Minors and Road Accident Fund claims
31 March 2021 | Lize-Mari Viljoen
A question that usually arises when a child gets injured in a motor vehicle accident or suffers loss of maintenance as a result of the death of a breadwinner caused by the negligent driving of a motor vehicle: “Who can institute a claim on behalf of the child?”
First of all, we need to establish the definition of a minor and whether a minor has the necessary locus standi (from Latin, meaning “capacity to stand before a court”) to institute a claim. Section 1 of the Children’s Act 38 of 2005 defines a child as a person under the age of 18 years. In terms of the common law, a minor does not have locus standi or the legal capacity to litigate and are barred from entering into legal proceedings without the necessary representation. In light of the beforementioned, a minor also does not have locus standi to institute a third party claim against the Road Accident Fund without assistance or representation.
The claim of a minor will usually have to be instituted by his or her guardian who is legally liable to maintain the minor.
In terms of Section 24(1) of the Children’s Act, any person with an interest in the care, well-being and development of the child may apply to the High Court for an order granting guardianship of the minor to the applicant.
Who can assist or represent a minor in third party claims?
1. Biological mothers:
According to Section 19 of the Children’s Act the biological mother of a child, whether married or unmarried, has full parental responsibilities and rights in respect of the child.
2. Biological fathers:
In terms of Section 20 of the Children’s Act, the biological father of a child has full parental responsibilities and rights in respect of the child if he is married to the child’s mother or he was married to the child’s mother at the time of the child’s conception, the child’s birth or any time between the child’s conception and birth.
An unmarried biological father will first have to acquire full parental responsibilities and rights in respect of the child in terms of Section 21 of the Children’s Act before he will be regarded as a legal guardian.
3. Adoptive parents:
An adopted child is regarded as the biological child of the adoptive parents and the adoptive parents will have full parental responsibilities and rights in respect of the child. The adoptive parents will be able to institute a claim on his or her behalf.
4. Curator ad litem:
A curator ad litem is a legal representative that will have to be appointed by a court to represent a minor in circumstances where the natural parents cannot be found to assist or represent the minor.
Who will not be able to assist or represent a minor in third party claims?
1. Stepfathers and stepmothers:
A stepfather or stepmother does not have a legal responsibility to maintain his or her stepchildren and will not be able to act as a guardian on their behalf.
2. Foster parents and grandparents:
A foster parent can be awarded parental responsibilities and rights in respect of the minor by the Children’s Court, but will only have locus standi to claim in his or her own name for any losses incurred by him or herself as a result of the parental responsibilities and rights of the minor awarded by the Children’s Court. Examples of these losses will be past medical and hospital expenses incurred as a result of the injuries sustained by the minor. A foster parent will thus not have locus standi to institute a claim on behalf of the minor. The same principles will apply to grandparents.
Instances where a minor will have locus standi to institute a claim:
A minor will have locus standi to institute a claim against the Road Accident Fund when he or she is married, tacitly emancipated or has been declared to be emancipated by a court.
Prescription of the minor’s claim:
1. Identified claims (Section 23(2) of the Road Accident Fund Act 56 of 1996 (as amended))
In the event that the identity of the driver or the owner of the vehicle(s) responsible for the accident has been established, the claim documents must be submitted within three years from the date on which the minor turned 18 and attained majority.
2. Unidentified claims – “Hit-and-run” claims (Regulation 2(1) and (2) of the Road Accident Fund Act):
In the event that the identity of neither the driver nor the owner of the vehicle(s) responsible for the accident has been established, the claim documents must be submitted within two years from the date of the accident or the date of the death of the breadwinner.
It is thus important to note that prescription of the minor’s claim is not suspended in the event of a “hit-and-run” and the claim will prescribe after the expiration of the two years if the claim documents were not submitted timeously.