Can I claim from the RAF as a pedestrian?

Pedestrians make up the largest share of road deaths and serious injuries in South Africa, and therefore the largest share of Road Accident Fund claimants.

They also have the weakest evidence. A pedestrian struck at night on a road with no pavement, by a driver who does not stop, has no registration number, no insurance details, no witnesses who stayed, and frequently no memory of the impact.

That combination is why pedestrian claims fail more often than they should, and almost always for procedural reasons rather than because the claim was bad.

The claim itself

The basis is the same as for anybody else. The Fund compensates for loss or damage wrongfully caused by the negligent driving of a motor vehicle. You do not need to have been in a vehicle, and you do not need the driver to have been insured.

What you can claim is also the same: past and future medical expenses, past and future loss of earnings or earning capacity, general damages where the injury is assessed as serious, and in a fatal case loss of support and funeral expenses. Our guide on how to claim from the Road Accident Fund sets out the process, and the RAF claim range indicator gives the shape of one.

General damages depend on the serious injury gate, which our guide on the RAF 4 assessment explains.

The crucial split: identified or not

Everything procedural turns on whether the vehicle can be identified, and this is the single most important thing on this page.

Identified claim. The owner or the driver is known, usually because a registration number was recorded. The claim prescribes three years from the date the cause of action arose.

Unidentified claim. Neither the owner nor the driver has been established. This falls under section 17(1)(b) of the Road Accident Fund Act 56 of 1996, and it prescribes after two years.

Two years, not three. That single year is where a very large number of hit-and-run claims die, because the injured person spent the first eighteen months in hospital and rehabilitation, and the claim was lodged in month twenty-six by somebody working from the three-year figure they had read somewhere.

Worse, the two-year period for an unidentified claim is not interrupted in the way people expect. Letters, phone calls and an incomplete form do not stop the clock. Only a claim properly sent or delivered to the Fund within the two years does, and once that is done the claim does not prescribe until five years from the collision. Treat the date of the collision as a hard deadline and work backwards from it.

The old 14-day police affidavit and what replaced it

You may read, on older websites or in advice passed on by friends, that a hit-and-run victim must make an affidavit to the police within 14 days or lose the claim. That rule did exist, but it is no longer the law.

The old rule. Regulation 2(1)(c) of the 1996 Road Accident Fund Regulations said the Fund was not liable for an unidentified-vehicle claim unless the claimant had submitted, if reasonably possible within 14 days after being in a position to do so, an affidavit to the police setting out the particulars of the occurrence.

Engelbrecht. In Engelbrecht v Road Accident Fund [2007] ZACC 1, decided on 6 March 2007, the Constitutional Court declared that regulation inconsistent with the Constitution and invalid. Mr Engelbrecht's car had been hit by a truck that did not stop, and his claim was refused because his police affidavit was late. The Court held that 14 days was far too short to give injured people, many of them poor or unable to read, a real and fair chance to protect their right of access to court.

The current rule. The Road Accident Fund Regulations, 2008 replaced the old regulations. Regulation 2 now deals only with time: the claim must be sent or delivered to the Fund within two years from the date the cause of action arose, the right to claim prescribes if that is not done, and a claim lodged in time does not prescribe before five years. Regulation 2(2) adds that the two years run even against a person under a legal disability, such as a child. There is no police affidavit and no 14-day period in it.

The affidavit that does still exist. Section 19(f)(i) of the Road Accident Fund Act says the Fund is not liable if the claimant refuses or fails to submit to the Fund, together with the claim form or within a reasonable period after it, an affidavit fully setting out the particulars of the accident, if the claimant is in a position to do so. That affidavit goes to the Fund, not to the police, and the test is a reasonable period, not a fixed number of days. A person in intensive care for three weeks is not in a position to do anything, and hospital records prove it.

Why the police report still matters

Losing the 14-day rule does not make the police unimportant. In a hit-and-run claim the police record is usually the single most important piece of evidence you have.

The Fund looks hard at unidentified-vehicle claims, because it has no driver or insurer to ask about what happened. A case opened promptly, with a statement made while the facts are fresh, is the best proof that a vehicle was involved at all and that the driver drove off. A report made months later, for the first time, invites the suggestion that the injury had some other cause.

The driver who hit you also had a duty: section 61(1)(f) of the National Road Traffic Act 93 of 1996 requires a driver to report an accident to the police within 24 hours where someone was killed or injured. A driver who fled has broken that law, which is one more reason the police should have a record of the collision.

You also have to satisfy the Fund that the injury arose from the negligent driving of the unidentified driver, and not from your own sole negligence. A police report and an affidavit that describe a collision without describing anybody's driving do not do that.

