THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case no: 1185/2024
In the matter between:
THE ROAD ACCIDENT FUND APPELLANT
and
ADAM MUDAWO FIRST RESPONDENT
WENILE SIMON NDLOVU SECOND RESPONDENT
BRUCE MTHOKOSIZI SIBANDA THIRD RESPONDENT
OYETUNDE ONENIYI AREO FOURTH RESPONDENT
AND
Case no: 1468/2024
THE ROAD ACCIDENT FUND APPELLANT
and
LYTON A FIRST RESPONDENT
TAKAWIRA T SECOND RESPONDENT
GUDZA N THIRD RESPONDENT
LEFATSO G M FOURTH RESPONDENT
CHIKWANA T FIFTH RESPONDENT
MALEFANE L SIXTH RESPONDENT
MUSEKIWE I SEVENTH RESPONDENT
CHITANGO B EIGHTH RESPONDENT
2
MUFUNDISI T NINTH RESPONDENT
OLADIPUPO O F TENTH RESPONDENT
HASTINGS R ELEVENTH RESPONDENT
OLUWADARE J A TWELFTH RESPONDENT
SUCHA C THIRTEENTH RESPONDENT
THE SHERIFF PRETORIA EAST FOURTEENTH RESPONDENT
THE SHERIFF CENTRURION EAST FIFTEENTH RESPONDENT
Neutral citation: The Road Accident Fund v Mudawo and Others (Case no:
1185/2024) and The Road Accident Fund v Lyton and Others
(Case no: 1468/2024) [2026] ZASCA 54 (16 April 2026)
Coram: SCHIPPERS, MBATHA and HUGHES JJA and BASSON
and KGANYAGO AJJA
Heard: 16 February 2026
Delivered: This judgment was handed down electronically by circulation
to the parties’ representatives by email, publication on the Supreme Court of
Appeal website and released to SAFLII. The date and time for hand -down of the
judgment is deemed to be 11h00 on 16 April 2026.
Summary: Statutory interpretation – s 17(1) of the Road Accident Fund Act 56
of 1996 (the Act) – directive issued and claim form amended – foreign nationals
illegally in South Africa (illegal foreigners) excluded from lodging claims under
the Act – s 17(1) obliges Fund to compensate ‘any person’ for loss or damage –
neither Minister of Transport nor Fund empowered to exclude illegal foreigners
– violation of principle of legality.
Civil procedure – suspension of court orders and stay of execution – only where
real or substantial injustice will ensue – Fund seeking relief on ground that s 17(1)
of the Act excludes illegal foreigners – interpretation incorrect – no case made
out for suspension of orders and stay of execution.
3
_______________________________________________________________ _
ORDER
________________________________________________________________
On appeal from: Gauteng Division of the High Court, Pretoria (Davis J, Kok AJ
and Mnyovu AJ sitting as court of appeal):
In case number 1185/2024:
The appeal is dismissed with costs, including the costs of two counsel.
On appeal from: Gauteng Division of the High Court, Pretoria (Motha J sitting
as court of first instance):
In case number 1468/2024:
The appeal is dismissed with costs, including the costs of two counsel.
________________________________________________________________
JUDGMENT
________________________________________________________________
Schippers JA ( Mbatha and Hughes JJA and Basson and Kganyago AJJA
concurring)
[1] The central issue on these two appeals concerns the meaning and effect of
s 17(1) of the Road Accident Fund Act 56 of 1996 (the Act) , more specifically,
whether ‘any person’ entitled to claim compensation for loss or damage as
contemplated in that provision, excludes illegal foreigners. In the first appeal
(Case n o 1185/2024), a full court of the Gauteng Division of the High Court,
Pretoria (the Full Court), held that s 17(1) of the Act does not exclude illegal
foreigners. Special leave to appeal that decision was granted by this Court.
4
[2] The second appeal (Case no 1468/2024) is against an order by the Gauteng
Division of the High Court, Pretoria (the High Court), which dismissed an
application by the appellant, the Road Accident Fund (the Fund), to interdict the
respondents in that case from proceeding with a warrant of execution against the
Fund’s assets, pending a decision by this Court on the firs t appeal. The second
appeal is with the leave of the High Court. Only the first, seventh, eighth, ninth
and tenth respondents participated in the appeal.
Factual background
[3] The basic facts can be briefly stated. The respondents in both appeals are
foreign nationals. They were all involved in motor vehicle accidents at various
places in this country, in which they sustained multiple injuries. They claimed
compensation from the Fund in terms of the Act, for the losses and damages they
suffered because of their injuries.
[4] On 21 June 2022 the Fund’s Chief Operations Officer issued a
management directive titled, ‘ Critical Validations to Confirm the Identity of
South African Citizens and Claims Lodged by Foreigners’ (the Directive). It
states:
‘In instances where the claimant or injured is a foreigner, proof of identity must be
accompanied by documentary proof that the claimant was legally in South Africa at the time
of the accident. A copy of the foreign claimant’s passport showing the entry stamp and/or exit
stamp must be submitted. Where the passport does not have any stamp, the RAF will not be
lodging such a claim. Where the passport document does not have an exit stamp, proof that the
claimant is still in the country must be produced. In thi s instance the passport copy indicating
approved Visa must be submitted. Copies of the passport must be certified by SAPS.’
