The Supreme Court of Appeal (SCA) today confirmed the decision of the Pietermaritzburg High Court which had found that compliance with a regulation promulgated in terms of the Road Accident Fund Act 56 of 1996 requiring a ‘hit and run’ victim to provide an affidavit to the police within 14 days, was capable of being waived by the Road Accident Fund.
The appeal arose from a motor vehicle collision on 28 April 2000 in which Sheldon Smith was a victim. He could not identify the motor vehicle that collided with him nor its driver or owner. He lodged a claim against the Fund, followed by an action in the Pietermaritzburg High Court. He had however omitted to comply with the regulation requiring him to provide an affidavit to the police within 14 days of the collision providing details thereof. The regulation provides that failure to comply with its provisions renders the Fund not liable to compensate.
The Supreme Court of Appeal found that regulation 2(1)(c) contains a precondition that the Fund is liable to compensate only on compliance therewith. The court further found that it was competent for the Fund to waive compliance with the precondition irrespective of the peremptory terms thereof. The court further agreed with the High Court that the Fund had been aware that the regulation had not been complied with but had conducted itself in a manner commensurate with an intention not to rely on the protection of the regulation.