The Road Accident Fund (“RAF”) holds many procedures and requirements for persons to be able to claim from the fund for motor vehicle accidents, and the damages suffered from these accidents. These procedures and requirements are over entangled and have become complicated for a normal person to fully grasp each and every aspect which they must take into account. This article is meant to give a summary of some of the aspects which you must take into account, and explains some of the core concepts a little easier.

Prescription

Prescription occurs when a debt is extinguished after a certain period of time and the debtor will no longer be required to pay off their debt. Prescription applies to claims against the Road Accident Fund and after a certain period of time one cannot lodge a claim against the RAF for a motor vehicle accident. There are certain factors that affect prescription such as the age of the claimant, the mental and physical state of the claimant and whether the accident was a hit and run or whether the driver is known to the claimant.

The Road Accident Fund Act 56 of 1996 (“RAF Act”) sets out the different prescription periods for claims against the RAF. In order to prevent a claim from prescribing a valid claim must be lodged at the RAF, delivered by hand or registered post. However, even after lodgment of the claim at the RAF, the claim may still prescribe and to interrupt prescription a second time after lodgment, summons (documents issued by a court to appear in court for litigation) must be served on the RAF.

To calculate the period of prescription, the first day is included and the last day is excluded and if the last day falls on a public holiday, a Saturday or Sunday, the last day will be the following business day.

Adult/major persons

In terms of section 17 the Children’s Act 38 of 2005, a person reaches the age of majority (becomes an adult) at the age of 18 years. A claim in which the claimant has reached the age of majority will prescribe upon the lapse of a period of three years from the date of the accident or three years from the date of death for claims for loss of support and funeral expenses. To further interrupt prescription a second time after lodgment of the claim at the RAF, summons must be served on the RAF within five years from the date of the accident or five years from the date of death.

Minor persons

According to the RAF Act, prescription is suspended until a minor becomes a major, which means that prescription will only start running when a claimant reaches the age of 18 years. Hence, the claimant has three years from the date of turning 18 years to lodge a claim against the RAF, and after lodgment five years from the date of turning 18 to serve summons on the RAF before the claim prescribes.

Representative and personal capacity of legal guardians in terms of prescription

When a minor’s legal guardian lodges a claim in his/her personal capacity on behalf of the minor then the claim prescribes upon the lapse of three years from date of accident, and after lodgment of the claim at the RAF it prescribes upon the lapse of five years from the date of the accident.

However, when a minor’s legal guardian lodges a claim on behalf of the minor in his/her representative capacity, then the claim will prescribe three years after the minor reaches the age of 18 years and after lodgment of the claim at the RAF it will prescribe five years after the minor reaches the age of majority. A legal guardian will act in his/her personal capacity only for claims relating to past hospital and medical expenses, and for the other claims he/she will act in his/her representative capacity.

Persons excluded from application of prescription

A mentally ill person is excluded from the application of prescription. In the case of RAF v Smith 1999(1) SA92 (SCA) the court held that prescription does not run against a person who is mentally ill whether they have been detained as patients in terms of the mental health legislation or not. It is the claimant’s burden to provide proof of their mental incapacity.

Prescription also does not run against a person who is in a coma. Further, prescription does not run against a person under curatorship with an appointed curator ad litem or curator bonis.

Prescription for unidentified claims – hit and run

The prescription period is different for claims in which the other driver of the vehicle is unidentified i.e. hit and run incidents. In terms of regulations of the RAF Act, an “unidentified” claim against the RAF in which the claimant is an adult will prescribe upon the lapse of two years from the date of the accident or two years from the date of death in the case claims for loss of support and funeral expenses. After lodgment of the claim at the RAF, the claim will prescribe five years from the date of accident or date of death.

Furthermore, a claim against the RAF in which the claimant is a minor will prescribe two years from the date of turning 18 years, and after lodgment of the claim at the RAF the claim will prescribe five years from date of turning 18 years.