If you are involved in a road accident in which someone is injured or killed, the law requires you to stop, help and report the accident. It does not require you to make a sworn statement about how it happened, and you should not do so until you have spoken to an attorney.
This article sets out what South African legislation requires of you after a serious accident, and the rights the law gives you. Each point refers to the section of the Act it comes from, so that you can read the law for yourself.
1. At the scene: your duties under section 61
Section 61(1) of the National Road Traffic Act 93 of 1996 (NRTA) applies to the driver of any vehicle involved in, or contributing to, an accident in which a person is killed or injured or property is damaged. The driver must:
- Stop the vehicle immediately (s 61(1)(a)).
- Find out the nature and extent of any injury to any person (s 61(1)(b)).
- Help the injured person as far as you are capable of doing (s 61(1)(c)).
- Find out the nature and extent of any damage (s 61(1)(d)).
- Give your details if anyone with reasonable grounds asks: your name and address, the name and address of the vehicle’s owner, and the vehicle’s licence number (s 61(1)(e)).
- Report the accident. If you did not report it to a police or traffic officer at the scene, you must report it at a police station, or at a traffic office, within 24 hours where a person was killed or injured. You must produce your driving licence and give your identity number and the details in point 5 (s 61(1)(f)). This does not apply if your own injuries make you incapable of reporting.
- Take no alcohol or narcotic drugs, unless a medical practitioner gives them to you for injury or shock, until you have reported the accident and, if a traffic officer requires it, been examined by a medical practitioner (s 61(1)(g)).
Do not move your vehicle. Where someone was killed or injured, no one may move a vehicle involved from where it came to rest until a traffic officer authorises it. The only exception is where the road is completely blocked. Then the vehicle may be moved just enough to let traffic pass, after its position has been clearly marked on the road surface (s 61(2)).
The consequences of not complying are serious. Where someone was killed or seriously injured, failing to stop, find out about injuries, help, or report the accident is punishable by a fine or up to nine years’ imprisonment (s 89(4)(a)). A conviction for failing to stop, check or help in those circumstances also leads to your driving licence being suspended for at least six months for a first offence (s 35(1)(a)).
If it is safe, switch on your hazard lights, place your warning triangle and photograph the scene. Call emergency services: 112 from a cell phone, 10177 for an ambulance or 10111 for the police.
2. When the police arrive: never resist arrest
A peace officer may arrest a person without a warrant if that person commits an offence in the officer’s presence, or if the officer reasonably suspects the person of having committed a serious offence listed in Schedule 1 to the Criminal Procedure Act 51 of 1977 (CPA s 40(1)(a) and (b)). After a fatal or serious accident, the driver may therefore be arrested at the scene. An arrest is not a finding of guilt.
Do not resist, argue with or run from the police, even if you believe the arrest is wrong.
- Resisting, or wilfully hindering or obstructing, a member of the police in the performance of their duties is a criminal offence in itself (South African Police Service Act 68 of 1995, s 67(1)(a)).
- If a suspect resists or flees, the person making the arrest may use force that is reasonably necessary and proportional to overcome the resistance (CPA s 49(2)).
Instead, stay calm, keep your hands visible, give your name and address, and say: “I wish to speak to my attorney before I make any statement.” If the arrest was unlawful, your attorney can challenge it later in court.
3. Your rights if you are arrested
Section 35 of the Constitution of the Republic of South Africa, 1996 gives everyone who is arrested or detained the right:
- to remain silent, and to be told promptly of this right and of the consequences of not remaining silent (s 35(1)(a)-(b));
- not to be compelled to make any confession or admission that could be used in evidence against you (s 35(1)(c));
- to be told promptly why you are being detained (s 35(2)(a));
- to choose and consult a legal practitioner, and to be told of this right promptly (s 35(2)(b)) — and to have one assigned by the State at State expense if substantial injustice would otherwise result (s 35(2)(c));
- to be brought before a court within 48 hours of the arrest, or by the end of the first court day if the 48 hours end outside ordinary court hours or on a day that is not a court day (s 35(1)(d); CPA s 50(1)(c)-(d));
- to be released if the interests of justice permit, subject to reasonable conditions (s 35(1)(f));
- to conditions of detention consistent with human dignity, including medical treatment at State expense (s 35(2)(e)); and
- to communicate with and be visited by your spouse or partner, next of kin, chosen religious counsellor and chosen medical practitioner (s 35(2)(f)).
Exercising your right to silence is a constitutional right, not an admission of guilt.
4. Do not make an affidavit or statement before speaking to an attorney
This is the most important advice in this article. The law requires you to report the accident. It does not require you to give a sworn account of how it happened.
Compare what the legislation actually demands:
| What the law requires | Where |
|---|---|
| Your name and address, the owner’s name and address, and the vehicle’s licence number | NRTA s 61(1)(e) |
| Reporting the accident, producing your driving licence and giving your identity number | NRTA s 61(1)(f) |
| No one may compel you to make a confession or admission | Constitution s 35(1)(c) |
| You may remain silent | Constitution s 35(1)(a) |
Anything more — a statement or affidavit about speed, distances, who was at fault or what you saw — is voluntary. And once made, it can be used against you: an admission made voluntarily outside court is admissible in evidence against the person who made it in criminal proceedings for that offence (CPA s 219A(1)).
