Judge accuses RAF of wasting millions on ‘chaotic’ court cases

A judge of the Gauteng High Court in Pretoria has blasted the Road Accident Fund (RAF) for its “chaotic approach to litigation”, which has resulted in huge losses of public money.

Courts are swamped with RAF cases, many of them without merit or with over-inflated claims for compensation.

But “the main problem lies with the RAF”, said judge Jan Swanepoel in a recent judgment. The RAF did not deal with its matters properly, did not send lawyers to court to oppose applications or, if it did, did not provide them with any instructions.

This has resulted in “default” judgments. The fund would then apply to rescind the judgments, often on baseless grounds.

“In this manner huge sums of money, public money, it must be emphasised, are lost,” said Swanepoel.

In the week of May 5, he had granted judgments against the fund of R25m, and two other courts made default judgments in the same week, which he said would have added R50m to the RAF’s liabilities, “at the same time it pleads poverty”.

He pointed out that in two matters with over-inflated claims, the RAF had not provided any expert reports to assist the court in assessing whether the claims were reasonable.

The case before Swanepoel was an application by the RAF to rescind part of a previous order granted in favour of a road accident victim in 2021. The RAF had been ordered to pay past medical expenses of R223,000 and future loss of earnings of R6m.

The RAF’s rescission application was made outside the allowed time frame. It gave no explanation for this.

A more “serious problem”, Swanepoel said, was that the RAF made three untrue submissions to the court: that the 2021 hearing was heard virtually, that its defence had been previously struck out, and it had been barred from making submissions to the court.

The record showed that the matter had been heard in open court, its defences were never struck out and the fund was represented at court by N Xegwana from the office of the state attorney. It had been placed on record that she was there to “note the judgment” and had no instructions to make any submissions.

Swanepoel said there was no legal basis to rescind the judgment that because of the “false averments”.

He had advised N Kunene, who drafted the affidavit with the false claims, and Tonya de Beer, who deposed it, to appear before him. He was considering making them personally pay the costs of the litigation.

Kunene explained that she drafted the affidavit after receiving a memorandum from the RAF in which the alleged facts were spelt out. She did not know they were not true. She said De Beer was merely asked to sign the affidavit and she herself did not have knowledge of the facts of the matter.

Swanepoel said this was “highly unacceptable” and “perturbing”.

“The result is that the respondent (the claimant) has been dragged to court to oppose an application based on falsehoods.”

He said “although I cannot express my disapproval of Ms Kunene and Ms de Beer’s conduct strongly enough, I accept that they did not set out to mislead. The falsehoods originated from the fund, who misrepresented the facts to them.”

Because of this he would not make a personal cost order against them. He ordered the RAF to pay costs on a punitive scale.

“This application has added to the applicant’s financial burdens in that it will be required to settle the costs of a doomed application which resulted from its own inept management of its affairs.”

Losing by default

The main problem lay with the RAF and its chaotic approach to litigation, of which this application was an example, Swanepoel wrote.

He said when the fund had terminated the services of its panel attorneys, there had been warnings that default judgments would result and inflated claims would not be properly scrutinised.

This proved to be true, and five years later the RAF’s system was largely still “in chaos”.

“Many cases are heard every day in which the applicant is not represented at court or, if it is, instructions are not forthcoming.”

Swanepoel said this was despite the fund being given special legal treatment — not extended to any other litigant — in that it was given multiple opportunities to comply with the rules of court.

“Notwithstanding the multiple warnings it has received, I still had 41 unopposed matters on the default roll in the week of 5 May 2025. In eight of these matters, the defence had been struck out and in 13, the fund was under bar [failing to file papers within the prescribed time]. In 20 cases the fund had not even noted an appearance to defend.”

He said this failure by the fund to properly exercise its constitutional duties “required urgent attention”.

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