Court orders RAF to honour R1.4 million payment to undocumented Malawian immigrant injured in car crash

The Western Cape High Court has dismissed an application by the Road Accident Fund (RAF) to rescind a judgment mandating a payment of over R1.4 million to an undocumented Malawian man.

Charles Jeka Chipofya has been living in the country since 1994 and has been married to a South African woman since 2008. They have two children.

Despite his long-term residence, his attempts to obtain citizenship through marriage were thwarted due to evident abuse of the system by some African nationals.

The Road Accident Fund found itself at the centre of controversy after Chipofya was involved in a severe car accident in Plettenberg Bay in September 2016. He filed a claim with the RAF, culminating in a proposed settlement of over R1.4 million in November 2022.

In January 2023, a draft order was presented to the court on mutual consent between the parties, and RAF was ordered to pay Chipofya over R1.4 million.

However, two years later, RAF reneged and wanted the court to rescind the order claiming that when it was made, it was unaware that Chipofya was an illegal immigrant.

RAF said that when Chipofya submitted a copy of a passport, it referred to him as Charles Chipeta and not as Charles Jeka Chipofya, and this was suspicious.

In response to this suspicion, RAF investigated to ascertain the circumstances surrounding his dual identity and it came to light that Chipofya owns two passports, one naming him as Charles Jeka Chipofya and the other as Charles Chipeta.

RAF stated that when Chipofya  was confronted about having two passports, he tried to attribute the discrepancy to a data capture error. However, in RAF's view, his explanation was unlikely, as it is improbable that such an error could occur.

Subsequent to that, RAF said investigations revealed that one of the passports did not exist at the time of the accident. Additionally, the movement system record revealed that the visa on the other passport expired in December 2012.

Moreover, there were no records showing that Chipofya left the country using the old passport or that he entered the country with a new passport after December 2012.

In RAF's view, this could imply that Chipofya was either not present in the country on the date of the accident or was potentially in the country illegally.

RAF argued that the order was erroneously granted and had the court been made aware that Chipofya was an illegal immigrant, the court would not have granted the order.

Furthermore, RAF contended that the Immigration Act prohibits illegal immigrants from being in the country and extending claims of damages to illegal immigrants will create an enormous burden on the State.

In response, Chipofya's legal representative argued that RAF had prior knowledge of his nationality and legal status before reaching a settlement agreement.

Moreover, it was argued that Chipofya never misrepresented his status in the country and the settlement agreement was not based on the assumed existence of his legal status in the country.

Judge James Dumisani Lekhuleni who presided over the matter, sided with Chipofya, and noted RAF had reduced the claim amount specifically because Chipofya was an illegal immigrant at the time of the offer, a fact that had been openly discussed during negotiations.

"This conclusion is fortified by the fact that RAF's legal representatives advised Chipofya's attorneys that his claim would be reduced because he was an illegal immigrant. This averment was not disputed by the RAF or RAF's counsel," he said.

In addition, he said Chipofya's medical reports and some of his documents, showed that he didn't have a valid visa and despite this, RAF settled his claim and consented to have the draft order endorsed in court.

Regarding the different names, the judge said Chipofya provided a plausible explanation regarding the names and when RAF made the offer, it was aware of the discrepancies.

Judge Lekhuleni emphasised that RAF is legally bound under the RAF Act to provide compensation for losses arising from road accidents, asserting that the Act does not discriminate based on a claimant’s immigration status.

"In my opinion, the current legislative framework of the RAF Act does not support the fund's position to exclude illegal immigrants from the application of RAF.

"Eligibility for the RAF fund is not contingent upon a person's legal status within this country. An individual's legal standing does not influence their eligibility for RAF benefits. Simply put, it is not the person’s immigration status in the country that makes a person legible to the RAF benefits," he said.

RAF's application was dismissed.

sinenhlanhla.masilela@iol.co.za

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