How To Claim Damages After a Car Accident? | Motor Accident Law in SA

Claiming damages after a car accident in South Africa is done through a Road Accident Fund (RAF) claim lodged under the Road Accident Fund Act 56 of 1996, which compensates victims (or their dependants) for bodily injury or death caused by the negligent driving of another. The RAF pays past and future medical expenses, loss of earnings, loss of support, and general damages (subject to a statutory cap on pain, suffering and loss of amenities of life), with the lodgement on the prescribed form due within 180 days of the accident in the standard case. Where the RAF route is unavailable — unidentified driver, uninsured driver, or where the Fund disputes quantum — the alternative routes are a direct common-law delictual claim against the negligent driver and/or an insurance repudiation challenge against the claimant’s own insurer under the Policyholder Protection Rules and the Consumer Protection Act 68 of 2008.

Why the Process Exists and Where It Sits in Law

The Road Accident Fund is the statutory insurer of last resort for road-collision victims and was set up under the Road Accident Fund Act 56 of 1996 (as amended by the RAF Amendment Act 19 of 2005) to remove the need for victims to prove insurance on the part of the negligent driver. The Fund is funded through a fuel levy collected at the point of sale and administered centrally. It is not a private insurer, and it is not the same as the SAPS / criminal route — driving under the influence, reckless driving and culpable homicide are criminal matters handled separately by SAPS and the National Prosecuting Authority.

Because the RAF pays out of the Fund and not out of any one driver’s pocket, the question on the civil-claim side is what the victim can prove in terms of negligence, causation and quantum — not whether the negligent driver has a policy. The substantive law is national and applies uniformly across all nine provinces; the only local procedural question (which High Court has jurisdiction if the claim goes to litigation) is dealt with later in the local resource section.

What Damages You Can Claim — the Five Heads

South African law recognises five distinct heads of damages in an RAF claim. The first four are paid in full subject to proof; the fifth (general damages) is subject to a statutory cap discussed in the next section.

Head of damages	What it covers	Proof typically required
Past medical expenses	Hospital, ambulance, medication, rehabilitation already incurred	Documented invoices and tariff codes; paid on proof
Future medical expenses	Anticipated future care, surgery, therapy	Actuarial and medical expert report
Loss of earnings (past)	Income lost from date of accident to settlement or trial	Tax returns and payslips as primary proof
Loss of earnings (future)	Loss of future earning capacity where the injury is permanent	Actuarial calculation; often the largest head
General damages	Pain, suffering, loss of amenities of life	Subject to the statutory cap — see below
Loss of support (dependants only)	Where the accident caused death, dependants claim the deceased’s support	Lodged by the executor or dependants on a separate form

The Statutory Cap on General Damages

Under section 17(1)(a)–(c) of the Road Accident Fund Act, as amended by the RAF Amendment Act 19 of 2005, the RAF’s liability for general damages is capped. The cap is a prescribed monetary amount set by regulation and adjusted periodically through the Government Gazette, and the current applicable figure must be verified against the most recent Government Gazette before any specific amount is quoted in published copy or relied on for a claim.

• For claims where general damages are claimed at or below the cap, the claimant does not have to undergo the formal “serious injury” assessment under section 17(1)(b).
• For claims where general damages are claimed above the cap, the claimant must obtain a serious-injury assessment from a medical expert confirming a “serious” injury as defined, before the claim for the excess can proceed.
• The cap does not apply to past or future medical expenses, loss of earnings, or loss of support — those heads are paid in full subject to proof.

The Process, Step by Step

1. On-scene reporting. If a vehicle is involved in an accident causing injury or death, the driver must report it to a police station within 24 hours under the National Road Traffic Act 93 of 1996; failure to do so is a criminal offence. SAPS opens an Accident Report (AR) file and issues an AR number, which the entire claim then hangs off.
2. Medical attention and record-building. Every hospital visit, X-ray, prescription, sick note and follow-up appointment is documented. The medical file becomes the spine of the RAF quantum claim — gaps become queries from the Fund and, later, points of cross-examination at trial.
3. Notice and lodgement. In the standard case the claim is lodged on the RAF’s prescribed form (Form RAF 1) within 180 days of the accident or, in death cases, within 180 days of the date of death. Failure to lodge within the window requires a formal condonation application supported by an affidavit explaining the delay.
4. Investigation and quantum reports. Once lodged, the claimant builds the quantum case with actuarial, medical, occupational and (where relevant) forensic-accounting experts. The Fund runs its own investigation in parallel.
5. Settlement or RAF dispute. If the RAF accepts liability and quantum, a settlement is negotiated and paid. If the Fund disputes either, the matter is allocated to the High Court for litigation — in the standard case the Gauteng Division (Pretoria), where the RAF’s main registry sits.
6. Trial or settlement at trial. Cases that do not resolve are tried in the High Court with expert evidence on liability, causation and quantum. Appeals run through the Supreme Court of Appeal and ultimately the Constitutional Court.

