Uninsured and Hit by Another Driver? What Are Your Rights Under South African Third-Party Insurance Law?

 

Key Takeaways •      Your claim is against the driver who damaged your car, not against that driver's insurance company. You are not a party to their policy, so you cannot sue the insurer directly. •      You are entitled to be put back, in money, in the position you were in immediately before the collision, which normally means the reasonable cost of repair, or the pre-collision value of the car less the salvage if it is written off. •      The other driver's excess is not your problem. You never agreed to it, and as the innocent third party you should not be asked to carry it. •      You have three years to sue, and negotiating with an insurer does not stop that clock. Around 65 to 70 percent of vehicles on South African roads carry no cover at all, so act early and in writing.

 

A client wrote to us recently with a problem thousands of South Africans face every month. Her neighbour reversed into her parked car in the complex parking area. He admitted fault, he has insurance, she does not, and she is now dealing with his insurer. What should she expect to be paid, and what happens if the insurer refuses to cover the full repair cost?

The question reaches far beyond one parking bay. South Africa had more than 13,3 million registered vehicles at the end of 2024, and the Automobile Association, drawing on South African Insurance Association figures, puts the proportion carrying no cover at roughly 65 to 70 percent. In a queue of three cars at a Johannesburg robot, two are probably uninsured. If one damages your car, everything then depends on the law of delict and on your evidence.

What is third-party insurance, and is it compulsory in South Africa?

Third-party insurance is cover a driver buys to protect themselves against claims brought by other people, and it is not compulsory in South Africa. Three people feature in every such claim: the insurer, the insured (the driver who bought the policy), and the third party (you, whose property was damaged). The policy promises to indemnify the insured, which means to reimburse them for what they are legally obliged to pay you. It promises you nothing.

Where does the Road Accident Fund fit in, and what is a delict?

The Road Accident Fund compensates people for bodily injury caused by negligent driving. It pays nothing for damage to your vehicle. Property damage is recovered from the wrongdoer personally, under the law of delict.

A delict is simply a civil wrong. If someone carelessly damages your property, the law obliges them to pay. You must prove four things: that the other driver acted unlawfully, that they were negligent (they did not drive as a reasonable driver would have), that this caused your loss, and the amount in rands. Lawyers call that money loss your patrimonial loss, a formal way of describing the dent in your pocket.

Can I claim directly from the other driver's insurance company?

No. Your legal claim lies against the driver who damaged your car, not against that driver's insurer. The policy is a contract between the driver and the insurer, and you are a stranger to it. In practice the insurer will usually step in, because it will end up paying the bill, but if it stalls, under-pays or goes quiet, your remedy is against the driver.

The Supreme Court of Appeal set out this structure in Truck and General Insurance Co Ltd v Verulam Fuel Distributors CC [2006] ZASCA 85. Liability insurance, the court observed, involves three parties, the insurer, the insured and the third party making a claim, and the insured's right to be reimbursed is tied to the insured's own legal liability. The proper course for an injured person is to sue the wrongdoer and then look to the insurance company.

So address your letter of demand to the driver and copy the insurer. The driver, not you, is the insurer's client, and the driver has the leverage to make the insurer settle.

Where should I take my claim, and what will it cost me?

Almost entirely on how much you are claiming.

Route	Best suited to	Your cost	Is the outcome binding?	Watch out for
Negotiate with the insurer	Almost every claim, as a first step	Nothing, unless you brief an attorney	Only once a written settlement is signed	Never sign in full and final settlement until hidden damage has been checked
Small Claims Court	Claims up to R30 000 (raised from R20 000 on 1 August 2026)	No attorney's fees at all	Yes, and enforceable through the Magistrates' Court	You sue the driver, not the insurer, and lawyers may not appear for you
Magistrates' Court	Up to R200 000 (district) and up to R400 000 (regional)	Attorney and sheriff's fees, usually recoverable if you win	Yes	You must prove negligence and the amount, with evidence
High Court	Claims above R400 000, and complex fleet losses	The most expensive route	Yes	Costs can outrun the claim on smaller matters
National Financial Ombud (Non-Life division)	Policyholders unhappy with their own insurer	Free	Binding on the insurer if you accept the ruling	It serves policyholders, so an uninsured third party has limited access

 

How much am I entitled to be paid?

