In South Africa, the system of road accident fund compensation is an integral part of the country’s social security programs. In a nutshell, the system ensures that the victims of road accidents (and their dependents) are given some protection is the event that serious injury results from such road accidents. In general, this protection is offered by the Road Accident Fund (RAF), established in terms of the Road Accident Fund Act (Act No. 56 of 1996), compensating the victim (and sometimes their dependents) of a road accident for their medical expenses and for their loss of income (if any), amongst other things. The Fund is funded, in part, by the general public, through the fuel levy that is charged whenever one fills up petrol at a petrol station.

There is therefore no doubt that the RAF compensation system plays a critical role in our society. However, like everything else, the system is always susceptible to abuse as it recently happened in a case that served before the Honourable Judge Satchwell at the South Gauteng High Court, in Johannesburg. The judgment in the matter of Motswai v RAF – Case No: 1722/10 was delivered on 7 December 2012.

This was a case, no doubt one of many, where the matter was settled just before the trial was due to commence. However, in terms of the settlement agreement, which the judge was asked to make an Order of Court, the matter was to be settled without any money being paid to the supposed accident victim, who was the plaintiff in the matter.

The facts were briefly that: the Plaintiff (Mr Motswai) was injured in a motor vehicle accident; approximately a year after the date of the accident a claim form was submitted to the RAF, claiming a total amount of R120 000, which included a general damages claim for R80 000; a medical report was attached to the claim form which indicated that Plaintiff had been sustained soft issue injuries on his right ankle; a year after the claim was submitted to the RAF, a summons was issued out of the High Court for an amount of R390 000; in the summons it was alleged that Plaintiff had suffered severe bodily injuries, which included a fractured right ankle; as a result of such injuries it was claimed that the Plaintiff had undergone past medical treatment, would be required to incur future medical and related expenses, had been and would be compromised in his earning capacity and had endured and would endure unspecified pain and suffering, loss of amenities of life and disability; damages were claimed in the amount of R10 000 for past hospital expenses, R10 000 for past medical expenses, R50 000 for estimated future medical expenses, R100 000 for future loss of earnings/earning capacity, R20 000 for past loss of earnings and R200 000 for general damages for pain and suffering, loss of amenities of life and disability.

Shortly before the allocated trial date, an orthopaedic surgeon, was requested by Plaintiff’s attorneys to examine Plaintiff, which he did. In his report he recorded that Plaintiff had “sustained a soft tissue injury of the right ankle. This was treated conservatively. The records note that his ankle was bandaged.” A new claim form was also submitted shortly before the allocated trial date and the doctor’s report recorded that Plaintiff had sustained soft issue injuries on his right ankle. It was also indicated on behalf of Plaintiff that an occupational therapist and an industrial psychologist would be called as witness to give evidence at trial.

In preparation for its defence, the RAF obtained a report of an orthopaedic surgeon, a radiologists, an occupational therapist and as psychologist.

When the draft settlement agreement was brought to the judge for him to make it an Order of Court, the judge objected to the terms of the settlement agreement and the manner in which the litigation was conducted.

The judge stated that it must have been clear to Plaintiff’s attorneys before the claim was even lodged or summons issued that the Plaintiff had not suffered any “serious injuries” that would have entitled him to claim in terms of the RAF Act. The allegations that were made in the particulars of claim (which were prepared by a qualified attorney) contained statements that were nothing but fabrications. For example, it was alleged Plaintiff had a fractured ankle, which was never part of any of the medical reports. In fact, the x-ray reports had shown the opposite, that there were no fractures.

The Court referred to previous judgments dealing with the standard of care expected from a legal representative when preparing court documents and reiterated that pleadings should not be “a fabrication”, legal practitioners “have a duty to the court, not only to his client, and must not misrepresent facts to the court”. Matters should not “proceed to trial when it never should have done so”, when “there are truly no triable issues”. Judge Satchwell concluded that in his view, the conduct of the attorney acting on behalf of Plaintiff in this matter was “legally untenable, iniquitous and ethically unconscionable”.

The Court referred, with approval, to previous comments that had been made by other courts about legal representatives who are only concerned to “continue to earn fees while they remained in the case…whether or not he conducted the case indifferently or well, he would still be paid”, who “mount the steed of greed” or who are “greedy legal representatives prepared to fraudulently enrich themselves from the funds intended to compensate road accident victims”.

It was clear in this matter that the accident victim had suffered no quantifiable financial loss and would therefore not have been entitled to receive any money from the RAF. In terms of the settlement agreement that was reached there was not even a cent that would have been paid over by the RAF to the Plaintiff. He could not, in terms of that agreement, receive any money in his own hands for past hospital or medical expenses, past or future loss of income, future medical expenses or general damages. There was no indication that he ever required any treatment subsequent to the painkillers and compression bandage originally prescribed to him when he initially went to hospital, therefore there was no refund due to him in respect of past medical expenses. Even in the unlikely event that Plaintiff may have needed medical help in future, in terms of the agreement reached, he would have had to pay for such help and claim 80% of his expenses from the RAF.

The learned judge summarized the accident victim’s situation as follows: “the road accident victim has proven no financial loss or damages as a result of this road accident. Correctly, there is no compensation payable to the road accident victim. In fact, there is no benefit whatsoever to the Plaintiff arising out of this litigation. He receives nothing.”

However, the agreement provided that the victim’s attorney, advocate and expert witnesses would be rewarded notwithstanding absence of payment to the road accident victim of any actual money as damages or compensation.

Similarly, the RAF administrators and attorneys did not escape the criticism by the Court. The RAF and their attorneys were criticized for their failure to properly scrutinize the claim form and the medical report attached to it as well as their failure to properly apply their mind to the case instituted by Plaintiff. For example, the orthopaedic surgeon that was instructed by the RAF concluded that no serious treatment was needed by Plaintiff and yet RAF attorneys still sought a report from the occupational therapist and the industrial psychologist. These reports went well above 10 pages when there was already a clear indication that there is no basis for Plaintiff’s claim.

The result was that the RAF attorneys and experts also got enriched in the process.

In the judge’s view, this was a classic case where the system was used not for what it was primarily set out to do (helping accident victims and their dependents) but was instead abused by the professionals involved, namely: the attorneys for both the alleged accident victim and the RAF; the advocates involved on both sides; as well as the experts involved, In the judge’s own words, the litigation in this was “for the sole benefit of and enrichment of those ‘facilitators’ of access to road accident compensation whom I have heard one judge describe as ‘carnivorous’ and whom I would describe as ‘predatory”.

In conclusion, this case clearly shows how a system that has been set up for all the good reasons can be abused by some people who are participants therein. The case also shows the importance of having judicial officers who are always alert to these abuses and who do not hesitate to play their role of protecting the public. Worryingly, the Judge also indicated that he had spoken to a number of his colleagues in the South Gauteng High Court and established that the scenario that unfolded in this matter was not unusual. It appears that this is indeed common practice. Unless we have vigilant judicial officers, this abuse will continue unabated.

Written by Mzo Tshaka – Consultant Attorney at Schoeman Attorneys