Who Can Claim and on What Basis

The direct victim of the accident can claim for their own bodily injury. In a fatal accident, the deceased’s dependants — spouse, children, and other dependants as defined in the Act — can claim loss of support, while the executor of the deceased estate can claim for funeral expenses and any recoverable medical expenses incurred before death.

The claimant must show that the injury or death was caused by the negligent driving of another — that is, that someone else was at fault. Pure single-vehicle accidents where the driver injures only themselves, with no other negligent driver involved, do not give rise to an RAF claim. Contributory negligence by the claimant (for example, not wearing a seatbelt) reduces recovery proportionately but does not bar the claim.

When the RAF Route Is Not Available — the Alternative Lanes

Three alternative lanes cover the situations where the standard RAF route does not fit.

What Slows the Process Down — and What Speeds It Up

The biggest avoidable delay in an RAF matter is missing the 180-day lodgement window; a missed window means a condonation application, which costs both time and money. Incomplete medical records are the next biggest source of delay, because every gap in the medical file becomes a query from the Fund and a point of cross-examination later. A weak actuarial case on loss of earnings shrinks the settlement range, and late appointment of experts stretches timelines because actuaries and medical experts have waiting lists.

The inverse is also true. Early, complete lodgement with a clean medical file and a strong actuarial report typically resolves a contested file within 12–24 months, and clean low-dispute files can resolve in under 12 months. The firm’s general litigation practice runs these files with that timeline discipline in mind — Director Nadine Roesch-Prinsloo heads the practice from the Roodepoort branch and files are worked across the Gauteng branches as the matter requires.

Cost, Funding and What an Attorney Actually Does

Attorney-and-own-client fees on RAF matters are typically charged on a time-and-disbursement basis for the litigation lane and on a hybrid (time plus success fee) basis for the lodgement-and-settlement lane. The firm-specific fee arrangement is quoted after the initial intake, and the question to ask up front is whether disbursements will be advanced by the attorney or whether the client is expected to fund them directly.

Disbursements — medical experts, actuaries, counsel, sheriff and filing fees — are usually advanced by the attorney and recovered from the RAF settlement at the end. A “no-win, no-fee” arrangement is uncommon on RAF claims and the client should ask specifically whether one is available before instructing. The attorney’s role spans the whole pipeline: opening the AR file with SAPS, collating the medical record, instructing experts, lodging the claim, negotiating with the RAF, and — if the matter is disputed — pleading, discovery, trial preparation and counsel instruction.

Where the Claim Is Litigated — Pretoria Seat and Gauteng Branches

The Road Accident Fund’s main registry sits in Pretoria, and contested RAF matters are allocated to the Gauteng Division of the High Court (Pretoria seat) in the standard case. Depending on the parties’ residence, a matter may be allocated to a different provincial division (for example, the Western Cape or KwaZulu-Natal divisions), but the Pretoria seat is the default for Gauteng-based claimants and for the bulk of national RAF litigation because the Fund’s registered office is located there.

A common point of confusion is the Magistrate’s Court: an MVA damages claim cannot be filed at a Magistrate’s Court because the RAF’s liability is set by the Road Accident Fund Act and is litigated in the High Court. The Magistrate’s Court is the correct venue only for the parallel criminal charges (driving under the influence, reckless driving, culpable homicide) that may arise from the same collision. Accident reporting itself — the AR number — is done at any SAPS station within 24 hours of the collision under the National Road Traffic Act; it is a separate police-station procedure from the civil claim and is not filed at the Magistrate’s Court.

