RAF head office assets in danger of being auctioned

The movable assets of the Road Accident Fund (RAF) at its Centurion head office are in danger of being sold via an auction.

This follows the RAF’s failure to obey high court judgments and orders to pay 62 victims of motor vehicle accidents a total of R33.6 million.

The amount owed by the RAF relates to the cost of medical treatment received by the 62 claimants for injuries sustained in motor vehicle accidents.

The non-payment by the RAF of these claims resulted in the 62 claimants issuing writs of execution in various divisions of the high court and the attachment of movable property of the RAF by the Sheriff of the High Court for the Centurion East district.

The intention is that the attached movable property of the RAF will be sold through a sale in execution to satisfy the judgments.

Medical aid directive

Wolmarans Incorporated Attorneys MD Gavin Roberts, the attorney for the 62 RAF claimants, told Moneyweb this week the RAF is not processing any claim where a medical aid scheme has paid the medical costs arising from a road accident.

Roberts said this led to him executing writs of execution against the RAF because it failed to pay the claims of the 62 claimants within 180 days of the date of the court order.

This resulted in the RAF applying to the High Court in Pretoria for a stay of execution of these writs, with the Sheriff of the High Court for the Centurion East district and the 62 claimants listed as respondents.

This application was launched by the RAF when the removal of its movable assets was threatened for the purposes of a planned sale in execution.

The basis for the stay of execution was the RAF’s pursuit of an appeal against a successful application by Discovery Health to review and set aside the directive issued by the fund on 12 August 2022 that no payments must be made to claimants if their medical aid scheme has already paid for their medical expenses arising from a road accident.

Judge Mandla Mbongwe, in a judgment handed down on 27 October 2022, declared this RAF directive unlawful.

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The High Court in Pretoria refused an application by the RAF for leave to appeal this judgment, as did the Supreme Court of Appeal.

The RAF thereafter made a final attempt at obtaining leave to appeal from the Constitutional Court.

This application was still pending when the RAF’s application for a stay of execution was heard in the High Court in Pretoria on 29 August 2023.

Judge Norman Davis dismissed with costs the RAF’s application for a stay of execution in a judgment handed down on 28 September 2023.

The reasons for Judge Davis’s judgment were released this month, shortly before last week’s Constitutional Court ruling dismissing the RAF’s application for leave to appeal the judgment declaring its directive unlawful.

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Roberts said the RAF’s attorneys immediately uploaded an application for leave to appeal following the judgment on the stay of execution application.

He said he had put the RAF’s attorneys on terms following the Constitutional Court ruling and “wants an answer by this Friday on whether they are abandoning their leave to appeal the stay of execution [judgment] or proceeding with it”.

‘Frivolous litigation’

Roberts said he has also warned the RAF attorneys that if they proceed with “this frivolous litigation”, he would ask for a punitive cost order because the Constitution Court application was the sole grounds it relied on for its appeal of the stay of execution judgment.

Roberts said he has received feedback from the RAF’s attorneys indicating that they are waiting for instructions but are expecting the instructions to be that the RAF is still going to defend it.

“Then I’m going to drive it to court because I already have an auction date for next month [November],” he said.

Roberts said it is costing taxpayers hundreds of thousands of rand because of the RAF’s “ridiculous onslaught that they are bringing and trying to stay these things and buy time”.

Roberts said he wanted the money owed to his clients, but the RAF kept using the Constitutional Court appeal application “as a delaying tactic”.

A list of questions was emailed to the RAF on Monday, but a response has not yet been received.

‘RAF obliged to compensate claimants’

Judge Davis said in the reasons for his judgment to the RAF’s stay of execution application that as the law stands, the RAF is obliged to compensate the claimants for the past medical expenses incurred as a result of injuries suffered in motor vehicle accidents as contemplated in Section 17 of the Road Accident Fund Act, “even if the plaintiffs’ [claimants] medical aid schemes have paid for those expenses”.

He said that while the RAF’s Constitutional Court application was pending, not only does the RAF in the interim seek to implement its directive in respect of claims submitted to it until it obtains the necessary leave to appeal but argues that, pending adjudication of that application, the claimants should be prevented from enforcing those claims for past medical expenses, “even when those claims had been cemented in orders of the High Court”.

However, Judge Davis said in none of the 62 matters has the RAF delivered a rescission application.

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Davis said there is no ongoing dispute currently between the RAF and any of the claimants.

“No rescission applications have been brought. The RAF is simply litigating about a generalised proposition put forward by it to change the law as it stands.

“While litigating in this fashion, the RAF is unilaterally refusing to comply with procedurally validly obtained existing court orders.

“Section 165(5) of the Constitution prohibits organs of state, such as the RAF, to do so,” he said.

Davis added that the RAF had been in default on making payment of the High Court orders obtained by the 62 claimants, with these orders predating the RAF directive in question.

“This smacks of contempt … when perpetrated, not by an impecunious judgment debtor, but by way of a conscious decision by an organ of State not to abide by court orders,” he said.

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