A Gauteng High Court (Johannesburg) judge has blown the whistle on what she says are dubious goings-on between the Road Accident Fund (RAF) and some personal injury attorneys, according to legal writer Tania Broughton in a GroundUp report.

Judge Denise Fisher had on her roll two RAF matters but was told they had been settled and she need not apply her mind to them. But she smelt a rat when she saw that both claims had seemingly been grossly inflated during settlement negotiations and she refused to remove the matters from her roll.

After conducting her own inquiries, she has now penned a 37-page judgment, damning of the attorneys, and some of the medical and financial experts used to quantify the claims, and the RAF officials.

Her conclusion states: ‘It is my view that the fund should be liquidated or placed under administration as a matter of urgency. This is the only way that this hemorrhage of billions of rands of public funds can be stemmed and proper and valid settlement of plaintiffs’ claims undertaken in the public interest.’

She has asked that the judgment be brought to the attention of the Minister of Transport, the head of the Road Accident Fund and the NDPP.

She has also referred the conduct of experts to their professional bodies, and the conduct of De Broglio attorneys, who handled both matters, to the Legal Practice Council.

Fisher said the two matters on her roll represented a cautionary tale for the RAF and those who rely on it, as both the attorneys and the RAF had ‘strenuously sought to avoid the court’s oversight of the settlement agreements’.

‘These are not isolated incidents … these cases expose the defiant attempts by legal representatives to avoid judicial scrutiny of settlements entered into under circumstances which are strongly suggestive of dishonesty and/or gross incompetence of those involved.’

According to the GroundUp report, she said that since May, the RAF had been attempting to settle cases rather than run trials in order to save costs. They were also not using external legal representation anymore and, with no judicial oversight, this had rendered the RAF system, already on the verge of collapse, even more exposed and vulnerable to malfeasance and incompetence.

On the cases before her, the judge noted the modus operandi was that relatively modest claims were being made and then inflated in the actuarial calculation where the income was exaggerated or even fabricated.

The actuarial report was being used as a basis for an amendment of the claim without oversight.

‘The RAF is not represented and is overwhelmed by the sheer volume of cases and officials are pliable. They thus place undue reliance on the representations of the plaintiff’s attorneys as to the loss. As to general damages, under-qualified and sometimes pliable doctors are used to suggest the injuries are more serious than they, in fact, are.’

Full GroundUp report

Judgment

In what appears to be a response to the judgment in a newsletter sent out yesterday, Michael de Broglio says the matter will be taken on appeal. He says that if one reads such judgments that have been scathing of one firm of attorneys or another, ‘you might discover that perfectly normal practice and procedure constitutes evidence of your modus operandi and that you are either “in collusion” with the Road Accident Fund or taking advantage of them!’

He adds: ‘I must say, I am really sick and tired of all of the issues involved in Road Accident Fund work and it is absolutely astounding that when a new CEO comes in and fires all the attorneys that suddenly the plaintiff attorneys are now responsible for that, too. You cannot even serve documentation on the Road Accident Fund without a judge casting aspersions on why they are being served on the Road Accident Fund. Well, who else should you serve them on? Are you not allowed anymore in South African law to serve papers on an undefended litigant?’