Reimagining Justice: Bold Solutions for the Road Accident Fund (RAF)

In the legal landscape, the saying “justice delayed is justice denied” echoes especially loud when it comes to the Road Accident Fund (RAF). Established to compensate road accident victims, the RAF is a vital part of South Africa’s social safety net. Yet, due to systemic inefficiencies and leadership missteps, victims, legal professionals, and the RAF itself are grappling with immense delays and rising frustrations. To address these challenges, we must take a bold stance and examine the underlying issues that have crippled the RAF, while also exploring meaningful solutions to restore its mandate.

Auxcon recently had the opportunity to speak with specialist personal injury practitioner Gert Nel from Gert Nel Incorporated Attorneys, one of the few well-managed law firms navigating the complex and frustrating world of RAF claims. Nel provides critical insights into the RAF’s current situation, offering a perspective that only a legal professional deeply entrenched in the system can provide. By seeing these issues through his lens, one can explore collaborative and bold solutions to help the RAF meet its purpose and fulfil its mandate to the people it was designed to protect.

The RAF’s Mandate: A System Struggling to Meet Its Promise.

The Road Accident Fund Act is a well-constructed piece of legislation (tempered over years in every conceivable Court) that legislates the RAF’s responsibility to protect road accident victims by providing the “widest possible protection” to all road crash victims (financial compensation). Funded by a national fuel levy, the RAF is meant to ensure that those who have been injured or suffered losses in road crashes receive the support they need to recover, whether that means medical treatment, financial relief, or compensation for loss of income.

However, in the years following the COVID-19 pandemic, the RAF successfully petitioned the court to extend its payment liability period from 14 to 180 days. While this change was legally sanctioned, it has proven to be insufficient in addressing the broader inefficiencies plaguing the RAF. Instead of seeing improvements, victims and their legal representatives have experienced even longer delays, with many claims languishing in the system for 5 to 7 years, sometimes even longer. Personal injury practitioners are fortunate to have access to service providers like medico-legal doctors, advocates and others who play a crucial role in achieving settlement outcomes. Many of these professionals, as highlighted by Gert Nel, also accommodate road crash victims by agreeing to defer payment, making the process more accessible for everyone.

Systemic Failures Under RAF Current Leadership.

At the heart of the RAF’s ongoing crisis lies its executive team, which includes presumably its board. Under its present executive team’s leadership, delays and inefficiencies have worsened, with a notable disregard for the RAF’s statutory obligations. These failures include not honouring court orders, misrepresenting facts, and discrediting legal representatives of road crash victims, all of which further erodes trust in the RAF’s ability to effect meaningful change.

The RAF’s CEO, with the approval of its board, persistently revives the long-abandoned narrative that lawyers are to blame for the RAF’s financial woes, attempting to justify the RAF’s aggressive cost-cutting measures. This simplistic view ignores the essential role lawyers play in representing victims, who cannot be expected to navigate the RAF system unaided. Ironically, the CEO himself admitted during a podcast interview with David Mashabela that even his own family struggled to lodge a claim.

This combative approach, particularly in cutting legal costs without a contingency plan, has left the RAF in disarray. Most troubling, these actions have directly harmed road crash victims who depend on swift settlements for their financial, physical and emotional recovery. RAF employees, too, suffer under this autocratic management style, with fear and disrespect towards leadership becoming a pervasive issue. This toxic environment was evident in the July 2023 SCOPA report, where members noted the chaotic state of the RAF’s offices and understood why the Auditor-General avoids working with the organisation. SCOPA’s Chairperson, Mr. Mkhuleko Hlengwa, described the RAF’s offices as “a mess” and acknowledged the magnitude of its dysfunction.

The CEO’s dismissive remarks on general damages, referring to them as “sorry money” paid to lawyers, highlights the lack of understanding of the law of damages and the essential protections the RAF provides to road crash victims.  General damages serve as a lifeline for victims with permanent injuries, enabling them to rebuild their lives when they can no longer work. By downplaying their significance, the RAF’ leadership is not only demonstrating ignorance, but also contributing to the further breakdown of an already failing system.

Judge Daniel Thulare recently highlighted the RAF’s negligence when it failed to participate in judicial proceedings, leading to a ruling in favour of a road crash victim in December 2020. The judge criticized the RAF’s inability to provide legal representation, calling it a “deliberate mistake” and warning that courts cannot tolerate the disregard of legal obligations. The message was clear: the RAF’s refusal to comply with the law undermines the very rights it is meant to protect.

