RAH Engelbrecht v The Road Accident Fund and Anothr (CC) Case No CCT 57/06 6 March 2007 unreported
The main issue in this matter was the constitutionality of regulation 2(1)(c) of the regulations made under the Road Accident Fund Act 56 of 1996 which requires that any third party submitting a claim for compensation, must, if reasonably possible, within 14 days of being in a position to do so, submit to the Police an affidavit setting out the particulars of the accident.In the course of determining whether the regulation did constitute an unjustifiable limitation on the rights of access to court, the Court considered the finding of the Supreme Court of Appeal in Road Accident Fund v Makwetlane 2005 (4) SA 51 (SCA) which found that as the claimant in a hit-and-run case had no enforceable claim at common law, section 34 did not come into play since reg 2(1)(c) prevented a justiciable claim coming into existence. As the right to recover comes into being the moment the third person is injured and suffers damaged, knowledge of the identity of the debtor is not relevant to the existence of the claim. As a result, the Court found that the SCA had erred in holding that the victim of an unidentified driver had no claim. The court found that the period of 14 days was too short to amount to a real and fair opportunity to access court, and thus constituted a limitation of the right protected in section 34. As there was no evidence that the limitation achieved its purpose, which was to combat fraud, it was not justifiable. In addition, as the period of limitation was so inadequate that it practically nullified claimant’s entrenched right of access to court it did not either meet the threshold test of reasonableness. The regulation was accordingly declared invalid, such invalidity to apply only to claims after the date of the order, and the case was remitted to the High Court for determination.