As an experienced member of the national cabinet, new transport minister Barbara Creecy surely knows that departmental policy is the responsibility of ministers “for the powers and functions of the executive assigned to them by the president” under section 92 of the constitution (“Urgent need to fix the broken Road Accident Fund”, September 17).

The way in which the Road Accident Fund (RAF) functions, or does not function, is an expression of government policy that is not working, in that road accident victims are kept waiting for fair assessment of their claims and payment of damages due to them. Everyone is entitled to the enjoyment of “efficient, economic, and effective use of resources”, as required by section 195(1)(b) of the constitution.

These good things are simply not happening in Gauteng because the RAF is thoroughly dysfunctional, disorganised, and disinclined to do its work. As a result, the court rolls in Gauteng are clogged with RAF cases that ought not to reach court at all. In this context the minister has asked the RAF board for suggested improvements.

A possible, even advisable, long-term fix requires a major change of policy: return all road accident personal injury claims work to the private sector where professional claims personnel (not unskilled deployed cadres) can attend to claims and still turn a profit, as was possible in the pre-RAF era.

In the short term, it is open to Creecy to insist, as a matter of ministerial policy, that a secret payment into court be made by the RAF in all matters, whether defended or undefended, in which the merits of the claim have been conceded wholly or in part. This keeps claimants honest and ends audacity-informing amounts being claimed. Mandatory mediation, at the expense of the RAF, are also a possibility open to Creecy.

In matters in which the RAF does not bother to enter an appearance to defend or make a secret tender, a general court notice indicating that amounts as claimed will be awarded summarily by courts seized with default judgment applications ought to have a back-straightening effect on the RAF and will certainly unclog the court rolls in short order.

If the RAF thinks the claim is overstated the secret payment into court is available to it as a weapon in keeping down costs, obtaining adverse costs awards against greedy claimants or their lawyers, and accelerating finalisation of cases. This “secret payment into court” weapon is in the arsenal available to the RAF but is not used for reasons that ought to be explained to the minister. In the pre-RAF era it was a primary weapon of the insurance companies.

The reasons for the RAF not defending some cases in which summons is served on it are obscure. Rank inefficiency suggests itself, but a calculated decision not to defend and instead to rely on the expertise of the judges to work out what the claims are worth (actually the RAF’s job) may be behind the bottlenecks in the Gauteng high courts.

Paul Hoffman
Director, Accountability Now