Can I claim from the RAF and sue the driver too?

It is the most natural question in a serious claim. The Fund's award is capped, the driver was drunk, and he has a house. Why not both?

Because Parliament took that claim away, deliberately, and the highest court agreed that it could. What survives is narrower than almost everybody assumes, and the widely repeated version of the exception is the one that does not exist.

What section 21 says

Section 21(1) of the Road Accident Fund Act 56 of 1996 provides that no claim for compensation in respect of loss or damage resulting from bodily injury to or the death of any person caused by or arising from the driving of a motor vehicle shall lie against the owner or the driver of the motor vehicle, or against the employer of the driver.

Before the 2008 amendments the position was different: a claimant could recover from the Fund up to its limits and then sue the wrongdoer for the balance. That residual common-law claim is what the amended section 21 abolished.

The Fund is now the only defendant for bodily injury and death on the road. Not the Fund plus the driver. The Fund.

The Constitutional Court agreed

This was challenged, and the challenge lost.

In Law Society of South Africa and Others v Minister for Transport and Another, decided on 25 November 2010, the Constitutional Court upheld section 21. The abolition of the common-law claim against the wrongdoer was held to be rationally connected to a legitimate government purpose: making the Fund financially viable and its compensation scheme equitable, so that the money available is spread across all road accident victims rather than concentrated on those who happened to be injured by somebody worth suing.

That reasoning is worth understanding because it answers the instinct behind the question. The scheme is a social insurance arrangement funded by the fuel levy. Everybody who buys fuel pays into it, everybody injured on the road claims from it, and in exchange the individual wrongdoer is immune. Whether one thinks that is a good trade is a political question; that it is the law is settled.

The two real exceptions

Section 21(2) preserves a claim against the owner, driver or employer in two situations only.

Where the Fund is unable to pay. If the Fund or its agent is unable to pay any compensation, the claim against the wrongdoer revives. This is about the Fund's incapacity to pay at all, not about it paying slowly or paying less than you hoped, and it has not been the practical basis of claims despite the Fund's well-publicised finances. Our guide on how long the RAF takes to pay after settlement explains why delay is not the same thing.

Emotional shock suffered by a witness. A claim for loss resulting from emotional shock sustained by a person, other than a third party as defined, when that person witnessed or observed or was informed of the bodily injury or death of another person caused by the driving of a motor vehicle. Read that carefully, because it is narrower than it looks. A recognised psychiatric injury counts as bodily injury, so a parent who sees their child struck, or is told of it, and develops one may be a third party with a claim against the Fund itself. That is how Road Accident Fund v Sauls, decided by the Supreme Court of Appeal in 2001, came about: a woman who watched her fiancé being struck recovered from the Fund, and witnesses still lodge such claims with the Fund, subject to the serious injury assessment for general damages. The section 21(2)(b) exception keeps a claim against the driver open for a shock victim who is not a third party. Exactly who falls into that gap has not been settled by a clear appellate decision, so an attorney should decide which defendant to claim from.

That is the complete list.

The exception that does not exist

The version that circulates, and that appears in a good deal of published advice, is that a claimant may sue the driver for the portion of their loss of income that exceeds the statutory cap.

That is wrong, and it is wrong in a way that matters, because people plan around it.

Section 17(4)(c) caps the Fund's liability for loss of income and loss of support at a prescribed annual amount, adjusted quarterly. Our guide on how much a RAF claim is worth sets out how the cap operates and the RAF claim range indicator applies it.

The loss above that cap is precisely the loss the Act took away. It is not covered by the Fund, and section 21 bars the claim against the driver for it. There is no residual claim. The high earner whose real loss is three times the cap recovers the cap from the Fund and nothing further from anybody. That was the specific consequence the Law Society attacked in 2010, and the Court upheld it anyway.

Anybody who tells you otherwise is describing the law as it stood before 1 August 2008.

What you can still claim from the driver

The immunity covers bodily injury and death. It does not cover everything.

Damage to your vehicle. The Fund does not compensate for property damage, and section 21 does not bar a claim for it. The negligent driver, or their insurer, remains liable for the cost of repairing or replacing your car, and this is where most motor litigation between private parties actually happens. Our guide on lending your car and what happens when it crashes deals with the insurance side of that.

