High Court orders Road Accident Fund to pay costs in contempt case

The financially distressed Road Accident Fund (RAF), which has a backlog of 321 000 claims, and its chair and CEO have avoided being declared to be in contempt of a high court order for refusing to accept the lodgement of a claim by a vehicle accident victim.

However, the RAF has been ordered by the High Court in Johannesburg to pay the costs of the urgent contempt of court application brought against it on a punitive scale.

This follows Theo Mapheto of Mapheto Attorneys lodging an urgent application on behalf of Mamosetsana Hellen Mabule, a road accident victim, because of the RAF, its chair Thembelihle Msibi and its CEO Collins Letsoalo’s alleged continued non-compliance with a court order issued by Judge Brad Wanless on 19 March 2024.

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Judge Wanless ordered the RAF to accept delivery “forthwith on 22 March 2024 before close of business” of Mabule’s documents embodying her claim for compensation and for the fund to pay the costs of this application.

Judge Thina Siwendu, on 4 April 2024, ordered the RAF to unconditionally accept delivery of Mapheto’s claim documents by no later than 16:30 that day and confirm its acceptance in writing.

Judge Siwendu further issued an interim order requiring the RAF, Msibi and Letsoalo to file affidavits by no later than 08:00 the following day on why an order should not be made on a final basis:

• Declaring that the RAF, Msibi and Letsoalo are in contempt of Judge Wanless’s order;
• Imposing a fine, as deemed appropriate by the court, on the RAF, Msibi and Letsoalo;
• Committing Msibi and Letsoalo to a period of imprisonment as deemed appropriate by the court, suspended on conditions deemed appropriate by the court; and
• Ordering personal cost orders against Msibi and Letsoalo.

Judge Siwendu also ordered the RAF to file a further affidavit by no later than 5 April 2024, confirming its full compliance with the court order handed down by Wanless.

RAF refusal to accept service of the court order

Mapheto said that as soon as the court-stamped order of Judge Wanless was made available, he immediately instructed his office manager to ensure it was served on the RAF’s offices.

However, Mapheto said officials at the RAF refused to accept service of the court order nor lodgement of the claim as directed by the court.

Mapheto said soon thereafter he received a call from a person at the RAF requesting access to the case on Caselines, which he provided.

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He also urged that Mabule’s lodgement be accepted on the strength of the court order but received no reply to this request.

Mapheto said that instead of the RAF accepting lodgement of the claim, he received a call from another person from the fund, who indicated the RAF would not accept it and would consequently instruct its attorneys to rescind the court order.

Mapheto said neither he nor Mabule have been served with such an application, and therefore, the RAF, at minimum, and Msibi and Letsoalo have been made aware of Judge Wanless’s court order.

RAF’s non-compliance ‘is deliberate’

He said the RAF is evidently not prepared to accept the lodgment of Mabule’s claim and is consequently intent on continuing its non-compliance with a court order.

Mapheto said it is quite clear that the RAF’s non-compliance “is deliberate and mala fides [illegal]”.

He said the application is urgent because Mabule was an unfortunate victim of a road accident on 5 April 2021, and her claim is due to prescribe on 4 April 2024.

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“It is ironic that the applicant [Mabule] will be left out of compensation through the conduct of a statutory body whose principal object is to compensate people in her position,” he said.

Mapheto said the RAF’s nonchalant attitude continued even after the court appearance on 2 April 2024, as the fund failed to file the answering affidavit on time.

He claimed the RAF’s answering papers did not even attempt to deal with the oft-cited four requirements for contempt:

• The existence of a court order;
• Service of notice of the court order;
• Non-compliance with the terms of the court order; and
• Willfulness and mala fides.

“That in and of itself is proof that the respondent [RAF] were in willful default and had no intention of purging the contempt,” he said.

Mabule’s delinquency suggestion ‘preposterous’

Letsoalo said in an affidavit that Judge Wanless’s court order was regarding an application brought by Mabule against the RAF and not against him or Msibi, and it’s clear that Mabule wants the court to deviate from the established legal approach to issues such as this.

He said the court orders under consideration were only brought to his attention late in the evening on 4 April 2024, and Msibi was only made aware of their existence on 5 April 2024.

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He stressed that the order must have been served on or brought to the notice of the contemnor, but neither he nor Msibi were party to the proceedings before Judge Wanless, and the order of Judge Wanless was not served on either of them.

Letsoalo said the suggestion by Mabule imputing delinquency of some sort by him and Msibi and that they are “truant officials” who would evade personal service is preposterous because there is neither a factual nor legal basis for such a claim.

He said Mabule had, therefore, failed to satisfy this requirement for contempt.

Claims backlog

Judge Siwendu last week ruled that the interim order she issued on 4 April 2024 in relation to the RAF, Msibi, and Letsoalo had been discharged and ordered the RAF to pay the costs of the urgent application.

Ironically, a day before Judge Siwendu issued this ruling, the RAF issued a media statement urging claimants who submitted their RAF claims before April 2022 to deliver all outstanding documents in order for the fund to finalise their claims.

The RAF said claimants and their legal representatives can inquire at any of the fund’s offices or via email about which documents to submit.

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“Currently, the organisation’s open claims backlog sits at 321 000. As part of its transformation journey, the fund is committed to efficiently settling claims within 120 days.

“However, various challenges, including failure to submit all required documents, have impeded its efforts to process and finalise some of the claims, resulting in a backlog.

“Other challenges are the comprehensive medical assessments for serious injuries, and unnecessary litigation processes by legal practitioners, which involves a court process that the fund must adhere to by law,” it said.

The RAF added that supporting documents play a crucial role in finalising a claim efficiently and speedily by informing the fund about what is being claimed, setting out the basis of the claim, and allowing the fund to investigate and facilitate an assessment of the merits of the motor vehicle accident.

RAF 1 Form

Letsoalo was quoted as stating the RAF introduced a new RAF 1 Form in July 2022 to improve service delivery and better manage claim risk.

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“The form was introduced to make it easier for legal practitioners to lodge claims on behalf of claimants and, more importantly, to assist with settling claims faster.

“The fund’s open claim backlog would not be on this scale if road accident victims and attorneys representing them submitted all the required information and documents upfront,” he said.

However, the High Court in Pretoria in March 2024 declared unlawful and reviewed and set aside the board notice published in the Government Gazette in May 2022 and the Form RAF 1 prescribed by the minister of transport in terms of the RAF Act and published in a Board Notice in the Government Gazette in July 2022.

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Among other things, the court further ruled that claimants who sought the lodgment of their claims in terms of the Board Notice or the RAF 1 Form but lodgment was declined or not acknowledged by the RAF are afforded a period until 30 September 2024 to resubmit their claims to the RAF in terms of the 2008 RAF 1 Form, with those claimants who thereby secure lodgment enjoying the benefits of such lodgment as from the date on which lodgment was originally sought by them.

This article was republished from Moneyweb. Read the original here