Road Accident Fund (“RAF”) claims have been a controversial subject for several decades, in particular the double recovery of claims. This article will be focusing on whether social grants are deductable from RAF claims.

RAF claims, also known as third party claims, are claims for injuries arising from motor vehicle accidents, where the driver of the other vehicle was partially or solely negligent. RAF claims are regulated by the Road Accident Fund Act of 1996. RAF is the product of a long history spanning more than 60 years, which commenced with the introduction of compulsory motor vehicle insurance through the Motor Vehicle Insurance Act of 1942. The Act was promulgated specifically for occurrences of personal injuries arising from or caused by the driving of a motor vehicle from which medical expenses may follow.  Notwithstanding the Act’s noble purpose, it has attracted its fair share of contentious comments relating to the preserving of existing common law principles and ensuring that the social good is attained.

Social security refers to the protection which society provides for its members through several public measures against economic and social distress aimed at those members of society who have no or insufficient income because of the occurrence of one or more social contingencies. These social contingencies include inter alia a condition that requires medical care, sickness, unemployment, old age or the death of a breadwinner. The Social Assistance Act also provides for social relief for distress, which differs from means-tested social assistance in that it entails short-term measures undertaken by the state to assist those undergoing individual or community crises.  In terms of the Act the objectives of the Act are to provide for the administration of social assistance and payment of social grants, to make provision for social assistance and to determine the qualification requirements in respect thereof, to ensure that minimum norms and standards are prescribed for the delivery of social assistance, provide for the establishment of an inspectorate for social assistance.

In the matter of Road Accident Fund v Timis (29/09) [2010] ZASCA 30, the respondent instituted action for damages arising from the death of her husband. The High court awarded the respondent damages and Liebenberg J held that the child support grants could not be said to have been received in consequence of the deceased’s death and that same could therefore not be deducted from the final award.  The RAF appealed the High Court judgment and the issue on appeal was whether the child support grants should have been deducted by the trial court from the damages awarded to the respondent in her representative capacity for loss of support. Two conflicting considerations must be weighed up in the light of what is fair and just in all the circumstances of the case. The first consideration is that a plaintiff should not receive double compensation. The second consideration is that the wrongdoer or his insurer ought not to be relieved of liability because of some fortuitous event such as the generosity of a third party. In the Supreme Court of Appeal the appeal was upheld. In other words, the Court held that social grants were deductable from RAF claims.

However, the position changed in the matter of Coughlan NO v Road Accident Fund 2015 (4) SA 1 (CC) the Constitutional Court ruled that both foster care and child support grants should not be considered when an award for loss of support is made, following the death of a breadwinner.

In conclusion, the RAF has played an imperative role in providing a means to those who have lost a breadwinner or have lost an income based on injuries sustained in an accident. On the other hand, social security also forms an integral part in society since its implementation is for those who cannot provide a means to themselves and their dependants. It goes further than that, because it is entrenched in the Constitution as a fundamental right, which cannot be equated with other forms of claims.