South Africans injured in car crashes face an uphill battle to secure justice, thanks to the Road Accident Fund’s (RAF) lack of capacity for compulsory mediations.
This has created a backlog of thousands of cases and has effectively blocked access to courts for many victims.
The root of the issue stems from the Gauteng High Court’s Mandatory Mediation Directive.
This was issued in April this year by the Judge President and made it so that almost all civil matters undergo court-annexed mediation before going to trial, including RAF claims.
Initially, this ruling was intended to clear the considerable trial backlog, but it has instead led to many South Africans being shut out of court.
Advocate Justin Erasmus, the Personal Injury Plaintiff Lawyers Association’s (PIPLA) chairperson, has noted that the statistics highlight a troubling trend.
He outlined that since the ruling was made, two legal firms have served over 1,000 Rule 41A notices on the RAF.
However, only 35 of these have been answered, a mere three have gone to mediation, and none have been settled to date.
This indicates that the RAF can’t practically cope with the volume of notices it receives.
“The RAF simply does not have the capacity to mediate in volume,” he said.
In response to this crisis, PIPLA filed an urgent supplementary affidavit on behalf of its members last week in the Gauteng Division of the High Court regarding the current revised mediation directive’s lack of functionality.
Before this, in May, PIPLA had approached the Constitutional Court to challenge the legality and constitutionality of the Practice Directive mandating compulsory mediation in civil matters in the Gauteng Division – arguing that it infringed on the constitutional right of access to court.
PIPLA’s application is expected to be heard between late 2023 and early 2026, and Erasmus noted that, based on the numbers from the last four months, they have a strong case.
Denied access to court
To avoid a backlog, Gauteng’s trial courts must carry about 300 matters per week, with mediations potentially lasting the entire day.
Erasmus noted that to keep pace with this, there would need to be at least 60 state attorneys solely dedicated to the task.
“This becomes impossible when one considers there are currently only 35 state attorneys in Gauteng, all with other fairly substantial responsibilities,” he said.
“Our judicial system is hopelessly under-resourced to meet this demand, as illustrated by the current situation.”
He also warned that when combined with the financial and procedural burdens placed on plaintiffs, the potential benefits of the directive are far outweighed by its practical drawbacks.
Erasmus agrees that mediation can play a valuable role for many, but not when imposed on a scale that neither the RAF nor the court system can manage.
“This is essentially going to prevent people having access to Justice and the chance to have their case heard, ever, at the current rate,” he added.
The Association for the Protection of Road Accident Victims (APRAV) echoed his concerns and has warned that Gauteng’s civil justice system is nearing collapse.
Based on their calculations, it could currently take anywhere from 8 to 12 years for an RAF claims incident to be paid out, if at all.
Along with this, APRAV said that the RAF is exploiting the broken system to reject thousands of valid claims based on an unlawful board notice.
“The directive has handed the RAF the perfect opt-out,” said APRAV Deputy Chairperson Ngoako Mohlaloga. “The RAF only settles matters once trial dates are allocated.”
“By stripping trial dates under the mediation directive, the court has made it even easier for the RAF to delay, deny, and deflect.”
Despite numerous urgent applications to challenge the directive, all have been dismissed or referred to the same court that issued the directive.
Functionally, this means that almost no progress has been made toward overturning this costly directive.
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