Although this is a victory for the fund, which says it is beset with inflated claims, it still faces an uphill battle. Another three cases heard in the Limpopo High Court in July alone saw the RAF ordered to pay a total of R9.65-million to claimants.
The exaggerated R11-million claim was submitted by a mother after her four-year-old daughter was hit by a car while on the way to the local tuckshop.
She was not accompanied by the mother at the time, but the mother used documentary evidence from psychologists, surgeons and a therapist to support the claim. It was broken down into R1-million for general damages, R1-million for future medical expenses and R9-million for loss of future earnings.
In total, eight reports from an orthopaedic surgeon, a neurosurgeon, a plastic surgeon, a clinical psychologist, an educational psychologist, an occupational therapist, an industrial psychologist and an actuary were submitted.
All the specialists relied on the mother’s statement that the child lost consciousness when she was hit by the car – even though the mother was not at the scene at the time. Her report was also not corroborated by the driver, a separate eyewitness or any of the medical specialists who examined the child immediately after the accident.
Acting Judge E Mashamba found disparities in the medical specialist reports. Although the accident occurred in 2015, the matter was settled in court only in November 2023, at which point the quantum of the settlement needed to be determined.
The only information the court found credible was that of the clinical psychologist, who stated the child had post-traumatic stress disorder and psychosocial problems. The court found these problems probably had only a slight effect on the child’s future income. The neurosurgeon, the late Dr Bakang Mosadi, assessed the child’s chances of developing epilepsy to be the same as the general population.
Clinical psychologist, Jacqui van Staden found that the child did not repeat herself and did not report that she generally had problems remembering things. She was able to recall a series of six numbers on the “memory for digits test” in the straightforward “repeat as said” section, indicating an above-average memory span. “The physical injury to her head has clearly not had an impact on her motor performance, and she does not experience difficulties in performing activities that are needed in her daily life,” the judgment said.
The RAF says the judgment makes it “abundantly clear” that lawyers who represented the claimant recommended and guided the mother for the child to be sent to many specialists, despite the injuries being minor.
‘Errant legal practitioners’
RAF chief executive officer Collins Letsoalo says this is a common problem for the RAF. “Most legal practitioners attempt to extract as much cash as possible from the state entity, an unethical and sometimes criminal practice that affects the RAF and is grossly unfair to other claimants.”
“While the fund is not apportioning criminal blame to the law firm that represented the woman, they should nevertheless be ashamed of themselves for creating expectations to the mother that she was in for a huge cash windfall. The disparity between the R11-million and R800,000 is proof enough that there was probably unethical conduct involved,” the RAF said.
Read more in Daily Maverick: https://www.dailymaverick.co.za/article/2023-11-30-bleeding-road-accident-fund-prevents-almost-r2-7bn-in-fraudulent-claims/
The Law Society of South Africa has previously objected to similar “sweeping and unfounded” statements by Letsoalo, who had accused the Legal Practice Council (LPC) of not properly attending to complaints against legal practitioners, particularly regarding duplicate payments.
“As regards duplicate payments, as pointed out by the LPC, these occurred due to a system error at the RAF and, of the 102 firms initially reported as having been paid twice, 99% paid back any duplicate payments made to them or did not receive any duplicated payout. The remaining 13 firms were taken through the LPC’s disciplinary processes,” Eunice Masipa, president of the SA Law Society said.
However, Letsoalo says the latest court decision is a vindication of the fund’s position that claimants, primarily guided by lawyers, are involved in the grand-scale looting of the public entity. Between 2021 to 2023, the fund stopped R2.6-billion worth of claims from being paid on the back of collaborative efforts by the RAF forensic investigation department and various law enforcement agencies. DM