Claims against the RAF happen as follows:
You are involved in a motor vehicle collision and injured as a result. You need to lodge a claim with the RAF within three years. However, should you be involved in a hit-and-run accident, or when the identity of the other drivers is unknown, this time period shortens and you must lodge your claim within two years. The RAF then has sixty days to object to the validity of the claim and should, in an ideal RAF world, assess your claim within the next 120 days. Your attorney may issue summons against the RAF only after the expiration of this 120-day period. You, the injured person, are the plaintiff and the RAF is the Defendant. The litigation process which then takes place is, in short, as follows:
- The RAF appoints a panel attorney who enters an appearance to defend;
- The panel attorney files the RAF’s plea;
- Discovery takes place;
- A pre-trial meeting is held;
- The plaintiff’s attorney applies for a trial date;
- Medical experts are appointed (preferably by both parties);
- The expert reports are filed;
- The parties attend a judicial case management meeting in court before a judge, who then certifies whether the matter is trial ready or not;
- Another pre-trial meeting is held between the parties;
- The trial date arrives and the RAF, in the majority of cases, settles the matter on the day of the trial.
The Road Accident Fund has, for many years, made use of panel attorneys (attorneys who act on behalf of the RAF). These panel attorneys were appointed on an ad-hoc basis.
Unfortunately, the RAF’s mantra was (is) to litigate and not settle. Forcing the plaintiff to litigate meant that the RAF had a minimum of two years before any payment had to be made. As a result, litigation bought the RAF time to try to manage their cashflow issues. Although the blame for clogging the court roll was always placed at the panel attorneys’ door, the panel attorneys were creatures of instruction, specifically the RAF’s instructions, and the RAF would, in almost every instance, delay their instructions until the morning of the court appearance.
Be that as it may, during the time that the RAF was represented by attorneys, there was at least some meaningful engagement in the litigation process between the plaintiff and the defendant RAF.
But, in November 2019, the panel attorneys received the first letter informing them that their files had to be given to the RAF should they not sign the extension letter (a letter setting out the new terms of the Service Level Agreement and extending the tender validity to May 2020). All attorneys appointed as panel attorneys were appointed on ad-hoc basis, meaning that they were not entitled to receiving work from the RAF, but the RAF could send them work should the RAF so chooses. The RAF, because of its mantra to litigate and not settle, appointed panel attorneys on every summons it received. Panel attorneys got appointed by the RAF on a rotational basis. The November 2019 letter indicated that the new terms of the Service Level Agreement had to be agreed upon by the panel attorneys. Should they choose not to sign the new Service Level Agreement, their files had to be given to the RAF. By law, attorneys must keep a copy of the file after their mandate has been terminated. Part of the new Service Level Agreement was that the RAF would not be held liable for the costs of the copies of the files that was given to the RAF. I use the words “given to the RAF” intentionally, because if I used the words “returned to the RAF” this would imply that the files belonged to the RAF at some stage prior to the appointment of the panel attorneys, which is simply not true.
The RAF’s reasoned that by getting rid of their panel attorneys, their high legal costs per annum would be reduced and that, as the RAF settled 80% of the claims against them, the need for panel attorneys would vanish into thin air. Unfortunately, soon these reasons would become ghosts that still haunt the corridors of the RAF buildings. Just a note: the plan to move away from panel attorneys was initially a 5-year plan, which was approved by the Board of the RAF. However, this plan was implemented and executed within 6 months.
The chaotic scenes playing out in our courts today is the very scenario various panel attorneys warned against in 2020. Our judges are now forced to function in an administrative, rather than a judicial capacity. New practice directives are being issued on a monthly basis. These practice directives, issued by our courts, are beneficial to only one party, the RAF. No wonder the current practice directive is now subject to litigation in our apex court.
Today, litigation against the RAF looks very different. Even the lodgement of a claim has become problematic. In terms of section 24 of the Road Accident Fund Act 56 of 1996, a claim is lodged at the RAF by registered post or delivered by hand to the RAF at its principal, branch or regional office. However, the RAF, with a blatant disregard for the RAF Act, refuses to accept lodgement of new claims in terms of section 24 of the RAF Act and cheekily sends lodgement documents back via courier, indicating that the lodgement does not comply with the regulations which the RAF unilaterally implemented.
Once the hurdle of lodgement is overcome, the gigantic mountain of litigating against the RAF stares you in the face. You issue summons at court, then serve it on the RAF via sheriff, and then the begging starts. You have to write three letters (five days apart) to the RAF, requesting (read begging) them to defend the matter.
