RAF criticised for processing claims ‘at the pace of an arthritic snail’

A Johannesburg High Court acting judge has criticised the Road Accident Fund (RAF) for processing and settling claims from road accident victims “at the pace of an arthritic snail”.

Acting judge Zubair Khan was also critical of the RAF clogging up court rolls and its abuse of the court’s rules for an ulterior purpose while engaging in “horse-trading” over claim settlements.

Khan handed down judgment on Friday to a claim lodged by Mita Agnes Mashabela, a member of the South African Police Service (SAPS), against the RAF related to an accident when she was the driver of a vehicle involved in a collision on 25 January 2019 in Protea Glen, Soweto.

He said the Gauteng High Court rolls have become severely backlogged, with trial dates currently being allocated for hearing up to five years after close of pleadings and opposed motions being heard almost a year after application for a hearing date.

Default judgment hearings are suffering a similar fate, with waiting periods exceeding six months.

“These delays are in no small part attributable to the vast number of RAF cases occupying places on the court rolls and consuming limited judicial resources, where the vast majority ought to have settled at a very early stage and the public purse protected from excessive legal costs,” he said.

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‘Illustration of the rot’

Khan said the default judgment matter between Mashabela and the RAF ought never to have proceeded to this stage of litigation “and is no more than a stoic illustration of the rot”.

He said the RAF did not subpoena or call any of witnesses to testify or attempt to properly place any of the available documents before the court, and it appears there is much more the RAF could have done to put up a defence of Mashabela’s claim in this matter and attempt to limit the liability.

The RAF’s participation in this appearance did not advance its position but rather added to its legal fees woes, said Khan.

The RAF did not plead a defence and Mashabela’s version before the court is uncontested and success must follow, he added.

He ordered that the RAF is liable for 100% of Mashabela’s proved or agreed damages arising from the vehicle collision; postponement of the determination of the quantum of damages; and awarded costs against the RAF.

Khan said Mashabela complained of abuse in this matter and about the general conduct of the RAF in its approach to the courts and its legislative obligations to victims of motor vehicle collisions and the public purse in general.

He said there is merit in this complaint and “it is high time that the RAF be held to the standards of the Constitution”.

The Rules of Court are being abused “for an ulterior purpose”.

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Sneaky tactic

Khan said the RAF has cottoned on to Uniform Rule 19 (5) as a possible avenue of tendering unopposed costs to a plaintiff on the day of the hearing and forcing an automatic postponement of a case as it is now opposed and must proceed to trial court.

“A delay of years in having a matter before court is met with a tender of costs by the RAF and an automatic postponement for possibly another five years, without interest.

“This is the very thesis of ‘kicking the can down the road’,” he said.

Khan said no explanation was forthcoming for why RAF claims are being processed and settled at “the pace of an arthritic snail or why the RAF wakes up on the morning of the hearing to action a postponement”.

He said once the threat of a postponement looms large against a plaintiff, then the real engagements begin and the plaintiffs and defendants quickly settle in almost all of these RAF cases.

“The consequences of this conduct are self-evident as the court rolls grow longer by the day. There is no explanation for why the claims are only being assessed on the day of the hearing or just shortly before.

“There is no indication of when the RAF seriously begins applying its institutional mind to these claims,” he added.

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‘Horse trading’ at the court’s expense

Khan said one must also question whether the plaintiffs are occupying slots on the roll as a last attempt to force the RAF to make a settlement offer or if these matters are genuinely ripe to proceed on the basis that there is some triable issue.

He said the invariable outcome is that judges read hundreds of pages of pleadings in these matters, only to have these matters removed from the roll, on tender of costs or for the matter to settle in the corridors of the court.

“Judges are being assigned away from the normal civil and criminal trial rolls to attend to these matters where the plaintiff wants a settlement offer and the defendant will only make a settlement offer on the day of hearing at court or just before.

“The judiciary is an unwilling partner to this horse trading process and the lay litigant is a victim waiting up to five years to have their day before court.”

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