Not only is the Road Accident Fund accused of deliberately underpaying a brain-injured man by over R3.1 million, but a witness to the accident in which the injury was sustained says he has been threatened and forced to change his statement to say that the accident had never happened.
Lawyers acting for taxi accident victim Vusumuzi Khumalo, 26, are suing the fund for what they say he is rightly entitled to, an estimated R3.2m, instead of the R56 000 he was paid.
Meanwhile, a witness to Khumalo’s accident has claimed he was threatened with jail by a fund investigator and forced to change his statement to say there had never been an accident.
The witness, Jabulani Cele, on Tuesday sought the protection of the Durban High Court, asking for an interim order interdicting the fund, its employees and agents from contacting him or threatening him.
Judge Sharmaine Balton has given the fund and Thami Ndlovu, a private investigator it hired, time to respond. In the meantime, the fund has undertaken not to attempt to communicate with Cele.
Attorneys and the Road Accident Fund have been at loggerheads for years, accusing each other of not acting in the best interests of accident victims.
The fund launched a campaign urging people to bypass attorneys – who take a slice of payouts – and rather apply directly for compensation.
Personal injury lawyers believe Khumalo’s case highlights the perils of doing this.
According to pleadings in the R3.2m lawsuit against the fund now pending before the Durban High Court, Khumalo was 17 when he was knocked over by a taxi in Umlazi nine years ago.
At the time, the Road Accident Fund advertised that lodging claims directly with the fund was “a more speedy and cost-effective process than hiring an attorney”.
A year later, Khumalo went with his mother to the fund’s Durban office and lodged a claim for compensation.
He was examined by a neurologist four years later, but it is alleged that this report was never considered by the fund.
The neurologist noted that Khumalo had suffered a “diffuse axonal injury” – a traumatic and often devastating brain injury.
The specialist said he suffered from headaches, “cognitive defects, intellectual impairment and poor memory”.
In November 2008, the fund paid out R56 000.
Unemployed
Michael Friedman, the lawyer now assisting Khumalo with his fresh claim, says the fund did not correctly assess the extent of his injuries and had “intentionally under-compensated” him.
Friedman said that Khumalo had unsuccessfully attempted studies to become a social worker but had eventually dropped out.
At present, Khumalo is unemployed and lives with his mother.
The fund denies any wrongdoing and has raised several defences, including that Khumalo is not entitled to claim again; that he has waived his right to any additional claim by accepting the compensation; and that his claim has prescribed (is out of time).
It says it “has no duty of care to ensure the proper prosecution of Khumalo’s claim” and that it was up to him to ensure he was properly compensated.
Meanwhile, in an affidavit in support of Tuesday’s urgent application, the witness to the accident, Cele, says he was contacted by a Mr Ndlovu in November 2011, who said he needed to speak to him about the accident.
Ndlovu fetched him the next day and, after visiting the accident scene, took him to his office, where another man was present.
After challenging him on a number of issues relating to what he had witnessed, Ndlovu told Cele that Khumalo had already been paid out, but that he was claiming another R3m, which was “fraudulent”.
“They told me that should I testify, I would be aiding him in his fraudulent claim and they would ensure that I am locked up in jail.
“They told me this could be avoided if I agree to sign an affidavit denying that I was a witness to the collision and that I must dispute that the collision occurred,” he said.
“They said should I refuse to do so, they would utilise the services of a very powerful lawyer from the high court to ensure that I am put in jail because Mr Khumalo is trying to claim twice from the fund.”
Cele said he was kept in the office for many hours and eventually agreed to sign whatever document they wanted him to.
He signed a statement saying there had been no accident.
Cele said he was “extremely scared” and believed they would threaten him again when they discovered that he was prepared to testify in Khumalo’s matter.
The fund has 15 days to file its opposing papers. - The Mercury