Letters to the editor – October 2023

October 1st, 2023
PO Box 36626, Menlo Park 0102
Docex 82, Pretoria
E-mail: derebus@derebus.org.za
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Letters are not published under noms de plume. However, letters from practising attorneys who make their identities and addresses known to the editor may be considered for publication anonymously.
Reaction to claim by RAF CEO regarding RAF performance

I have noted the reaction of the Chief Executive Officer (CEO) of the Road Accident Fund (RAF), Collins Letsoalo, to the criticism of the state of the RAF. He was reported to have said that: ‘Over the past three years, my performance has been brilliant based on an assessment by the independent board.’ The assessment criterion referred to creates a false picture of the state of the RAF.

Since 2002, the RAF has been judicially criticised in 34 cases with costs orders being made against the RAF and members of its staff. In January 2023, the CEO and the Board of the RAF were mulcted in a personal cost order based on the unacceptable administration of two claims in the Mpumalanga Division, Mbombela. The CEO in a Moneyweb interview on RSG of 26 July 2023 referred to a 2019 De Rebus article I wrote pointing out the folly of the RAF’s litigation, which was the result of decisions taken by the RAF during 2000/2002 to litigate all claims irrespective of the merits (see Prof Hennie Klopper ‘Is the Road Accident Fund’s litigation in urgent need of review?’ 2019 (March) DR 10).

In that article I never suggested that the RAF should rid itself of its panel of attorneys without any contingency to deal with cases dealt with by its panel of attorneys. This was entirely a decision made by the RAF. This decision has proven to have been unwise with far reaching detrimental consequences for some 300 claimants and the RAF. Claimants were now faced with even further delays. The result of this decision was highlighted on 10 July 2023  by the Gauteng Local Division High Court in Gwizi v Road Accident Fund (GJ) (unreported case no 2020/2948, 10-7-2023) (Cajee AJ): ‘Before concluding, I highlight once again the unsatisfactory supine attitude to litigation adopted by the RAF that led in this case to the striking out of what was clearly a meritorious defence, at least as far as the issue of liability is concerned. In the recent case of LN and Another v Road Accident Fund [(GP) (unreported case no 43687/2020, 20-4-2023) (Davis J)] in the Pretoria High Court Davis J described the RAF as being a “perpetually recalcitrant or delinquent litigant”. It is clearly not fulfilling its mandate of properly investigating and defending unmeritorious claims, like the present one.

This is in no way meant to be a criticism of what I am told are the seventeen odd legal practitioners belonging to the RAF unit of the State Attorney in Johannesburg. Most appear to be very conscientious and hard working. Unfortunately, they appear to be totally overwhelmed by the sheer volume of matters in court that they have to deal with, and are only seeking to intervene in matters at the proverbial twelfth hour, without an adequate opportunity to investigate and prepare long after the defendant’s defences are struck out for failure to comply with court orders aimed at ensuring matters before court are trial ready by the time that they are heard. These legal practitioners are doing the work of a much larger number of RAF panel attorneys and their employees and advocates who previously dealt with these matters. The unit appears to be severely under resourced and understaffed.’

The decision of the RAF to fire its panel attorneys without any credible measures to deal with affected cases was its own and it should take responsibility for its consequences which, as highlighted by the above judgment, were far less than brilliant. The dismissal of the panel attorneys has also exposed the RAF to the potential of increasing costs and damages awards because claims are not properly investigated, available information is too old, and the RAF is in many instances unrepresented. The RAF has apparently realised the folly of this action and has on 5 July 2023 called for bids for panel attorneys.

Finally, the blaming of the state of the RAF on the legal profession is disingenuous. The current situation is the result of RAF management decisions and practices of the past two decades (see my article ‘Is the Road Accident Fund an inheritas damnosa?’ 2023 (July) DR 14).

Blaming the legal profession is akin to a child who has murdered his parents and then pleads in mitigation that he is now an orphan.

Professor Hennie Klopper BA LLD (UFS) is an Emeritus Professor at the University of Pretoria
and legal practitioner at HB Klopper in Pretoria.

This article was first published in De Rebus in 2023 (Oct) DR 5.

De Rebus