodged, the applicant’s
attorneys of record considered the
merits of the claim and thereafter
provided the respondent with a notice in terms of Rule 34 dated 4
March 2020 in terms whereof the merits were settled 100% in favour of
the respondent. The matter was then declared trial-ready
on quantum,
and the parties were allocated the date of 24 November 2022 for the
hearing of the quantum. Following extensive negotiations,
the
applicant delivered a Rule 34 notice to the respondent on 23
September 2022. In this notice, the applicant proposed to pay the
respondent the sum of R600,000
as compensation for general damages.

 

[13]     
The respondent elected to accept the offer in respect of general
damages and the acceptance was
conveyed to the applicant in writing
on 13 October 2022. Later, the claims handler of the applicant sent
an email to the applicant’s
legal representative on 01 November 2022,
attaching documents and an affidavit from the Department of Home
Affairs confirming that
the respondent’s last valid status in the
country was a visitor’s visa which had expired on 10 December 2012.
The parties engaged
in settlement negotiations to settle the
respondent’s special damages.

 

[14]     
The respondent posits that on 24 November 2022, the date of trial, Ms
Lemmer from the State Attorney’s
office, who was assigned to deal
with the matter on behalf of the applicant, advised the respondent’s
legal representatives that
the applicant was awaiting an offer in
respect of the respondent’s loss of earnings which offer needed to be
signed off by head
office in Pretoria. In addition, the respondent
asserted that Ms Lemmer informed the respondent’s legal
representative that the
amount the applicant would tender would be
much less than the amount the respondent claimed in his actuarial
report since the respondent
was in South Africa illegally.

 

[15]     
Later that afternoon (on 24 November 2022), Ms Lemmer sent an email
to the applicant’s legal
representatives, attaching a copy of the
applicant’s tender in terms of Rule 34 in respect of the respondent’s
past and future loss of earnings in the sum of R861 750.00 which
was as anticipated, much less
than the amount which the respondent
was claiming. In the said email, Ms Lemmer attached a copy of the
medico-legal report of Moipone
Kheswa, the applicant’s industrial
psychologist, together with several documents from the Department of
Home Affairs, which showed
that the respondent did not have a valid
visa, which permitted him to be in South Africa. In addition, in the
report, Ms Kheswa
concluded that at the time of the accident, the
respondent was not supposed to be in South Africa, and he had,
therefore, incurred
no past loss of earnings.

 

[16]     
The respondent asserted that on 28 November 2022, the applicant’s
legal representative confirmed
that the respondent’s general damages
were settled at R600,000 and that the total amount payable to the
respondent, including all
heads of damages, was R1 461750.00, which
the respondent accepted. Following on from the compromise agreement
that had been reached
between the parties on the entire quantum of
the respondent’s damages, a draft order dated 12 January 2023 was
prepared and presented
to the court. The draft order was by agreement
made an order of court. The respondent contended that the applicant
was neither
candid nor forthcoming with the court in the founding
affidavit. At the time the settlement agreement was prepared, and the
court
issued its order, the applicant was aware that the respondent
was an illegal foreigner. Consequently, the respondent urged the
court to dismiss the application with costs.

 

Principal
submissions by the parties

 

[17]     
Mr Mokgope, the applicant’s counsel, submitted that the
applicant has an obligation in
terms of s 17(1) of the Road Accident
Fund Act 56 of 1996 (‘the
RAF Act’)
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 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. Counsel referred the
court to the case of AM
and Others v Minister of Transport and Another,[1]
in which the full court of the North Gauteng Division of the High
Court found that ‘any person’ in s 17(1) of the Act
also
includes illegal immigrants. Counsel submitted that the applicant
does not agree with the full court’s finding and is
appealing
that judgment to the Supreme Court of Appeal.

 

[18]     
According to counsel, the term ‘any person’ referred to in the Act
cannot include illegal immigrants
as this will be in contravention of
the Immigration Act, which prohibits illegal immigrants from being in
the Republic. It was submitted that the Act is a social legislation
which equates to
claims for damages being social benefits which, if
extended to illegal immigrants, will create an enormous burden on the
State.
In counsel’s view, allowing illegal foreigners to claim from
the applicant in terms of the Act offends the provisions prohibiting

the aiding and abetting illegal foreigners in contravention of the
Immigration Act.