At this stage of the litigation, the plaintiff’s attorney is faced with a choice: to proceed with default judgment against the RAF or to continue begging the RAF to enter an appearance to defend. Should you elect to proceed with a default judgment against the RAF, you apply to court for a date on which this may be heard. You will receive a date for late 2024 or early 2025. In the meantime, you continue to engage the RAF, despite the fact that they have elected not to defend the matter, because that is what the court expects of you. The RAF will ignore your emails and calls (sometimes one must wonder whether the employees of the RAF know how a telephone works), until a day or two before the default trial date. The RAF will then ask for documents, which were previously sent to them on numerous occasions. They will instruct the State Attorney to act on their behalf, and the latter will then enter an appearance to defend. On the day of trial, the plaintiff’s attorneys will have no option but to remove the matter from the roll because the RAF has tendered the wasted costs. By tendering these costs, it is widely accepted by our courts that the prejudice caused to the plaintiff by the RAF’s late filing of its Notice of Intention to Defend is nullified. But one must ask, does this really take away the prejudice caused to the plaintiff? Now the plaintiff will have to wait for another 2 years to have their day in court when the RAF will again not effectively engage in the litigation process. The truth is, that in the majority of cases against the RAF, they use delaying tactics to delay the inevitable….payment by the RAF.
Once the RAF has entered an appearance to defend, the plaintiff’s attorneys again revert to begging…begging the RAF to file its plea. In the event that the begging pays off, you jump for joy. Unfortunately, the begging does not end there. The next step is that you request the RAF to discover and to attend a pre-trial meeting. Once again, you write three letters five days apart, after your notices have been delivered by hand and email to the RAF. The RAF will again become litigation ghosts. Now you approach the court for a date on which you can obtain an order to compel the RAF to discover and/or attend a pre-trial meeting. Even at this stage of litigation, you will have to wait for approximately 4 months before appearing before a judge. Once you obtain the court order to compel the RAF, you have to serve this order on the RAF, which affords the RAF another 10 days to comply with the order. Despite this, the RAF inevitably choose to remain litigation ghosts. The next step is to strike the RAF’s defence. The same defence (plea) that you begged the RAF to file! Once the RAF’s defence is struck, you again have to apply to court for a date to ask for default judgment.
On the other hand, the RAF might ignore your begging letters requesting them to plead. The next step is to serve a notice of bar, which affords the RAF another 5 days to serve and file their plea, failing which they will be barred from doing so. The notice of bar, in the majority of instances, will be ignored by the RAF and you will again apply for a default judgment trial date.
How does this make sense?
From the RAF’s promise to settle at least 80% of all claims, came nothing. Empty promises.
The RAF has appointed State Attorneys to appear in court and engage in the litigation process. (Bear in mind that the RAF, when they cancelled the tender to appoint panel attorneys, said that they would no longer require the services of panel attorneys because they are going to settle 80% of the claims). At present, it is believed that only 30 State Attorneys are employed for the whole Gauteng region. The RAF had 102-panel attorney firms in 2019. These firms all employed at least 5 attorneys, the bigger firms up to 20 attorneys, who dealt exclusively with RAF litigation. Of the 30 State Attorneys currently employed in Gauteng, the court in which the majority of litigation against the RAF is instituted. Not all the State Attorneys appointed by the RAF have the Right of Appearance in the High Court. An attorney without the Right of Appearance in the High Court, one cannot appear in front of a Judge to argue. These State Attorneys work night and day, but the workload appears overwhelming. It is not rocket science to deduce that the number of State Attorneys currently employed by the RAF are not coping and will not cope in the future, given the amount of summons issued against the RAF every day.
The RAF is the country’s biggest litigant. It continues to clog the country’s court rolls, despite the promises made, under oath, by the RAF’s CEO, Mr. Collins Letsoalo, in various court cases involving the RAF.
If the recent scathing judgments delivered in the Mpumalanga Province by the province’s Judge President, Judge Legodi, are an indication of what future judgments against the RAF will look like, it is quite clear that the RAF, in its haste and desperation, is the author of its own misfortune.
If one takes into account the number of interlocutory applications (an application within an action), default judgments and trials against the RAF that are on the court roll in Pretoria High Court alone on a daily basis, it begs the question of whether the RAF is indeed saving money on legal costs. It has also become clear that the amounts granted in default judgments and trials against the RAF are significantly higher than the amounts granted against them when they still had panel attorneys.
One can only hope that the RAF litigation scenario will change back to something that actually looks like litigation.
Until then, we will continue to fight the ghost that is the RAF, in order to protect our clients' best interests.