This travesty was further emphasised during the 18 September 2024 SCOPA presentation by Mr. L. Kluse from the Auditor-General’s office, who noted that the RAF’s performance indicators were incomplete and misaligned with its mandate. The AGSA (Auditor General) highlighted irregular expenditure of R33 million, and the Special Investigating Unit (SIU) uncovered “fruitless and wasteful expenditure,” leading to a R1.6 billion deficit for the 2023/24 financial year. Procurement and tender irregularities have also been a focus, with seven contracts under investigation by the SIU.

One of the most troubling aspects of the RAF’s current leadership, is the systematic withholding of payments, even when court orders dictate otherwise. These delays, stemming from administrative mismanagement and deeper systemic failures, have left victims and their families in financial peril, compounding the suffering caused by life-altering injuries.

The Financial Crisis: Where is the Money?

The RAF’s financial instability has been a persistent issue, with its liabilities soaring beyond R300 billion by 2024. Despite attempts to cut costs—such as reducing legal expenses from R9.4 billion in 2019 to R3.8 billion in 2024—the Fund remains on shaky ground. Default judgments against the RAF continue to mount, raising serious doubts about the effectiveness of its erratic cost-saving measures. The dissolution of its legal panel, meant to curb expenses, has backfired. The Fund now faces threefold the costs due to default judgments and escalating interest on unpaid claims—symptoms of financial mismanagement that perpetuate the delays plaguing the system.

This raises an urgent question, as posed by Gert Nel: Where is the money going?

Certainly not to the road crash victims. While the public is told payments will be made within 180 days, the reality tells a different story. Many claims remain unresolved far beyond this window, leaving victims without the rehabilitation and financial support they desperately need to rebuild their lives. Nel highlighted that there are currently 613 matters with settled claims or court orders older than 180 days—yet to be paid. Each delay deepens the financial and emotional strain on victims who are already grappling with life-altering injuries.

One of the RAF’s most glaring financial oversights is failing to recognise that delays only inflate costs per claim. Legal practitioners, in preparation for trial, must compile extensive documentation, including medical reports. In some cases, they prepare over five medico-legal reports per claim, each costing between R15,000 and R35,000. When cases are delayed beyond two years, these reports become outdated, requiring costly updates that drive up the RAF’s expenditure. In fact, delays like these can increase the total cost per claim to over R300,000, with no guarantee of a resolution in sight due to the RAF’s lack of cooperation.

During a recent media briefing on 16 September 2024, the RAF’s CEO made a telling admission: “The faster you settle claims, the more pressure you put on your cash resources.” This statement underscores the RAF’s reluctance to address its financial crisis by proactively settling trial-ready matters. Instead, the Fund appears to rely on an unlawful board notice aimed at reducing the number of claims lodged, a move that currently results in only 3% of all claims being registered on its system.

While this may appear to save costs in the short term, excluding legitimate claimants and failing to honour court-ordered payments contradicts the very principles the RAF was established to uphold. This reckless approach was never the intention of the legislature, nor does it align with justice.

This is just one example of how the RAF’s current leadership is systematically dismantling the system, attempting to legislate through litigation while disenfranchising road crash victims and misleading the public. The longer this continues, the more the financial crisis deepens, and the more road crash victims suffer the consequences.

Victims: The Human Cost of RAF’s Failures.

While the financial burden on the RAF and legal professionals is significant, the human cost is far more profound. Victims of road accidents are often left without the compensation they need to cover medical expenses, rehabilitation, or loss of income. For many families, a payment from the RAF represents their only lifeline. Without timely compensation, they are left to fend for themselves, often facing financial ruin in the process.

Consider the case of a family who has lost their primary breadwinner in a road accident. They rely on the RAF to provide a loss of support settlement, which could help cover school fees, medical bills, and basic living expenses. However, with settlements delayed for years, many families find themselves in dire financial straits. By the time compensation is finally paid out, it is often too late to use it for the purposes it was intended and many children are unable to secure the much-needed tertiary education they would have otherwise been able to achieve.

For victims who have suffered severe injuries, the situation is even more dire. Rehabilitation services, mobility aids, and long-term medical care are often dependent on the compensation provided by the RAF. Without timely settlements, victims face the very real possibility of their condition worsening, reducing their chances of recovery. As Nel pointed out, the RAF’s current practices are not only financially unsustainable but also inhumane, leaving victims to suffer needlessly.

Misplaced Blame: Correcting Public Perceptions.