[5] In July 2022 t he Minister of Transport (the Minister) published a new
RAF 1 claim form (the claim form) in the Government Gazette. 1 Concerning
injury claims, paragraph 6.1 of the claim form requires a claimant to p rovide a
injury claims, paragraph 6.1 of the claim form requires a claimant to p rovide a
1 Notice no 2235 in GG 46661, 4 July 2022.
5
certified copy of his or her identity document and ‘[i]f claimant is a foreigner,
proof of identity must be accompanied by documentary proof that the claimant
was legally in South Africa at the time of the accident ’. A similar provision is
contained in paragraph 12.1 of the claim form, in relation to death claims. In what
follows, I refer to the decisions to publish paragraphs 6.1 and 12.1 in the claim
form and to incorporate them in the Directive, as ‘the impugned decisions’.
[6] In August 2022 the respondents in the first appeal launched an application
in the High Court to review and set aside the impugned decisions. The review
grounds were that the decisions violated the principle of legality; infringed the
respondents’ rights enshrined in ss 9, 10, 12, 27, 33 and 34 of the Constitution;
and are unreasonable, substantively and procedurally unfair, and irrational.
[7] The Minister initially opposed the review application but subsequently
delivered a notice to abide by the decision of the court. However, he did not
provide the court with any reasons for the impugned decisions.
[8] The Fund opposed the review application. The answering affidavit by its
Chief Executive Officer (CEO) states that the purpose of the impugned decisions
is n ot to deny qualifying legal foreign claimants access to the social benefit
scheme in the Act. Rather, their purpose is to s atisfy the Fund that the loss or
damage which is the subject of the claim , is caused by the driving of a motor
vehicle within the Republic; and to ensure that the Fund does not contravene the
Immigration Act 13 of 2002 (the Immigration A ct) when processing claims
submitted by foreign claimants.
[9] The CEO states that the Fund has established that there are several
claimants who are citizens of other countries which do not have a social benefit
scheme such as the one created by the Act. He says that a number of these claims
are fraudulent, because the loss or damage was sustained in accidents outside the
6
borders of this country. Unless claimants are asked to state where the loss or
damage was caused, the Fund has no way of knowing whether it was caused by
the driving of a motor vehicle within South Africa.
[10] The CEO contends that the social benefit scheme in the Act was n either
designed nor intended ‘to benefit people who are in South Africa illegally’. The
law, he says, distinguishes between foreigners and citizens of the Republic. The
former do not have the same rights as citizens and permanent residents of the
Republic. The CEO goes on to say that the phrase ‘any person’ in s 17(1) of the
Act, is a reference to ‘ a South African citizen, a permanent resident and a legal
foreigner’; it does not include illegal foreigners.
[11] The Full Court (Davis J, Kok AJ and Mnyovu AJ) reviewed and set aside
the impugned decisions, with costs. It found that there is nothing in the Act nor
the compensation scheme administered by the Fund, to justify the conclusion that
the words ‘any person’ exclude illegal foreigners. The Full Court held that neither
the Minister nor the Fund were empowered to amend or limit the ambit of the
Act; and that the purported amendment or limitation constituted a reviewable
irregularity as envisaged in s 6(2)(a)(i) of the Promotion of Administrative Justice
Act 3 of 2000 (PAJA). The court found it unnecessary to consider the remaining
review grounds.
[12] The Full Court’s reasoning, in sum, is this. The Fund accepted that its
conduct was based on a new interpretation of the Act, without any amendment to
it. It contended that the Minister had taken a policy decision to publish paragraphs
6.1 and 12.1 of the claim form. If this co ntention is incorrect, the impugned
decisions could not have been taken because that would amount to an amendment
of the Act or a limitation thereof, which neither the Minister nor the Fund is
empowered to do. The Act is social legislation passed to provide the victims of
empowered to do. The Act is social legislation passed to provide the victims of
motor vehicle accidents with the widest possible protection, and to protect drivers
7
from delictual claims . Therefore, t he words ‘any person’ in s 17(1) of the Act
must be given a wide meaning.
[13] In the second appeal, 13 foreign nationals successfully prosecuted claims
for damages against the Fund arising from motor vehicle accidents. They
concluded settlement agreements with the Fund, some of which were made orders
of court. When they sought to enforce th ose orders, some through writs of
execution, the Fund refused payment.
[14] In November 2023 the Fund launched an urgent application in the High
Court for an order suspending the operation and execution of the orders and
warrants of execution issued by that court ; and interdicting the fourteenth and
fifteenth respondents (the Sheriff, Pretoria East and the Sheriff, Centurion East,
respectively) from enforcing warrants of execution against the Fund’s assets.
[15] The Fund’s reasons for refusing payment and seeking a stay of the orders
and warrants were twofold: (i) the respondents are illegal foreigners; and (ii) the
first appeal was pending before the Full Court, which would decide whether they
could submit claims for compensation under the Act. The Fund’s application was
initially struck off the roll for lack of urgency but was subsequently re -enrolled.