 

[19

]     
Mr Mokgope further submitted on behalf of the applicant that the
applicant presented the offer of
settlement in good faith based on
the information provided and under the misconception that the
respondent was legally in the country.
According to counsel, the
applicant only became aware of the respondent’s questionable
immigration status after the settlement
was concluded, and an order
of court was made. Mr Mokgope submitted that the new information
(illegal status of the respondent)
constitutes a material fact that
was not before the court when the consent order was granted. In
counsel’s opinion, the applicant’s
reliance on this information to
seek rescission is legally justified. Counsel urged the court to
grant the relief sought in the
notice of motion.

 

[20]     
On the other hand, Mr Coughlan, the respondent’s legal
representative, took issue with the applicant’s
delay in bringing
this application. Counsel submitted that the applicant did not launch
the rescission application upon learning
that the respondent was
illegal in the country. Mr Coughlan contended that the applicant was
fully aware of the respondent’s legal
status before the settlement
agreement was reached and the consent order was granted.

 

[21]     
In expanding his argument, counsel submitted that the rescission
application relates to a court
order which was handed down on 23
January 2023, while the rescission application was only brought on 4
June 2024, which is 501
days after the said order was granted. In the
opinion of counsel, this constitutes a considerable delay.
Furthermore, Mr Coughlan
submitted that the applicant did not explain
the gross delay in bringing the rescission application. Mr Coughlan
strongly asserted
that the court should exercise its discretion to
deny the application for rescission, given the substantial delay in
launching
the application and the applicant’s failure to provide a
reasonable explanation for this delay.

 

[22]     
On the merits of the application, Mr Coughlan argued that the
applicant was aware of the respondent’s
nationality and legal status
in South Africa when it made its settlement offer on 24 November
2022. This offer was made without
any conditions, and the consent
order was obtained on 12 January 2023. In augmenting this argument,
the respondent’s counsel passionately
asserted that the applicant’s
rescission application is fundamentally insincere. Counsel emphasised
that the sole driving force
behind the applicant’s attempt to impugn
the consent order was to prevent the respondent from issuing a
warrant of execution against
it.

 

[23]     
Mr Coughlan argued that the respondent never misrepresented his
status in the country to the
applicant, nor was the applicant ever
under misapprehension in regard thereto. The settlement agreement was
not based on the assumed
existence of the respondent’s legal status
in the country. On the contrary, the applicant was fully cognisant of
the respondent’s
status in the country when it made the offer of
settlement on 24 November 2022. To this end, Mr Coughlan applied for
the dismissal
of the applicant’s application with costs on an
attorney and client scale.

 

Issues
to be decided

 

[24]     
From the above discussion, this court is enjoined to consider the
following three disputed issues:

 

(a)  Was the
rescission application brought timeously or within a reasonable time?

(b)  Whether the
applicant has shown good cause for rescinding the consent order
granted on 12 January 2023?

(c)  Whether an
undocumented foreign national is eligible for compensation under   
the Road Accident Fund Act?>

 

Discussion

 

[25]     
For completeness, I take the liberty to discuss the disputed issues
discussed above, ad seriatim.

 

Did
the applicant bring the rescission application timeously?

 

[26]     
The applicant’s application is based on the common law. An
application for rescission under
the common law must be brought
within a reasonable time.[2] An
ordinate delay in instituting an application to rescind a default
judgment may count against the rescission applicant and
result in the
rescission application being refused. What is reasonable will depend
on the circumstances of the particular case.
The 20-day time period
referred to in Rule 31(2)(b) of the Uniform Rules of Court is a
starting point in determining what is reasonable.
Where there has
been a delay, the applicant must show that there is a reasonable
explanation for the delay.[3]

 

[27]     
In the present matter, the applicant did not launch the rescission
application upon learning
that the respondent was an illegal
foreigner in the country. From the respondent’s answering affidavit,
the applicant was already
fully appraised of this fact before the
settlement agreement was reached, and the consent order was granted.
In the answering affidavit
to which the applicant did not reply
thereto, the respondent made it clear that the applicant was aware
that the respondent was
an illegal immigrant when the consent order
was granted. These allegations were not disputed.

