Law Society provides clarity on RAF matter
23 July 2020
The Law Society of South Africa (LSSA) has noted with concern the press release by the Road Accident Fund (RAF) issued on 17 July 2020, which the LSSA regards as misleading and sensationalist. While the LSSA does not intend to deal with the merits of the cases between the RAF and its panel attorneys, which currently served before the courts, we believe it is important to provide clarity on the matter.
In the press release, the RAF alludes to the judgment of Judge Davis. What the RAF has neglected to say was that there was a later judgment by Judge Hughes. The matters were dealt with in two parts. The first part, which was heard in March 2020 before Judge Davis, was an interim application to among others interdict the RAF from implementing its directives to its panel attorneys to hand over their files, pending a decision on the second part of the case.
The second part, which was heard by Judge Hughes in May 2020 was an application to review and set aside the RAF’s instruction to its panel attorneys to hand over their files, as well as the RAF’s decision to cancel a tender for new panel attorneys. Judgment in the second part of the case was granted against the RAF in June 2020 by Judge Hughes who ordered that the status quo should remain for a period of six months. 'This will enable the RAF to reconsider its position and retain the social responsibility net in place protecting the public,' Judge Hughes said. She found that the way in which the RAF had changed its operating model was not done in a manner that was lawful and rational. The RAF applied for leave to appeal against the judgment by Judge Hughes, but this application was dismissed. The RAF is now seeking leave to appeal to the Supreme Court of Appeal.
It is disingenuous for the RAF to only refer to the judgment by Judge Davis (which was delivered in March 2020), without referring to the judgment by Judge Hughes. Judge Hughes’ judgement was final and examined the lawfulness of the decisions in detail. Judge Davis’ judgment was given at an interim stage of the proceedings, and only examined the lawfulness of the decisions at a prima facie level, and not at a time when all of the facts had been crystalized as was the position in the main review application. The question before Judge Davis was primarily whether the status quo should be preserved pending the review application which came before Judge Hughes. Judge Davis accordingly did not scrutinize the decisions at the same level of detail as Judge Hughes.
The LSSA has no issue with the RAF changing its operating model, as long as it is done rationally, lawfully and in the best interest of the public. However, and as was found by Judge Hughes, it has not done so in any manner which could be labelled rational or lawful.
The LSSA takes umbrage at the RAF’s slanderous statement that “uncle lawyer wants to bill his R3.8 billion a year. In the 5 years of waiting uncle lawyer would have racked up close to R20 billion in legal fees only to settle the litigated case.” It is true that often matters are settled at the court’s doorstep, but to blame the attorneys for that is misleading. The RAF’s panel attorneys receive their instructions directly from the RAF’s claims handlers and without an instruction (specifying the mandate of the attorney), a matter cannot proceed.
The LSSA agrees with the RAF that the right of the claimant should come first. It is exactly for this reason that the LSSA is concerned that the RAF’s insistence on the handover of files in an irrational fashion will cause the claimants, the courts, and the RAF to suffer through unnecessary postponements, clogging of the court rolls, and delays because the RAF is not adequately represented. The LSSA has from the outset predicted the chaos that we are now seeing. Many of the matters currently with the panel attorneys are already before court on trial. Furthermore, it has consistently been shown in the court proceedings that the RAF does not in fact need its physical files to settle cases direct with plaintiffs’ attorneys while these issues between it and its panel attorneys are being resolved, because panel attorneys are required to upload their files onto the RAF's online filing system. In fact, settlements have been achieved directly with the RAF whilst their attorneys are still in possession of their files, and there is no reason why this should not continue to happen.
Issued by Nomfundo Jele, LSSA Communications, 23 July 2020