Shock affects memory. Times, speeds and distances given in the hours after a serious accident are often wrong, and correcting a sworn statement later invites questions about why your story changed. An attorney can help you decide whether a statement should be made at all and, if so, when and in what words.
What you can safely say: “I was involved in an accident. Here are my name, address, identity number, driving licence and vehicle details. I will make a statement once I have spoken to my attorney.”
5. Blood and breath tests
Cooperate. No person may refuse to have a specimen of blood or breath taken (NRTA s 65(9)). Refusal is an offence punishable by a fine or up to six years’ imprisonment (NRTA s 89(2)).
Once you have been arrested, a registered medical practitioner or registered nurse may, at the request of a police official, take a blood sample (CPA s 37(2)(a)). A police official may not take a blood sample personally (CPA s 37(1)(c)).
Remember also that you may not take any alcohol or narcotic drug after the accident until you have reported it and, if required, been medically examined (NRTA s 61(1)(g)). Note the time, place and person who took any sample, and tell your attorney.
6. Bail and your first court appearance
After an arrest you must be taken to a police station as soon as possible and told of your right to apply for bail (CPA s 50(1)(a)-(b)). Depending on the charge, you may be released before your first court appearance:
- Police bail. A police official of the required rank may release you on bail for offences other than those listed in Part II or Part III of Schedule 2 to the CPA (CPA s 59(1)(a)).
- Bail authorised by a prosecutor. For offences in Schedule 7 — which includes culpable homicide — a Director of Public Prosecutions, or an authorised prosecutor, may authorise your release on bail (CPA s 59A(1)).
If you are not released, you must be brought before a court within 48 hours, and the court will decide on bail (CPA s 50(1)(c)).
Be careful at the bail hearing. The record of the bail proceedings forms part of the record of your trial. If you choose to testify, the court must warn you that anything you say may be used against you at your trial (CPA s 60(11B)(c)). This is another reason to have an attorney with you.
7. Claims against the Road Accident Fund
The Road Accident Fund (RAF) must compensate a person for loss or damage caused by bodily injury to themselves, or by the death of or injury to another person, caused by the negligent or wrongful driving of a motor vehicle (Road Accident Fund Act 56 of 1996, s 17(1)). Strict time limits apply:
| Type of claim | Prescribes if not lodged within | Once lodged, prescribes after | Legislation |
|---|---|---|---|
| Driver or owner of the vehicle identified | 3 years from the accident | 5 years from the accident | RAF Act s 23(1) and (3) |
| Hit and run (neither driver nor owner identified) | 2 years from the accident | 5 years from the accident | RAF Regulations, 2008, reg 2(1) |
For identified claims, prescription does not run against a minor, a person detained as a patient under mental health legislation, or a person under curatorship (RAF Act s 23(2)). For hit-and-run claims, however, the regulations require the claim to be lodged within two years regardless of any legal disability (reg 2(2)).
You may not issue summons against the Fund until 120 days after the claim was delivered (RAF Act s 24(6)). If you were injured, or lost a family member, speak to an attorney early so that your claim does not prescribe.
Quick checklist
Do:
- Stop immediately and check for injuries (NRTA s 61(1)(a)-(b)).
- Help the injured as far as you can (s 61(1)(c)).
- Give your name, address and vehicle details to anyone with reasonable grounds to ask (s 61(1)(e)).
- Leave your vehicle where it is unless the road is completely blocked (s 61(2)).
- Report the accident within 24 hours if it was not reported at the scene (s 61(1)(f)).
- Allow blood and breath samples to be taken (s 65(9)).
- Stay calm if you are arrested, and ask for your attorney (Constitution s 35(2)(b)).
Don’t:
- Leave the scene.
- Drink alcohol or take drugs before you have reported the accident (s 61(1)(g)).
- Resist or obstruct the police (SAPS Act s 67(1)(a)).
- Sign an affidavit or make a statement about the accident before speaking to an attorney (Constitution s 35(1)(a) and (c)).
- Let a Road Accident Fund claim prescribe (RAF Act s 23).
How Suhannie Greyling Attorneys can help
If you or a family member has been involved in a serious accident, contact us before you make any statement. We can advise you on your rights, attend at the police station, assist with bail, represent you in criminal proceedings, and help with Road Accident Fund claims.
Suhannie Greyling Attorneys Inc.
28A Taylor Street, Burgersdorp, 9744
Email: info@suhannie.co.za
Contact us
This article provides general information about South African law and is not legal advice. Every case is different. Please consult an attorney about your specific situation.
Legislation referred to
- Constitution of the Republic of South Africa, 1996 — section 35
- National Road Traffic Act 93 of 1996 — sections 35, 61, 65 and 89
- Criminal Procedure Act 51 of 1977 — sections 37, 40, 49, 50, 59, 59A, 60 and 219A; Schedules 2 and 7
- South African Police Service Act 68 of 1995 — section 67
- Road Accident Fund Act 56 of 1996 — sections 17, 23 and 24
- Road Accident Fund Regulations, 2008 (GN R770 of 21 July 2008) — regulation 2