It came before Motha J , who concluded that the application was unmeritorious,
and on the authority of the Full Court’s judgment, dismissed it with costs.
The first appeal
The relevant statutory provisions
[16] The Fund is a juristic person established in terms of s 2 of the Act. Its
powers and functions include determining the conditions on which claims for
compensation are administered;2 and investigating and settling, subject to the Act,
‘claims arising from loss or damage caused by the driving of a motor vehicle whether or not
2 Section 4(1)(a) of the Act.
8
the identity of the owner or the driver thereof, or the identity of both the owner and the driver
thereof, has been established.’3
[17] Section 17(1) of the Act, in relevant part, provides that the Fund shall:
‘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 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, if the injury or death is due to the negligence or
other wrongful act of the driver or of the owner of the motor vehicle or of his or her employee
in the performance of the employee 's duties as employee: Provided that the obligation of the
Fund to compensate a third party for non-pecuniary loss shall be limited to compensation for a
serious injury as contemplated in subsection (1A) and shall be paid by way of a lump sum.’
[18] In terms of s 21(1) of the Act, certain common law claims are abolished. It
provides:
‘Abolition of certain common law claims
(1) No claim for compensation in respect of loss or damage resulting from bodily injury to
or the death of any person caused by or arising from the driving of a motor vehicle shall
lie-
(a) against the owner or driver of a motor vehicle; or
(b) against the employer of the driver.’
[19] The procedure for the submission of claims is prescribed in s 24. It states
inter alia that a claim for compensation and the accompanying medical report
shall ‘be set out in the prescribed form, which shall be completed in all its
particulars’;4 and that any form not so completed shall not be acceptable as a
claim under the Act.5
3 Section 4(1)(b) of the Act.
4 Section 24(1)(a) of the Act.
5 Section 24(4)(a) of the Act.
9
[20] Section 26(1) of the Act provides:
‘The Minister may make regulations regarding any matter that shall or may be prescribed in
terms of this Act or which it is necessary or expedient to prescribe in order to achieve or
promote the object of this Act.’
[21] Section 25(1) of the Immigration Act states:
‘The holder of a permanent residence permit has all the rights, privileges, duties and obligations
of a citizen, save for those rights, privileges, duties and obligations which a law or the
Constitution explicitly ascribes to citizenship.’
[22] Section 42(1), in relevant part, provides:
‘Subject to this Act, and save for necessary humanitarian assistance, no person, shall aid, abet,
assist, enable or in any manner help-
(a) an illegal foreigner; or
(b) a foreigner in respect of any matter, conduct or transaction which violates such
foreigner’s status, when applicable . . .’
[23] Section 44 of the Immigration Act provides:
‘When possible, any organ of state shall endeavour to ascertain the status or citizenship of the
persons receiving its services and shall report to the Director -General any illegal foreigner, or
any person whose status or citizenship could not be ascertained, provided that such requirement
shall not prevent the rendering of services to which illegal foreigners and foreigners are entitled
under the Constitution or any law.’
[24] Section 49(4) states:
‘Anyone who intentionally facilitates an illegal foreigner to receive public services to which
such illegal foreigner is not entitled shall be guilty of an offence and liable on conviction to a
fine.’
10
The meaning of ‘any person’ in the Act
[25] The Fund’s submissions , briefly, are these. The Full Court erred in not
following the settled approach to the interpretation of statutes in Endumeni,6 and
Road Traffic Management Corporation .7 The phrase ‘any person’ in s 17(1) of
the Act does not include illegal foreigners . It should be interpreted with due
regard to the provisions of the Immigration Act, which prohibits foreign nationals
from entering and being in the Republic illegally.
[26] More particularly, s 25 of the Immigration Act draws a distinction between
illegal foreigners and permanent residents : it provides that the latter have all the
rights, privileges and benefits granted to citizens; s 44 states that organs of state
must ascertain the status or citizenship of persons receiving their services and
report illegal foreigners; and s 49(4) makes it an offence to intentionally facilitate
public services to illegal foreigners. These provisions of the Immigration Act, the
Fund submits, authorised the Minister and the Fund to prescribe a requirement –
which is lawful – that foreign claimants provide evidence that they were lawfully
in the Republic when their claims arose, which is a ‘ policy choice made by the
Executive’, that should be respected.
[27] The Fund further submits that the effect of the Full Court’s judgment is
that illegal foreigners are entitled to benefit from the social benefit scheme in the
Act, even though they entered the Republic illegally , and their presence
constitutes a criminal offence under the Immigration Act. This, so it is submitted,
would lead to absurdity. A further effect is that illegal foreigners need not prove
that they were in the country when the accident giving rise to the claim happened.
[28] The respondents submit that the impugned decisions constitute an
infringement of several constitutional rights, including equality (s 9); dignity
infringement of several constitutional rights, including equality (s 9); dignity
6 Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] ZASCA 13; 2012 (4) SA 593 (SCA);
[2012] 2 All SA 262 (SCA) (Endumeni).