 

[28]     
It is important to note that the applicant’s application for
rescission is tied to a court order
that was issued on 23 January
2023. Strikingly, this application was not launched until 4 June
2024, a staggering 501 days after
the consent order was granted.
Moreover, the applicant has not provided any satisfactory explanation
for this delay. In my view,
this constitutes a substantial and
unreasonable delay. 

 

[29]     
What I find very concerning is that on 26 March 2024, the
respondent’s legal representative sent
an email to the applicant
wherein the applicant’s attorneys were advised that the payment of
the capital amount of R1 461 750.00
in terms of the court order of 2
January 2023, was still outstanding and that if payment was not
effected within the next 10 days,
then the warrant of execution would
be issued and served. On 15 April 2024, in response to that email,
the applicant’s attorneys
sent an email to the respondent’s legal
representatives and advised them that the applicant had considered
the respondent’s email
and had instructed them to launch a rescission
application, which had already been finalised, and which would be
served on the
respondent’s attorneys shortly.

 

[30]     
Notwithstanding, the rescission application was not served nor filed.
On 2 May 2024, the respondent’s
attorney sent another email to the
applicant’s attorneys and pointed out to them that although they had
advised the respondent’s
legal representatives that an application
for recession had been prepared and would be served upon them
shortly, they had not received
such an application. The applicant’s
legal representatives were given a period of five days within which
to serve and file their
rescission application. No application for
rescission was forthcoming, and thereafter, the respondent’s legal
representatives went
ahead and issued the warrant of execution on 21
May 2024. However, before the warrant of execution could be served on
the applicant,
the applicant launched its rescission application,
which was served on the respondent’s legal representatives on 4 June
2024.

 

[31]     
Distinctly, the delay is inordinate and inexcusable. An undue delay
can be fatal to a rescission
of judgment application, calling for its
dismissal. It is important to note that the applicant was fully aware
of the respondent’s
illegal status and the existence of two different
surnames at the time the settlement was reached, and when the court
issued the
consent order. Accordingly, the applicant acquiesced to
the judgment. Acquiescence in the execution of a judgment must
surely,
in logic, normally bar success in an application to rescind
on the same basis as acquiescence in the very granting of the
judgment
itself would.[4]

 

[32]     
As foreshadowed above, the applicant did not take the court into its
confidence and explain the
cause of the delay, and neither filed an
application for condonation for the late filing of the rescission
application. It seems
to me the applicant is using the application
for rescission as a stratagem to prevent the respondent from going
ahead with its
warrant of execution. In my opinion, the applicant’s
application falls to be dismissed on this ground alone. However, for
the sake
of thoroughness, I will consider the remaining questions
discussed above.

 

Did
the applicant show good cause for the rescission of the consent
order?

 

[33]     
As a general rule, a court has no power to set aside or alter its own
final order, as opposed
to an interim or interlocutory order. The
reasons for this age-old rule are twofold. First, once a court has
pronounced a final
judgment, it becomes functus officio, and its
authority over the subject matter has ceased. The second reason is
the principle
of finality of litigation that is, it is in the public
interest that litigation be brought to finality.[5]

 

[34]     
As discussed above, the applicant’s application is premised on the
common law. In terms of the
common law, the grounds for setting aside
a judgment are very narrow. A judgment can be rescinded at the
instance of an innocent
party if it were induced by fraud on the part
of the successful litigant or fraud to which the successful litigant
was party. Apart
from fraud, the only other basis recognised in our
law as empowering a court to set aside its own order is justus
error,
the occurrence of which is said to be relatively rare and
exceptional.[6]

 

[35]     
In the present matter, the applicant relies on the existence of a
justus error, and as a result, the applicant contended that
the order was therefore erroneously granted. To satisfy the
requirement that the
order was erroneously sought or granted, the
applicant must show on a balance of probabilities that at the time
the order was granted,
there were material facts that the court was
unaware of and that had these facts been known to the court, the
court would not have
granted the order. In other words, the applicant
must demonstrate that there was a deliberate and intentional
non-disclosure and
withholding of crucial and material facts and
information to the court, which induced the court to grant the order.
This simply
means that the court must have been misled into granting
the order.

