HB Klopper
I refer to your article in Wednesday’s E-edition.
The statement made by Mr Polela (Road Accident Fund spokesperson) cannot go unchallenged. The RAF’s dire situation cannot be laid at the door of attorneys.
Occurrences like the one spotlighted by the article make out that about 4% of all claims are handled by attorneys. The whole attorney and litigation problem is a making of the RAF itself.
For more than two decades, the RAF adopted a policy of not settling claims unless summons was issued and a trial date allocated. Less than 1% of these claims were litigated, while 99% were settled on the steps of the court.
In this way the RAF, over the past two decades, wasted about R48 billion on unnecessary litigation. The RAF Act contains provisions that are aimed at limiting and discouraging litigation, but unfortunately these are not utilised by the RAF to curtail litigation.
A particular section of the RAF Act provides that if the RAF makes an offer before summons and a plaintiff does not accept the offer, and at the conclusion of the case it is shown that the court order does not better the offer, the claimant is liable for all costs (their own and that of the RAF) from the date of the offer. I have not seen one case in the past two decades where this provision was applied.
In addition, the RAF Act contains provisions that are aimed at facilitating early settlement – some of which, if not complied with, result in the loss of claim. Currently, the RAF is a delinquent litigant, as has been stated by a number of judges (see for example Davis J in the case of Pretoria High Court of Nathram v Road Accident Fund, heard on April 26, 2024, at https://lawlibrary.org.za/akn/ za-gp/judgment/zagpphc/2024/440/ eng@2024-04-26.)
Summonses issued against the RAF are being ignored, and it is left to judges to deal with claims on a default judgment basis (see “How Road Accident Fund cases are crippling the Gauteng High Court” in Daily Maverick of September 5, at https://www. dailymaverick.co.za/article/2024-09-05-how-road-accident-fund-cases-are-crippling-the-gauteng-high-court/).
This situation is not only confined to Gauteng.
As far as the policy of trying to exclude lawyers is concerned, this was held to be unlawful in a Cape case in 2009 (see Law Society of South Africa and Others v Road Accident Fund and Another at https://www.saflii.org/za/cases/ZAWCHC/2008/47.html). The encouragement of the public to rely on the RAF for their claims is fraught with problems.The conflict of interest inherent in the relationship of claimant public and the RAF is obvious. In addition, many instances have been reported where the RAF had allowed claims to lapse or where the claimants were short-changed.
The crucial problem with the RAF is not the attorneys, who are merely representing members of the public who have suffered damage from being injured, or had their breadwinner killed in a road traffic crash.
This relationship is governed by legislation that prescribes the standard of conduct required from legal professionals, non-compliance with which will result in censure and ultimately loss of professional status. No such controls are applicable to the staff of the RAF, who are not legal professionals.
The actual problem is the lack of adequate road safety, resulting in more than 14 000 deaths per annum.
The crashes on our roads give rise to some 100 000 personal claims lodged with the RAF annually. The RAF staff complement is 2 400.
The RAF deals with some 30% of claims lodged in a current year and was faced with 3 400 outstanding claims as at end 2023. At an average of R165 000 per claim, this represents a possible contingent liability of some R561 million (growing at an annual rate of about 70 000 claims, or R11.5 billion, based on average claim). Unless the road crashes are drastically reduced, the RAF will always be in a financial crisis.
* Professor Klopper is a practising attorney
Cape Times