7 Road Traffic Management Corporation v Waymark Infotech (Pty) Ltd [2019] ZACC 12; 2019 (6) BCLR 749
(CC); 2019 (5) SA 29 (CC) (Road Traffic Management Corporation) paras 29 and 30.
11
(s 10); children’s rights (s 28); and the right of access to court (s 34). They
contend that the Act must be interpreted to give the greatest possible protection
to third parties; that the phrase ‘any person’ in s 17(1) of the Act is one of wide
import which includes illegal foreigners ; and that the Fund’s internal
management directives do not have the force of law that bind the public and
claimants.
[29] It is a settled principle that statutory interpretation is a unitary exercise,
considering the text, context and purpose of a provision to render a sensible
interpretation.8 The starting point remains the ordinary, grammatical meaning of
the words, which must be read purposively, properly contextualised and
construed consistently with the Constitution. 9
[30] A basic principle of statutory interpretation is s 39(2) of the Constitution.
It enjoins a court, when interpreting any legislation, to promote the spirit, purport
and objects of the Bill of Rights. Implicit in this injunction are two propositions:
‘first, the interpretation that is placed upon a statute must, where possible, be one that would
advance at least an identifiable value enshrined in the Bill of Rights; and, second, the statute
must be reasonably capable of such interpretation. This flows from the fact that the Bill of
Rights “is a cornerstone of [our constitutional] democracy”. It “affirms the democratic values
of human dignity, equality and freedom”.’10
[31] Unlike other legislation which specifically excludes foreign nationals from
its ambit, such as the Social Assistance Act 13 of 2004 which limits beneficiaries
to South African citizens, permanent residents and refugees,11 the Act contains
8 Endumeni fn 6 para 18; University of Johannesburg v Auckland Park Theological Seminary and Another [2021]
ZACC 13; 2021 (6) SA 1 (CC); 2021 (8) BCLR 807 (CC) paras 64-66.
9 Airports Company South Africa v Big Five Duty Free (Pty) Ltd and Others [2018] ZACC 33; 2019 (2) BCLR
165 (CC); 2019 (5) SA 1 (CC) para 29, affirming Endumeni.
10 Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and Others 2004 (4) SA 490 (CC)
(Bato Star) para 72.
11 See also s 24(2)(b) of the Legal Practice Act 28 of 2014 which restricts admission to practice and be enrolled
as a legal practitioner, to South African citizens or permanent residents; Rafoneke and Another v Minister of
Justice and Correctional Services and Others [2022] ZACC 29; 2022 (6) SA 27 (CC) ; 2022 (12) BCLR 1489
(CC).
12
no such limitation. Inst ead, s 17(1), on its plain wording, states that the Fund is
obliged to compensate ‘any person’ for any loss or damage suffered as a result of
bodily injury to themselves, or the death of or bodily inj ury to another person ,
caused by or arising from the driving of a motor vehicle.
[32] The Constitutional Court i n Road Traffic Management Corporation ,12
affirming this Court’s decisions in Hayne13 and Hugo,14 said:
‘In Hayne the Appellate Division said that “(i)n its natural and ordinary sense any – unless
restricted by the context – is an indefinite term which includes all of the things to which it
relates”. Yet again in Hugo it was held that “(a)ny is upon the face of it, a word of wide and
unqualified generality. It may be restricted by the subject matter or the context, but prima facie
it is unlimited”.’15
[33] The phrase ‘any person ’ in the former Compulsory Motor Vehicle
Insurance Act 56 of 1972, was considered in Stegen.16 Kumleben J held:
‘The section in terms obliges the registered company to compensate “any person whatsoever”
who is injured in the circumstances stipulated. The phrase is one of obviously wide meaning
and its use is in conformity with the general purpose of the Act, which is to substitute a statutory
insurer for the actual wrongdoer as regards compensation legal ly claimable by any person
under the common law.’
[34] Thus, on its plain language, s 17(1) cannot be construed as excluding illegal
foreigners. This construction accords with the context of the legislative scheme –
to compensate third parties who suffer loss or dam age wrongfully caused by the
driving of motor vehicle s,17 and to abolish claims for compensation against
owners or drivers of motor vehic les. It also accords with the purpose of s 17(1)
within that scheme.
12 Road Traffic Management Corporation fn 7 para 33B-C.
13 Hayne & Co v Kaffrarian Steam Mill Co Ltd 1914 AD 363.
14 R v Hugo 1926 AD 268 at 271.
15 Emphasis in the original.
14 R v Hugo 1926 AD 268 at 271.
15 Emphasis in the original.
16 Stegen and Others v Shield Insurance Co Ltd 1976 (2) SA 175 (N) at 177B-C.
17 Section 3 of the Act provides:
‘The object of the Fund shall be the payment of compensation in accordance with this Act for loss or damage
wrongfully caused by the driving of motor vehicles.’
13
[35] This construction of s 17(1) is also consistent with the purpose of the Act .
In Mvumvu18 the Constitutional Court said:
‘The Act constitutes social-security legislation whose primary object has been described as “to
give the greatest possible protection . . . to persons who have suffered loss through a negligent
or unlawful act on the part of the driver or owner of a motor vehicle”.’
