Road Accident Fund’s faux outrage beggars belief

The Road Accident Fund (RAF) last week published a media release titled ‘The battle for the soul of the RAF – it is never about the claimant, it’s about an attempt to maintain a Lawyers’ Enrichment Scheme!’.

This relates to an ongoing tiff being played out in the courts between the RAF and its panel attorneys.

The RAF media release is ostensibly a rebuttal to a recent news article quoting Gauteng High Court Judge Wendy Hughes. This piece is not a critique of Her Ladyship’s judgment.

The media release is peppered with adjectives and exclamation marks and comes across as nothing more than the tirade of a petulant schoolchild with puerile phrases such as “uncle lawyer” and “the little girl who remains vulnerable”. Correspondence emanating from an organ of state should be professional, respectful and rational – not sarcastic.

Who will guard the guardians?

This journalist has been investigating the RAF, its panel attorneys and the plaintiff attorneys continually since late 1998. Attorneys don’t cause the motor vehicle crashes but have for years been the only ones who can facilitate access to the RAF, making them the sole gatekeepers to this social security fund.

The RAF

Its enabling legislation states that a plaintiff may not commence legal proceedings until 120 days have lapsed. Experienced former RAF claims handlers have told this journalist that it is pre-eminently possible to settle claims internally within the 120-day period. The RAF presently seems to lack the motivation and skills to do this.

A survey of RAF matters reveals that once a plaintiff has issued summons against the RAF it does not even brief its own attorneys properly.

They have to ask the plaintiff’s attorneys for a copy of the RAF claim lodgement documents simply because the RAF briefed its attorney without providing its own dossier. The RAF then has the cheek to complain in recent court documents about the number of photocopies that its attorneys make.

Read: The RAF has been technically insolvent since 1981

The RAF’s panel attorneys

This journalist is frequently shown party and party bills of costs (a fancy name for an itemised litigation invoice) presented by a plaintiff’s attorney for work that has never been done. The RAF has some outstandingly good panel attorneys. Yet some of them fail to assess the bill of costs that has been presented to the RAF. It’s a simple matter. All that is required is that the RAF or its attorney be sent to inspect the plaintiff’s file and make an offer. This, it seems, is too much effort.

This journalist has in the past year seen bills of cost where the RAF or its panel attorneys overlooked R50 000 or more in fraud in each matter.

Report it to the RAF, you say. This journalist recently reported it to the highest echelons of the RAF, yet the fund still faffs around in the face of overwhelming evidence.

Gone are the days when a plaintiff’s bills of costs were vetted by an energetic, qualified in-house RAF team.

An eagle-eyed former in-house RAF cost consultant told this journalist that the team once had doubts about whether the plaintiff’s lawyers went on an in loco inspection two years after an accident and took 15 photographs. An appointment was made to inspect the attorney’s file, and indeed 15 photographs had been taken on the scene.

The attorney had some difficulty explaining why, two years after the accident, the damaged vehicle was still on the scene and the injured bodies still lay on the road. (The attorney had not visited the scene but had copied the photographs from the South African Police Service report and passed them off as his own in order to fraudulently inflate his fee.)

The plaintiff attorneys

Back in 1998 I was naive about RAF claims. I thought these were done pro bono by attorneys. Then my eyes were opened when a whistleblower and a journalist exposed Hoosain Mohamed Attorneys of Cape Town in February 1999. The commoditisation of RAF claims had become a veritable cottage industry.

In April 1999 the law changed and allowed for attorneys to act on a contingency basis. Attorneys were previously prohibited from taking matters on contingency. The client had to pay the agreed fees regardless of the outcome. The purpose of the Contingency Fees Act (CFA) is clear: “Notwithstanding anything to the contrary in any law or the common law, a legal practitioner may, if in [their] opinion there are reasonable prospects that [their] client may be successful in any proceedings, enter into an agreement with such client … ”

The CFA has two scenarios:

• Firstly, where the attorney charges their normal fee; and
• Secondly, where the attorney can charge a success fee of up to 100% on top of the ordinary fee.

The ordinary fee is determined by the process of taxation. It is clear that the second scenario contemplates a degree of risk.

I can tell you unequivocally that there is not a single attorney that would ever take a matter on contingency where there is any risk involved – so why would they double up on the ordinary fee? The RAF endorses this doubling up practice.

Mythical agreement

Human nature being what it is, the Law Society of the Northern Provinces (LSNP) – contrary to the advice of two respected senior counsel and the law – concocted a mythical agreement for its members: The Common Law Contingency Fee Agreement. The courts were unimpressed and struck these down time and again as being illegal. Those who used the LSNP-sanctioned illegal agreements were not laid by the heels by the RAF or by the criminal justice system but by the good work of a few small-time law firms.

Read: High Court clarifies contingency fees debate – again

Attorneys who used these illegal agreements were protected and encouraged by a former LSNP president and an LSNP councillor – both of whom are currently the most vociferous RAF panel attorneys, and whose firms have recently sued the RAF.

The latter sits on the Judicial Service Commission, which interviews prospective judges and recommends to the president of the country who should be appointed.

Read: Constitutional court decision forces law firm to allow inspection

The RAF is dysfunctional on so many levels that it can never be fixed. The more so because the large and easily accessible pond of money is inhabited by legal piranhas. Perhaps now is the time for the minister of transport to grasp the nettle firmly and call time on the RAF, and thus clean out the Augean stables.

Read: Road Accident Fund hits the wall