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Court calls for Road Accident Fund to be liquidated

Judge uncovers dodgy RAF settlements and issues scathing ruling.
RAF officials and attorneys told Judge Denise Fisher that cases were settled, but she smelt a rat. Image: Supplied

A Johannesburg High Court judge has blown the whistle on what she says are dubious goings on between the Road Accident Fund (RAF) and some personal injury attorneys.

Judge Denise Fisher had on her roll two RAF matters but was told they had been settled and she need not apply her mind to them.

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But she smelt a rat when she saw that both claims had seemingly been grossly inflated during settlement negotiations and she refused to remove the matters from her roll.

After conducting her own inquiries, she has now penned a 37-page judgment, damning of attorneys and some of the medical and financial experts used to quantify the claims, and the RAF officials.

Her conclusion states: “It is my view that the fund should be liquidated or placed under administration as a matter of urgency.”

She adds: “This is the only way that this hemorrhage of billions of rands of public funds can be stemmed and proper and valid settlement of plaintiffs’ claims undertaken in the public interest.”

She has asked that the judgment be brought to the attention of the Minister of Transport, the head of the Road Accident Fund and the National Director of Public Prosecutions.

She has also referred the conduct of experts to their professional bodies, and the conduct of De Broglio attorneys, who handled both matters, to the Legal Practice Council.

The two matters on her roll were that of Marilyn Doris Taylor and Hlengani Victor Mathonsi.

Cautionary tale

Judge Fisher said they represented a cautionary tale for the RAF and those who rely on it as both the attorneys and the RAF had “strenuously sought to avoid the court’s oversight of the settlement agreements”.

“These are not isolated incidents … these cases expose the defiant attempts by legal representatives to avoid judicial scrutiny of settlements entered into under circumstances which are strongly suggestive of dishonesty and/or gross incompetence of those involved.”

She said that since May, the RAF had been attempting to settle cases rather than run trials in order to save costs. They were also not using external legal representation anymore and, with no judicial oversight, this had rendered the RAF system, already on the verge of collapse, even more exposed and vulnerable to malfeasance and incompetence.

Injuries ‘contrived’

The Taylor case, in summary, was a claim by an office administrator who, in the main, made tea and coffee. She earned R5 500 a month. Her injuries as a result of the accident were “contrived”; there was no evidence that she had lost her job, and yet a settlement offer of more than R3 million was made.

It was only after the judge queried this that it was reduced to R1.3 million, still “significantly inflated”, the judge said.

In the Mathansi case the judge was also told the matter had been settled for a total of just more than R1.7 million. Again, she said, there were last minute amendments to the claims.

Judge Fisher said Mathansi had not lost his employment because of his injury, a fractured clavicle, and yet the RAF had settled the claim for future loss of earnings in excess of R1.3 million.

Modest claims made, then inflated

The modus operandi, she said, was that relatively modest claims were being made and then inflated in the actuarial calculation where the income was exaggerated or even fabricated. The actuarial report was being used as a basis for an amendment of the claim without oversight.

“The RAF is not represented and is overwhelmed by the sheer volume of cases and officials are pliable. They thus place undue reliance on the representations of the plaintiff’s attorneys as to the loss. As to general damages, under-qualified and sometimes pliable doctors are used to suggest the injuries are more serious than they, in fact, are.”

Read: Move to shut down Road Accident Fund

Judge Fisher said while the court’s jurisdiction terminated once the parties settled, the settlement had to be lawful and consistent with the Constitution.

Acquiescence

“The RAF has chosen to ignore this court’s pointed concerns and instead of insisting on an order of court as a precondition of settlement, which would be the rational approach, it has chosen to acquiesce in the tactic adopted by De Broglio. That the RAF is conducting its business in this reckless manner under insolvent conditions is of great concern to this court.”

She said the two cases in question had not been lawfully concluded and the settlements were void but she had no authority to interfere with them and that would have to be done on review.

While she singled out De Broglio, she said similar tactics were used by attorneys across the board and they “learned them from each other”.

Read: Road Accident Fund’s faux outrage beggars belief

“Whilst De Broglio might believe it has served the interests of its clients and itself in achieving settlement for grossly inflated amounts it has, in fact, placed them in jeopardy to the extent that they are unconstitutional and unenforceable. They are, in effect, worthless.

“And if payment is made it would constitute irregular expenditure by the RAF and potentially make those approving such payments vulnerable to personal scrutiny by the courts.”

© 2020 GroundUp. This article is licensed under a Creative Commons Attribution-NoDerivatives 4.0 International License.

