Sir- As a personal injury lawyer handling victims accident claims in the high courts against the Road Accident Fund (RAF), I endorse the Eastern Cape judges criticism to which Carmel Richard refers (Fund is against victims, November 15) relating to the war that the RAF has been waging on accident victims, Jacob Modise, the RAF’s CEO, in his reply (RAF not waging war on accident victims, November 22), as usual blames the legal fraternity for the administrative morass in the RAF, for which its board and the CEO must take responsibility, Criticism by judges is not confined to Eastern Cape, as Modise seems to suggest.

Judges in other divisions of the high court have also expressed disapproval of the conduct of the RAF by awarding punitive costs orders against it. Judge Satchwell, in the Witwaterstrand High Court in a judgment in March 2006, said: “I consider the defendant (RAF) to be more than dilatory. I consider the defendant…to be contemptuous of the court in its planning and preparation, to be contemptuous of the plaintiff who is not funded by the taxpayer, to be unprofessional and have so hamstrung its legal representatives as to have rendered them ineffectual with regards’ to the proper professional conduct of this matter.” The judges awarded costs “on the most punitive scale possible” and specifically ordered copies of the judgment to be forwarded to the CEO, the chairperson of the RAF and the transport minister.

One of the core values of the RAF is that “We learn from our mistakes”. But in judgment on August 15 2008 in the Cape Provincial Division, Acting Judge President Jaanette Traverso said she “should articulate the displeasure of the court” and ordered punitive costs against the RAF. She pointed out that “the RAF is a public body dealing with public funds.

It is mandated in terms of Section 195 of the Constitution to maintain a high standard of professional ethics and to respond to people’s needs and to foster transparency…” She said that “to suggest that the accepted and normal practice of attorneys to look to their clients for payment of the attorney and client costs amounts to theft, fraud or overreacting is unfounded. The RAF’s attitude in this regard is without any foundation and displays a lamentable lack of appreciation of how the practice of law functions.”

On October 23, Judge Viwe Notshe, in the Witwaterstrand High Court, delivered a judgment in which he said the RAF was established “to manage the socioeconomics legislation for the purpose of compensation of victims of road accidents.” This did not require the RAF to be obstructive in carrying out its duties, “The obstructive attitude adopted by the RAF can be counterproductive in the sense of increasing the costs that the RAF should pay. “A punitive costs order was made against the fund.

Managing a fund administering billions of rand’s must be a huge undertaking. Will Modise and the other eight members of the board, who share 23 major directorships between them, be able to administrate the funds in such a way as to end their war and make peace for the benefit of accident victims and the taxpayer, who in the end must shoulder the burden of the increase costs?

TZVI BRIVIK
Malcolm Lyons & Brivik Inc.
Specialist Attorneys in Personal Injury & Labour Law