The Department of Transport (DoT) has defended its move to ignore a court order to retain the panel of attorneys set up in 2014 to act on behalf of the Road Accident Fund (RAF) in claims made by victims of motor vehicle accidents.
The department says it had launched an appeal against Judge Wendy Hughes’s June 1 order to retain the 103 lawyers for six more months and the appeal “has the legal effect of suspending the operation of the order”.
The order also did not come into effect as it was “subsequently set aside by a full bench of the court, following an appeal by the RAF,” according to the DoT.
All of this came to light when the department provided a written response last week to questions asked in parliament by DA MP Chris Hunsinger.
The disbanding of the panel, announced late last year, has led to legal pitch battles between the attorneys on the one side, and the RAF and the department on the other.
The department wants to put in a new regime to adjudicate compensation in vehicle accidents.
Its goal is to reduce the steep and ever-rising cost of adjudicating these road accident cases by doing away with outside attorneys and bringing in people from the state attorney’s office to represent the RAF.
In addition to wanting the RAF to retain their services, the panel attorneys are also demanding payment for services they have rendered.
They are not alone in complaining about the RAF’s performance. The Personal Injury Plaintiff Lawyers Association (Pipla) has accused the fund of mismanagement, incompetence and non-payment.
“As much as the RAF would like to deflect blame, the reality is that claims are piling up and are just not being paid,” says Pipla chair advocate Justin Erasmus.
“This is impacting the most vulnerable in our society – road accident victims.”
Erasmus points out that with so many non-payment complaints being aired, it’s difficult to understand who is actually being paid from the R2 billion the RAF receives monthly.
“There is just no transparency.”
Rolling on and on
The government in turn argues that in using the panel of attorneys, there is an inducement for them to increase costs.
It notes in its response to Hunsinger: “It is important to mention that a study conducted by Professor Hennie Klopper on the RAF matters set down on the court roll in the Gauteng Division of the High Court … revealed that 99.56 % of the matters are settled at the doorstep of court and less than 1% (0.45%) proceed to trial.”
This means the RAF’s legal representatives were choosing to take the expensive step of putting these cases on the court rolls when it was clear that the vast majority were not going to trial.
Klopper’s research, first published in De Rebus, points out that while the number of cases the RAF was dealing with halved from 185 773 in 2005 to 92 101 in 2018, the legal cost of dealing with them surged over nine-fold in the same period – from R941 million to R8.8 billion.
The judge president in the Mpumalanga High Court, Frans Legodi, in the matter of Mncube v RAF, also noticed the large number of accident claims on the court roll.
“More than 90% of matters on our trial roll are the Road Accident Fund which is funded through [the] public purse. One would have thought the parties and or legal practitioners in dealing with these matters, will be more expedient and professional. However, the contrary appears to be the case. This is despite continuous financial woes the fund finds itself in.”
All of this means the RAF is government’s largest contingent liability – larger than Eskom; its accumulated deficit is projected to grow to R593 billion by 2022/23.
The department and the RAF have clearly defined what they see as the problem, but have been slow to implement solutions.
For instance, when Hunsinger asked for a timeframe on when the state attorney would second more attorneys, in addition to the 62 it already has working for the RAF, he did not get a clear answer.
He was told that the number of new appointments would be made depending on “the ability of the current attorneys to deal efficiently with the current number of litigated matters”.
There are plans to hire more, but when and how many is uncertain.
“The number of attorneys to be recruited in the 2020/21 financial year is unknown at this stage.”