Litigants involved in motor vehicle accidents ‘are being held at ransom’ by the failure of the Road Accident Fund (RAF) and its acting CEO Collins Letsoalo to perform their constitutional duties, according to a scathing judgment by Judge Wendy Hughes in the Gauteng High Court (Pretoria).

In deciding against the RAF in an application for an execution order pending a petition for leave to appeal, the judge ordered the RAF to fulfil all of its obligations to its panel attorneys in terms of the existing service level agreement for a period of six months – despite the RAF having filed papers with the SCA seeking relief to appeal her earlier judgment in the same court.

The Law Society of SA, which joined the case as an amicus curiae, contended that the RAF was deliberately disregarding the courts’ processes and directions to the prejudice of the litigating parties, ‘which are constantly left guessing as to what the RAF might do next’.

In deciding on the ‘necessary exceptional circumstances’ that need to be present to allow the fulfillment of a judgment pending an appeal, Hughes noted the RAF and the acting CEO ‘have at all costs ignored the court orders of 1 and 9 June 2020 and proceeded to continue on its own path sans the panel attorneys as ordered’.

She added: ‘The manner in which the RAF and the acting CEO has conducted itself in the face of an order of this court is yet another indication that the circumstances are exceptional.’

She accused the RAF of sparking a constitutional crisis that ‘cannot be countenanced’.

In her earlier judgment, Hughes shot down the RAF’s bid to overturn her ruling, effectively putting on ice its plans to cut ties with the 103 panel attorneys contracted to it.

The RAF had announced plans to capacitate its in-house team and terminate the panel attorneys' contracts in a bid to curb the fund’s skyrocketing legal costs. However, in dismissing the RAF’s appeal, Hughes warned that a constitutional crisis loomed and ordered that the private attorneys be allowed to stay on for at least six months to ‘enable the RAF to reconsider its position and retain the social responsibility net in place protecting the public’.

That position has now been confirmed by yesterday's ruling.

The judgment yesterday also illustrated the disarray the RAF had found itself in.

‘Borrowing from the heads of argument of the applicants’, and noting RAF is the largest litigating party in the country, having 190 000 matters in the hands of panel attorneys, Hughes set out the current situation of RAF litigation:

* Since 1 June 2020 the RAF has been effectively unrepresented by attorneys in the countless RAF trials on a daily basis.

* Civil trial rolls around the country are in chaos.

* Claims handlers and RAF officials are trying to appear on behalf of the RAF in court, when they have no legal entitlement to do so.  Many matters are being postponed because the RAF has no legal representation, with obvious prejudice to the claimant.

* Other matters are proceeding in default of the RAF, with obvious prejudice to it and the fiscus.

* Because of all this, the RAF is now desperately seeking to settle matters at any costs. And the obvious consequence is that matters are being over settled with the cash-strapped RAF paying far more than a court would ever have ordered.

On the matter of costs, Hughes said she was disinclined to hand out the punitive costs order the applicants had sought ‘as the payment of such costs would come from the public’.

She ordered the respondents to pay the costs jointly and severally; such costs to include the cost of two counsel where so employed.

Judgment