[36] This purpose is not achieved when the phrase ‘any person’ is interpreted as
excluding illegal foreigners . On the contrary, the Act is the latest in a line of
statutory enactments dating back to 1942, which is ‘designed to compensate
persons injured or the dependants of persons killed as a result of the negligent
driving of motor vehicles. The intention throughout has been to give such persons
the greatest possible protection’.19
[37] The above interpretation of s 17(1) advances identifiable values enshrined
in the Bill of Rights ,20 more specifically, equality and freedom. Under s 9 of the
Constitution, everyone – regardless of immigration status – is equal before the
law. Excluding a category of claimants based on their immigration status, would
constitute unfair discrimination and violate the primary object of the Act, whi ch
is to provide social security to all road users. That object is to ensure that ‘injured
persons or their dependants who might not be able to recover damages owing to
the inability of the parties liable to pay, should receive full compensation’.21
[38] The interpretation of ‘any person’ as meaning ‘everyone’, plainly advances
the right to freedom and security of the person entrenched in s 12 (1) of the
Constitution. In Law Society,22 the Constitutional Court explained the extent of
this right as follows:
18 Mvumvu and Others v Minister for Transport and Another [2011] ZACC 1; 2011 (2) SA 480 (CC); 2011 (5)
BCLR 488 (CC) para 20.
19 SA Eagle Insurance Co Ltd v Van der Merwe NO 1998 (2) SA 1091 (SCA) at 1095J-1096A, affirmed in Law
Society of South Africa and Others v Minister for Transport and Another [2010] ZACC 25; 2011 (1) SA 400 (CC);
2011 (2) BCLR 150 (CC) para 40.
20 Bato Star fn 10 para 72.
21 Rose’s Car Hire (Pty), Ltd v Grant 1948 (2) SA 466 (A) at 471.
22 Law Society of South Africa fn 19 para 63.
14
‘Section 12(1) confers the right to the security of the person and freedom from violence on
“everyone”. There is no cogent reason in logic or in law to limit the remit of this provision by
withholding the protection from victims of motor vehicle accidents. When a person is injured
or killed as a result of negligent driving of a motor vehicle, the victim’s right to security of the
person is severely compromised. The State, properly so, recognises that it bears the obligation
to respect, protect and promote the freedom from violence from any source.’
[39] Sections 9(1) and 12(1) of the Constitu tion, and s 17(1) of the Act itself,
draw no distinction between any persons, let alone between South African
citizens and illegal foreigners. Consequently, the Act covers all road users. Had
the legislature intended that a category of claimants should be excluded from
claiming compensation under the Act, it could, and would, have said so.
[40] It follows that the Fund’s reliance on the provisions of the Immigration Act
is misplaced. Section 25(1), which states that a permanent resident has the rights,
privileges and duties of a citizen, does not assist the Fund. Section 25(1) does not
detract from the fact that the Act is social security legislation to provide the fullest
possible protection to victims of road accidents. The Fund misreads s 44 of the
Immigration Act . First, it cannot be interpreted to mean that where an illegal
foreigner lodges a claim for compensation under the Act, the Fund is ‘aiding or
abetting’ that person to contravene the Immigration Act when it investigates or
settles that claim.23 Second, s 44 itself contains a proviso that the requirement to
ascertain the status of persons receiving services from an organ of state, shall not
prevent the rendering of services or performance to which illegal foreigners are
entitled ‘under any law’. The Act is such a law. Section 49(4) of the Immigration
entitled ‘under any law’. The Act is such a law. Section 49(4) of the Immigration
Act does not apply as illegal foreigners are included in terms of s 17(1) of the
Act.
[41] The Fund’s contention that the Directive and the changes to the claim form
were necessary , because of loss or damage sustained by foreign claimants in
23 Maphosa v Road Accident Fund [2024] ZAGPJHC 263 paras 99-101.
15
accidents outside South Africa and to st op fraud, does not withstand scrutiny.
Paragraph 3 of the claim form requires a claimant to provide details of the date,
time and place of the accident, and the name and address of the police station to
which the accident was reported. That report contains details of persons killed or
injured. Given this information, which is compulsory, it is inconceivable that the
Fund has no way of knowing whether a foreign national sustained injury in an
accident in this country. And there is simply no evidence of any fraudulent claims
by illegal foreigners.
[42] Moreover, not every foreigner without a passport containing an entry and
exit visa stamp as required by the Directive, is in South Africa illegally. Section
27(b) of the Refugees Act 130 of 1998 (the Refugees Act) grants refuge es
(persons who leave their home country due to a well-founded fear of persecution
based on race, religion, nationality, social group, or political opinion) protection,
including the rights in the Bill of Rights. In Ruta,24 the Constitutional Court held
that the provisions of the Immigration Act must be read together and in harmony
with the Refugees Act. Although an asylum seeker who is in the country
unlawfully is an ‘illegal foreigner’ under the Immigration Act, the specific
provisions of the Refugees Act provide imperatively that notwithstanding that
status, the claim for asylum must first be processed under the Refugees Act.
