Da Silva v Road Accident Fund and Another

Ms Vanessa da Silva was severely injured as a passenger in a motor vehicle accident on 29 April 2006. The vehicle was driven by her husband, whose negligence solely caused the accident when he collided with a horse. At the time, section 19(b)(ii) of the Road Accident Fund Act 56 of 1996 (as it read prior to 1 August 2008) barred claims by passengers who were members of the driver’s household or owed the driver a duty of support. As a result, Ms da Silva was precluded from claiming compensation from the Road Accident Fund (RAF). Although section 19(b)(ii) was later repealed, the repeal did not apply retrospectively to her claim. She challenged the constitutionality of the provision in the Free State High Court, which declared it unconstitutional. The matter came before the Constitutional Court for confirmation of that order.

The Constitutional Court confirmed the order of the Free State High Court declaring section 19(b)(ii) of the Road Accident Fund Act 56 of 1996 (as it read prior to 1 August 2008) inconsistent with the Constitution and invalid. The respondents were ordered to pay the applicant’s costs, including the costs of two counsel.

This case is significant for affirming the constitutional right to equality in the context of social security and statutory compensation schemes. It clarified that exclusions in the Road Accident Fund legislation based on familial or household relationships constitute unfair discrimination and cannot be justified without compelling reasons. The judgment extended constitutional protection to a vulnerable class of road accident victims previously excluded from compensation and reinforced the application of the Harksen test to indirect discrimination in socio-economic legislation.