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DOES THE RAF LIVE UP TO ITS MISSION STATEMENT 2

In our first article in this series very recently posted onto this site, we quoted verbatim from the end of the year message of the Chief Executive Officer of the Road Accident Fund, Mr Jacob Modise, which appears on the RAF Web Site. For ease of reference we quote verbatim again as follows:

“Season's Greetings

The year 2006 is finally coming to an end. We wish to thank you for your patience while we at the RAF look back on a year of critical introspection and a candid admission of our weaknesses and shortcomings. As such, we look forward to your continued support in 2007 which has been earmarked as the year of delivery and implementation.

To those of you who will be traveling, have a safe journey.”

The words we would like to accentuate in italics are:

“… while we at the RAF look back on a year of critical introspection and a candid admission of our weaknesses and shortcomings. As such, we look forward to your continued support in 2007 which has been earmarked as the year of delivery and implementation.”

We now ask you to bear these words in mind as we outline to you two important High Court Judgments handed down in the past year.

The First judgment is that of Satchwell J in the Johannesburg High Court in an unreported Judgment under case number 12441/03 handed down on the 26 th January 2006in the case of

BARCLAY TREVLYN SEYMOUR SMITH V ROAD ACCIDENT FUND

In this Case on the day of the hearing the Fund's Advocate wanted to amend the Plea filed by it previously to add in an additional ground of negligence it wished to allege on the part of the Plaintiff in this matter. The Learned Judge established that the reason why this additional ground was being introduced at such a late stage, was because the Fund had only briefed its Counsel the day prior to the Trial and that Counsel and his Attorneys only consulted with the Fund's Insured Driver on that day, the morning of the Trial. Counsel admitted that the Fund had filed its Plea at a time when it had not even consulted with its Insured Driver and on incomplete information made available by the Fund to its Attorneys.

Satchwell J was mindful of the fact that the proposed amendment had to be granted but that in the process the effect of the grant of the amendment would necessitate the Plaintiff having to request a postponement in order to enable him to prepare for Trial on the basis of new information which only came to his knowledge on the day of the Trial. The postponement of the matter would not only inevitably delay the conclusion of an already drawn out matter but would also involve the Plaintiff in the incurring of additional unnecessary costs.

The Learned Judge at page 4 of her typed Judgment had this to say:

“I believe it appropriate to comment on the manner that pleadings were drafted. The Defendant in this case is a statutory body funded entirely by money from road users and tax payers. There is an obligation upon it, and those who represent it, to behave with a modicum of honesty and professionalism that one would expect of such a statutory body. One would expect of all parties to litigation that their pleadings at least attempt to have some relation reality. One expects of all parties to litigation that before their attorneys and their counsel prepare all pleadings and hand them into a court, that these pleadings at least arise from some perception or knowledge or understanding of that to which the pleadings relate. One expects that the pleadings are more then mere “standard allegations” churned out by a computer. I consider it to be contemptuous of this court that the defendant has come to court on the basis of ‘standard allegations'.”

The Learned Judge granted the Defendant's application to amend and postponed the Trial to allow the Plaintiff time to prepare properly for it on the basis of the new allegations confronting him, and ordered that the costs occasioned by the amendment and the postponement be paid by the Defendant on the Attorney and Own Client Scale. In addition she ordered that her judgment be served on the Minister of Transport, the Deputy Judge President of the Witwatersrand Local Division of the High Court of South Africa, the Plaintiff, the Clair Person of the Board of the Road Accident Fund, and the Chief Executive Officer of the Road Accident Fund.

On page 14 of her typed judgment Satchwell J said:

“For all these reasons I consider the defendant to be more then dilatory. I consider the defendant which is, as I have indicated, a statutory body to be contemptuous of this court in its planning and preparation, to be contemptuous of the plaintiff who is not funded by the taxpayer, to be unprofessional and to have so hamstrung its legal representatives as to have rendered them ineffectual with regard to the proper professional conduct of this matter.”

The Supreme Court of Appeals of South Africa, also considered an award of Attorney and Client costs against the Road Accident Fund in an unreported judgment it handed down on the 20 th September 2006 in case number 017 of 2006 in the Case of

NYAMBENI MADZUNYE AND THUSO PRUDENCE RAMALIA VERSUS THE ROAD ACCIDENT FUND

In this case the Appeal Court found that the judgment of the Trial Judge in this case to have been so fundamentally incorrect on the issue of liability, that it not only reversed the decision but held that the Fund should not have pursued the Appeal.

On pages 9 and 10 of the typed judgment at paragraphs 17 and 18, Maya JA with whom Brand JA and Combrinck AJA concurred had this to say:

“17 In an unreported judgment of this Court in ROAD ACCIDENT FUND VS ROMAN KLISEWICZ CASE NUMBER 192/2001 Howie JA (as he was then) set out the extent of the Respondent's responsibilities saying at para (graph) 42:

‘The (Road Accident Fund) exists to administer, in the interests of road accident victims, the funds it collects from the public. It has the duty to effect that administration with integrity and efficiency. This entails the thorough investigation of claims and, where litigation is responsibly contestable, the adoption of reasonable and timeous steps in advancing its defence. These are not exacting requirements. They must be observed.'

•  I find it almost impossible to believe that the respondent would ever have been in doubt that the court a quo's findings regarding the bakkie's involvement in the collision were wrong. By persisting with its opposition of the appeal on the basis of a judgment with the court a quo had so palpably misconstrued the issues, the respondent, which relies on the public purse for its existence and does not, therefore, have unlimited financial resources, conducted itself in a manner which cannot be reconciled with the requirements set out in the Klisiewicz case. This is particularly so having regard to the fact that the intention of the Act, in terms of which the respondent functions, is to give the greatest possible protection to victims of negligent driving of motor vehicles. The fact that there may have been merit in opposing the appeal in respect of the taxi cannot detract from its ill considered decision. In the circumstances a costs order on the attorney and client scale against the Respondent is, in my view, justified….”

The past year has been one in which the CEO of the Fund, the self same Mr Jacob Modise has been more then outspoken in his remarks made to the media to the effect that the woes of the Fund have been largely attributable to the unconscionable acts of Attorneys who represent Road Accident Victims and the Fund itself, in the manner in which they have conducted and continue to conduct themselves. The legal profession as represented by Attorneys has, we are proud to state, defended these statements which are devoid of any truth or substance, fearlessly, uncompromisingly and proudly, and the reader in this regard is invited to log on to the Johannesburg Attorneys Association Web Site at www.jaa.org.za to see just how these baseless allegations have been refuted.

We conclude this article by posing to you, our reader, this question: Are we naive to believe in the light of the scathing remarks of four High Court Judges three of whom occupy exalted seats on our Appeal Court Bench, that Mr Modise now appreciates that the woes of the Fund he administers are largely due to his own office bearers, litigation advisers and claims handlers not putting the mission statement of the Fund into operation?

VICKY BOVE AND LESLIE KOBRIN

December 2006

 

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