Swemmer & Levin

Vredenburg & Velddrif: 022 713 2221
|
Saldanha & Langebaan: 022 714 2244

The reality of motor vehicles accidents is that parties to the accident sometimes flee the scene of the accident without identifying themselves or their vehicles. Arguably, negligent drivers escape the scene in order to avoid liability for the ensuing damages. 

The injured third party is, however, not left without recourse.  A third party that has suffered damages as a result of any bodily injuries to himself or herself, caused by the negligent driving of an unknown motor vehicle and unknown driver, can claim damages from the Road Accident Fund (“RAF”).  

As a point of departure, it is important to classify a claimant’s claim as either a “hit and run” or an “an identifiable accident”, in which the driver or the owner of the vehicle was identified (, since there are procedural differences between the two cases. 

A claimant will be entitled to claim special damages and general damages (in the case of serious injury) from the RAF, only if they are able to meet the special requirements applicable to “hit and run” claims. 

In a “hit and run” scenario, the third party must lodge their claim against the RAF within two years of the date on which the cause of action arose. This is significant to note, since a third party ordinarily has a period of three years to submit their claim, with the possibility of this period being further extended in certain circumstances. In the case of minors, for example, prescription only starts running upon their attainment of majority age, and the three-year period therefore only starts once they reach the age of 18. This is, however, not the case in a “hit and run” case – prescription starts running on the date of the cause of action and cannot be interrupted. The constitutionality of this differentiation has not, as of yet, been tested by the courts. 

A claimant must furnish the RAF with proof that the injury arose from the negligent driving of the driver of the unidentified motor vehicle and not from their own sole negligence. Furthermore, the claimant must take reasonable steps to identify the identity of the insured driver. It is not sufficient for the claimant to simply report the matter to the police (although the claimant must report the matter to the police as soon as possible). In order to meet this requirement, a claimant can, for example, return to the scene of the accident and obtain the statements of eyewitnesses. 

The claimant must also lodge a certificate probabilis causa litigandi. This certificate must be issued by an independent advocate or attorney, with at least ten years’ experience, after considering all the evidence available to both parties regarding the cause of the accident and the liability of the RAF. The certificate must state that there is a reasonable prospect of success on the side of the claimant.  

A claimant may lodge their claim with the RAF by using the RAF1 Form. The claimant must submit the details of the accident, police report or case number, relevant medical and financial statements and all other relevant documents to the RAF. 

The RAF has 120 days from the date of lodgement to investigate the claim. After this time period has lapsed, the claimant can institute legal proceedings against the RAF for recovery of the damages they suffered as a result of the motor vehicle accident. 

The fact that a third party was injured by the negligent driving of an anonymous driver should, therefore, not bar the third party from recovering their damages. A third party must, however, act swiftly by approaching a lawyer timeously to assist them with their claim against the RAF. 

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.

Leave a Reply

Your email address will not be published. Required fields are marked *

Jan Fourie

Director |  Attorney, Notary & Conveyancer | BA. LLB

Jan graduated in 1974 with a five-year BA LLB degree from the University of Stellenbosch, whereafter he was admitted as an advocate and prosecuted as such in the Cape Town and Wynberg Courts. In 1974, he joined Swemmer & Levin as the Candidate Attorney of Mr Levin (founding member) and was admitted as an attorney on 7 April 1976, as a conveyancer on 11 January 1978, and as a Notary on 19 December 1984. Since 1974, he has served in various committees, including the West Coast Chamber of Commerce, the Vredenburg School Committee, and the Malgas Lions Club. 

Furthermore, Jan was the author of the first bilingual law book, The New Debt Collecting Procedures (Die Nuwe Skuldinvorderingsprosedures), which was used by all the Magistrate Courts throughout South Africa. With the founding of the Small Claims Court in Vredenburg, Jan served as one of the first Commissioners. He is currently based at Swemmer & Levin’s Vredenburg office and has been with our firm for more than 47 years.

