UNIT 9: RECOURSE OF ROAD ACCIDENT FUND

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1 UNIT 9: RECOURSE OF ROAD ACCIDENT FUND 85

2 Learning outcomes After completing Unit 9, you should be able to do the following: Identify the circumstances in which the RAF is granted a recourse to claim all the damage paid by it in terms of section 17 of the RAF Act 56 of Know the general requirements that have to be present for this right of recourse to come into operation. Know when the RAF will forfeit its right of recourse. Understand how the judgment in Dodd v Multilateral Motor Vehicle Accidents Fund 1997 (2) SA 763 (A) has influenced the applicable legal principles. Readings Klopper (2008) Chapter 9 86

3 Introduction Study this paragraph on p Make sure that you know the two exceptions to the rule that a driver or owner cannot be held personally liable by the RAF for any damage caused by his/her unlawful or negligent driving and that has been paid by the RAF. 1. Recourse in terms of RAF Act of Introduction Study this paragraph on pp and section 25 of the RAF Act. 1.2 General requirements Study this paragraph on pp Certain requirements have to be present before the RAF will be able to enforce its right of recourse in terms of section 25 of the Act. It is, however, notable that if these requirements are present, such a right of recourse is enforceable without any co-operation of the owner and cession of the action. 1.3 Forfeiture Study this paragraph on p The RAF s right of recourse will be forfeited if: payment is not made in terms of the provisions of section 17 of the Act; an ex gratia payment is made without admission of liability; and payment is made in respect of a claim that has prescribed. 87

4 1.4 Circumstances Study this paragraph on pp Where the driver of a vehicle was intoxicated, the RAF will have a right of recourse against him/her if his/her intoxication was the sole cause of the accident. The RAF will also be entitled to exercise this right against the owner of a motor vehicle who himself/herself drove such motor vehicle in an intoxicated condition or an owner who allowed an intoxicated driver to drive his/her motor vehicle knowing that the driver was thus intoxicated. If any person drives without a licence or drives in contravention of the conditions of a learner s licence and causes an accident, the RAF will be entitled to enforce its right of recourse against such a person. The right of recourse is also enforceable against an owner who allows a person to drive his/her vehicle knowing that the driver was unlicensed or was driving in contravention of the restriction applicable to such driver s learner s or ordinary driver s licence (Klopper: 320). If the owner fails to furnish the required information in terms of section 22(1) to the Fund or if the information supplied is false, the RAF can exercise its right of recourse against such an owner if it can show that the non-disclosure or false information has materially prejudiced it. 1.5 Procedure Study this paragraph on p The claim is instituted by ordinary summons, but the Rule 13-procedure can also be utilised under certain circumstances to enforce the right of recourse. 1.6 Prescription Study this paragraph on p Prescription of the right of recourse takes place three years after the RAF settled the relevant claim. 2. Recourse of RAF where damage was caused jointly 2.1 Introduction Study this paragraph on pp As explained by Klopper, because of the contents of section 21 of the RAF Act 56 of 1996, it was previously accepted that a driver who was a joint wrongdoer could not be personally held liable. 88

5 2.2 Basis and operation Study this paragraph on pp The legal position as set out in paragraph 2.1 above was, however, drastically changed by the decision in Dodd v Multilateral Motor Vehicle Accidents Fund 1997 (2) SA 763 (A). Make sure that you are able to apply the principles of this decision to factual situations where joint wrongdoers caused damage to a third-party claimant and the possibility of a right of recourse in favour of the RAF against such wrongdoers is consequently created. Pay special attention to footnote 33 on p. 321 where a practical illustration of the applicable principles is provided. 2.3 Criticism Carefully read this paragraph on pp For reasons explained by him, Klopper is of the opinion that the judgement in Dodd v MMF 1997 (2) SA 763 (A) is an incorrect interpretation of Articles 52 and 46 of the Multilateral Motor Vehicle Accident Fund Act 93 of Activity 1 1. Under which circumstances does the RAF have a right of recourse against the owner and/or driver of a motor vehicle in terms of section 25(2) and (3) of the RAF Act 56 of 1996? 2. When will the RAF forfeit its right of recourse? 89