RAF at risk of imploding

The Road Accident Fund (RAF) is in danger of collapsing and has received another high court lashing over the way in which it manages the claims of road accident victims.

Judge Soraya Hassim said the reality is that the survival of the RAF is dependent on a moratorium on execution of writs and warrants in respect of capital and interest.

Hassim added that inherent in the agreement by the respondents to an RAF application for a further suspension of warrants and writs “is the acknowledgement that a suspension of execution while unpalatable, is necessary to avert a collapse of the fund”.

Judge Hassim was highly critical of the RAF’s conduct in the judgment handed down in the High Court in Pretoria on Friday.

“Regrettably, over at least the last 3-4 years, the fund has not respected the rights and needs of claimants injured in motor vehicle accidents due to the negligent driving of another,” she said.

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“Lamentably, the fund has breached its statutory obligation to compensate injured claimants.”

Hassim said the RAF disregards the rules of court aimed at an orderly and speedy resolution of disputes and ignores court orders.

She said consequently, the RAF “whether intentionally or not” has obstructed the efficient operation of the courts, thereby failing to discharge its positive constitutional obligation to assist courts’ to ensure the dignity, accessibility and effectiveness of the courts’.

“Undesirably, countless hours of judicial time, and resources are wasted because the fund does not properly defend actions.

“In most cases, the fund does not produce expert reports and is not represented at the trial.

“The adjudicative task is however not made lighter when the fund is in default, it is heavier. The court must still ensure that a plaintiff is neither over-compensated nor under-compensated,” she said.

Hassim stressed that meaningful participation by the RAF will contribute and alleviate the burden which the courts bear.

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RAF’s attitude ‘has clogged court rolls’

She said the RAF’s attitude to actions “has clogged court rolls to the prejudice of other litigants” and the fund’s conduct “albeit perhaps unconsciously” is inconsistent with the Constitution.

Hassim said the reprieve that the full court granted to the RAF was intended to be a temporary suspension of execution, but what the fund has achieved and wants to perpetuate is a postponement or deferral of its liability to compensate a claimant.

“In my view, that must be sanctioned by the legislature because the obligation to pay compensation and the conditions under which this must happen have been proclaimed by the legislature.

“If the fund wants a deferral or the postponement of its obligation to pay compensation to claimants who meet the conditions for compensation, it must obtain the legislature’s sanction,” she said.

Hassim said the RAF has invoked the court process as an instrument to regulate, administer, and manage its operations.

“In this way the fund seeks to impose rules that suit it, when it suits it. The rules are fluid and for its benefit alone,” she said.

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Writs and warrants

The RAF’s application for a stay of execution related to writs and warrants against the fund based on orders for compensation payable under the RAF Act that were not older than 180 days from the date of the court order follows a full court on 24 April 2021 granting a stay of writs and warrants against the fund for a fixed period of 21 weeks until 12 September 2021.

The RAF subsequently obtained further reprieves and extensions of this moratorium, with the execution of capital awards suspended from time to time since at least 9 December 2020, while the execution on interest awards has been suspended since 8 August 2023.

Judge Hassim said the object of the present application by the RAF is to secure an extension of not only the protection enjoyed under previous orders issued but also the ambit of the protection enjoyed to include a moratorium on the execution of writs and warrants for legal costs.

There were 215 respondents to the RAF’s application, which included the Legal Practice Council, the Board of Sheriffs and various sheriffs countrywide, the Pretoria Association of Attorneys, the Johannesburg Attorneys Association, the Black Lawyers Association, and various firms of attorneys.

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Fund’s finances did not stabilise despite moratorium

Judge Hassim said notwithstanding the benefit of the moratorium, the fund’s operations and financial position seemingly did not stabilise.

She said the RAF’s new management also appears not to have succeeded in implementing the then envisaged “far-reaching plans to restructure its payment system” to enable it to promptly discharge its statutory obligation.

“The application for further extensions on their own show that the fund was not able to discharge its statutory obligation, notwithstanding the moratorium. Thus, impacting on the state’s ability to promptly discharge its constitutional obligations to protect road users against the risk of the infringement of their right to freedom and security of their person.”

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Some issues resolved, some outstanding

Judge Hassim said the parties informed her on the first day of the sitting they wished to explore the possibility of resolving or limiting the disputes.

She said that on the third day, she was informed that the bulk of the disputes were resolved, but there remained issues on which the parties could not agree, and she was presented with five draft orders.

Hassim said that in view of the agreement on the suspension of writs and warrants to satisfy capital claims as well as interest claims, she did not have to decide whether a case had been made for the suspension of such writs and warrants.

The issues the parties were unable to agree on and which Hassim had to decide included when the 180-day suspension in respect of writs and warrants in respect of capital claims should commence and the date from which execution should be suspended for interest claims which are not older than 90 days from the date the capital claim was paid.

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What the judge ordered

Hassim restricted the moratorium to a further six months from the date of her order.

Her order included a list of the instances where writs of execution and warrants of attachment against the RAF based on orders already granted or settlements already reached are suspended in respect of legal costs for a plaintiff in third-party compensation claims against the RAF and the time limits of those suspensions.

She ordered the RAF to pay the taxed costs of the Pretoria Association of Attorneys (PAA) and Johannesburg Attorneys Association (JAA) in opposing the fund’s application and that the remaining respondents must pay their own costs.

She said the contributions of these respondents were not essential for the adjudication of the application, and, at best, they supported the JAA and PAA’s opposition.

“In view of the fund’s parlous financial circumstances, I do not consider it to be in the interests of justice nor in the interest of present and future beneficiaries of the social security scheme established under the RAF Act to burden the fund with further costs,” she said.

This article was republished from Moneyweb. Read the original here.