Describing their concerns as ‘more illusory than real’, the Gauteng High Court (Pretoria) has dismissed an urgent application by attorneys to continue as lawyers for the RAF.

According to a TimesLIVE report on Friday’s judgment, 103 law firms have made a fortune as members of the RAF’s ‘panel attorneys’ since 2014 through litigation of road accident claims. However, 29 November 2019 was set as an expiry date for their contract to represent the RAF.

‘The High Courts have, at various stages and in numerous judgments, expressed dissatisfaction and concern about how the litigation model of the RAF, which particularly in this division clogs the civil trial roll, has been handled over the years,’ said the court.

The applicants argued there would be ‘chaos’ if the RAF is left unrepresented on 1 June 2020 with more than 6 000 files requiring attention, but the court said this was ‘illusory’.

On average, the value of the claims settled by the RAF per month amounts to approximately R4.1bn. The fixed operational expenses for the fund are approximately R800m a month. The fund receives approximately R3.5bn a month from the fuel levy. Its current unpaid claims amount to R19bn.

The new operational model is meant to reduce legal costs and revise the structure and business process of claims, among other things.

‘The RAF’s new model consists of the intention to settle as many as possible meritorious claims within 120 days. The aim is to achieve a 98% settlement rate. The immediate aim is to target those claims already on the civil rolls from 1 June 2020 onwards,’ the RAF submitted.

Not all matters can or will be settled out of court. On matters that are liable for judicial trial, the fund will delegate as per necessity.

‘Each passing day that the present litigation model continues to exist, the deeper the RAF’s financial outlook sinks. The deeper the RAF sinks, the less the position to satisfy claims, both timeously or at all. This impacts on the public purse and on the pockets of fuel-using public,’ said the fund.

Full TimesLIVE report

Judgment

The order by Judge Dennis Davis disposes of Part A of two applications, one by 43 affected law firms and the other by Diale Magashoa Inc, which were joined by the court.

The Law Society of SA and the Black Lawyers Association were admitted as amici curiae, but according to Davis they ‘appeared to align themselves virtually squarely' with the applicants rather than being ‘friends of the court’.

The applicants failed to cross two of the most important legal hurdles for an interdict, being a failure to show a clear right and not being on the right side of the balance of convenience.

On the first score, Davis held that the extended contracts of the applicant law firms are to expire on 31 May in any event and there is no cancellation of contracts.

‘Their rights of review remain intact even if no interim order is granted. Even if they are successful on review…their rights would then be to demand that a fair and lawful tender process be concluded. This does not translate to any right to represent the RAF in the meantime.’

He continued: ‘There is no automatic or constitutional right of an attorney to insist that a specific client, even an organ of state, must use its services or, absent an existing agreement, can be compelled to furnish it with instructions or a mandate to act on its behalf.’

On the balance of convenience, Davis said the attorneys were serving their own interests.

‘While I appreciate the fact that, over the years, panel attorneys have come to build their practices around the work received from the RAF, in some instances exclusively so, and that they have expended funds and commitment regarding infrastructure and personnel to cope with the flow of instructions, this all relates to each particular firm’s own “convenience”.’

The RAF cannot afford to continue with the current model.

Davis referred to an example cited by the RAF explaining why its ‘current model is not working’.

The initial handover agreement contained a provision for attorneys to copy the files before returning them and charging R4 per page.

‘The fee is not a trivial issue,’ Davis noted, as the copying fee alone could relate to R1.1bn in costs. He added that the panel attorneys assured the RAF that it was not them who had insisted on that clause, but that it came from the RAF.

The Legal Practice Council has since said it would be sufficient for the attorneys to keep electronic copies of the files.

The real chaos will be caused if the attorneys continue to withhold the files from the RAF or ‘dump’ them on their doorstep at the last minute, said Davis.

This would prevent the RAF from settling the thousands of claims it plans to do before 1 June. Davis lists points from the RAF’s plan of action, being:

* To settle all the cases on civil rolls from 1 June 2020 onwards.

* This will be done by employing approximately 255 more workers.

* ‘The RAF has already approached the SA Medico-Legal Association whereby medico-legal experts from SAMLA will assist RAF in settling the majority of its quantum claims. A confirmatory affidavit of a well-known expert, Dr Edeling, has also been provided.’

* The RAF will deploy teams of staff from its outlying offices to the busier offices to cope with the influx of files of matters already set down for hearing.

* For matters where a court appearance is unavoidable, RAF will use one of the 20 attorneys on its corporate panel.

* The RAF will engage with the State Attorney on a proposal to have that office handle RAF matters.

The court not only dismissed both applications, but granted a counter-application by RAF in the Diale Magoshoa Inc case with costs. That firm was ordered to comply with the handover notice and, insofar as it had already missed deadlines, it must hand the files over within seven days.

If it is not possible due to the national lockdown, the firm must provide all possible information electronically.

The judgment may not be the end of the matter.