Hit-and-run victim wins right to RAF compensation

Renier Engelbrecht was claiming more than R200 000 in compensation from the Road Accident Fund (RAF. Engelbrecht, injured when his car collided with a truck in the Western Cape in 2002, contended that regulation 2(1)(c) was in conflict with the provisions of section 34 of the Constitution and therefore invalid in that it imposed an unreasonable and unjustifiable limitation on his right of access to court. Constitutional Court Judge Kate O\'Regan said the appeal was upheld with costs, including the costs of two counsels. ‘RAF\'s regulation 2(1)(c) – that an affidavit should be submitted to the police within 14 days of the accident – is declared to be inconsistent with the Constitution, and accordingly invalid.’

Writing for a unanimous court, acting Judge Dumile Kondile said that in common law Engelbrecht had an enforceable right not to be injured unlawfully. ‘The establishment of an identity of the owner or driver of the offending motor vehicle does not guarantee success in recovering the loss or damage at common law,’ the judge said, according to a Business Day report. Kondile said the Appeal Court had erred when it held that the victim of an unidentified driver would have no claim or enforceable remedy in common law, therefore, the period of 14 days was too short to amount to a fair opportunity to access court. ‘The period time of 14 days prescribed … is very short and palpably unfair as it has an extensive impact, especially on the many illiterate and poor of this country. I agree that most citizens will be unaware of the regulation and thus will be denied the right to sue the fund.’ Kondile also sent the case back to the Cape High Court for determination of the claim. Full Business Day report Judgment (PDF file)

In another Constitutional Court decision yesterday, an application for leave to appeal in terms of Constitutional Court rule 19(6)(b) was dismissed. The matter concerned the cancellation of a lease agreement over rental due. The applicant opposed the application on the basis that the company had verbally agreed to grant it an indulgence and allow it time within which to make proposals for settling the rental arrears. It was contended that it was implicit that the company had waived its rights to cancel the lease agreement. Judgment