By Zelda Venter
Pretoria – Practice directives which place hurdles in the way of the public claiming against the Road Accident Fund (RAF) are such a serious concern that one of the biggest law firms in the country is now asking the Constitutional Court to step in.
The hurdles caused delays, and in some cases, claimants had to wait years before their cases were dealt with by the court.
In some cases lodged with the Gauteng High Court, Pretoria, the backlog is so big that new matters can only receive a trial date in 2026.
Meanwhile, destitute members of the public who have lodged claims are forced to sit back and wait for their cases to be addressed.
lf left unchecked, the high court will reach the point of total collapse.
The practice directives constitute a systematic violation of claimants’ Constitutional rights to have their matters disposed of by the court, Gert Nel of Gert Nel Inc Attorneys said.
He has filed papers with the Concourt for direct access to the apex court for it to declare that the civil trial date and default judgment application process adopted and implemented in the high court regarding RAF matters be overturned.
The practice directives, issued by the court, set out steps which have to be followed before a case is deemed ready to be enrolled. While the objective may be to try and streamline the process in light of the thousands of RAF matters before this court, they were, in fact, making matters far worse, Nel said.
He added that his clients, which were the applicants in this matter, had no other option, but to turn to the Concourt. “This matter is in fact in the interest of the wider public as well because if a solution is not urgently found, the entire system regarding the claiming of damages against the fund can collapse”, Nel said.
He is asking the Concourt to declare the practice directives constitutionally invalid and he called on the court to order that a new directive be drafted to regulate the case flow management.
Nel also asked that there should be a public participation process once the new regulations had been drafted.
“The right of access to courts ensures that litigants are not banned by procedural, legal, or other obstacles from obtaining just and equitable relief from courts,” Nel said.
While he acknowledged that directives were necessary to regulate case flow management, Nel said best-laid plans go awry somehow, ending up with unintended consequences. In this case it has burdened the already strained judicial resources and caused an even bigger backlog than before.
Nel said there were also “increasing rumours of court officials selling civil trial dates or granting preferential allocations to ‘favoured’ attorneys”.
He said the possible inappropriate favouritism shown to legal practitioners when allocating civil court dates should also be investigated.
He referred to a recent report issued by the chief registrar at the Pretoria high court which indicated that daily RAF matters have been reduced from 50 to 40 matters per day as there are not enough judges to deal with these cases.
The report also indicates that litigants have to serve for several months – after making numerous follow-ups, just to get a case management date. According to the chief registrar, at this stage people are allocated dates in 2024 and even 2026 when the court will be available to hear their matter.
“It cannot be in the interest of justice to regulate RAF matters in an overly restrictive manner, resulting in numerous procedural requirements that must be met to get a matter ready for trial.”
Nel added that with each passing day, the backlog of cases increased, while the public who claimed against the RAF, were the ones suffering.
The chief registrar and manager of the Pretoria high court, the ministers of justice and transport, the RAF and others were cited as respondents in this matter. None have yet filed their responses as this application was only launched last week.