If you have been involved in an accident on South African roads you may be eligible to claim from the Road Accident Fund (RAF), whether you are a citizen or not. In this article we explain how to claim from the RAF as well as give tips and advice compiled by research from some of the top websites and experts in the country.
The RAF also known as the Road Accident Fund is a state-supported insurance fund comprising of contributions from South African motorists.
Every time you purchase petrol or diesel you automatically contribute to a statutorily prescribed levy, which as of April 2019, following a fuel-levy increase, sits at R1.98 per litre for petrol and diesel. This levy is then used to finance the RAF.
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At the time of drafting this article, the RAF is in the final process of amending the general damages payouts to road accident victims. This basically means that victims will no longer get a payout for general damages. General damages are paid to people for what is known as ‘pain and suffering’ and can include trauma. Below find out a very brief summary of the RAF changes which will take place in the future.
In 2005 general damages claims were limited to serious pain and suffering only. Now the RAF plans to drop these payouts altogether. The RAF also plans to setup a standard medical tariff for medical costs and adjusting its payouts to be made on a monthly basis, instead of a lump sum.
A draft bill called RABS for Road Accident Benefit Scheme will change how to claim from the RAF substantially. The reasons behind the draft bill includes the rise in fraudulent claims which has hurt the RAF, and the fact that it has a R215bn liability. RABS seeks to lower the costs of legal cases against the RAF significantly.
While this bill has been touted as a shift in approach from the RAF as an insurance fund to a social-security benefit system, mismanagement cannot be ignored and the RAF should be under more scrutiny.
A well-meaning amendment bill which benefits lower-income people more than higher-income people is not a bad thing, however the RAF should be held more accountable with stricter people management, systems, as well as checks and balances to manage an entity that has such an important mandate.
Anyway, this is not a political article so let’s get on with how you claim from the RAF in 2019, until the new bill is ratified by Parliament.
You will need to join the queue of existing claims that need to be paid out; expect a wait as RAF claims can take up to seven years to settle. In addition, you could possibly be facing a legal battle ahead.
Any driver, passenger, pedestrian, cyclist or motorcyclist involved in an accident can claim from the RAF – except where the injured person is 100% to blame for the accident.
In addition, a dependent of a deceased person may make a claim – except where the deceased person is 100% to blame for the accident.
Both South African citizens and foreigners are covered by the fund.
In the future the new Road Accident Benefit Scheme will change the RAF from a fault system to a no-fault basis, similar to other social-security funds in SA. This simply means that even if you were at fault or partly at fault you can claim compensation.
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It sounds so easy doesn’t it, I am sorry to say it is more complicated than proving you were not at fault. The real strength of your case and payout is based on the evidence you submit so that the RAF can assess what renumeration to pay you out.
Despite what the RAF says, the process is not as simple as they would like you to think. The RAF’s 3 step process of gather, complete and submit sounds easy enough, however you must take the process seriously and be as thorough as you can because your claim is weighed up by the supporting evidence you provide. And this evidence is left up to you to prepare, meaning you may not know which evidence will help or hinder your case.
While the RAF does pay millions out each month, many claims are rejected due to lack of evidence or contradictory evidence provided when submitting a claim. And while the RAF encourages people to make claims directly without a lawyer, we suggest you seriously weigh up the pros and cons of doing it on your own versus working with an attorney.
You must submit a claim within three years of the motor vehicle accident if you know who was responsible.
You must submit a claim within two years of the accident if you do not know who the responsible driver was, such as a hit-and-run accident.
If you are the dependent of the deceased and you are 18 years old, claims must be submitted to the RAF within three years of the date of the accident or the date of death.
A minor cannot claim compensation for loss of support, until they are 18 years old; at which time they have three years to submit a claim.
In all loss of support claims arising from hit-and-run accidents, claims must be filed within two years of the date of the accident.
If you were injured, you can claim compensation for the following:
Note that the General damages category will change depending on when the 2019 draft Road Accident Benefit Scheme Bill comes into effect.
You cannot claim for damages to your motor vehicle.
A person may not sue the negligent driver for the portion of damages that the RAF does not compensate.
You do not have to use an attorney to make a claim to the RAF, the Fund employs Information officers at all branch offices of the Road Accident Fund to assist claimants free of charge. However, it is recommended to contact an attorney if your case is complicated, especially until the new RABS is passed into law.
If you do not have access to funds to get the advice of an attorney, there are various free legal aid services you could approach, but you will have to show that your income is below a certain level.
Free legal aid organisations include:
We recommend that you carefully weigh up the cost of getting legal advice vs having your claim rejected, prior to lodging the claim with the RAF. Especially if your case is more complicated, getting legal advice may have a greater chance of success.