You are entitled to be put back, in money, in the position you were in immediately before the collision, no better off and no worse off. That single principle answers most of the arguments that arise.

Repair cost, or the value of a written-off car

If the vehicle can be repaired, the measure is the reasonable cost of repair, supported by two independent quotes or an assessor's report. If the insurer's panel beater quotes less, ask in writing for the assessment and the reasons for the difference. If repairs would cost more than the car is worth, you claim its market value immediately before the collision, less whatever the wreck fetches as salvage. A write-off is an economic decision, not a legal ruling, and you may test the values relied on.

The excess, and what else you can claim

An excess is the first slice of a claim a policyholder agrees to carry under their own policy. You never agreed to it, so as the innocent third party you should not be asked to absorb it. You can also claim reasonable towing, storage and car hire, proved with invoices. Two cautions: you carry a duty to mitigate, meaning you must take sensible steps to stop the damage growing, and once you sign in full and final settlement you cannot return for the balance.

What have the courts decided recently, and what does it mean for me?

Three judgments, two from the Supreme Court of Appeal within the past year, shape how these disputes run today.

An insurer is held to the words it agreed to

In AIG South Africa Limited and Others v Azrapart (Pty) Ltd and Another [2025] ZASCA 172, delivered on 14 November 2025, the owners of Fourways Mall held a policy covering business interruption caused by infectious and contagious disease. When Covid-19 lockdowns stopped their tenants trading, they claimed. The insurers argued the cover had found its way into the policy by mistake, and asked the court to rectify the contract, meaning to correct it by deleting the clause.

The Supreme Court of Appeal refused. A party asking a court to rewrite a signed contract must prove the mistake in the clearest and most satisfactory manner. Negotiations had ended with a signed placing slip and a policy that both included the cover, so the contract said what the parties had agreed. The insurers raised the point nearly two years after the claim was lodged, and called no witness. The appeal was dismissed with costs.

Why this matters to you: an insurer cannot rewrite a policy after the accident because honouring it has become expensive, so ask for the wording. Older authority quoted in Truck and General goes further, holding that a genuine ambiguity is read against the insurer who drafted the document. That is the contra proferentem rule, meaning, in plain terms, against the party who put the wording forward.

Do not let the three-year clock run out while you negotiate

In Janse van Vuuren v WJB Stieger Konstruksie (Pty) Ltd [2026] ZASCA 102, handed down on 24 July 2026, a homeowner sued his builder over major structural cracks. The builder argued the claim had prescribed, meaning expired, because three years had passed since the owner first knew of the defects. The Supreme Court of Appeal disagreed. Prescription runs only once a creditor has the minimum facts needed to sue and is in a position to enforce the claim. Because the builder kept attempting repairs until October 2018, the claim only became enforceable when those repairs plainly failed, and so had not prescribed. A claim for damage to your vehicle normally prescribes three years after you know who is responsible and the facts you need to sue on, and waiting politely while an insurer considers your file does not stop that clock.

A split-second reaction is not automatically negligence

In Molaoa v Road Accident Fund [2025] ZAFSHC 2, a driver was confronted by a car overtaking towards him at speed on the wrong side of the road. He swerved, and a collision followed. The Free State High Court restated the sudden emergency principle: someone placed in immediate danger by another's carelessness is not negligent merely because they did not choose the best response in that moment. At worst it was an error of judgment. Fault is therefore not decided by who hit whom, but by what a reasonable driver would have done on the evidence.

What should I do, step by step, if an uninsured or insured driver damages my car?

Claims that settle quickly are almost always those where the paperwork was done properly in the first week.