[43] The Full Court’s conclusion is thus correct. There is nothing in the text of
the Act, the context of its social security scheme, and its purpose, which suggests
that the phrase ‘any person ’ in s 17(1) should be restrictively interpreted to
exclude illegal foreigners. The decision to the contrary in Chola v RAF 25 is
incorrect and should not be followed.
24 Ruta v Minister of Home Affairs [2018] ZACC 52; 2019 (3) BCLR 383 (CC); 2019 (2) SA 329 (CC) para 43.
25 Chola v RAF Johannesburg High Court case number 4182/2019.
16
The impugned decisions violate the principle of legality
[44] The founding affidavit states that the Fund and the Minister circumvented
the parliamentary law-making process, and that this conduct offends the principle
of legality and the rule of law. In addition, there is no rational basis for excluding
illegal foreigners from submitting claims under the Act.
[45] The Fund contends that the impugned decisions constitute a policy choice
made by the executive which a court should not interfere with. However, t his
contention has no foundation in the evidence. There is nothing in the answering
affidavit indicating that th e Minister had taken a policy decision to issue the
Directive or amend the claim form.
[46] Further, there is no explanation of how or why paragraphs 6.1 and 12.1
were incorporated into the claim form, save for the following bald statement:
‘[T]here is a proper rational connection between paragraphs 6.1, 12.1 of the Form RAF 1, the
directive and the purpose for which they were issued of verifying that the claimant or victim
was legally in the Republic when the motor vehicle collision occurred; . . .’
[47] The constitutional principle of legality, an aspect of the rule of law ,
requires that a body or a functionary exercising public power must act within the
powers lawfully conferred on them. 26 Moreover, the exercise of public power
must not be arbitrary or irrational . In Pharmaceutical Manufacturers
Chaskalson P said:27
‘It is a requirement of the rule of law that the exercise of public power by the Executive and
other functionaries should not be arbitrary. Decisions must be rationally related to the purpose
for which the power was given, otherwise they are in effect arbitrary and inconsistent with this
requirement. It follows that in order to pass constitutional scrutiny the exercise of public power
26 Fedsure Life Assurance Ltd and Others v Greater Johannesburg Traditional Metropolitan Council and Others
1999 (1) SA 374 (CC) para 58.
1999 (1) SA 374 (CC) para 58.
27 Pharmaceutical Manufacturers Association of SA and Another: In re Ex Parte President of the Republic of
South Africa and Others 2000 (2) SA 674 (CC); 2000 (3) BCLR 241 (CC) para 85.
17
by the Executive and other functionaries must, at least, comply with this requirement. If it does
not, it falls short of the standards demanded by our Constitution for such action.’
[48] The power of the Minister is confined to making regulations in terms of
s 26 of the Act, concerning the matters referred to in that provision. The Minister
has no power to exclude any category of claimants from the social benefit scheme
created by the Act. The impugned decisions are not rationally related to the
powers conferred on the Fund by s 4(1) and s 17(1) of the Act. Prohibiting illegal
foreigners from submitting claims under the Act, has nothing to do with the
Fund’s power to determine the terms and conditions on which claims for
compensation shall be administered; nor the investigation and settling of claims.
For these reasons, the impugned decisions are arbitrary.
[49] As stated, Parliament has determined that the Fund shall compensate ‘any
person’ for any loss or damage sustained as contemplated in s 17(1) of the Act. It
follows that the exclusion of illegal foreigners in terms of the impugned decisions,
is a violation of the principle of legality.
[50] The High Court was accordingly correct in holding that impugned
decisions were not authorised by an empowering provision, as contemplated in
s 6(2)(a)(i) of the PAJA , albeit on the basis that the se decisions constitute
administrative action.
The second appeal
No case made out for the suspension of court orders
[51] This appeal can be dealt with briefly. The case in the founding affidavit for
an order suspending the operation of court orders and warrants of execution, is
that rule 45A of the Uniform Rules of Court grants a court a discretion to suspend
18
the execution of any order .28 The warrants of execution and the attachments of
the Fund’s assets , the founding affidavit states, are unlawful because they were
‘not obtained by court orde r or judicial oversight’. However, there is no factual
basis for this allegation in the founding affidavit.
[52] Rather, the basis for the application to suspend the operation of the orders
and warrants of execution, is a statement in the founding affidavit that the ‘social
benefit scheme was not designed and intended to benefit people who are in South
Africa illegally, neither to accommodate claims that are fraudulent’. The affidavit
further states that the Fund requested ‘verification documents’ relating to the
immigration status of the first to thirteenth respondents , which had not been
provided, or where such documents were provided, they did not comply with the
Directive. Then it is said that if the Fund is vindicated in its stance that illegal
foreigners are not entitled to claim compensation under the Act, ‘any payment
made to such claimants should not have been made’, and that the Fund might not
be able to recover those payments from foreigners.
[53] As stated above, the Fund’s interpretation that s 17(1) of the Act excludes
illegal foreigners from claiming compensation, is wrong. Consequently, the basis
of the application to suspend the court orders and warrants falls away. Solely for
this reason, the second appeal must fail.
