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Road Accident Fund: High court ruling may be the lifeline unpaid victims need

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Tzvi Brivik is a director at Malcolm Lyons & Brivik and the founder of LegalLyons, the firm’s secure, online, legal consulting division. He has substantial experience in labour law, medical malpractice, personal injury and discrimination matters – including ground-breaking litigation regarding the rights of whistle-blowers.

The maladministration, corruption and sheer recalcitrance on the part of the Road Accident Fund to compensate the very victims it was established to assist is a bitter pill to swallow. Hopefully, a recent high court order will provide the fund’s administrators with the lifeline they need to get their house in order.

On 2 August 2008, at about 12.30pm, Joryke and Henk Koelewjin were travelling on the N2 motorway between Durban and St Lucia in KwaZulu-Natal.

Without warning, an oncoming vehicle swerved into their lane, causing a head-on collision with truly heartbreaking and lifelong consequences. Both Henk and Joryke were severely injured. While Henk suffered multiple fractures that required hospitalisation, Joryke suffered a brain injury, the fracture of her left elbow, blunt abdominal trauma, a double leg amputation and a miscarriage.  

All the statutory documentation and information required to lodge a legitimate claim against the Road Accident Fund (RAF) — the statutory body with whom road accident claims for compensation are lodged — was collated and summons was issued against the RAF out of the KwaZulu-Natal High Court, Durban in December 2010.  

During the course of the next 11 years, the RAF accepted liability and indicated that it would make payment of past medical and hospital expenses as well as general damages for pain and suffering and loss of the general amenities of life. 

These agreements were made by orders of court which date back to 2016. Since 2016, however, the RAF has failed to honour the agreements as well as the orders of court and has failed and/or refused to make payment.

Furthermore, the RAF has consistently failed to engage with attempts to resolve the matter, as well as with an additional claim for Henk and Joryke’s loss of earnings. To make matters worse, the high court has not allocated the matter to trial in all this time, despite repeated requests to do so.

While the RAF fails to make good the agreed-upon claims and satisfy the high court orders dating back to 2016, Henk and Joryke have been forced to live for many years with considerable pain, significant loss of their amenities of life and substantial medical expenses that accrue on an ongoing basis — without the compensation to which they are legally entitled. 

Both worked as teachers and sports coaches before the accident and could not continue to do so thereafter. As a double amputee, Joryke is bound to a wheelchair and Henk cannot walk on his left foot.

Furthermore, for Joryke, the pain of having lost her unborn child in such a heart-wrenchingly traumatic manner has understandably left her unable to return full-time to teaching. With immense sadness, the couple look back on how significantly invested they were in the welfare of the children they taught and how much they loved their jobs. 

While it is true that the Road Accident Fund is insolvent (which is not to say that it does not have any funds, but rather that it has insufficient funds to satisfy all claims that have been lodged against it); that it has a significant backlog and that it is in the process of putting in place measures to address these challenges — together with the manner in which claims are processed; none of this justifies the ongoing failure to satisfy longstanding claims for compensation that have already been agreed and made orders of court.

This brings us to the recent decision of the North Gauteng High Court, handed down on 9 April 2021 in the Road Accident Fund v Legal Practice Council and Others (58145/2020). In this matter, the RAF laid bare its severe financial difficulties, mismanagement and corruption-plagued systems, and warned of its imminent collapse as well as disastrous consequences should S21(2)(a) of the Road Accident Fund Act 56 of 1996 (RAF Act) be triggered. 

Section 21(1) and (2)(a) provides that no claim for compensation in respect of loss or damage resulting from bodily injury or the death of any person caused by or arising from the driving of a motor vehicle shall lie against the owner or driver of a motor vehicle, or against the employer of the driver, unless the RAF or an agent is unable to pay any compensation. The RAF accordingly sought extraordinary relief to give it time to stabilise its financial position and prevent further crisis.

Hopefully, the recent high court order, with those who remain committed to working with the RAF to stabilise its precarious position, will provide RAF administrators with the lifeline they need to get their house in order. 

Specifically, the lifeline the RAF sought and received from the North Gauteng High Court, was an order suspending (until 30 April 2021) all writs of execution and attachments against its essential assets (including its bank accounts) based on court orders already granted against it or settlements already reached with claimants entitled to the payment of compensation for damages resulting from bodily injury or death caused by road accidents that are regulated by the RAF Act. 

Of particular importance to claimants awaiting compensation, the court ordered the RAF to make payment of the oldest claims first, by date of court order or date of settlement agreement, and to use its best endeavours to pay all claims older than 180 days (as from the date of the court order or date of the settlement reached) on or before 30 April 2021 — provided that the RAF has been notified of the existence thereof. 

Claims which are not older than 180 days, as from the date of the court order or date of the settlement reached, are suspended from 1 May 2021 until 12 September 2021. Notably, the RAF did not seek an order to stop making payments to successful claimants — even temporarily.

Furthermore, the RAF was ordered to take all reasonable steps to register court orders or written settlement agreements on its list of payments in chronological order from the date that the court order was granted, or the written settlement agreement was entered into, and to do so within 30 business days of receipt of the court order or settlement agreement, as well as to ensure that court orders or settlement agreements for claims that have not been captured, will be captured.

Last, the RAF was ordered to provide all relevant attorneys on its database with updated payment lists on a bi-monthly basis from April 2021 onwards.

Despite the RAF’s mandate to ensure fair and equitable compensation, its administration has failed its core mandate. The refusal, alternatively failure, to honour compensation agreements and high court orders has placed innocent victims of road accidents in both financial and humanitarian hardship, exacerbating the trauma and other harms suffered. 

RAF administrators should not need reminding that those injured in road accidents have had their livelihoods and quality of life irrevocably and significantly diminished, and that they rely on the compensation to which they are legally entitled to assist in restoring their sense of human dignity, some semblance of normality and securing often ongoing medical treatment.

Hopefully, the recent high court order, with those who remain committed to working with the RAF to stabilise its precarious position, will provide RAF administrators with the lifeline they need to get their house in order. 

In the meantime, the maladministration, corruption and sheer recalcitrance on the part of the RAF to compensate the very victims that it was established to assist will remain, for many, a bitter pill to swallow.

As for Joryke and Henk Koelewjin, they are but one example of the thousands of claimants waiting to see if they will indeed receive the compensation to which they are legally entitled by 30 April 2021 — hoping that the recent North Gauteng High Court order represents a lifeline for them, too. DM

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