How Road Accident Fund cases are crippling the Gauteng High Court

5 Sep 2024

Hundreds of Road Accident Fund cases are clogging the court roll in Gauteng and lawyers say the organisation is not making enough effort to ensure cases are finalised quickly.

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.

Read more: High court puts brakes on R11m RAF claim – cuts it down to R800,000

Caseload crisis

The two high courts in Gauteng deal with a staggering 45% of all cases before all high courts in South Africa. The Western Cape High Court has the second-highest load, dealing with 16% of cases, while the KwaZulu-Natal High Court deals with 10%.

This is partly due to a legal rule that cases should be filed where a company or organisation’s main office is located, meaning that most RAF cases are filed in Gauteng. Gauteng also sees most of the commercial litigation between companies and cases against government entities such as wrongful arrest cases against the police.

This dynamic means that Gauteng deals with an average of 55,172 cases annually, according to a recent report by a panel headed by former Deputy Chief Justice Dikgang Moseneke.

The panel collected data from the 2019/20 financial year to the 2021/22 financial year to ascertain the caseloads of each court compared to available judges, so it could determine how many new judges were needed.

While the panel said it needed more data to make a final determination, it is clear that judges in Gauteng and Limpopo have many more cases to deal with than their counterparts in other provinces. In the case of Gauteng, where many of the cases involve complex corporate or personal injury litigation, matters have reached a crisis point. Lawyers warn that if this issue is not resolved, the Constitutional right of access to justice is essentially being trampled on.

“If you wait five years for a trial date, in those five years, many things can change for the plaintiff. People pass away, witnesses pass away. Some people are in desperate need of that money and they can’t work after their injuries. Justice delayed is really justice denied,” said Marianne Pretorius, a member of the Law Society of South Africa’s (LSSA’s) Court Committee.

Read more: Angry doctors’ plea to minister to pay huge Road Accident Fund bills

A series of court circulars issued to lawyers by Gauteng Deputy Judge President Roland Sutherland painted a dire picture of how the backlogs at the court have grown drastically, with personal injury cases now receiving trial dates starting in October 2029 — five years from now. In a circular dated 26 July 2024, Sutherland noted that “the crisis of unacceptably long lead times continues to be exacerbated”.

He said lawyers and judges had met to try to find a solution, but “no new ideas that could have an immediate effect were ventilated”. Judges had also engaged with the RAF, but without success, he said.

Mlambo has previously suggested that parties could use mediation and arbitration to reduce the number of cases being argued in court. However, De Witt, from the PAA, said while this could help in some commercial cases, it had proved challenging with the RAF.

“Whereas the Pretoria Attorneys Association is not against arbitration, the present rules of court do not provide for a mechanism to force an unwilling litigant to follow the arbitration route. As things presently stand, the entities against which cases are brought do not agree to arbitration even when asked to do so,” she said.

Judges Matter researcher Mbekezeli Benjamin said that while arbitration could be useful, it came with a cost. This is because the parties in the litigation need to agree to pay the arbitrator, who is usually a senior lawyer or retired judge. They also need to agree to pay for the venue and in many cases, RAF claimants don’t have the resources.

“In most cases, people are reluctant to mediate. That is beyond the judiciary. The long-term solution is for more judges to be appointed,” he said.

More judges

As Benjamin noted, one plausible solution would be for more judges to be appointed, and the judiciary has asked for this many times. The Treasury and the Department of Justice hold the keys to the safe since the judiciary is not yet fully independent.

A spokesman for the Department of Justice and Constitutional Development (DOJ), Tsekiso Machike, said work was being done to increase the number of judicial posts and the numbers would be informed by the final report of the rationalisation committee headed by Moseneke.

“It is envisaged that the final report with recommendations on the judicial establishments will be submitted to the ministry before the end of September 2024. The OCJ [Office of the Chief Justice] is engaging the National Treasury to get additional funding in this regard,” he said.

Machike added that Justice Minister Thembi Simelane had met with Mlambo in August to discuss the backlog issue and they had “collectively agreed” to build capacity in courts to alleviate the backlogs.

“The meeting between the ministry and JP Mlambo resolved that the ministry will initiate a platform to pave for engagement with the Department of Transport and relevant stakeholders to find lasting solutions to the RAF matters, which are disproportionately contributing to 90% of case backlogs and the DOJ will always avail itself to participate in any meeting aimed at finding lasting solutions to issues affecting the efficiency of access to justice,” he said.

Mlambo agreed that the solution entailed getting more judges in Gauteng, saying that getting another 15 would be a good start, but 25 would be better.

Read more: Backlog in cases in Gauteng’s high courts is justice denied, but there are solutions

In the meantime, the Gauteng Division of the High Court will rely on the goodwill of lawyers to help clear the current backlog. The court plans to appoint 10 acting judges per week in September and October to adjudicate a mountain of default judgment cases.

“This shall truncate the galloping lead time. I thank all of the practitioners who have agreed to serve in that recess. If this model works and is supported by members of the profession volunteering to serve pro bono, it shall be repeated in the last week of the 4th terms and the first week of the December recess,” wrote Judge Sutherland in a circular.

Benjamin noted that while this was helpful, it was an “unsustainable” solution.

“It is great from a public service point of view for people to donate one or two weeks of their time. But it is not sustainable from a judicial independence point of view. We need full-time judges who have security of tenure,” he said.

He added that if senior advocates used their pro bono hours to act as judges as opposed to representing the poor, it would leave fewer pro bono hours available for what it was truly meant for.

“In a way, it is stealing from the poor to give to the rich,” he said.

The LSSA and PAA share a similar view that creating a separate RAF court could solve the problem.

“We are of the view that the creation of special courts, such as the labour court and tax court, would be a viable medium to long-term solution. This court should be tasked to only deal with RAF, Prasa and other personal injury liability matters where merits are in dispute and the quantum is below a certain threshold.

“Judges with specific expertise in these types of matters can be appointed to preside in these courts. There are many state-owned buildings, and underutilised facilities (such as the Land Claims Court) that can be utilised for this purpose,” said De Witt.

Pretorius shared the sentiment: “Until the RAF is able to clear the backlog, the problem will not go away. If we have a special court that only deals with RAF matters it could help. If we dispose of RAF cases, I can assure you the other matters will be disposed of more quickly,” she said.

If such a court were created, it would first require the political will of the executive branch to make it happen and provide resources such as buildings, recording equipment and staff. South Africa has previously seen the creation of special courts during the 2010 Fifa World Cup.

The justice system has been hit with budget cuts that have affected the National Prosecuting Authority and the courts.

Magistrates’ courts and regional courts have repeatedly complained that infrastructure is not being upgraded and some courts don’t have enough hearing rooms. DM

Watch out for Dianne Hawker’s interview with former Chief Justice Raymond Zondo on challenges in the judiciary and calls to strengthen judicial independence.

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