Judge Ford Road Accident Fund: Gauteng Court Warns of RAF Demise

• Acting Judge Bartholomew Ford criticized the Road Accident Fund's litigation, citing "significantly inflated" claims and "extremely far-fetched" expert reports.
• The judge predicted the RAF's demise if abuse continues, noting claimants often become "millionaires overnight."
• He found most expert reports biased towards claimants, often containing speculation, and ruled for more evidence in delayed claims.
• The RAF's approach to litigation was described as "recalcitrant and lackadaisical," with 150-180 cases weekly in Gauteng courts.
• The fund, with R439 billion in net liabilities, often fails to appear in court or comply with orders, increasing legal costs for all parties.

Acting Judge Bartholomew Ford expressed no hesitation in predicting the Road Accident Fund's demise if the current level of abuse persists, noting that many claimants, regardless of their pre-accident status, appear to become 'millionaires overnight' through the system.

Acting Judge Bartholomew Ford, presiding over default judgments in the Gauteng Division of the High Court during a week in October, issued a critical assessment of the Road Accident Fund (RAF) claims process. His observations highlight a pattern of "significantly inflated" claims and "extremely far-fetched" expert reports concerning claimant injuries. Judge Ford expressed no hesitation in predicting the Road Accident Fund's demise if the current level of abuse persists, noting that many claimants, regardless of their pre-accident status, appear to become "millionaires overnight" through the system.

The judge specifically criticized the prevalence of bias in expert reports, stating that many are "replete with speculation" and "conjecture," consistently favoring claimants. In cases where a substantial period elapses between an accident and the production of an expert report, Judge Ford ruled that more robust evidence is required to definitively link symptoms to the accident, acknowledging that numerous other factors can contribute to ill health. Furthermore, he mandated that claims for loss of earnings should be deferred if recommended medical treatment has the potential to materially alter an individual's earning capacity, underscoring a need for greater precision in assessing long-term financial impacts.

Beyond the issues with claimant submissions, Acting Judge Bartholomew Ford also castigated the RAF's own conduct in legal proceedings, describing its approach to litigation as both "recalcitrant and lackadaisical," and "astonishing." The sheer volume of cases is staggering, with 150 to 180 RAF matters appearing weekly on the default judgment roll across the Gauteng North and Gauteng South courts, in addition to cases heard in the special interlocutory court. This makes the RAF the largest civil litigant in the country, yet its engagement in these proceedings is often characterized by a lack of legal representation or poor representation, coupled with a consistent failure to comply with court orders.

This "disinterest in legal proceedings," as Judge Ford termed it, is particularly "shocking" given the RAF's dominant role in the legal system. The fund's inadequate defense of claims directly contributes to an increase in litigation and a corresponding escalation in legal fees. A significant shift occurred in 2020 under then-CEO Collins Letsoalo, when the RAF reduced its panel of external attorneys and moved its legal defense operations in-house and to the Office of the State Attorney. This change, intended to streamline processes, has instead coincided with the operational inefficiencies observed in Gauteng High Court RAF litigation.

The financial health of the Road Accident Fund is a critical concern, with net liabilities currently standing at R439 billion. Funded by a R2.25 levy on fuel, which impacts motorists and taxi passengers by inflating petrol and diesel prices, the RAF's financial stability has increasingly attracted political attention. The fund's primary mandate is to ensure that victims of car accidents, including pedestrians, are not left destitute, particularly given that many drivers lack third-party insurance. However, the current system, as highlighted by the observations of Acting Judge Bartholomew Ford, faces severe strain from both internal inefficiencies and external pressures.

While the RAF is designed for claims to be settled before litigation, with a 120-day waiting period before legal action is permitted, the reality often involves protracted court cases. When the RAF fails to settle, summonses are issued, leading to full court proceedings. In many instances, the RAF admits nothing, compelling claimants to prove their entire case and injuries, which significantly drives up the cost of expert reports. The successful party is typically awarded their costs, meaning the RAF ultimately pays the claimant's legal expenses in addition to damages. Furthermore, court postponements, frequently caused by the non-appearance of RAF attorneys, further exacerbate legal costs, contributing to the "Road Accident Fund demise prediction" if these systemic issues and RAF claims abuse in South Africa are not addressed.

Lawyers representing claimants against the Road Accident Fund (RAF) should anticipate heightened judicial scrutiny of expert reports and loss of earnings claims, ensuring meticulous substantiation to counter allegations of inflation or bias. This judgment signals a need for more robust evidence and careful preparation to navigate the RAF's operational inefficiencies and avoid delays.

Source: Original reporting via Moneyweb