COMMENTS   14

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“Dubious attorneys”, “pliable doctors”, inflated actuarial reports. Good old South African professionals. Next it is the liquidators and adminstrators turn at the trough. Where have I heard this story before?

Times have changed and (just like TV licenses) the concept of a RAF is outdated.

Nowadays those who can afford it have life and disability insurance.

There are so many other ways to get injured that it seems absurd to have a fund only for those injured in road accidents.

(I fell with a motorbike some time ago. A few weeks after the visit to the casualty ward I received a call from persons who specialise in RAF claims. Once they learned that I fell on a private dirt road they politely ended the call as they would not be able to put in a claim for my accident. My point is, you can get just as easy get seriously injured on a public road or in the bush and it makes no sense to have a fund that covers only accidents on public roads.)

I cant agree more. We have 15 000 deaths from road accidents, 35 000 accidental deaths( drowning, murder , falling off ladders) and 450 000 deaths from other causes e.g. diabetes, TB etc.

I am sure the injuries are probably in similar ratios. We should cancel RAF and use the allocated funds for…..improved hospitals/ diet related campaigns for healthy living or give it to the RSA SME fund that invests it in startup business. All would add more to our welfare

Ridden heavy super-scooter for 8 years….the only ‘serious mishap’ was dropping the bike in front of my own garage, on an angled sloped driveway (…after arriving safely home in Klerksdorp, after 2h ride from Jo’burg, through all its traffic had to throw at me.)

…in an attempt not to be trapped by a 240kg 650cc-scooter, I performed a nonchalant, but elegant body roll down the driveway *lol*

(…my opposite neighbor watching the spectacle, thinking “..is this now necessary?”)

The result of our Govt ignoring past calls to re-introduce compulsory 3rd party insurance for ALL vehicles.

(Some people in the new SA don’t believe you when telling them there was a time in SA’s history where bicycle licenses were required. Remember pet licenses? I think this era must’ve been before the 1st airing of Dallas 😉

and the money from bicycle and dog licences was used to pay inspectors to check on the licences. The good old days.

More seriously why continue with the incompetent and corrupt ANC RAF. Well, to enable lawyers and administrators; many ANC cadres, to rape the system and load up at the taxpayer and motorists expense. Just another ANC scam.

I do recall having to get a Bicycle License and had the disc attached to the rear swing arm – in an effort to make my bike look cool (sadly my parents thought a big tyre post office bike would last longer). Eish I was ridiculed for that bike…….

Sadly my son had a brain injury at 18 months old in 1992 and his claim was halved because I had a degree and my wife did not. RAF really screwed him over – and the attorneys walked away with the lions share of his money. So we look after him permanently at home.

@Gil. Really hope your son fully recovered since the 92′ incident 🙂

Also sympathies for being ridiculed during your youth riding a fat tyred Post Office bicycle, with those fugly black mud-guards 😉

How many times have you parked it in the quieter side-street of school, in the hope of not being seen? 😉

Look at it this way: at the time your parents just wanted you to be safer than other, careless kids…as they KNEW you would not be able to pull off ‘wheelie’ stunts with that sort of heavy, steel bike! *lol* Or it would simply “curb your enthusiasm” to pull bike stunts…

It would work out cheaper for the motorist and tax payers.

Plus fuel would be cheaper and help the economy.

Long overdue.

Big waste of tax payer and motorist money.

Close it down.

@MichaelfromKlerksdorp
To be honest I cannot recall how many time I hid that poor bike. I removed the post office tray from the front, pulled off the mud guards front and back and tried smaller tyres – looked even more ridiculous. Eventually took it to a veld in Boksburg and went home telling my folks it was stolen. Grandparents took pity on me and bought me a Raleigh (and my boet got a small front wheel Chopper – and that is whole other story on its own!)

As for son he is now 28 going on 8 intellectually, but we love him and cherish him with us each day.

I had dreams of him on a Superbike (I used to race Superbikes for many years) but that went pear shaped after the accident. Sadly my eldest daughter was also injured and her face was badly scarred due to the seatbelts snapping…..also got paid out a pittance as the Attorneys took the lions share – ala Ronald Bobroff.

Liquidate RAF — yes, yes a thousand times yes!.
And cut the fuel levy by the 25% used to fund this disaster of a govt entity.

After seeing the ad’s for “Ambulance Chasers” I often wonder how a person that has taken the time and effort to get a degree ends up being an Ambulance Chaser after all they did have a choice in this. Or do they they slowly become a “fee chaser” as stated in the profession or when asked as a young child what they want to do they say “I want to become a personal injury claim attorney”.

Jokes aside, there are so many good professionals out there that got into and stay for the right reasons in that they want to make a difference.

End of comments.

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