In a groundbreaking first step, the court has given a green light for claims to be lodged with the Road Accident Fund (RAF) for now without all documents.
The decision will prevent millions of RAF claims from lapsing before claimants are able to submit all the documents, as required under a new directive.
The Gauteng High Court, Pretoria, has ordered the RAF to stop enforcing a practice directive issued and promulgated earlier this year stipulating the terms and conditions under which claims for compensation will be administered.
Judge Norman Davis ruled that this was an interim order, which would remain in force until the matter returned to court for an order to review and finally set aside the practice directive and notice.
The effect of the interim order is that the RAF cannot refuse any victim of a road accident from lodging their claims.
This is irrespective of whether they have all the documentation – such as full accident and medical reports at hand at the stage of lodging their claims.
For the past few months, the RAF steadfastly refused to receive any new claims if the claimants or their lawyers did not have each and every document on hand at the time of lodging claims.
In its directive, the RAF attached a long list of requirements before claims could be lodged. Apart from the fact that the law precluded the RAF from accepting new claims, both lawyers and claimants said it was simply impossible to have all the documents ready at the time of lodging a claim.
While it takes a long time to obtain full accident reports from a police station – especially during the Covid-19 pandemic – it is also costly and often difficult to obtain full medical reports.
In the past, claims were lodged while awaiting all the required reports – some of which the RAF is said to obtain through its staff.
One of the biggest challenges faced by the directive and notice was that claims could lapse if they were not lodged in time. A claim must be lodged within three years from the date of the accident.
Seven accident victims, represented by Adams & Adams attorney JP Rudd, lodged an urgent application against the RAF in which they argued that both the directive and the more recent notice in the government gazette – setting out the new requirements to lodge claims – were unlawful.
Rudd, who was instrumental in scoring the victory, said: “This is a resounding victory for the proverbial man on the street. Tens of thousands of motor vehicle accident victims claims could potentially have been prescribed due to their failure to comply with the extremely onerous requirements of the practice directive in its current format.”
He said there was a good chance that the practice directive would finally be declared unlawful and set aside in the review application which was to follow.
This, Rudd said, was due to the concessions already made in court papers filed by RAF CEO Collins Letsoalo in challenging the interdict.
While the RAF persisted over the past months that the directive was legally issued and that the more recent public notice was legal, Letsoalo conceded in his affidavit before Judge Davis that the directive had to be withdrawn “for want of procedural fairness”.
Letsoalo, in consenting to an order to this effect, also said the RAF would also foot the bill for this urgent application.
He, however, said the RAF had good intentions in issuing the directive as it was part of its turnaround strategy to streamline it and to prevent it from financially imploding.
Letsoalo said since the appointment of a new management team and new strategies to save costs, it had for the first time recorded a R3.2 billion surplus. This, he said, was an unprecedented achievement in light of its former financial woes.
He said the RAF would rigorously attempt to settle matters in a bid to curb the astronomical legal fees it had to pay attorneys in the past.
Letsoalo said in the past claimants or attorneys would lodge claims without submitting the supporting documents or properly filling out the claim forms.
He said there were a host of claims that simply could not be finalised as they lacked the necessary information. This, he said, made it difficult for the RAF to settle claims within the envisaged 120 day period.
He also acknowledged that the directive published in the government gazette recently should be suspended, as the correct procedures were not followed, such as first obtaining public comment on it.
According to Letsoalo, the RAF would now follow the correct procedures regarding the terms and conditions to administer claims.