The Road Accident Fund Act 56 of 1996 provides that claims for compensation must be lodged within three years of the date on which the cause of action arose. This much is well established. What is less straightforward is the determination of when, precisely, the cause of action arises and what happens when a claimant fails to lodge within the prescribed period.

The General Rule

Section 23(1) of the RAF Act provides that a claim for compensation must be commenced within three years from the date on which the cause of action arose. For most claims, this means three years from the date of the motor vehicle accident that caused the injury.

However, this general rule is subject to important qualifications. The cause of action does not necessarily arise on the date of the accident. In certain circumstances, the claimant may not immediately be aware that they have sustained an injury, or the full extent of the injury may only become apparent at a later stage. In such cases, the cause of action may only arise when the claimant becomes aware or should reasonably have become aware of the injury and the identity of the wrongdoer.

The Prescription Act and Its Interaction with the RAF Act

The Prescription Act 68 of 1969 applies in conjunction with the RAF Act. Section 12(3) of the Prescription Act provides that a debt shall not be deemed to be due until the creditor has knowledge of the identity of the debtor and the facts from which the debt arises. A debt shall also not be deemed to be due until the creditor could have acquired such knowledge by exercising reasonable care.

This principle was confirmed by the Constitutional Court in Road Accident Fund v Mdeyide (2011), which held that prescription does not begin to run until the claimant has knowledge of the material facts giving rise to the claim, including the identity of the driver.

The practical implication is significant. A claimant who was unconscious after an accident, or who only discovered the identity of the negligent driver months later, may have additional time within which to lodge a claim. However, the onus is on the claimant to demonstrate that they could not, by exercising reasonable care, have obtained the necessary knowledge sooner.

Hit-and-Run Claims: A Shortened Period

Where the identity of the driver or owner of the vehicle is unknown as in hit-and-run incidents the claim must be lodged within two years of the date of the accident, as provided for in the regulations to the RAF Act. This shortened period reflects the additional difficulty the RAF faces in investigating claims where the responsible driver cannot be identified.

The two-year period is strict. Failure to lodge within this period may render the claim unenforceable, unless condonation is obtained.

Condonation for Late Lodgement

Where a claim is lodged outside the prescribed period, the claimant may apply for condonation. The RAF has the discretion to condone late lodgement, but this discretion is not exercised liberally. The claimant must provide a reasonable explanation for the delay and demonstrate that the RAF will not be materially prejudiced by the late lodgement.

In practice, the RAF frequently opposes condonation applications, particularly where the delay is significant or the explanation is unsatisfactory. The courts have held that the purpose of the prescription period is to ensure finality and that condonation should not be granted lightly.

Practical Implications

For practitioners, the key takeaway is that the prescription analysis in RAF matters requires a careful factual enquiry. The date of the accident is the starting point, but it is not always the determinative date. Consideration must be given to when the claimant first became aware of the injury and the identity of the wrongdoer, and whether reasonable steps were taken to investigate the claim.

For claimants, the message is straightforward: seek legal advice as soon as possible after an accident. Even where the full extent of injuries is not yet known, early consultation with an attorney allows the claim to be lodged timeously, preserving the claimant's right to compensation.

The prescription period exists to balance the interests of claimants and the RAF. Understanding its operation is essential to protecting your claim.