Published Date: February 10, 2022

The sudden and unexpected implementation of the Road Accident Fund’s controversial Management Directive had many attorneys up in arms not so long ago. Whilst the legality of the Management Directive is currently the subject of a Review Application brought by our firm on behalf of various Applicants, Mr Letsoalo (CEO of the RAF) has made it clear that we have not seen the last of the Management Directive or a similar version thereof, as he is adamant that the amendment of the lodgement procedure will ensure the reduction in legal costs paid to Plaintiff attorneys.

Mr Letsoalo is of the view that the RAF cannot be expected to accept documents that it cannot assess and settle and that attorneys are purposely lodging scanty claims to run legal bills which the RAF must eventually settle at a cost of about R6 billion a year. His vision is to ensure that claims are assessed and settled within 120 days from the date of lodgement which is the motivation behind making it prescriptive to lodge fully quantified claims accompanied by a host of documents.

What Mr Letsoalo fails to consider is the fact that these documents must be procured from run-down and poorly staffed state departments, which results in months or even years lapsing before these documents are eventually ready for collection.  The prescripts of the fundamentally flawed Management Directive furthermore do not make provision for instances where the required documents do not even exist or for instances where matters are on the verge of prescription.

Moreover, personal injury claims need to be investigated and assessed by various medico-legal experts to ensure that the claim amounts proposed at the time of settlement accurately reflects the damages sustained by each individual claimant. This process unfortunately takes time for a host of reasons, and it is consequently impractical to expect claimants to lodge fully investigated and quantified claims at the time of lodgement.

As an attorney who has been doing RAF work in excess of 10 years, I can confirm that we lodge claims as soon as possible after we are placed in possession of the statutorily required documents, together with all and any additional documents available to us at that time, to ensure that our clients’ claims do not prescribe and furthermore to ensure that claims are finalized as soon as possible. Our clients are generally in dire straits due to the devastating effects their injuries have had on their livelihoods. They are often destitute and stripped of their dignity because they can no longer provide for themselves or their families. We do this work because we are passionate about our clients, and we genuinely care about ensuring that they are compensated as soon and as fairly as possible.

The fact that the RAF needs to reduce its legal costs is undoubtedly a legitimate purpose in support of implementing radical measures and new turn-around strategies. However, this purpose can be achieved in ways that do not impose unreasonable restrictions on persons wishing to exercise their constitutional right to claim compensation per the RAF Act as it currently stands. Instead of focusing on ‘facilitating and improving efficiencies at the point of entry of the claims process’, perhaps more can be achieved if the RAF shifts its focus to matters where they do have all the necessary documents and reports which they require to accurately assess and settle claims.

Our firm alone has in the region of 130 settlement proposals that have already been sent to the RAF, some of which date back as far as September 2020. These settlement proposals are fully quantified and accompanied by medico-legal and actuarial reports which are supported by the necessary collateral evidence. There is accordingly no excuse why these matters cannot be assessed and settled by the RAF. When we send bulk settlement proposals to the RAF, we are more often than not advised that we are standing at the back of a very long queue as many other law firms have similarly sent bulk settlement proposals to the RAF. The RAF is undeniably inundated with hundreds, if not thousands of settlement proposals from various law firms, which means that it takes months to years for fully quantified matters to be settled by the RAF. This is simply not feasible and most certainly demonstrates that Plaintiff attorneys cannot solely, if at all, be blamed for the RAF’s astronomical legal bill.

Whilst these settlement proposals are gathering dust at the RAF offices, so to speak, Plaintiff attorneys have no alternative but to proceed with extensive and costly litigation in an effort to obtain trial dates for their clients’ matters to ensure that claims are finalized as promptly as possible. As gruelling as it is nowadays to obtain trial dates in the High Court, it is probable that the extensive court procedures will be exhausted prior to settling these long outstanding matters directly with the RAF. The bulk of the legal costs incurred by the RAF which they conveniently attribute to so-called “litigation hungry” Plaintiff attorneys, is, as such, due to the RAF’s own inability to effectively and timeously assess and settle matters which are ripe for settlement.

Our firm is supportive and actively engaged in the RAF’s initiative to move away from a litigation focused model and to settle matters without the assistance of our courts. Unfortunately, the extensive delays and lack of reactions experienced with regards to finally, if at all, settling matters, leaves us with no alternative but adopt a litigious approach to ensure effective and expeditious finalization of claims.

I am of the view that the RAF will be better served by employing or allocating additional claims handlers in the block settlement departments to address the enormous backlog of matters which are ripe for settlement as opposed to engaging in extensive and costly litigation surrounding the legality of the Management Directive or any further similar attempts by the RAF to amend the process by which claims are lodged.

Jevonne Le Roux
Senior Associate | Litigation Attorney