 

[36]     
A judgment given by consent may be set aside on good cause and
sufficient cause shown.[7] In
setting aside the judgment granted by consent, the courts have regard
to the following factors:

 

(a)  the
reasonableness of the explanation proffered by the applicant of the
circumstances in which the consent judgment was
entered;

(b)  the bona fides
of the application for rescission;

(c)  the bona fides
of the defence on the merits of the case which prima facie carries
some prospects of success; a balance
of probability need not be
established.

 

[37]     
All these factors must be viewed in conjunction with each other and
with the application as a
whole.[8]
In this case, the explanation proffered by the applicant is that it
acted under the misconception that the respondent was legally
in the
country when the offer of settlement was made to the respondent.
Furthermore, the applicant asserted that had the applicant
been aware
of the illegal status of the respondent at the conclusion of the
matter, it would not have extended an offer to the
respondent. From
the documents filed on record, these allegations are misleading and
demonstrably false.

 

[38]     
The respondent never misrepresented his status in the country to the
applicant, nor was the applicant
ever misapprehensive about it. The
settlement agreement was not based on the assumed existence of the
respondent’s legal status
in the country. This conclusion is
fortified by the fact that the applicant’s legal representatives
advised the respondent’s attorneys
that the respondent’s claim would
be reduced because he was an illegal immigrant. This averment was not
disputed by the applicant
or the applicant’s counsel. Clearly, the
applicant was fully cognisant of the respondent status in the country
when it made the
offer of settlement on 24 November 2022.
Furthermore, the respondent provided a plausible explanation in the
form of an affidavit
to the applicant for having two different names.
When the offer was made, the applicant was aware of this alleged
discrepancy.

 

[39]     
Notably, the reduced amount that the applicant chose to offer the
respondent concerning his loss
of income was partly based on the fact
that the respondent was not legally in the country when the offer was
made. Furthermore,
after the claim was lodged, numerous medical-legal
reports were served and filed on the applicant, from which it would
have been
patently obvious to the applicant that the respondent is a
Malawian citizen an illegal immigrant. For example, the medico-legal

report of the respondent’s Industrial psychologist, Amorei
Engelbrecht, dated 30 September 2022, served on the applicant states

that the respondent is a Malawian citizen and includes the
respondent’s Malawian passport number.

 

[40]     
In that report, the respondent informed Ms Engelbrecht that he had
attempted to apply for citizenship
in South Africa by virtue of his
marriage to a South African citizen. However, he was not awarded
citizenship at the time since
some African nationals had been
misusing the system by marrying South Africans to gain citizenship.
The fact that the respondent
was a Malawian citizen was never
withheld from the applicant.

 

[41]     
Most importantly, after the merits were settled, on 1 November 2022,
the claims handler of the
applicant sent an email with an affidavit
from the Department of Home Affairs confirming that the respondent’s
last valid status
in the country was a visitor’s visa, which had
expired on 10 December 2012. In addition, on 10 November 2022, the
claims handler
sent an email to the respondent’s attorneys, attaching
a further affidavit from the Department of Home Affairs. In the
affidavit,
Klass Mahlangu, an assistant director in the Department of
Home Affairs employed in the Immigration Services: Directorate
Temporary
Residence Functional Services in Pretoria, stated that in
terms of section 29(1)(f) of the Immigration Act, the respondent is a
prohibited person and does not qualify for a port of entry visa,
admission into the Republic, a visa or a permanent
resident permit as
he has been found with a fraudulent visa.

 

[42]     
Despite all this information, the applicant settled the respondent’s
claim and consented to have
the draft order made an order of court.
More so, when the applicant made a tender in terms of Rule 34, the
applicant’s legal representative, Ms Lemmer, attached a copy of the
medico-legal report of Moipone Kheswa, the applicant’s
Industrial
psychologist, together with a number of documents from the Department
of Home Affairs. These documents clearly showed
that the respondent
did not have a valid visa which allowed him to be in South Africa.

