RAF lawyers should ensure care of children before lining pockets - judge
Pretoria - Lawyers must always first ensure the children are taken care of before lining their pockets, a judge has said.
Judge Demise Fisher of the Gauteng High Court, Johannesburg, was delivering a scathing judgment in the case of an attorney where claims were instituted against the Road Accident Fund (RAF) on behalf of children whose breadwinner had died.
The judge said lawyers simply settled matters with the RAF where claims were lodged on behalf of children because their breadwinner had died. However, these had to be done with the court’s scrutiny.
This, the judge said, was needed to ensure the child’s remaining parent or caregiver was utilising the money for the child’s needs, and to determine whether the money should not rather be held in a trust on behalf of the child.
“A court in settlement proceedings where children are claimants must, before it makes an order, inquire into the necessity for the protection of the funds and the most appropriate means of achieving such protection,” Judge Fisher said.
This was especially so in the cases of contingency fee agreements, where lawyers take up to 25% of the RAF payments as their fees.
In the two cases which Judge Fisher said by chance had landed before her, it appeared that an attorney, rather than first ensuring the children were taken care of, simply took her large chunk of the money for her legal fees, which the judge said had been for shoddy work done.
She said the RAF should also not be tempted to ignore the realities of the child’s situation in settling matters out of court and paying the money over to the lawyers.
The RAF conceded that it routinely pays funds to attorneys without a court order. But it said it is not their duty to go beyond settling claims and paying out the money. Likewise, the attorneys claimed out-of-court settlements were not the court’s business.
Judge Fisher said that where children were involved, the attorney had a duty to do more than merely take the hearsay evidence of a person who claimed to be representing the child.
“One would expect that the children should be interviewed in an authentic way if they are old enough to convey relevant information and meaningful inquiries should be made as to the living conditions and state of the care being given to the child...
“The child is, after all, the client that is being represented by the attorney,” the judge said.
She added that “we are in an era in our high courts where some plaintiffs’ attorneys who operate in the RAF environment seem to believe that they can engage with the courts in a game of cat-and-mouse aimed at avoiding court scrutiny of their settlements”.
She said that as a cost-saving mechanism, the RAF fired its in-house attorney panel. However, it had also left the RAF even more exposed and vulnerable to malfeasance and incompetence.
“It is indeed a sad time in our judicial history when attorneys engage in wholesale chicanery for the purpose of avoiding legislatively prescribed court oversight.
“That the RAF should acquiesce in such conduct is even more distressing,” Judge Fisher said.
From 2017 to 2020 the RAF, on average, registered approximately 19 000 cases per year relating to children. The judge said these statistics represented widespread urgent needs of the most fundamental kind for those who were supported by the deceased.
In the two cases which had come before her by chance, it was discovered the RAF had made payments to the attorney; after the latter taking her huge share (which the court said she did not deserve) she had in one case paid the money over to the “caregiver” of the children. But it appeared the aunt claimed she was the caregiver, while it later emerged the grandmother was the caregiver.
The other case also proved to be riddled with problems, as the death certificate said the father died “of natural causes” but alleged fraudulent ID documents were at play.
Judge Fisher said that to “iron out fraud” and to ensure the money reached the child, these out-of-court settlements had to be scrutinised by the court before they became effective.