Other property. The laptop in the boot, the fence the car went through, the goods in the delivery van.

Losses that are not bodily injury. Pure economic loss unconnected to injury, in the rare cases where it arises.

For amounts within the Small Claims Court limit, that forum is free and needs no attorney, and our small claims checker works out whether a vehicle damage claim fits.

Insurance sits outside all of this

Two further sources of recovery are unaffected by section 21, because they are not claims against the wrongdoer.

Your own insurance. Comprehensive motor cover pays for your vehicle regardless of fault, and the insurer then pursues the other driver by subrogation. Personal accident, income protection and life cover pay according to their terms.

Statutory schemes. Where the collision happened in the course of your employment, the Compensation Fund is engaged, and our guide on claiming from the Compensation Fund explains how that interacts with a RAF claim.

Neither replaces the RAF claim, and both should be pursued alongside it.

The employer of the driver

A detail that catches employers and injured employees in opposite ways.

Section 21 extends the immunity to the employer of the driver. So a person injured by a delivery driver in the course of his work cannot sue the delivery company for their injuries any more than they can sue the driver. Vicarious liability, which would ordinarily make the employer answerable for an employee's negligent driving, is displaced by the Fund for bodily injury claims.

Two things follow.

For the injured person, the company's deep pockets are irrelevant to the injury claim. The claim is against the Fund, on the Fund's terms, whoever the driver worked for.

For the injured employee, where the injured person was themselves working at the time, the Compensation Fund is engaged as well, and the two statutory schemes have to be reconciled so that the same loss is not paid twice, and an attorney handling the RAF claim needs to know about the workplace injury claim from the start. Two COIDA amendments that took effect on 23 January 2026 matter here. Section 36(5) says the Compensation Fund can no longer recover what it paid from the Road Accident Fund. And section 36(6) says a road accident that did not arise out of and in the course of the employee's work, such as the ordinary drive to the office, gives no COIDA claim at all, so the RAF is the only route.

The property damage position is again different: the delivery company remains liable, through ordinary vicarious liability, for what its driver did to your car.

What this means in practice

Lodge the RAF claim properly and on time. Since it is the only claim for your injuries, the deadlines in our guide on how to claim from the Road Accident Fund are the whole game.

Do not spend money on a summons against the driver for your injuries. It will be met with a special plea under section 21 and dismissed with costs.

Do pursue the driver or their insurer for your vehicle, separately, and promptly, because that claim prescribes on the ordinary three-year basis.

Check whether an emotional shock claim exists for a family member who witnessed the collision or was told of a death, because that is a real and separate claim that is often overlooked, and the right defendant, the Fund or the driver, needs advice.

Be realistic about the cap. If your earnings are well above it, the shortfall is a loss you will bear, and the practical response is income protection insurance going forward rather than litigation looking back.

Worked example

This example is illustrative. A surgeon earning R2.4 million a year is seriously injured by a drunk driver and cannot operate again. Her loss of earning capacity, properly calculated, is many millions of rands. The driver is a wealthy businessman.

From the Fund she recovers her medical expenses, general damages if the injury is assessed as serious, and loss of income capped under section 17(4)(c) at the prescribed annual amount, which is a fraction of what she earned.

From the driver, for her injuries and lost income, she recovers nothing. Section 21 bars it, and the fact that he is wealthy and was at fault changes nothing. A summons against him for the shortfall would be dismissed.

From the driver or his insurer she does recover the value of her written-off car, because that is property damage and outside the immunity.

Her husband was following in the car behind and watched the collision. He has developed a diagnosed post-traumatic condition. He may have his own claim for emotional shock as a witness, most likely against the Fund as a third party, as in Sauls, with the section 21(2)(b) claim against the driver as the possible alternative. It should be investigated separately, and our guide on claiming for emotional shock explains what he must prove.

Had the collision happened before August 2008, she could have sued the driver for the excess above the cap. It did not, and she cannot. The disability cover she never took out is the thing she now wishes she had.