The decision by the Road Accident Fund (RAF) to fire its panel of attorneys in order to save money and rather to settle claims has come back to haunt the embattled entity.

This time, the RAF asked the court to develop a law so that it can overturn an uncontested claim in which it was ordered to pay R6.7m to a car accident victim.

A Weekend Argus report by legal journalist Zelda Venter says the Western Cape High Court earlier ordered the RAF to pay this amount to Elizabeth McDonnell, who suffered injuries in an accident. The RAF disputed the claim, but it had meanwhile fired its panel of attorneys.

No one turned up on its behalf during the court hearing. The court thus granted default judgment in the amount of R6.7m.

But when it became aware of this order, the RAF turned to court in a bid to rescind the order.

It asked the court to develop the common law in order to make it possible for it to have orders it was unhappy about overturned, even if it did not bother to defend these in court.

But Judge Daniel Thulare, in the latest ruling, said the thinking of the RAF on the finality of its claims through judicial pronouncements was very worrisome.

‘It simply wants to have the last word, even after a court order.’

The judge said while the court did invite the RAF to participate when the matter was heard, it chose not to do so.

Yet, after the court had dealt with the case and the RAF was unhappy with the outcome, it now wanted the law tailored to suit it.

The judge commented that the RAF used to constitute a panel of attorneys to assist in litigation in the event of claims not settled.

In November 2019, the applicant did not extend the tenure of its panel of attorneys as part of its strategy to reduce costs, notes the Weekend Argus report. According to the RAF, this was after an observation that the costs associated with these panels were too high and detracted from the main focus, which was to pay for reasonable compensation to victims of motor vehicle accidents.

The new model was to ensure that there would be more funds available to compensate the ever-growing number of claimants who were victims of motor vehicle accidents.

Thulare said the system could be a good instrument in the strategy to significantly reduce litigation costs and as a tool to encourage settlement of claims without the necessity of litigation where it was avoidable.

But he said it could not be competition for the courts in disputed claims on what was a fair and reasonable award.

‘The RAF cannot be players and off-the-field audio-visual referee in the same game. The RAF cannot be allowed to play hide when they are served with court processes and expect the applicant to join in the game and play seek when the order is against them,’ the judge said.

He added that the RAF chose to terminate the mandate of its attorneys and elected not to be legally represented, instead opting to deal directly with claimants and their attorneys in this matter.

He said sending an RAF employee to court was simply meant to ‘improve the appearance of the executives; it did not undo the hideous face of a decision not to earnestly engage with such a big claim’ through its own lawyers, who could add value to the administration of justice.

Full Weekend Argus report

Judgment