No retrospective application of the Directive and claim form
[54] Apart from the fatally flawed basis of the second appeal, neither the
Directive nor the claim form has retrospective operation. Several claims of the
respondents in the second appeal – which the F und has settled – for example,
those of the first, second, fourth, sixth, seventh, eighth, ninth and tenth
respondents, were lodged with the Fund before the Directive came into force on
respondents, were lodged with the Fund before the Directive came into force on
28 Rule 45A provides that the court may suspend the operation or execution of any order as it deems fit.
19
21 June 2022, and the claim form, on 4 July 2022. On 9 November 2021 the first
respondent obtained an order that the Fund was liable for payment of 100% of his
proven or agreed damages. On 9 March 2022 the sixth respondent obtained an
order striking out the Fund’s defence, and by court order dated 22 April 2022, the
Fund was ordered to pay him damages and to provide him with an undertaking
for future medical treatment. The eighth respondent’s claim was settled on 1 July
2022.
[55] There is nothing in the Directive nor the claim form that gives them
retrospective force. On the contrary, the Directive states that documentary proof
that a foreign claimant wa s legally in South Africa when the accident occurred
applies to all lodgements received from the date of the Directive – 21 June 2022.
No legislation should be construed as taking away or impairing a vested right
acquired under existing laws, unless the lawgiver clearly intended the legislation
to have that effect.29
[56] Despite this, the Fund sought to suspend the operation of the orders and the
warrants of execution issued pursuant thereto, without establishing a case in terms
of rule 45A . This is impermissible. The Fund has not attacked the underlying
cause of any of the judgment debts granted against it in favour of the respondents.
In short, it has failed to establish a stay of execution on a ground of real or
substantial injustice , either in terms of rule 45A , or the court’s inherent
jurisdiction.30
29 Peterson v Cuthbert & Co Ltd 1945 AD 420 at 430; S and Another v Regional Magistrate Boksburg: Venter
and Another (Boksburg) 2011 (2) SACR 274 (CC) ; 2012 (1) BCLR 5 (CC) para 16 ; Chisuse and Others v
Director-General, Department of Home Affairs and Another [2020] ZACC 20; 2020 (10) BCLR 1173 (CC); 2020
(6) SA 14 (CC) para 71.
30 Van Rensburg and Another NNO v Naidoo and Others NNO; Naidoo and Others NNO v Van Rensburg NO and
Others [2010] ZASCA 68; [2010] 4 All SA 398 (SCA); 2011 (4) SA149 (SCA) (Van Rensburg) paras 51-52.
20
The Fund is bound by compromises
[57] A compromise ( transactio) is ‘an agreement between litigants for the
settlement of a matter in dispute’. 31 Its purpose ‘is not only to put an end to
existing litigation but also to prevent or avoid litigation’.32 In Gollach &
Gomperts this Court stated the general principle as follows: 33
‘A transactio, whether extra -judicial or embodied in an order of Court, has the effect of res
judicata . . . It is obvious that, like any other contract (and like any order of Court),
a transactio may be set aside on the ground that it was fraudulently obtained. There is
authority to the effect that it may also be set aside on the ground of mistake, where the error
is justus.’
[58] Our courts encourage parties to deal with their disputes in this way .34 An
expedited end to litigation is not only in the parties’ interests, but also advances
the orderly and effective administration of justice by reducing overcrowded court
rolls.35 When a compromise is concluded it disposes of the proceedings,36 and the
parties are precluded from proceeding on the original claim.37
[59] As already stated, several of the respondents’ claims have been
compromised. For example, the fourth, eighth, ninth and tenth respondents’
claims were settled, and those settlement agreements were made orders of court .
The effect of this, the Constitutional Court has said,38
‘. . . is to change the status of the rights and obligations between the parties. Save for litigation
that may be consequent upon the nature of the particular order, the order brings finality to the
lis between the parties; the lis becomes res judicata (literally, “a matter judged”). It changes
31 Grotius Introduction 3.4.2, referred to in Cachalia v Harberer & Co 1905 T.S. 457 at 462 and cited with
approval in Gollach & Gomperts (1967) (Pty) Ltd v Universal Mills & Produce Co (Pty) Ltd and Others 1978 (1)
SA 914 (A) at 921B.
32 Gollach & Gomperts at 921C.
SA 914 (A) at 921B.
32 Gollach & Gomperts at 921C.
33 Gollach & Gomperts at 922C; Moraitis Investments (Pty) Ltd and Others v Montic Dairy (Pty) Ltd [2017]
ZASCA 54; [2017] 3 All SA 485 (SCA); 2017 (5) SA 508 (SCA) para 14.
34 Hlobo v Multilateral Motor Vehicles Accident Fund [2001] 1 All SA 322; 2001 (2) SA 59 (SCA) (Hlobo) at
65B.