Burger Huyser Attorneys’ MVA and insurance-repudiation work is run by the firm’s general litigation practice, headed by Director Nadine Roesch-Prinsloo, based at the Roodepoort branch (16 Galena Avenue, Helderkruin, 011 668 0030, after-hours 061 516 0091). Files are taken across the firm’s Gauteng branches — Linden (Randburg) head office (011 888 0246), Sandton (011 253 3080), Centurion (012 644 4990), Pretoria / Menlyn (012 471 5700), Bedfordview (011 201 7190), Alberton (011 439 3990) and Midrand (010 022 4082). The firm’s litigation practice is professionally affiliated through the Johannesburg Attorneys Association noted in the firm’s standing memberships.

The Road Accident Fund’s own claim forms, current 180-day condonation practice, and the most recent statutory cap on general damages are published on raf.co.za and are the controlling reference for any current RAF figure — confirm against the Fund’s website before relying on a specific monetary amount in published copy.

Frequently Asked Questions

How long do I have to lodge a claim with the RAF after a car accident?

In the standard case you have 180 days from the date of the accident (or, in a fatal case, from the date of death) to lodge on the prescribed RAF form. If you miss the window, a condonation application supported by an affidavit explaining the delay is required. Condonation is granted more readily where the delay is short and the reason is reasonable (for example, hospitalisation), and less readily where the delay is long and unexplained.

Do I have to go to court to claim damages, or can the RAF just pay?

Most RAF claims settle without going to trial. The matter is lodged, the RAF investigates, liability and quantum are negotiated, and a settlement is paid out. Litigation is required only where the RAF disputes liability (denies that the other driver was negligent) or quantum (disputes the amount) and the dispute cannot be resolved through negotiation. In that case the matter is allocated to the High Court for trial.

Can I claim from the RAF if I was partially at fault for the accident?

Yes, but your recovery is reduced by your percentage of contributory negligence as determined by the court or agreed in settlement. Common examples are failure to wear a seatbelt (which reduces recovery for the worse spinal outcome) and failing to keep a proper look-out at an intersection. The reduction is proportional, not a full bar on the claim.

What if the driver who hit me was uninsured or fled the scene?

The RAF remains the route. You must report the accident to SAPS within 24 hours and obtain an AR (Accident Report) number. The 180-day lodgement window still runs from the date of the accident, and the claim proceeds against the Fund even where there is no identifiable defendant. The Fund is designed for exactly this scenario, because it is the statutory backstop behind every negligent driver — insured or not, identifiable or not.

What if the RAF offers me too little — can I challenge the quantum?

Yes. If the RAF’s quantum offer does not reflect the full evidence on past and future medical expenses, loss of earnings, loss of support and (where applicable) general damages, the matter can be allocated to the High Court for trial on quantum. An actuarial report and updated medical expert evidence are the backbone of a quantum challenge. Most quantum disputes settle before trial once updated expert reports are exchanged.

Will I have to pay anything upfront to an attorney for an RAF claim?

Most attorneys run RAF matters on a hybrid fee — base fees and disbursements (medical experts, actuaries, counsel) advanced during the file, with a success fee on settlement or court award at the end. No-win, no-fee arrangements are uncommon on RAF matters. Ask the specific firm for its fee arrangement before instructing, and ask whether disbursements will be advanced or whether the client is expected to fund them upfront.

If you have suffered bodily injury in a car accident and want to lodge a Road Accident Fund claim, or if your own insurer has repudiated a claim and you want it challenged, Burger Huyser Attorneys’ general litigation practice handles MVA damages claims and insurance-repudiation work through its Gauteng branches. Initial intake is run from the Roodepoort branch under Director Nadine Roesch-Prinsloo (16 Galena Avenue, Helderkruin, 011 668 0030, after-hours 061 516 0091), with files taken across the firm’s Linden, Sandton, Centurion, Pretoria (Menlyn), Bedfordview, Alberton and Midrand offices. The firm carries a 4.8/5 average across 250+ Google reviews (Trustindex verified “Top Rated Law Firm in South Africa”) and is professionally affiliated with the Johannesburg Attorneys Association and the Gauteng Family Law Forum. Bring the AR (Accident Report) number, your ID, the medical file, the SAPS case number and any insurer correspondence to the first consultation.