14 August 2008
The South African Communist Party is deeply concerned by the decision of the Cape Acting Judge President to grant a temporary order against the Road Accident Fund’s policy of paying claimants directly. This needs to be seen as part of a wider resistance to pro-poor transformation from sectors of the judiciary and other legal professional strata. We fully support the concerns raised in this regard by the SA Transport and Allied Workers’ Union, the SA National Civic Organisation, and the SA Commuters Organisation.
Claims paid by the RAF come from funds to which we all contribute via the fuel levy. This is public money and it is absolutely essential that we ensure that the R6-billion a year collected in this way reaches those for whom it is intended. In 2000, the Satchwell Commission into the RAF estimated that more than 50% of the Fund’s resources were being consumed by professional fees, most of it going to lawyers. There is no reason to believe that things have improved. Indeed, currently, the Fund estimates that some R4-billion of its annual R6-billion from the public purse goes to professional fees. Something is clearly very seriously wrong!
The SACP notes that there are cases in which legal firms proactively assist road accident victims with hospital fees and other expenses. This is done in anticipation of being able to claim a very healthy slice of the eventual RAF payout by way of a contingency fee. Needless to say this is not done out of any philanthropy but on a cold calculation of the likelihood of the claimant winning a claim in an often deliberately protracted legal process. The SACP concedes that there may be cases in which accident victims benefit from this arrangement. But there is absolutely no reason why the eventual claim payout should not be paid directly to the claimant even in these cases. The claimant will then owe the lawyer a relevant contingency fee.
The advantage of this is that it introduces transparency. The RAF, acting on behalf of the South African public, will know exactly how much it has paid to the claimant, and the claimant should have an account from the legal firm reflecting exactly what is owed to the firm, item by item. Currently law firms are simply refusing to disclose to the Fund (which is a public entity answerable to parliament) what proportion of a claim they have passed on to the claimant. This is hugely problematic. The Law Society concedes that there might be “some rotten apples” within the legal fraternity, but the Society and other professional bodies have shown very little serious intent to deal effectively with such cases. The decision of the Cape High Court once more reinforces the impression of a judiciary that is more concerned to protect narrow professional vested interests than promoting social justice.
It is important that the Fund be able to pay claimants directly. However, this is only one part of a general response. Cabinet long ago approved, in principle, the Satchwell Commission proposal that the Fund should be a no-fault benefit scheme and not the current highly litigious system that amounts to a multi-billion rand opportunity for lawyers. However, cabinet has failed to implement this policy. In line with the Satchwell Commission and the Taylor Commission, the SACP calls for the speedy transformation of the Road Accident Fund as part of building a comprehensive social security net.
Issued by the SACP.
Contact:
Malesela Maleka
SACP Spokesperson – 082 226 1802