The Road Accident Fund (RAF) has a strategy of challenging cases it has no prospect of winning – and then settling at the 11th hour. This is just one of the many reasons why it’s vital to have an experienced lawyer defend your RAF claim.
Report reveals RAF’s tactical strategy
The beleaguered RAF has consistently blamed legal fees as the main reason for its steadily deteriorating financial health. The RAF currently sits on R330 billion in claims liabilities that it can’t pay because of inadequate funding. In the year to the end of March 2020, it paid out R44 billion in claims settlements, with R11 billion of that being paid to attorneys.
Yet, a recent report by Professor Hennie Klopper of Pretoria University concludes that the RAF’s legal bill emanates principally from the “high number of annual claims and the RAF’s litigation policy and practice”.
It is not, Professor Klopper states, simply the RAF being dragged to court by legal practitioners, but – based on recent judicial pronouncements – largely the RAF’s approach to claims handling and litigation.
Statistics show that the RAF challenges numerous cases it has no prospect of winning when taken to trial, thus incurring substantial legal costs. What’s more, virtually all the cases that the RAF tries to defend in the Pretoria High Court are settled at its doorstep.
This is a deliberate policy of the RAF. It is a delaying tactic in order to control its cashflow and, says Professor Klopper, “The Fund admits as much.”
However, he states in the report, “Financial constraints on the Fund’s ability to pay claims as immediately as it should afford no excuse, however, for the failure to administer the claims received efficiently, or for drawing out litigation and driving up legal costs by what is sometimes euphemistically described as ‘tactical pleading’.”
Irresponsible litigation strategy
Statistics – and case law – support Professor Klopper’s conclusions.
A study of the 2018 Gauteng Division of Pretoria’s Court Roll – the largest in South Africa – show that in 86% of cases on the roll, the RAF is the defendant. Staggeringly, less than 1% of cases defended by the RAF actually proceed to trial.
In other words, 99.56% of all cases defended by the RAF are settled before trial. These are, says Professor Klopper, capable of early settlement without litigation.
The RAF’s 2017/2018 annual report, issues raised by Judge Presidents as part of improved case and litigation management, include:
- continued last-minute settlements or using trial dates to trigger settlement
- postponing of cases, not giving instructions to Senior Counsel
- defending cases without presenting evidence or calling own witnesses.
After a review of 17 cases where the RAF was rebuked by judges for their handling of claimants’ claims and litigation, it was stated, “A depressing feature of all of the aforementioned judgments is that they instance examples of cases in which the Fund must have incurred substantial legal expenses in taking to trial, or on appeal, claims which it had no basis to responsibly contest. In the context of the evidence before us that legal expenses constitute a very significant component of the Fund’s overall expenditure, this is an aspect of the Fund’s conduct which is demanding of conscientious attention by the responsible authorities…”
Consequences of this strategy
The consequences of this tactical strategy are obvious. As Professor Klopper and others state, it adds significantly – and unnecessarily – to the Fund’s legal costs.
From the plaintiff’s perspective, it has serious ramifications:
- it adds significantly to delays and legal costs
- potentially drives road accident victims to give up on their claims
- cause claims to pass prescription periods
- adds further legal complexities and delays.
Reasons to have legal representation
You make think it would be cheaper and quicker to pursue your RAF claim without an attorney. In fact, the opposite is true.
Claiming from the RAF without a lawyer will hurt your interests. It’s a complicated and technical process. Lawyers have expertise, experience and know-how to assist with a personal injury claim against the RAF.
They negotiate the very complex and traumatic administrative and legislative process. Lawyers know the necessary documents, how to get reports, complete them and submit them. And they know how to put the Fund under pressure to progress the claim.
It is often only through the actions of lawyers that any progress is made with RAF claims, as Professor Klopper explains in his report.
He quotes a criticism of the RAF litigation in Mathebula v RAF (Mpumalanga Circuit Court). The registrar said, “The large number of applications to compel activity on the part of the Fund which also regularly feature in this division in unopposed motion court rolls is a further testimony of the difficulties experienced by plaintiffs in having procedural matters timeously attended to. In many instances, it is only after the delivery of applications to compel that the Fund is spurred into action resulting in yet further unnecessary costs, fruitless expenditure and waste of court time.”
Other reasons why it’s never in the best interests of a road accident victim to try claiming directly from the RAF without a lawyer include:
- the risk of accepting a settlement offer that’s unfairly low
- no further recourse against the RAF if a claim is under-settled or rejected
- the risk that a direct claim may expire (or “prescribe”)
- the burden of having to pay for doctors’ reports and required documents.
What we offer at DSC Attorneys
Pursuing a RAF claim is a lengthy, complex process. For several reasons, it’s not a good idea to submit a RAF claim without professional legal representation. The RAF’s strategy of challenging cases it has no prospect of winning is just one of them.
At DSC Attorneys, we’re experts in road accident claims, with extensive experience in handling claims against the RAF.
Our personal injury attorneys and medico-legal team are committed to helping road accident victims in our country get the compensation they deserve, in as short a period as possible. We work on a no-win, no-fee basis.