If you were involved in a catastrophic car accident today, it could take you more than five years to have your Road Accident Fund (RAF) claim dispute heard in court and possibly longer to receive your payment.
This is the situation facing hundreds of RAF and other personal injury claimants affected by a growing backlog in the Gauteng Division of the High Court, based in Pretoria and Johannesburg. The earliest trial date available for RAF cases is in October 2029, while it’s November 2027 for cases against the police and February 2027 for divorces.
Lawyers who have spoken to Daily Maverick about the crisis place the blame squarely at the door of the RAF — and Gauteng Judge President Dunstan Mlambo agrees.
“If they were handling their work effectively, we wouldn’t be in this mess,” Mlambo told Daily Maverick, saying the RAF regularly “ignores” summonses issued by claimants, forcing hundreds of cases on to the court’s default judgment roll.
A summons is a document that the plaintiff in a personal injury case serves on the defending party as the first salvo in a court case. It contains the nature of the injury and an indication of how much is being claimed. If the summons goes unanswered, the plaintiff can ask the court for a default judgment, but the court must still make sure that every aspect of the claim is correct.
In the case of the RAF, Mlambo says hundreds of RAF summonses simply go unanswered.
“I have default judgment rolls where if summonses are issued against the Road Accident Fund it simply ignores them. In Pretoria, as we speak, a judge sitting in the default judgment roll is allocated something like 20 of these applications a day, every week.
“That’s heavy because the judge has to scrutinise all of this and check if the amounts claimed are proper and justified.
That’s 100 per week for one judge. And you ask yourself, why is the RAF ignoring all these summonses if they receive the summonses? And it leaves the work in the judge’s hands to check whatever default judgment is granted is properly justified in terms of the injury sustained or the loss sustained,” he said.
Judges who are working on these default judgments are taken away from other cases, having a knock-on effect for other types of cases.
Legal panel According to Mlambo and representatives from lawyers’ associations, the problem arose after the RAF decided it would do away with a panel attorney system in which it had a designated group of law firms available to represent it in court.
RAF CEO Collins Letsoalo scrapped the system in 2020, saying lawyers were milking the RAF. But Mlambo said that in solving one problem, Letsoalo had created another, which is now being carried by the courts.
“The current CEO, when he took over, he only focused on that, but he hasn’t replaced the panel lawyers system with any other credible system,” he said.
Mlambo said that despite making this change, the RAF was still paying a “scary” amount in legal fees because the plaintiff’s lawyers were still entitled to fees for the default cases. Mlambo said that in July, the RAF had been charged more than R240-million in legal fees for cases heard only in the high court in Pretoria.
“And you ask yourself, what is the RAF doing? They say they did away with the panel lawyers system and they are using lawyers that are going through the State Attorney’s office but you still have these big claims in terms of fees that are taxed against the RAF,” he said.
He said that if the RAF properly defended its cases, opted to settle out of court or chose mediation, it would pay less in legal fees.
“The RAF has effectively outsourced their job to judges,” said Nicolette de Witt, chairperson of the High Court Committee of the Pretoria Attorneys Association (PAA).
She said the long waiting periods for trials affected clients, many of whom were badly injured.
“Clients find it impossible to believe and accept that they must wait for five years, after the allocation of a trial date for the trial date to arrive, and resort to reporting legal practitioners to the Legal Practice Council for unprofessional conduct. Shortly put, the South African civil justice system is failing South African citizens and depriving them of their constitutional right of access to the courts, and human dignity,” she said.
The RAF flatly denied that it was at the heart of these problems.
“The lawyers are being disingenuous about their concerns regarding the backlog. They must not try and bring back the panel of attorneys to enrich themselves via the back door,” said McIntosh Polela, the RAF communications manager.
He said the RAF’s claim cases were handled by the State Attorney’s office and it retained “a corporate panel for more intricate matters”.
Despite this denial, the RAF has attended meetings with judges to try to resolve this issue. Transport Minister Barbara Creecy has also been informed of the issues. Daily