The RAF’s CEO has consistently blamed the legal profession for the RAF’s financial woes, suggesting that attorneys and medical experts exploit the system for personal gain. While there have been isolated cases of misconduct, these represent a small fraction of otherwise dedicated legal practitioners who work tirelessly to secure fair outcomes for their clients. The overwhelming majority of attorneys operate on a contingency basis, meaning they finance the entire process, ensuring that every road crash victim, regardless of their financial situation, has a reasonable chance of success and access to justice.

As Gert Nel pointed out in his interview, the CEO’s assertion that legal practitioners are responsible for delayed settlements is fundamentally flawed. What the RAF leadership fails to grasp is that once a matter is certified as trial-ready and a date is set, even if that date is four years in the future, the case is ready for immediate settlement. This means all necessary work has been completed, and the practitioner’s role is essentially finished until the trial date. The notion that attorneys are deliberately delaying cases to “fleece” victims is a gross misrepresentation of the truth.

Rather than placing misguided blame on the legal fraternity, the RAF would be better served focusing on the directive given to it by the Minister of Transport: to address the congested trial rolls overflowing with RAF cases that are ready for settlement. The CEO often references Prof. Hennie Klopper, who has noted that the vast majority of RAF cases are settled before reaching trial.

If Prof. Klopper’s guidance was truly heeded, the RAF could prioritise settling these cases, not only sparing victims from prolonged delays but also saving the RAF millions in unnecessary costs. This would be a far more productive approach, benefiting both the Fund and the victims it is meant to serve.

Collaborative Solutions: A Path Forward

The challenges facing the RAF are significant, but they are not insurmountable. By working together, the legal community and the RAF can develop strategies to streamline the claims process and reduce the backlog. Some potential solutions include but are not limited to:

  • Prioritising straightforward claims: Certain claims, such as loss of support, and funeral expenses claims which are often based on an actuarial calculation or invoice. These cases could be fast-tracked, allowing the RAF to resolve them more quickly, reduce the overall backlog and ensure the livelihood of the family left with having to deal with the loss (and actually make it possible for the children to receive further education subject to the claim).
  • Establishing a specialised RAF tribunal: Many RAF claims do not need to go to court. By creating a settlement hub with experienced claims handlers (with a legal background) who are able to settle claims can drastically reduce the majority of RAF matters. Should matters not be capable of amicable settlement the matters can then be referred to a specialised tribunal (similar to the CCMA) to handle these disputes and/or a matter can simply be certified and only then referred to a Court for adjudication. This would save time, reduce costs, and allow for faster resolutions.
  • Hiring legally trained personnel: One of the key bottlenecks in the current system is the RAF’s lack of legally trained staff. Hiring more professionals with legal expertise to apply the RAF Act to the letter could reduce the RAF’s liability to frivolous claims, and settle more claims more effectively from the onset, while actually achieving the intended goal of the RAF Act;
  • Attending to minor statutory amendments to achieve an Act streamlined to cater for a modern South African dispensation.
  • Adhering to the RAF Act’s original mandate: The Road Accident Fund Act was designed to provide protection for road accident victims. By focusing on this core mission and avoiding unnecessary administrative barriers, the RAF could simplify the claims process and ensure that victims receive the compensation they need in a timely manner.
  • Focussing on constructive road safety initiatives.

Conclusion: Restoring the RAF’s Mandate

At the core of these challenges are the victims—families and individuals who have suffered life-altering accidents and are waiting for the compensation they deserve. For them, the RAF represents their only lifeline, their path to recovery, and for many, the settlement may be their last hope to rebuild their lives.

Without timely compensation, victims risk losing their jobs, homes, and even their families. The emotional and financial toll is incalculable. Yet, despite its current struggles, the RAF remains one of the few state-owned entities that can still be salvaged. All that is required is the genuine conviction to save it for the benefit of road crash victims.

The way forward is clear: the RAF must refocus on practical, actionable solutions that restore its original mandate of providing swift and effective support to victims. There is immense potential for collaboration with the legal fraternity—practitioners who are eager to share knowledge, data, and resources to ensure that the RAF fulfils its role as the caring arm of government it was meant to be.

Now, more than ever, we call on attorneys and advocates to stand together. Auxcon, with its advanced tech systems, is in a unique position to collate comprehensive data on outstanding amounts owed by the RAF, tracking both the figures and the timeframes involved. With this data, the legal profession can collectively join forces to tackle the RAF issue with evidence-backed precision.

If you are ready to be part of this movement, please email info@auxcon.co.za. Auxcon will contact you with the next steps on how we can fight this battle as a united legal community. Together, we can restore justice for road crash victims and help the RAF return to its rightful purpose.

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