 

[43]     
In addition, in the said report, Ms Kheswa concluded that at the time
of the accident, the respondent
was not supposed to be in South
Africa, and he had, therefore, incurred no past loss of earnings.
Paragraph 4 of the affidavit
of Lungi Adonis employed by the National
Department of Home Affairs attached to Ms Lemmer’s email
specifically recorded that
on 24 October 2022, the status of Charles
Chipeta, who is the Malawian National, was verified on the movement
control system and
was found to be illegal in the country as his last
valid status which is a visitor’s visa expired on 10 December 2012.
In the circumstances,
there can be no suggestion of any justus
error having occurred when the applicant made its offer to settle
the respondent’s claim and when it consented to the order, nor can it

be said that the order was erroneously sought or erroneously granted
by the court.

 

[44]     
The applicant did not refute the allegations made by the respondent
in the answering affidavit.
As discussed above, the respondent’s
answering affidavit is supported by several correspondences exchanged
by the applicant’s legal
representatives and that of the respondent.
From these correspondences and expert reports, especially the
applicant and the respondent’s
Industrial Psychologists, it is
patently clear from these documents that the applicant never laboured
under a mistaken belief or
was ignorant of any material facts when it
settled the respondent’s RAF claim. Accordingly, the applicant’s
purported explanation
of the circumstances in which the settlement
was concluded and judgment entered against it are false and cannot be
accepted.

 

[45]     
It must be stressed that the parties concluded a settlement (a
compromise) and settled the litigation
between them. It is proper to
observe that a compromise (transactio) is
the settlement of disputed obligations by agreement. It is a contract
which has as its object the prevention, avoidance,
or termination of
litigation. It has the effect of res
judicata irrespective
of whether it is embodied in an order of court.[9]
The compromise between the applicant and respondent extinguished
their disputed rights or obligations. The purpose of this compromise

was to prevent or put an end to the litigation between the applicant
and respondent. Thus, the compromise of the applicant and
respondent
had the effect of res
judicata.[10]
This principle envisages that parties may not again litigate on the
same matter once it has been decided on the merits. It changes
the
terms of the settlement agreement to an enforceable court order.

 

[46]     
Granting the rescission application under these circumstances will
offend the principle of res judicata and also amount to an
abuse of process. Accordingly, the applicant’s application for
rescission stands to be dismissed on the grounds
of res judicata.
This leads me to the last disputed issue for consideration.

 

Is
the applicant precluded from compensation under the Road Accident
Fund Act?

 

[47

]     
At the hearing of this matter, it was argued that the applicant
presented the offer of settlement
in good faith based on the
information provided and under the misconception that the respondent
was legally in the country. The
applicant further submitted that the
phrase ‘any person’ referred to in section 17(1) of the Road Accident
Fund Act could not include illegal immigrants as this would be in
contravention of the Immigration Act, which prohibits illegal
immigrants from being in the Republic. According to the applicant,
this prohibition is established by section 49 of the Immigration Act,
which emphasises the seriousness of the offences and the consequences
thereof.

 

[48]     
It is appropriate to begin by observing that a similar argument
raised by the applicant’s counsel
in this matter was considered and
dismissed by the full court of the North Gauteng Division of the High
Court in AM
and Others v Minister of Transport and Another.[11]
The full court found that ‘any person’ in section 17(1)
of the Act also includes illegal immigrants. Mr Mokgope, the

applicant’s counsel, submitted that the applicant does not
agree with this finding and is appealing the judgment. While I

appreciate that the applicant is appealing the matter, I must add
that I am persuaded by the views expressed by the full court
in that
matter.