If your claim is rejected, you can challenge the decision by suing the RAF: many lawyers will consider instituting a lawsuit on your behalf on a contingency basis, what this means is you only pay them if you get a payout. You would need to agree with your lawyer whether an additional fee becomes payable or the % of money that is paid out in the lawsuit.
When determining the value of the amount to be paid to an accident victim, the RAF looks at a number of factors such as:
Note that the RAF pays road accident victims general damages for pain and suffering only in cases of serious injuries.
The RAF says you can claim for all your proven past and future medical expenses and that these medical expenses must be directly related to the injuries sustained in the accident. They reiterate that only “proven medical expenses will be compensated.” This means you need to prove that:
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When compiling a breakdown of medical expenses, the opinion of your medical professional/s is critical, because the RAF will consider all medical reports and recommendations from a professional such as a Medical Specialist, Surgeon or Physical therapist.
It is also important to note that once the case is settled by the RAF, you will receive an agreed lump sum (or monthly payout when the new bill comes into effect). This means you will no longer be able to claim any further funds. That is why calculating future medical expenses upfront is critically important.
When reviewing calculations for determining future expenses, we realise it is not an easy exercise. Simplifying this process by giving you one calculation would do you a gross injustice and you should seek the assistance of a legal advisor to ensure the calculations you use are 100% valid.
As of 31 October 2018, the maximum amount that you can claim from the RAF for loss of income or earnings is capped at R276,928 per year (payable in a lump sum). Also, this value is adjusted on a quarterly basis for inflation.
Because the RAF needs to make an informed decision about the compensation you are due, your evidence at this stage is very important because the onus is on you to provide enough evidence of your income.
If you are employed and have a payslip, calculating loss of earnings is straight forward and would be calculated using evidence of at least three month’s payslips, prior to your accident.
Make sure you provide detailed evidence of your past earnings including:
Past: average monthly take home salary multiplied by the period of absence.
Future: average monthly take home salary multiplied by the period of absence plus inflation adjustment.
If you do not have formal employment the process is a bit more complicated. If you have a bookkeeper or accountant, you can provide detailed profit and loss accounts for at least 3 years prior to your accident.
Startup companies that do not have sufficient history of earnings or informal businesses who operate without bank accounts or verifiable tax and business records, makes it difficult to provide enough evidence in a claim against the RAF for loss of earnings.
Your claim will also be affected by the way your business is structured: for example if you are in business partnership, the loss is linked to your share of the profits, not the business profits.
The upshot is this, if your claim is to succeed you must clearly demonstrate that the profitability of your business was, or is, negatively affected due to the injury sustained in the road accident.
If you are the dependent claiming loss of support, the onus is on you to substantiate your claim with detailed records. You are entitled to claim for loss of support if the person killed in a road accident was the main income provider in your household, but only if it resulted from someone else’s negligence. If you are claiming after the RABS comes into effect, you will be able to claim regardless of who was at fault.
Note that claims are limited to a maximum amount of R160 000 adjusted quarterly for inflation. You are also entitled to claim for funeral costs.
In law the intention of a general damages claim is to place the victim in the same position that he or she would have been had the accident not happened. Now you can imagine trying to put evidence together on your own for this one.
We set out to find out what and how you would provide evidence to support a general damages claim with the RAF.
Firstly, it is important to understand that general damages is only considered by the RAF if a serious injury has taken place directly as a result of a road accident and where the person involved was not 100% at fault.
A serious injury is defined by the RAF as 30% bodily impairment, serious long-term impairment, permanent disfigurement or long-term medical disorder.
General damages is not a simple process because it is difficult to put a monetary value on pain, suffering, loss of quality of life and disability. In many ways determining this type of payout can be very subjective. That is why you need to provide as much evidence to support the “value” of your pain and suffering when submitting a general damages claim with the RAF. Remember that someone how say relies on their physical condition to earn their income, such as a professional sportsman or sportswoman may be given a larger payout than someone who works in a less physically demanding job such as an administrator.
Even our courts have difficulty quantifying the exact value to pay out for general damages with much legal angst going on each time a general damages case is heard. Please use the help of free legal clinics for assistance when quantifying your claim, and consider these factors below;
Note: Note that the General damages category will change depending on when the 2019 draft Road Accident Benefit Scheme Bill comes into effect.
As mentioned, Step 1 is to gather evidence and submit the evidence together with your claim.
You must complete all the necessary official forms from the RAF and make sure they are legible.