Building the evidence when the driver has gone

What helps, in rough order of usefulness:

Report to the police immediately, and get the case number and the accident report reference. Everything else hangs off this.

Prepare the affidavit for the Fund setting out the occurrence fully: date, time, place, direction of travel, where you were walking, what the vehicle did, the weather, the lighting, anything you noticed about the vehicle.

Partial details are worth recording. Two or three digits of a registration, a colour, a make, a distinctive dent. An investigator can sometimes work with that, and a claim that begins as unidentified occasionally becomes identified, which changes the prescription period in your favour.

Get the names of anybody who stopped, including the person who called the ambulance. Witnesses disappear within hours and are unfindable within weeks.

Photograph the scene, or have somebody do it: the debris field, the skid marks, the absence of a pavement, the broken streetlight, the missing crossing.

Ambulance and hospital records establish the time and the mechanism of injury, and they are contemporaneous, which makes them powerful.

Look for cameras. A filling station, a business, a residential complex or a traffic camera near the scene. Footage is overwritten quickly, sometimes within days, so a written request to preserve it in the first week is worth far more than an enquiry a year later.

If you were partly at fault

This is a real issue for pedestrians and it is not the disaster people fear.

Being partly at fault reduces the claim in proportion to your share of the blame; it does not defeat it. Crossing away from a crossing, or stepping into the road, reduces an award rather than extinguishing it.

Our guides on contributory negligence and on claiming when the accident was partly your fault set out how the apportionment works and what the court compares, so this page does not repeat it.

Two points specific to pedestrians are worth adding.

A very young child cannot be contributorily negligent. A child below the age at which the law recognises the capacity to be negligent cannot have their claim reduced for running into the road, and the enquiry moves entirely to the driver's conduct.

Drivers are expected to anticipate pedestrians in places where pedestrians are known to be: near schools, informal settlements, taxi stops, and roads without pavements. A driver travelling at a speed that left no margin in such a place is not answered simply by saying the pedestrian should not have been there.

Claiming for a child or on behalf of someone else

Pedestrian claimants are disproportionately children and people who cannot manage their own affairs, and the rules differ.

A minor's claim. Prescription works differently for a minor, which is why a claim arising from a childhood injury can sometimes still be brought years later. Do not rely on that for a hit-and-run: regulation 2(2) makes the two-year period for an unidentified vehicle run even against a child.

Where money is awarded to a child, it is not paid to a parent to spend. It goes into a trust or into the Guardian's Fund. Our guide on RAF payment after settlement explains that and the 180-day payment rule.

A fatal claim. Dependants claim for loss of support, and our guide on what a RAF claim is worth covers the heads.

What to do in the first week

Report it to the police and obtain the case number.

Make your statement and the affidavit as soon as you are physically able, and keep copies.

Ask the hospital for your records, and note the admission and discharge dates. These prove both your injuries and why any delay occurred.

Write down everything you remember, today, including what you cannot remember. Memory of a traumatic event degrades quickly and inconsistently.

Request any camera footage in writing, naming the date and time.

Work out your prescription date and write it down: three years if the vehicle is identified, two if it is not. Our prescription checker sets out how the periods work generally.

Get an attorney early, particularly on an unidentified claim. Our guide on no win no fee explains the statutory limits on what may be charged, and Legal Aid is on 0800 110 110 with our free legal help page setting out the alternatives.

Worked example

This example is illustrative. A man walking home along a road with no pavement is struck from behind at dusk. The vehicle does not stop. A passer-by calls an ambulance. He spends five weeks in hospital with a fractured pelvis and a head injury, and a further four months in rehabilitation.

Nobody took a registration number. This is an unidentified-vehicle claim.

The deadline is two years from the date he was struck, not three. That is the first thing his attorney should establish and diarise.

The police report and the affidavit. The passer-by who called the ambulance also called the police, and a case number exists from the night of the collision. He was unconscious for four days and in hospital for five weeks, so he gives the police his own statement in week six, once he can. His attorney lodges the claim with a full affidavit to the Fund under section 19(f), with the hospital discharge summary attached. No 14-day deadline applies; what counts is that the police record was made at once and that the affidavit reached the Fund with the claim.

Negligence. He cannot describe the driver at all. What he can establish is that he was walking on the verge, facing away, on a road with no pavement, at dusk, and that he was struck from behind. That is the material from which a court infers negligent driving, and the absence of skid marks in the police photographs supports it.

Apportionment. The Fund argues he should have worn light clothing and walked facing the traffic. That is an argument for reducing the award, not for refusing it.

Now the version that fails. Everything is identical, except that nobody tells him about the two-year period and the claim is lodged twenty-seven months later. The injuries, the negligence and the evidence are all exactly the same, and none of it matters. That is the whole reason this article leads with a date rather than with the merits.