Pieter Smit

Director | Attorney & Conveyancer | BA. LLB

Pieter obtained his BA Law degree from Stellenbosch University in 1995 and his LLB degree from the North-West University in Potchefstroom in 1998. He served his articles at Marais Muller Attorneys from 1998 to 1999 and was admitted as an attorney in 2000 and as a conveyancer in 2002. Pieter is the founder of PP Smit Attorneys, which opened its doors in 2004. He also became a director of Swemmer & Levin in 2006. Pieter loves the outdoors and participating in all forms of sport, including tennis, golf, fishing, spearfishing, scuba diving, and hiking. 

Johann Maree

Director | Attorney | BA. LLB

Johann matriculated at Oudtshoorn High School and attended Stellenbosch University, where he obtained his BA Law and LLB degrees. Following his studies, he worked for three years as State Prosecutor at the Magistrate’s Court in Cape Town. Johann completed his legal training with the State Attorney in Pretoria and then moved to his hometown, Oudtshoorn, where he worked as a lawyer for a year. In 1983, he finally moved to Vredenburg and joined Swemmer & Levin, where he is still practising as a director. When he is not in the office, Johann enjoys cycling and in his earlier days, he used to be a long-distance junkie.

Richard Phillips

Director | Attorney | Bcom & BProc

After matriculating at Paarl Boys’ High School, Richard completed his BCom and BProc degrees at the University of Port Elizabeth. He served his articles with Van Wyk Fouchee in Paarl and quickly developed an affinity for litigation. Richard has always had a deep love for the ocean and when he was presented with an opportunity to join Swemmer & Levin on the West Coast, he agreed without hesitation and has been with our firm since 1997. Richard specialises in general litigation and divorces. When he is not in the office or with his family, he tries to spend as much time as possible in or on the water.

Jandré Smith

Director | Attorney | LLB

Jandré grew up and matriculated in the small Klein Karoo town of Oudtshoorn. He furthered his studies at the North-West University in Potchefstroom, obtaining his LLB degree during 2015. He completed his articles at Swemmer & Levin in 2017 and was subsequently appointed as a professional assistant. In 2020, Jandré was promoted to the position of director at the firm, where he practises in the Litigation department at our Langebaan office. When not practising law, Jandré is an avid sports fan. He has a passion for nature and enjoys camping, trail running, and mountain biking with his family.

Andre van der Walt

Director | Attorney | LLB

Andre graduated in 2015 with an LLB degree from the University of Pretoria. He later went on to obtain his NQF 7 Certificate in the Administration of Deceased Estates from the University of South Africa, which allowed him to further his career in deceased estates and the drafting of wills and trusts. Andre served his articles at Barnard & Patel Attorneys under the supervision of Mr YAS Patel. After being admitted as an attorney in 2016, he continued working at Barnard & Patel Attorneys as a professional assistant in the deceased estates department.

Andre joined Van Rensburg Attorneys in 2019 and was head of the deceased estates department until 2021. He then received the opportunity to move to the West Coast, where he joined Swemmer & Levin Attorneys. Andre loves travelling and enjoys the beauty that our country has to offer with his friends, family, and loved ones.

Harmann Potgieter

Attorney | LLB

Harmann graduated in 2018 with an LLB degree from the North-West University’s Potchefstroom Campus. He went on to study and grow in various fields, including doing a course on the Consumer Protection Act and a course at the University of South Africa where he obtained his NQF 7 Certificate in the Administration of Deceased Estates.

Harmann completed his articles of clerkship at Swemmer & Levin under the supervision of Mr Richard Phillips. After being admitted as an attorney in 2020, Harmann continued with Swemmer & Levin as a professional assistant in the deceased estates department as well as the litigation department. He loves to study, possesses a deep curiosity about the world, and is dedicated to giving back to the community.

Carla Cloete

Attorney, Conveyancer & Notary | LLB

Carla obtained her LLB at the North West University, Potchefstroom Campus in 2015. She completed her articles in 2017 with Brits Dreyer Inc in Bellville. She is an admitted Attorney, Notary and Conveyancer. After her articles she relocated to Kimberley where she worked as a professional assistant in the Conveyancing department of Van de Wall Inc. Coming back to her Western Cape roots, she now joins the Swemmer & Levin team as a professional assistant.