1.   At the scene, photograph both vehicles, the damage, the number plates and the road position, and take the other driver's full name, identity number, address, cellphone number, vehicle registration and insurer.

2.   Get witness names and cellphone numbers before people drive away. Independent witnesses win these cases.

3.   Report to the police within 24 hours, obtain the accident report number, and get any admission of fault in writing. A WhatsApp saying 'sorry, I did not see your car' is evidence.

4.   Obtain two independent repair quotes, or an assessor's report if the car may be written off, and keep every receipt for towing, storage and transport.

5.   Send a written letter of demand to the driver, copied to the insurer, attaching the quotes and photographs and giving a deadline, usually 14 days.

6.   If the offer falls short, sign nothing in full and final settlement, diarise the three-year prescription date at once, and consult an attorney well before that deadline.

What if the other driver has no insurance and no money?

A judgment against someone with no assets is a hollow victory, so the practical question is whether the driver can pay at all. A payment arrangement made an order of court is often worth more than a judgment you cannot execute, and where a judgment is unpaid, a financial enquiry under section 65 of the Magistrates' Courts Act lets the court examine the debtor's income and order instalments. If the driver was working at the time, the employer may be liable for the employee's negligence, which matters greatly to businesses running fleets. Prevention is cheaper than litigation: basic third-party-only cover costs far less than comprehensive insurance.

Conclusion: know the rules before you accept the offer

Third-party claims turn on four things: proof of negligence, proof of the amount, the wording of a policy you are entitled to see, and a three-year deadline you cannot afford to miss. For the client who wrote to us the answer was reassuring. Her neighbour admitted fault, her car was repairable, and she was entitled to the reasonable cost of putting it right without contributing to his excess. Where an insurer under-pays, the offer is a starting position and not a verdict, and a properly supported demand very often moves the number.

Frequently asked questions

Can I claim from the other driver's insurance if I have no insurance in South Africa?

Yes, you can recover your loss even if you are uninsured. Your legal claim is against the driver who caused the damage, not against the insurer, although in practice the insurer will usually handle the matter on the driver's behalf. Being uninsured yourself does not reduce what you are entitled to be paid.

How long do I have to claim for damage to my car after an accident in South Africa?

Generally three years, running from the date you know who caused the damage and know the facts you need in order to sue. Negotiations with an insurer do not suspend that period. If you have not settled the claim, issue summons before the three years expire, or the claim will prescribe and fall away permanently.

Do I have to pay the other driver's excess if the accident was not my fault?

No. An excess is the first portion of a claim that a policyholder agrees to carry under their own policy with their own insurer. You are not a party to that contract and received no benefit from it. As the innocent third party, you should not be asked to contribute towards the other driver's excess.

What can I do if the insurance company offers less than my repair quote?

Do not sign. Ask in writing for the assessor's report and for the reasons behind the reduction, then respond with two independent quotes supporting your figure. If the insurer will not move, your remedy is to sue the driver in the appropriate court. A written, well-supported demand often closes the gap without litigation.

Can I take a car damage claim to the Small Claims Court in South Africa?

Yes, if your claim does not exceed R30 000, the limit that took effect on 1 August 2026. The Small Claims Court is free, informal and quick, and it does hear minor motor accident claims. You must sue the driver personally, not the insurer, and attorneys may not represent either side.

Speak to us before you accept an offer

At Bregman Moodley Attorneys Inc. we have been helping South Africans recover what they are owed since 1974. Whether you are a private motorist facing a short settlement offer, or a business with a fleet and a growing file of uninsured-driver losses, we will tell you plainly what your claim is worth and what it will cost to pursue it.

Call us on +27 (0)11 646 0335, email roy@bmalaw.co.za, or visit bregmans.co.za. The first conversation costs you nothing but a few minutes, and it may be the difference between a partial payment and a full recovery.

This article provides general information on South African law and is not legal advice. Every collision turns on its own facts. Please consult an attorney about your specific circumstances.