 

[49]     
In addition, the Road Accident Fund has an obligation in terms of
section 17(1) of the Road Accident Fund Act to compensate
any
person (the
third party) for any loss or death caused by or arising from the
driving of a motor vehicle by any person at any place within
the
Republic. Section 17(1) of the Act specifically refers to ‘any
person’.
It is apposite to remind ourselves that a
fundamental tenet of statutory interpretation is that the words in a
statute must be given their ordinary grammatical meaning,
unless to
do so would result in an absurdity.[12] There
are three important interrelated riders to this general principle,
namely:

 

(a) that statutory
provisions should always be interpreted purposively;[13]

(b) the relevant
statutory provision must be properly contextualised;[14] and

(c) all statutes
must be construed consistently with the Constitution, that is, where
reasonably possible, legislative provisions
ought to be interpreted
to preserve their constitutional validity.[15]

 

[50]     
The meaning of the words ‘any person’ in section 17(1) is clear and
unambiguous. Giving these
words their grammatical meaning does not
produce an absurd result. Simply put, the words ‘any person’ in
section 17(1) of the RAF
Act refers to everybody. The phrase ‘any
person’ has been interpreted by the RAF over the years to include
illegal foreigners injured
or killed in road accidents which took
place in South Africa. However, in a significant shift, the fund
recently enacted new directives
to exclude illegal immigrants from
the provisions of the Act. Seemingly, this measure was taken with the
aim of curbing and preventing
fraudulent claims.

 

[51]     
In my opinion, the current legislative framework of the RAF Act does
not support the fund’s position
to exclude illegal immigrants from
the application of the Act. I must also add that many developed
nations across the globe, recognise
claims for bodily injuries in
motor vehicle accidents for all individuals, regardless of their
immigration status. In the UK, for
instance, illegal foreigners are
entitled to compensation if they are victims of a motor vehicle
accident injured in the UK. The
UK’s legal system does not
discriminate based on immigration status on compensation for personal
injuries. Similarly, in Canada’s
various provinces, the compensation
for bodily injuries arising from motor vehicle accidents is not based
on immigration status.

 

[52]     
However, I am mindful that in the province of Ontario, the Court of
Appeal for Ontario in Silva
v John Doe,[16]
rejected a motor vehicle accident claim of an illegal foreigner
(appellant) who was involved in a hit and run accident. At the
time
of the accident, the appellant did not have a motor vehicle or other
insurance to respond to a claim for damages in respect
of his
injuries sustained in the accident. He, therefore, sued the
unidentified driver (“John Doe”) and the Superintendent
of
Financial Services (‘the
Superintendent’)
under the Motor Vehicle Accident Claims Act, R.S.O. 1990, c. M.41
(‘the
Act’)
for compensation from the Motor Vehicle Accident Claims Fund. The
Superintendent defended the action on the basis that the appellant’s

claim was statute barred by reason of s 25(1) of the Act. That
section prohibits payments from the fund to non-Ontario residents

save in specified circumstances. Section 25(1) reads:

 

‘The Minister shall
not pay out of the Fund any amount in favour of a person who
ordinarily resides in a jurisdiction outside Ontario unless
that jurisdiction provides persons who ordinarily reside in Ontario
with recourse of a substantially similar character
to that provided
by this Act.’ 

 

[53]     
The matter was by agreement decided through a summary judgment motion
procedure. The court had
to decide whether someone (an illegal
foreigner) who lived in Ontario continuously for almost a decade but
did so without having
legitimate immigration status could be
considered a true resident. The motion court judge rejected the
appellant’s claim, finding
that the appellant was not ordinarily a
resident of Ontario at the time of the accident and that his physical
presence in the province
resulted from deception and illegality. The
appellant appealed the decision, contending that the motion judge did
not apply the
proper test under section 25(1) of the Act.

 

[54]     
The Ontario Court of Appeal rejected the argument and found that the
key to the engagement of
s 25(1) is simply whether the appellant
resided in the province at the time. The appeal court confirmed the
finding of the motion
court judge that de facto physical
presence in Ontario, even if continuous, does not automatically
establish ordinary residence in Ontario for the purpose
of access to
the fund. Notably, the court dismissed the application and found that
the legislative history of s 25(1), considered
by the motion court
judge, reflected a legislative intention to avoid unnecessary
payments out of the fund, which relies on public
money sourced
through Ontario’s consolidated revenue fund.