35 Eke v Parsons [2015] ZACC 30; 2015 (11) BCLR 1319 (CC); 2016 (3) SA 37 (CC) paras 22-23.
36 Hlobo fn 34 at 65B.
37 Road Accident Fund v Ngubane [2007] ZASCA 114; [2007] SCA 114 (RSA); 2008 (1) SA 432 (SCA) para 12.
38 Eke v Parsons fn 35 para 31.
21
the terms of a settlement agreement to an enforceable court order. The type of enforcement
may be execution or contempt proceedings. Or it may take any other form permitted by the
nature of the order.’
[60] In Chief Lesapo, the Constitutional Court held that enforcement of a court
order stems from the s 34 right of access to courts:39
‘An important purpose of s 34 is to guarantee the protection of the judicial process to persons
who have disputes that can be resolved by law. Execution is a means of enforcing a jud gment
or order of court and is incidental to the judicial process. It is regulated by statute and the Rules
of Court and is subject to the supervision of the court which has an inherent jurisdiction to stay
the execution if the interests of justice so require.’
[61] As a general principle, a court grants a stay of execution in terms of
rule 45A ‘where real and substantial justice compels such action’. 40 Apart from
rule 45A, the court has inherent jurisdiction, in appropriate circumstances , to
order a stay of execution or suspend an order. This inherent power is not exercised
as a matter of course, but sparingly.41 The court has a discretion which it must
exercise judicially. 42 It will come to the assistance of an applicant outside the
provisions of the Rules only when the court is satisfied that justice cannot
properly be done unless relief is granted to the applicant.43
[62] This is not such a case. The Fund has not questioned, let alone attacked any
of the existing underlying judgments . Its claim for an order to suspend the
operation of the orders and warrants of execution is squarely founded on the
contention that s 17(1) of the Act excludes claims by illegal foreigners. The
compromise of the respondents’ claims is a further reason why the second appeal
must fail.
39 Chief Lesapo v North West Agriculture Bank and Another 1999 (12) BCLR 1420 (CC); 2000 (1) SA 409 (CC)
para 13.
40 Van Rensburg fn 30 para 52.
para 13.
40 Van Rensburg fn 30 para 52.
41 Moulded Components and Rotomoulding South Africa (Pty) Ltd v Coucourakis and Another 1979 (2) SA 457
(W) (Moulded Components) at 463A.
42 Potgieter and Another v Van der Merwe 1949 (1) SA 361 (A) at 373-374; Van Rensburg fn 30 para 51.
43 Moulded Components fn 41 at 463A-B.
22
Conclusion
[63] On a proper construction of s 17(1) of the Act, the obligation of the Fund
to compensate ‘any person’ (the third party) for loss or damage suffered because
of bodily injury to the third party , or the death of or bodily injury to any other
person caused by the driving of a motor vehicle , does not exclude illegal
foreigners. The Fund’s contention that they are excluded because the Immigration
Act prohibits foreign nationals from being in the Republic illegally , and that
investigating claims lodged by illegal foreigners amounts to aiding and abetting
them in contravention of that Act, is incorrect.
[64] The Fund has failed to make out a case for suspension of the orders and the
stay of the warrants of execution in favour of the respondents , in the second
appeal. Aside from this, neither the Directive nor the claim form has retrospective
operation. The Fund is bound by the settlement agreements concluded with those
respondents and the orders of court made pursuant thereto; it has not attacked the
existing underlying judgments.
[65] The following order is made:
In case number 1185/2024:
The appeal is dismissed with costs, including the costs of two counsel.
In case number 1468/2024:
The appeal is dismissed with costs, including the costs of two counsel.
___________________
A SCHIPPERS
JUDGE OF APPEAL
23
Appearances:
Case no: 1185/24
For the appellant: K Tsatsawane SC with C M Rip
Instructed by: Malatji & CO Attorneys, Johannesburg
Honey & Partners Inc, Bloemfontein
For the first respondent: P B Geach SC with R Hawman
Instructed by: Roets Van Rensburg Attorneys, Pretoria
Makubalo Attorneys, Bloemfontein
For the second respondent: F H H Kehrhahn with S Cliff
Instructed by: Mduzulwana Attorneys, Pretoria
Makubalo Attorneys, Bloemfontein
For the third respondent: M Snyman SC with M van Ryneveld
Instructed by: KWP Attorneys, Pretoria
Makubalo Attorneys, Bloemfontein
For the fourth respondent: P van der Schyf with D H Hinrichsen
Instructed by: Slabbert & Slabbert Attorneys, Pretoria
Du Plooy Attorneys, Bloemfontein
Case no: 1468/24
For the appellant: T Pillay
Instructed by: Malatji & CO Attorneys, Johannesburg
Honey & Partners Inc, Bloemfontein
For the first respondent: P B Geach SC with R Hawman
Instructed by: Roets Van Rensburg Attorneys, Pretoria
Makubalo Attorneys, Bloemfontein
24
For the eighth respondent: F H H Kehrhahn
Instructed by: Gary Stuart Garden Attorneys, Pretoria
Alberts Attorneys, Bloemfontein
For the ninth and tenth
respondents: M Snyman
Instructed by: Gary Stuart Garden Attorneys, Pretoria
Alberts Attorneys, Bloemfontein.