The maladministration, corruption and sheer recalcitrance on the part of the Road Accident Fund (RAF) to compensate the very victims it was established to assist is a bitter pill to swallow.

Hopefully, says Tzvi Brivik – a director at Malcolm Lyons & Brivik – the recent Gauteng High Court (Pretoria) ruling in Road Accident Fund v Legal Practice Council and Others ‘will provide the fund’s administrators with the lifeline they need to get their house in order’.

In his analysis on the Daily Maverick site, Brivik cites as an example the case of Joryke and Henk Koelewjin, who were seriously injured following an accident in KZN in August 2008. During the course of the next 11 years, the RAF accepted liability and indicated that it would make payment of past medical and hospital expenses as well as general damages for pain and suffering and loss of the general amenities of life. These agreements were made by orders of court which date back to 2016.

However, the RAF has failed to honour the agreements as well as the orders of court and has failed and/or refused to make payment.

He says the High Court has not allocated the matter to trial in all this time, despite repeated requests to do so.

While it is true that the RAF is insolvent (it has insufficient funds to satisfy all claims that have been lodged against it); that it has a significant backlog; and that it is in the process of putting in place measures to address these challenge, Brevik says none of this justifies the ongoing failure to satisfy longstanding claims for compensation that have already been agreed and made orders of court.

Brevik notes in the above case, the RAF ‘laid bare’ its severe financial difficulties, mismanagement and corruption-plagued systems, and warned of its imminent collapse as well as disastrous consequences should S21(2)(a) of the RAF Act be triggered.

He notes the court ordered the RAF to make payment of the oldest claims first – by date of court order or date of settlement agreement – and to use its best endeavours to pay all claims older than 180 days (as from the date of the court order or date of the settlement reached) on or before 30 April – provided that the RAF has been notified of its existence.

‘The RAF was ordered to take all reasonable steps to register court orders or written settlement agreements on its list of payments in chronological order from the date that the court order was granted, or the written settlement agreement was entered into, and to do so within 30 business days of receipt of the court order or settlement agreement, as well as to ensure that court orders or settlement agreements for claims that have not been captured will be captured.’

Brevik adds: ‘Despite the RAF’s mandate to ensure fair and equitable compensation, its administration has failed its core mandate. The refusal, alternatively failure, to honour compensation agreements and High Court orders has placed innocent victims of road accidents in both financial and humanitarian hardship, exacerbating the trauma and other harms suffered.’

Full analysis on the Daily Maverick site