Judge's directive a major court blow for RAF claimants
The directive from Judge President Dunstan Mlambo to regulate the case management, trial allocation and enrolment of trial matters came into effect from July 1, 2019, in the Gauteng Division in Pretoria and the Johannesburg Local Division.
“All trial matters which prior to July 1, 2019, had been allocated a trial date and that trial date falls into the period up to March 31, 2020 shall retain those trial date allocations and shall require certification in terms of the practice and directives in force as at June 30 2019.
“All trial matters which, prior to July 1m 2019, have been allocated trial dates which fall after March 31 2020, shall hereby forfeit those trial dates and shall require certification, as provided in paragraphs 6-14 of this directive,” Mlambo said.
It stated that as from July 1, 2019, the registrar would not allocate a trial date unless a certificate of trial readiness was issued in accordance with the provisions of the directive.
It said “Category Y” matters would require a certificate of trial readiness to be issued by a judge, and all other categories would require a certificate to be issued by the registrar.
All trial matters in which the defendant is the Road Accident Fund (RAF) or the MEC Health, Gauteng, or Prasa are regarded as Category Y.
The directive has been slammed by lawyers, who believe people who have been waiting for years to get a court date would now be prejudiced and then forced to endure another long waiting period to be in court.
Leigh de Souza-Spagnoletti from Edeling Van Niekerk Inc is challenging the directive. In her 25-page submission, she questioned the time frame that was given for submission. She said the directive came to their attention on June 11 and comment had to be submitted by June 19.
“Bearing in mind the catastrophic and far-reaching consequences for what we estimate to be at least 80% of plaintiffs in the Gauteng courts, we find both the directive as well as the exceedingly brief time period allowed for comment to be impractical and patently prejudicial to all such plaintiffs.”
De Souza-Spagnoletti said that they questioned whether the directive was not aimed specifically at slowing the litigation process down to the financial benefit of the defendants so as to assist the transport and health portfolios. Between 2017 and 2018, the Gauteng department of health was sued for R22billion in 1800 cases while the RAF had to pay R29.8bn in claims in 2017.
De Souza-Spagnoletti added that since the Gazette of 2014, which placed an obligation on courts to implement case management protocols, it had become difficult for plaintiffs, particularly those who fell into the “Y” category of the directive, to achieve reasonable access to the courts.
“The reasons for this include, inter alia: the implementation of case management protocols which do nothing but obstruct and prolong an already long and arduous journey to the steps of court, an ongoing and long-standing lack of judge availability, resulting in repeated postponement of matters, an ongoing and long-standing trend to allow postponement applications of defendants in circumstances where they have, whether by design or merely by incompetence, failed to prepare adequately or at all for trial,an ongoing and long-standing trend to make illogical, prejudicial, biased and often contradictory orders in relation to the certification process of trials, a complete and utter lack of consistency within the judiciary as regards the above, and a complete lack of insight on the part of the courts as regards what the litigation and trial preparation process entails beyond what is set out in the court rules,” said De Souza-Spagnoletti.
She added that plaintiffs had been severely prejudiced by the courts’ delayed allocation of trial dates and said the forfeiture of trial dates allocated after March 2020 would now constitute a clear and solid denial of access to court.
“Victims who have already been denied access to the court, many for years, are now expected to start the process afresh.
“We have little doubt that this will be met with legal action to invalidate the directive and to declare the same unconstitutional.
“We point out that thousands of these matters constitute actions which were previously postponed at the whim of errant defendants who, despite having brazenly failed to prepare for the trial, were readily granted postponements with nothing more than a party and party costs order,” she said.
De Souza-Spagnoletti said it was clear that the court sought to encumber plaintiffs with a “policing” obligation to chase after defendants to conduct their defence. She added that what the court sought to facilitate was a system where plaintiffs were required to conduct and prove their own cases and to then “babysit” and police defendants in the conduct of their defence.
“Rather than apply the court rules consistently and without fear or favour, it seeks to toss the ball to the plaintiff who, with all the other hoops he is being made to jump through on his epic journey to the steps of the court, will now have to launch countless interlocutory applications to prove his trial readiness - and to assist the defendant in preparing his case,” De Souza-Spagnoletti said.
The Sunday Independent