While the Road Accident Fund (RAF) compensation system has been fraught with problems for many years, the last few years have been nothing less than disastrous, and the fund is in a state of chaos, Leigh de Souza-Spagnoletti, an attorney, mediator, and an acting judge said.
In taking a look at what went wrong and how we got here, she explained that in 2021, and subsequently under the control of CEO Collins Letsoalo, attempts were made to literally “change the law” by the issue of what are now widely known as the “Board Notices”.
The RAF sought to alter the operation of the law by requiring additional documentation on lodgement of a claim to that which the legislation prescribed. It also sought the use of a “new RAF1” claim form.
“Unfortunately, the manner in which these changes were sought to be implemented, apart from being grossly misguided, was hopelessly flawed. Everyone knew this from the outset but, under current leadership, the RAF refused to budge and went so far as to refuse acceptance of compliantly lodged documentation, countrywide,” de Souza-Spagnoletti stated.
She added that this “unlawful refusal” persists to date, despite a full bench of the court declaring the ill-founded board notices and “new” RAF1 unlawful on two separate occasions.
The RAF tried to justify it by claiming that this attempted change was sought to ensure speedy compensation to accident victims. “Sadly, it has had the opposite effect, having single-handedly caused the longest trial date delays in our courts’ history,” she remarked.
She said claims are not receiving attention irrespective of how much documentation and information is provided by claimants, either at lodgement or by supplementation thereafter.
“One cannot stress enough that by the time a trial date is allocated, the claim, by necessity, is ripe for finalisation. Our courts, in an attempt to streamline the litigation and trial process, implemented strict directives, obliging plaintiff attorneys to spoon-feed the RAF through the litigation process.”
A special interlocutory court was set up, which deals predominantly with RAF matters, where on most days one will see attempts by claimant attorneys to spur the RAF into action.
De Souza-Spagnoletti explained that hundreds of times a month, applications are heard compelling the RAF to apply its mind to the assessment of claims, including orders compelling it to effectively process claims.
“The RAF is required to make these elections but refuses/neglects to serve documentation which the court rules require it to do, but which it persistently fails to do. The fund is also required to accept medico-legal evidence in its possession, or in the absence of that, to actively investigate the value of claims via their own experts.”
However, she said, in most cases, these requirements are simply ignored.
She added that these orders should not be necessary, as the RAF is legislatively obliged to perform all these acts. This, while a lot of time and money is being squandered with these applications, which have become a necessity.
This leaves the fund open to default judgments - by the thousands - as the legal representatives are left with little choice but to forge ahead. “So many court orders are ignored that our courts are not only crowded out by trial dates, but also by default judgment applications.”
In the Gauteng High Court, Pretoria, default judgment dates are now being allocated on a wait of more than three years. “It is inconceivable that the RAF’s executive management can suggest the crowding out of the courts is a result of legal representatives deliberately delaying the finalisation of claims,” de Souza-Spagnoletti said.
She added that if only the fund agreed to the settlement of these matters, it would help, and there would be no court backlog.
“Each RAF claim costs well in excess of R100,000.00, sometimes several hundred thousand rands to administer and prosecute through to completion. With some larger firms representing thousands of accident victims, the burden of these costs is significant.”
While Letsoalo recently blamed lawyers for delaying matters to line their pockets, de Souza-Spagnoletti said this makes no sense, as they can ill afford to wait years to recover their costs while accident victims are suffering.
She explained that often, assessment of the quantum of a claim cannot commence until two years post-collision. In fact, in certain instances, such as those involving brain-injured children, assessment can take much longer due to the so-called sleeper effect of some traumatic brain injuries.
To avoid prescription, a claim has to be lodged within 24 months of the collision. There is also a chronological order in which some clients need to be assessed by medico-legal experts, and this can be a time-consuming endeavour.
The refusal of the fund to accept legislatively compliant lodgement of a claim is forcing legal representatives to play Russian roulette with prescriptions. It also prevents early resolution of the liability aspect of claims.
“Most often, liability is not conceded by the RAF until the steps of court, and very often, the RAF then (often five plus years in) seeks postponement of the quantum aspect of the claim to a later date. That later date currently sits at an additional five years plus, resulting in a possible finalisation time of well in excess of a decade.”
She said while mediation as an alternative to going on trial is an option, the RAF is currently refusing to consider it.
“The benefit for the RAF is that it could then make offers of settlement, negotiate, and reach settlement on its own terms. The benefit of mediation would be a good shot at resolution five years earlier than would otherwise have been the case.”
De Souza-Spagnoletti said thoughtless litigation has now reached epic proportions, with the courts at their limits and accident victims left waiting for years without resolution.
The instantaneous firing of the RAF’s own legal representatives a few years back did nothing to help the problem.
According to her, the expertise to turn things around exists within the organisation, as there are at least a dozen senior employees who, if given the power, could make positive policy changes.
Pieter de Bruyn, chairperson of the Association for the Protection of Road Accident Victims, meanwhile agreed that one of the changes that can be implemented to improve service delivery and effective claims administration is to use skilled, legally trained, and experienced people to handle claims, as was the position in the past.
“This claims handling structure proved very effective in both cost-saving and ensuring that only a small margin of matters went to court.”
According to De Bruyn, another problem is the fund’s dereliction of its legislative duty to investigate and settle claims, which has resulted in it being faced with default judgments, which in turn has had an adverse impact on court rolls.
“We fail to understand how the CEO of the RAF can justify their passive stance towards “trial-ready” matters by blaming the judiciary for not having enough judges. Why should the request by the judiciary to fast-track claims be a stumbling block when the RAF (during a media briefing) acknowledged that they have the capacity and are in the process of appointing new people to deal with the claims,” De Bruyn questioned.
He said surely the RAF can adopt a policy to introduce a “settlement hub” to achieve their goal of not delaying payments.
In referring to the concerns recently raised by the Auditor-General and the Special Investigation Unit in Parliament over the fund’s financial reporting standards and its huge deficit, De Bruyn said: “Urgent intervention and oversight are required into the business of the RAF.”
Pretoria News