 

[55]     
By parity of reasoning, our Road Accident Fund Act is different. It
is designed and couched to include illegal foreigners to benefit from
the fund in case of motor vehicle accidents.
The fund is intended to
compensate any person injured through the negligent driving of a
motor vehicle. Even if I am wrong in my
finding, I firmly believe
that the applicant’s application must fail as the Directive issued by
RAF, which requires foreign nationals
to submit proof that they were
lawfully in the country at the time of the injury, does not apply
retrospectively.

 

[56]     
It is common cause that the plaintiff was involved in a motor vehicle
accident on 9 September
2016. Thereafter, the plaintiff issued
summons against RAF on 13 November 2018. On 21 June 2022, the RAF
issued the directive requiring
all foreign nationals who lodged
claims against the RAF to submit proof that they were lawfully in the
country at the time of the
injury. On 4 July 2022, by way of a notice
in the Government Gazette, the Minister of Transport promulgated the
RAF 1 claim form
incorporating the requirements in terms of the
Directive of 21 June 2022.

 

[57]     
The RAF1 form in effect, when the respondent lodged his claim, did
not stipulate a requirement
to prove the legality of the respondent’s
residence in the Republic. The Directive issued by the RAF was issued
long after
the respondent’s claim was lodged with the fund. I must
stress the fact that there is a strong presumption in our law that
new
legislation is not intended to be retrospective.[17]
There is another well-established rule of construction, namely that
even if a new statute is intended to be retroactive insofar
as it
affects affected rights and obligations, it is nonetheless presumed
not to affect matters that are the subject of pending
legal
proceedings. Therefore, the general rule is that a statute is as far
as possible to be construed as operating only on facts
that come into
existence after its passing.[18]

 

[58]     
Moreover, the RAF Act is primarily concerned with giving the greatest
possible protection to
people who have suffered loss through
negligence or through unlawful acts on the part of the driver or
owner of a motor vehicle.
As correctly pointed out by Mr Coughlan,
the provisions of the RAF Act must be interpreted as extensively as
possible in favour
of third parties to afford them the widest
possible protection.

 

[59]     
Accordingly, eligibility for the RAF fund is not contingent upon a
person’s legal status within
this country. An individual’s legal
standing does not influence their eligibility for RAF benefits.
Simply put, it is not the person’s
immigration status in the
country that makes a person legible to the RAF benefits. The benefits
that are provided under RAF are
incidents of a motor vehicle
accident, rather than benefits linked to an individual immigration
status in this country. Moreover,
the RAF fund is financed primarily
through the payment of fuel levies. The payment of fuel levies is
charged indiscriminately to
a person buying fuel. Therefore, any road
user involved in a motor vehicle accident and sustains a serious
injury is entitled,
in my view, to be compensated by the Fund. The
fact that a person is illegal in the country is not an obvious
relevance to the
question of eligibility.

 

[60]     
Considering the context and the purpose of the RAF Act, the
eligibility for RAF benefits depends
on satisfying the RAF Act
requirements.  Such an approach accords with section 39(2) of
the Constitution which enshrines the
rule of statutory interpretation
that statute must be construed consistently with the Constitution and
must promote the spirit,
purport and objects of the Bill of Rights.
Section 9 of the Bill of Rights states that everyone is equal before
the law and has
the right to equal protection and benefit of the law.

 

[61]     
Pursuant to the above consideration, it is my firm view that even if
the RAF’s appeal to the
Supreme Court of Appeal should be successful,
that outcome can have no bearing on the outcome of this application
for various reasons,
one of which is that the new RAF1 claim form and
the RAF’s management directive cannot apply retrospectively. As a
result, the
applicant’s application must fail.

 

Order

 

[62]     
In the result, the following order is granted.

 

62.1   
The applicant’s application is hereby dismissed.

62.2   
The applicant is ordered to pay the costs of this application,
including the costs of counsel on scale B.

 

 

LEKHULENI JD

JUDGE OF THE HIGH
COURT

 

 

APPEARANCES

 

For
the Applicant: Adv Mokgope

Instructed
by: Mpoyana Ledwaba Inc

 

For
the Respondent: Adv Coughlan

Instructed
by: Sohn and Wood Attorneys

---

---