First download the Claim Form the RAF website then:
Fill in RAF 1 form for which provides basic information on your claim, the motor vehicles involved, details of parties involved in the accident, the date and place of the accident and the amounts claimed. It also contains a medical report to be filled in by the treating doctor. The evidence for medical expenses, loss of income or loss of support (past and future) should be presented as an affidavit and submitted with the form, as well as all medical records, invoices and statements.
Besides the RAF 1 form, if you were a driver of the vehicle involved in the accident you must give details of the accident to the RAF, this form should be filled out within 14 days of the accident. You also need to ensure information of any witnesses to the accident is attached to this form. Where possible get an affidavit from any witnesses.
Besides the RAF 1 form, if you are claiming general damages this form must be completed by a medical practitioner. The evidence for general damages should be presented as an affidavit and submitted with the form, as well as any reports or corroborating evidence.
This form needs to be filled in if your claim was. Alternatively, you may wish to use an attorney who can do this on your behalf.
This form together with RAF 1 needs to be completed if you are claiming funeral expenses from the RAF.
Submit all forms and documents together at your nearest RAF regional office, either by hand or registered post. We advise that you make copies of all paperwork in the event of your paperwork going missing.
Note: faxed documents require the originals to be furnished and email is not accepted.
Once your claim is processed, the RAF registers it on its claim system and commences with its investigations.
First, the RAF determines whether the claim is valid (i.e. was there a road accident, does it comply with statutory provisions, was it submitted in time, etc.) The RAF must obtain documentation and information from the insured driver, witnesses and the SAP confirming the description of the accident as given by yourself. Sometimes the RAF has to appoint an assessor to trace the insured driver or any witnesses.
Secondly, it looks at the merits of the case (i.e. the degree of fault, blame or negligence to be ascribed to the drivers of the vehicles and the claimant respectively).
Thirdly, once the merits have been confirmed, the RAF makes a decision to pay the claim or reject it.
Finally, the RAF determines the amount of damages or losses suffered to be paid out.
If the RAF decides to pay out a claim, it will do an investigation including:
It is often in this stage where missing information hinders the process and that is why gathering and compiling the claim forms is a key part of your claim process.
If all information is available the claims handler will make an offer to the you or your attorney. After this process there can be a protracted negotiation where further experts can be appointed to assist, however if you can’t reach agreement with the RAF it may be necessary to go to court.
If you accept the offer from the RAF a form is issued which details the agreed amounts for you to sign thereafter payment will be made.
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If you qualify to claim from the Road Accident Fund for a serious injury incurred in a road accident that was not solely your fault or the fault of a deceased victim of a crash, you’ll follow the following process:
It’s important to gather as much evidence as possible to support your claim. This includes witness statements, medical reports and police statements as well as tax invoices and bank statements with details of costs incurred. If you were unconscious or incapacitated after the accident, hopefully, you’ll find witnesses to come forward with the information.
You need a police report and/or case number of the accident as well as other supporting documents. The information is available on the RAF website if you are submitting a claim on your own, otherwise, your lawyer will advise you what reports and information are needed.
Your claim for general damages must be supported by a Serious Injury Assessment Report which is completed by a qualified medical practitioner who has the requisite AMA qualification. The doctor must confirm that your injury is serious enough to merit compensation for general damages.
You can make a direct claim to the RAF but it’s highly recommended that you go through a suitably qualified lawyer that specialises in road accident claims. It’s a long and tedious process submitting a claim to the RAF and using an attorney with the right knowledge and experience to handle your claim gives you the greatest chance of success.
All forms required to register a claim with the RAF can be downloaded on its website. If you’re using expert legal representation, your attorney will do it for you once he/she has all the relevant documents.
Once the claim has been registered on the RAF system, an investigation will be conducted to decide whether your claim is valid or not. You may be contacted and asked to submit additional reports or supporting documents. The RAF has a grace period of 120 days to investigate your claim; however, it often takes much longer for a case to be investigated and move onto the next step.
The RAF is underfunded and burdened with inefficiencies so you cannot rely on an immediate payout. If the RAF takes an unreasonably long time to investigate your claim, your attorney may choose to issue a summons to inform them that the matter may go to court. The same will apply if the RAF rejects your claim.
Once it’s been decided the claim will be pursued in court, a trial date will be set. This can be a very frustrating and time-consuming process, and often takes many months to even a few years to be resolved.
If all goes well, you will receive a payout from the RAF after your claim has been investigated and a settlement amount has been determined. The RAF will often ask a claimant to settle out of court for a percentage of the amount that they should receive. It’s an option for someone who wants to be paid out quickly but it’s advisable to wait it out to receive the full compensation due to you.
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